HKSAR v. CHOI KWOK FAI

CACC 109/2022

[2023] HKCA 101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 109 OF 2022

(ON APPEAL FROM HCCC NO 285 OF 2020)

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J U D G M E N T

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1.  The applicant stood trial before Lee J (the judge)  and a jury on one count of trafficking in a dangerous drug, namely 27.4 grammes of a crystalline solid containing 27.3 grammes of methamphetamine hydrochloride (commonly known as “Ice”). He pleaded not guilty to the trafficking count, but guilty to the lesser offence of simple possession, which was rejected by the prosecution. On 14 June 2022, following a trial, the applicant was acquitted of the trafficking count and convicted of the alternative offence of possession. On 4 July 2022, he was sentenced to be detained in a Drug Addiction Treatment Centre (DATC).

2.  On 27 July 2022, the applicant applied for leave to appeal against his sentence on the sole ground that the DATC order was unfair as he had been in custody for 16 months prior to his sentence. 

3.  The applicant has been notified of today’s leave hearing but is not in attendance.  I am informed that he was discharged from the DATC on 28 December 2022.  In accordance with section 83U of the Criminal Procedure Ordinance, Cap 221, I consider that in the circumstances of this case, it is in the interests of justice to deal with the application in the absence of the applicant. 

4.  The relevant facts of the case are that on 17 December 2019, the applicant was stopped and searched by a police officer who found in his possession the drugs as particularised in the count.  The drugs had an estimated street value of $14,166.  The applicant told the police officer that the drugs were for his own consumption.  When he was taken into custody, he tested positive for Ice.

5.  The applicant had been in custody from the day of his arrest on 17 December 2019 to 31 March 2021, when he was granted bail, and from 14 June 2022 to 4 July 2022, the period after trial and before sentence.

6.  At the time of his sentencing, the applicant was 49 years of age with a criminal record involving an array of relatively minor offences, including two offences possession of a dangerous drug in June 2002 and September 2011.  On the latter occasion, he was sentenced to probation, which he breached in January 2013, resulting in an order that he attend a DATC. 

7.  In light of the circumstances of the case and the prior convictions for possession of a dangerous drug, the judge called for a DATC report.  The medical officer, in his report, expressed the view that the applicant was drug dependent and considered that he was suitable for admission to a DATC.  He explained that in view of the applicant’s weak willpower and his lack of insight into his problems, another period of compulsory drug addiction treatment coupled with intensive counselling and supervision would be beneficial to him.  The judge in consideration of the applicant’s welfare and in order to assist him in quitting his drug habit ordered that he attend a DATC.  The judge was aware that the applicant had been in custody for an equivalent period of imprisonment for the offence for which he was convicted.  However, he was concerned about passing a sentence that was in the applicant’s best interests.

8.  A DATC order is a rehabilitative measure designed to help an offender rid him of his drug addiction.  This is made abundantly clear in section 4 of the Drug Addiction Treatment Centres Ordinance, Cap 244, which provides that a court can, having regard to an offender’s character and previous conduct, order that he be detained in a DATC if it is in his interest and the public interest that he should undergo a period of cure and rehabilitation in an addiction treatment centre.  This is followed by a period of supervision to further assist the offender from relapsing back into his drug addiction. 

9.  Notwithstanding the applicant had served a significant period in custody, there was the pressing issue of his welfare and future well-being which the judge properly took into account in ordering that he be detained in a DATC.  It was open to the judge to make such an order: HKSAR v Kwok Ka-yee, Karen, unrep., CACC 341/2016, 11 April 2017.

10.  Whilst I can understand the applicant feeling some sense of grievance, he should appreciate that having regard to all the circumstances, the judge made an order that he was entitled to make and with the best interests of the applicant in mind. 

11.  As the judge was entitled to order that the applicant be detained in a DATC, notwithstanding the period he had been in custody, I find that the applicant’s sole ground of appeal against his sentence is not reasonably arguable and his application is refused.