Hong Kong Judgment

Court of First Instance

HKSAR v. CHEUNG TAM KUNG

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Source document

01

Holding and result

The magistrate complied with the required procedure by obtaining a suitability report which unequivocally recommended treatment; given that recommendation and the careful consideration by authorities, the decision to send the appellant to a drug addiction treatment centre was within proper discretion and the appeal must be dismissed.

Court disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Original order sending appellant to a drug addiction treatment centre upheld

02

Material facts

Parties

HKSAR

Respondent Counsel: Mr Paul K. Madigan, SGC, Department of Justice

Cheung Tam Kung

Appellant

Amounts and remedies

  • Appellant Age: 65

03

Procedural history

  1. Posture

    Magistracy Appeal (court of First Instance Appellate Jurisdiction) / Appeal Judgment (decision)

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant, appearing in person, argued that because he is 65 years old and has multiple previous drug convictions, sending him to a drug addiction treatment centre would serve no useful purpose and the sentence was inappropriate.
Respondent
The respondent, represented by Mr Paul K. Madigan SGC, relied on the drug addiction treatment suitability report which recommended treatment and submitted that the magistrate properly exercised her discretion in imposing the treatment order.

05

Court’s reasoning

  1. 01

    Magistrates' practice and drug addiction treatment procedure as applied in this judgment

    Magistrate must obtain a drug addiction treatment suitability report when considering a treatment order

  2. 02

    This High Court judgment (HCMA648/2002) and sentencing discretion principles

    Court should give weight to an unequivocal suitability report and recommendations of those who handle treatment placements

  3. 03

    Established appellate review principles as applied in this judgment

    Sentencing discretion of magistrate will not be disturbed absent error or misdirection

06

Ratio, limits and disposition

Ratio decidendi

The magistrate complied with the required procedure by obtaining a suitability report which unequivocally recommended treatment; given that recommendation and the careful consideration by authorities, the decision to send the appellant to a drug addiction treatment centre was within proper discretion and the appeal must be dismissed.

Obiter and limits

  • Although the appellant is 65 and has prior drug convictions, that fact alone does not render a treatment order futile
  • Cases involving the repeated offenders must still be considered on the basis of professional recommendations and the statutory framework for treatment orders

Court disposition

Appeal dismissed

  • Appeal dismissed
  • Original order sending appellant to a drug addiction treatment centre upheld

Source and reliance status

Court of First Instance · 14 August 2002

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Judgment text

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Source document

Court of First Instance

Judgment· 14 August 2002

HKSAR v. CHEUNG TAM KUNG

bjbj HCMA648/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.648 OF 2002 (ON APPEAL FROM TWCC 1197 OF 2002) ------------------------

BETWEEN HKSAR Respondent and CHEUNG TAM KUNG Appellant ------------------------ Before : Deputy High Court Judge Carlson in Court Date of Hearing : 14 August 2002 Date of Judgment : 14 August 2002 -----------------------

J U D G M E N T ------------------------

AUTONUMOUT On 14 June 2002, this appellant was sent to a drug addiction treatment centre in respect of an offence of possession of a syringe which contained a mixture containing heroin. The magistrate called for a drug addiction treatment suitability report as she was required to. That report indicated that he was suitable for treatment there, and the magistrate took the view that was the right course to take.

AUTONUMOUT The particular feature in this case is that the appellant is 65 years old, and that he also has a number of previous convictions for drug offences. It might be said that no useful purpose can be served in imposing such a sentence. His case has been looked at very carefully by those who deal with these matters and the recommendation was unequivocal. In all the circumstances, I do not think that this sentence can be faulted. Accordingly, the appeal be dismissed. (Ian Carlson) Deputy High Court Judge Mr Paul K. Madigan, SGC of the Department of Justice, for the Respondent The Appellant in person -

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