R. v. WONG KIM MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.449 OF 1997

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J U D G M E N T

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1. The appellant was convicted by his own plea of trafficking in a dangerous drug. The dangerous drug was a total of 478.94 grammes of cannabis. He was sentenced to detention in a training centre. He now appealed against sentence.

2. The appellant was 16 years and 9 months old. He was stopped at the Macau Ferry Wharf and was found to have the cannabis strapped to his body. He has a clear record. In mitigation, it was submitted that he carried the cannabis to Macau, when he was subjected to pressure by loan sharks.

3. Before sentence, the magistrate called for reports. Community Service Order was not recommended. The probation report on the other hand indicated that there was no strong objection to putting the appellant on probation. The Training Centre report considered the appellant suitable for detention in a training centre. The Young Offender Assessment Panel concluded that the appellant had already transformed into a hard core delinquent. Though with a short history of delinquency, he had been through all the low walks of the criminal world. The Panel was of the opinion that he had no motivation for change and counselling based methods of intervention in an open setting would not have effect. The Panel recommended Training Centre as the best treatment measure for the appellant.

4. The magistrate in his reasons for sentence said that he considered the Young Offenders Assessment Panel adopted an overly harsh view and drew conclusion not supported by fact. His own view was that the appellant was a youth who had not been given sufficient direction in his upbringing and had fallen prey to more ruthless and exploiting persons. Given the serious nature of the offence, he considered custodial penalty was appropriate even though the appellant was a first offender.

5. The grounds of appeal are that the magistrate was misled by counsel for the appellant at the trial that the sentence for trafficking in that amount of cannabis was between 18 months and two years. This was not the range of sentence. According to A.G. v. Tuen Shui Ming [1995] 2 HKC 798 and Shum Chi Wa Cr.App.764/95 the sentence for up to 2,000 grammes of cannabis would be up to 16 months. It was submitted that if the magistrate had been aware of the proper range of sentence, he would probably have put the appellant on probation. The training centre order was wrong in principle.

6. It should be noted that the magistrate considered probation supervision attractive but not appropriate having regard to the background of the appellant. The magistrate had considered the option of probation but rejected it before he concluded that custodial penalty was the proper starting point for sentencing the appellant. He came to that conclusion after considering in a fair and reasonable manner all the reports before him. The options then open to the magistrate were custody in prison environment which would be more punitive than rehabilitative or training centre which was essentially rehabilitative and less punitive in nature. The magistrate was entitled to opt for the latter having regard to the youth of the appellant and his background.

7. The fact that he might have been misled by defence counsel as to the range of imprisonment for the quantity of cannabis in question is not relevant. The training centre order is not wrong in principle.

8. This court will not disturb any sentence if it is not wrong in principle, even though it may be serious from the point of the appellant.

9. The appeal against sentence is dismissed.