HKSAR v. CHAN HOI SHAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 161
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 5th March 1998, the Applicant pleaded guilty in the District Court to charges of burglary and attempted burglary. He was remanded for reports by Judge Barnes. On 16th March 1998, he was sentenced to be detained in a Training Centre.

2. The Applicant seeks leave to appeal against his sentence on the ground that when his lawyer read out the Training Centre Report in court, he told the Applicant that the report stated that the Applicant was a drug addict and therefore the Training Centre considered he was not a suitable candidate to be sent there. He complains that the judge, when she finally sentenced the Applicant to detention in a Training Centre, passed a sentence that was too heavy.

3. The Judge in passing sentence said:

"The Defendant is not a first offender. He has seven previous convictions, three of which are drug-related. For a theft offence in 1992, he was sentenced to a Detention Centre. He was serving a DATC Order when he pleaded guilty before me. ..................

If the Defendant was not so young I would have no hesitation to follow the guidelines and impose a custodial sentence in terms of imprisonment. However, the Defendant is only 20 years old and he has never been in jail before. Although his counsel in mitigation indicated that the Defendant does not wish to be sent to a Training Centre, I am not prepared to grant him his wish in this case as I fully concur with the view of the Young Offenders Assessment Panel. This young man needs training and rehabilitation."

4. We are in fully agreement with the trial judge. For the avoidance of any doubt, this Applicant's case what was considered with some considerable care by both the judge and the Correctional Services. In a report dated 13th March 1998, Correctional Services re-examined the Applicant's case and, in doing so, said:

".... Hoi-shan's addiction problem is seen to be his most imminent problem as attested by the confirmation from the Medical Officer that he is a drug dependant. To this end, when considering the best treatment mode for this young offender, his addiction problem needs to be addressed as priority and the Drug Addiction Treatment Centre programme seems to be a better answer to a cure. On the other hand, the Training Centre programme which is recommended by the Young Offender Assessment Panel could also benefit this young man. There is a place available for him.

5. This application is without merit and is dismissed.