R v. CHIANG SUN KEUNG

Criminal Appeal No. 312 of 1996

Headnote

Criminal law and procedure - sentencing - young offenders between 16 and 21 years of age. Held whether or not the offence is an excepted offence under s.109A of the Criminal Procedure Ordinance, it is incumbent upon the courts to be wary and to exercise great care before they commit young offenders to prison.

IN THE COURT OF APPEAL

1996, No. 312
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The appellant pleaded guilty on 10th May 1996 to two counts of trafficking in dangerous drugs before His Honour Judge Sweeney in the District Court. He was sentenced to 3½ years imprisonment on each count to run concurrently after the judge called for and considered a Detention/Training/Drug Addiction Treatment Centre Suitability Report. He appealed against sentence, seeking a DATC order in lieu of the sentence of imprisonment. Having heard counsel, we had no hesitation in dismissing the appeal. We now give our reasons.

2. The facts are these. About 22.30 hours on 17th November 1995 the appellant emerged from Flat 3, 3rd Floor, Chung Ying House, 163 Tai Kok Tsui Road. The police who were lying in wait intercepted him. Inside a pocket of his jeans, they found a plastic bag containing what was subsequently established to be 13.48 grammes of heroin hydrochloride. They then searched the flat and found paraphernalia for packing drugs and 118.33 grammes of a mixture containing 14.38 grammes of heroin hydrochloride. The two lots of drugs were the subject of the two charges to which he pleaded. He admitted under caution that he had been about to make a delivery to a customer, and that he resided in Flat 3, in the room in which the drugs and paraphernalia were found.

3. At the time of the offence the appellant was only 17 years old. He had previously been convicted of two offences: (1) In February 1993, assault with intent to rob, for which he was placed on probation for 18 months. (2) In February 1995, possession of dangerous drugs, for which he was fined $5,000.

4. The Detention/Training/Drug Addiction Treatment Centre Suitability Report showed that the appellant was brought to Hong Kong by his family in 1988, when he would have been about 9 years old. He found it difficult to catch up in school despite repeating Primary 4. He dropped out when in Form 2. He then began to associate with the wrong sort of persons, progressing to association with triad members. Under their influence, he began to smoke No. 4 heroin at the age of 14. He continued to do so nearly every day for 3 years, up to the time of his arrest for the present offences. It is fair to say that the Report was not unfavourable. It concluded:

"In the interest of his reform, I am of the opinion that CHIANG may stand a chance of success in turning over a new leaf if given due and adequate social intervention. In this light, a course of abstinence treatment coupled with a period of after-care supervision would be expedient for his rectification."

5. In sentencing him, the judge noted that he was caught as he was about to leave "his packing factory" to go and make another delivery. Inside his room the police found not only 14.38 grammes of heroin hydrocholoride but also weighing scales, plastic bags and other drug packing paraphernalia which was spread around the floor. Although he was then unemployed the police also found over $8,000 in his jeans, clearly the proceeds of drug trafficking. The judge concluded:

"I am not satisfied that Drug Addiction Treatment Centre is a sufficient punishment for the gravity of this offence, or a sufficient deterrent for other youngsters who might be tempted to fund their drug addiction by such drug trafficking. I will follow the guideline sentences laid down by the Hong Kong Court of Appeal in the case of LAU Tak-ming [1990]2 HKLR; that is, for this amount of heroin hydrochloride, between 5 and 8 years' imprisonment after trial. I take 5 years as a starting point, and deducting 30 per cent for the guilty pleas, I sentence as follows, ... on each of the two charges ... 3½ years' imprisonment, to be run concurrently. The total is 3½ years."

6. The perfected grounds of appeal were as follows:

"(1) The sentence was wrong in principle and manifestly excessive in all the circumstances of the case.

(2) The learned Judge failed to take into account all of the mitigating factors and/or failed to give sufficient weight to the mitigating factors, namely the Appellant's age and guilty plea.

(3) The learned Judge failed to take into account and/or give sufficient weight to the recommendations of the Drug Addiction Treatment Centre Report when passing a sentence of imprisonment."

7. In pursuing those grounds, Miss Mairéad Rattigan for the appellant, who did not appear below, relied upon two judgments of Duffy, J. in magistracy appeals. In the first, R. v. Tang Fung-wan, Mag App No. 275 of 1995, the magistrate in his reasons for sentence referred to the following matters. The appellant had previously been committed to a DATC and been discharged under supervision but had been recalled due to poor performance. He committed the offence that came before the magistrate while on supervision. The offence was of trafficking in heroin, the amount being 15.61 grammes of a mixture containing 4.38 grammes of salts of esters of morphine. The magistrate held that a DATC order was an inappropriate sentence for trafficking involving that quantity. He considered a custodial sentence appropriate adding:

"Of paramount concern was deterrence to those similarly aged who might be tempted to traffick in drugs and to those who hire young persons to traffick for them. Her rehabilitation and reformation is a matter which can be attempted in the confines of prison. ... It is a sad duty to sentence a 17 year old to jail, let alone to a period of 35 months; however in my view,, having considered all the alternatives provided by law, it was the appropriate sentence and only option."

Duffy, J. in allowing the appeal and substituting a DATC order in replace of the sentence of imprisonment said this:

"I found myself in disagreement with the learned magistrate about the sentencing of this young appellant. She is only 17 years of age, and has a drug addiction problem, which is responsible for the present offence. In the event that experts within the DATC find that she is suitable for a period of abstinence therein, a sentencing court should be slow indeed to reject that finding."

