HKSAR v. PUN RAM KRISHNA

HCMA 215/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 215 OF 2017

(ON APPEAL FROM KCCC NO 890 OF 2017)

------------------------

------------------------

------------------------

J U D G M E N T

-------------------------

1.  The appellant pleaded guilty to one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210, and was sentenced to detention in a Drug Addiction Treatment Centre (“DATC”).

2.  He appeals against the sentence.

FACTS ADMITTED

3.  At about 2300 hours on 24 February 2017 the appellant wandered around inside a shop of SASA situated at G/F, Albion Plaza, 2-6 Granville Road, Tsim Sha Tsui, Kowloon with a white recycle bag.  He left the shop without making any payment and upon search 6 bottles of perfume in the value of $3,790 were found inside the recycle bag.  The case was reported to the police and the appellant was arrested.  He admitted under caution that he had stolen the 6 bottles of perfume out of greed.

GROUNDS OF APPEAL

4.  The appellant submits that he is newly married and his wife is in Nepal.  He asks for a fine or probation so that he can keep his job to support his wife and to go back to Nepal for one year.  His father and sister will help him to rehabilitate.  He is remorseful and will not do it again.

DISCUSSION

5.  The appellant is aged 31 and was educated in Hong Kong.  Prior to his arrest he was a part-time construction worker, earning about $1,200 a day.  He has 4 previous convictions and the last one was an offence of theft for which he was sentenced to a fine of $1,200 on 7 May 2016.

6.  During the appeal hearing the appellant complains to the court that the duty lawyer who represented him in the magistracy did not mitigate fully on his behalf because he refused to submit to the magistrate a letter of mitigation written by him.  The appellant discloses to the court what he had written in the letter, and it comes to light that the duty lawyer in the mitigation for the appellant had in fact told the court everything set out in the letter.  The complaint of the appellant is unfounded.

7.  It was submitted in mitigation by the duty lawyer that the 6 bottles of perfume were for the appellant’s own use.  The submission was rejected by the magistrate who made this clear to the duty lawyer.  The duty lawyer did not then address the magistrate or take the matter further.  In the appeal hearing the appellant takes no issue about the finding of the magistrate and also makes no complaint against the duty lawyer for how he conducted the mitigation in this regard.  However, as the appellant is unrepresented the court has to consider the matter to see if the duty lawyer had sufficiently protected the interests of the appellant. In the circumstances of the present case it was blatantly clear that the perfume could not be for the own use of the appellant.  The approach of the duty lawyer therefore cannot be criticised.

8.  In view of the criminal record of the appellant it was correct for, and indeed incumbent upon, the magistrate to obtain a DATC suitability report to find out more about the drug addiction of the appellant before sentencing.  It was stated in the report that the appellant had kept abusing heroin and cannabis even after the commission of present offence and was in lack of insight into his drug problem.  No doubt, the root of the problem of the appellant was his drug addiction.  The magistrate correctly concluded that the appellant had stolen the perfume to fund his vice habit.

9.  In the interests of the appellant and society rehabilitation of the appellant should be focused on helping him get rid of his drug addiction.  The magistrate rightly came to the conclusion that the appellant was in need of drug addiction treatment.  The court also shares the view of the magistrate that imposing a fine would likely be counter-productive because it would not stop the appellant from offending again.

10.  The appellant claims that he had been to DATC twice and a further order of detention there would not help him.  It is common knowledge that drug addiction is a baneful habit that is not easy to kick, but it can be done when the treatment is combined with the will power of the addicted person.  The appellant failed in the previous two occasions of detoxication treatment not because of the detention order being wrongly imposed but because of his lack of such will power.  This cannot be used as an excuse to say that an otherwise appropriate order of treatment is of no use and certainly cannot constitute a ground to stop making such an order when it is justified to do so.

11.  The appellant is only 31 years of age.  It is still not too late for him to turn a new leaf to live a fresh and drug-free life, particularly when he is now married and has a family to support.  Coupled with the remorsefulness of the appellant and the support of his sister and father as set out in his grounds of appeal the appellant should stand a good chance of rehabilitation after drug addiction treatment.  The court should not lightly give up helping him in this regard.

12.  The magistrate correctly considered the issue of proportionality between the offence and sentence before making the detention order.  Taking into account the criminal record of the appellant, the nature and value of property involved in the offence and the whole circumstances of the case an immediate custodial sentence is inevitable.  An order of detention in the DATC is a much better option than imprisonment and is not out of proportion with the criminality of the appellant in the present case.  The court is of the view that the sentence is neither excessive nor wrong in principle.

Conclusion

13.  Appeal against sentence is dismissed.