HKSAR v. CHO HOI KIT HCMA 490/2007

S’s words:
Many magistrates always regard themselves that they are duty bound to call for DATC reports before sentencing. They may be right to do so. However, sometimes, with the assistance of such DATC reports, they may have failed to notice that it is wrong in principle to order detention in a DATC of a person currently serving a term of imprisonment. Cho Hoi Kit’s case with the assistance of AG v. To Ka-shing’s case can in suitable case scenarios assist some defendants’ legal representatives to ask for what such defendants are looking for – imprisonment.

--- quote from judgment ---

Date of Judgment : 10 July 2007

The Appellant appeals against the sentence of detention in a Drug Addiction Treatment Centre (“DATC”) passed on him by T.S. Jenkins, Esq. in the Magistrate’s Court at Shatin on two charges under the Dangerous Drugs Ordinance, Cap. 134, to which he had pleaded guilty, namely possession of a dangerous drug, contrary to section 8(1)(a) and (2), and possession of apparatus fit and intended for the inhalation of dangerous drugs, contrary to sections 36(1) and (2). He appeals on the ground that he was serving a prison sentence at the time and that it is wrong in principle to order detention in a DATC of a person currently serving a term of imprisonment. The prosecution (through Mr Cheung Wai-sun who is highly experienced and always helpful) concedes that that is wrong in principle. On the decided cases, principally that of AG v To Ka-shing [1987] HKLR 69 decided by the Court of Appeal, I consider the prosecution’s concession to be correct. Accordingly, I set aside the order for detention in a DATC and will, as the Appellant asks, impose a sentence of imprisonment instead.