We were informed by Miss Rattigan, who appeared before Duffy, J., that a DATC report which recommended a DATC order was subsequently received.

8. The second judgment relied upon was that in R. v. Nguyen Viet Hung Mag App No. 1310 of 1994 in which Duffy, J. said this:

"This was an appeal against a sentence of 18 months for theft. The learned magistrate was asked to and did call for a DATC Report which found the appellant suitable to be admitted to a DATC. However the learned magistrate did not consider the appellant to be genuine about his declared intention to rid himself of his drug habit, describing him as a 'public menace'. He therefore refused to send him to a DATC and sent him to prison.

With respect, I do not think he should have done that. It is quite clear that this appellant's criminal record is all drug related in the sense that he commits these offences to finance his drug habit. If it is felt, therefore that he could benefit from treatment in a DATC, the opportunity to send him there should not be lightly rejected. In this instance, although I sympathise with the magistrate's feelings about the appellant's continued offending, I think that the appellant should be given this final chance to attempt to rid himself of his drug habit. I therefore allowed the appeal and substituted a DATC Order for the term of imprisonment."

9. It appears that in neither of those two cases was the attention of Duffy J drawn to the judgment of this Court in Attorney General v. Suen Yuen-ming, Application for Review No. 25 of 1988, unreported. There, the 17-year-old applicant was convicted on his own plea to two charges of possession of dangerous drugs for the purpose of unlawful trafficking. The quantities of narcotic were 19.6 grammes and 17.57 grammes. The Correctional Services report recommended that a Training Centre Order be made. The judge accepted the recommendation. Counsel for the Attorney General submitted that the Courts have said on numerous occasions that those concerned in drug trafficking should receive no mercy; that the main factor in considering the appropriate sentence for such offences is both the punishment of the offender and the deterrence to others who are minded to engage, in whatever capacity, in drug trafficking. While the purpose of a Training Centre Order, custodial in nature though it may be, is to avoid the sending young offenders to prison and to assist in their reformation, the Courts, before making such orders, should carefully consider the nature of the offence, the need, which this Court has emphasised, to deter persons under disability, whether that disability stems from sex, age or infirmity, being used by those who are organisers of drug trafficking to engender sympathy in the mind of the Court.

10. Silke, V.-P. giving the judgment of the court said this:

"We accept that in the context of an offender such as [the respondent] there can be an apparent conflict between his interests, his rehabilitation, deterrence to him and to others and the interests of the community. We note that a section 7 offence is not an excepted offence under the provisions of section 1O9A of the Criminal Procedure Ordinance, Cap. 221. Clearly it is incumbent upon the Courts to be wary and to exercise great care before they commit young offenders to prison and this is a factor which the Legislature has recognised. [R. v. Hor Wai Ming and another C.A. 497/84 unreported]. While there may exist the conflict to which we have referred a moment ago between the varying aspects relating to the offence and the offender there equally well may be cases where the interests of the community can be best served, though we accept that these will be rare in drug cases, by placing greater emphasis on rehabilitation as distinct from deterrence."

11. The appellant here was charged under s.4 of the Dangerous Drugs Ordinance; unlike the section 7 offence in Suen Yuen-ming, the two offences of which the appellant was convicted, being offences contrary to s.4 of the Dangerous Drugs Ordinance, are excepted offences under the provisions of s.109A of the Criminal Procedure Ordinance. The court therefore was not required to be of opinion that no method of dealing with the appellant other than imprisonment was appropriate. That does not mean that due care does not have to be exercised before young offenders are sent to prison for such excepted offences.

12. Plainly, where young offenders are involved, the ordinarily better opportunity for reformation and rehabilitation, likely thereafter to diminish, must assume greater importance. On the other hand, there are the interests of the community to which reference has been made. There are also the considerations that underlie s.109A; the consideration that sentences perceived to be light would expose the young to use by organised drug traffickers; and there are other considerations we do not need to adumbrate. We think that the balance that has to be struck between those matters in the context of the particular circumstances of each case would be more effectively achieved by careful consideration of those matters, rather than by inhibiting the option that this Court in Suen Yuen-ming accepted would, save in rare instances, be the more appropriate in drug cases. In that regard we do not think that reliance on expressions such as that the court should be "slow indeed" to resort to imprisonment or that the other options should "not be lightly rejected" is sufficient. The courts are always slow to send young offenders to prison. We do not accept that the use of the expressions mentioned by Duffy, J. provide any support for Miss Rattigan's submission (which we reject) that the appellant has some sort of entitlement to, or should have first been accorded, at least one opportunity of benefiting from treatment in a DATC.

13. The position then is that in respect of an offender of or over 16 and under 21 years of age, who is guilty of an offence not declared to be an excepted offence under s.109A of the Criminal Procedure Ordinance, the court must be of the opinion that no other method of dealing with him is appropriate before sentencing him to imprisonment; but that, whether or not the offence be such an excepted offence, "it is incumbent upon the courts to be wary and to exercise great care before they commit young offenders to prison".

14. Having regard to the circumstances and the judge's reasons, we see no cause to doubt that the judge was sufficiently wary and exercised due care before sentencing the appellant. It was not suggested that the terms of imprisonment as such were excessive.

15. Moreover, there was before us the added consideration that the appellant had been in prison custody for over 4 months and should by then have been detoxified, notwithstanding that he may not have received psychological counselling and other DATC benefits apart from bare detoxification.

16. Those reasons for not interfering with the judge's exercise of discretion, in the absence of any good reason for intervention, were overwhelming.

17. For the foregoing reasons, we had no hesitation in refusing leave to appeal against sentence.