HKSAR v. TONG WING SUET SHARON

CACC331/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 331 OF 2011

(ON APPEAL FROM DCCC NO. 1237 OF 2010 &

DCCC NO. 264 of 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Saw J (giving the reasons for judgment of the court) :

1.  On 20 January 2012 we allowed the application for leave to appeal sentence in this matter.  Treating the hearing of the application as the appeal we quashed the order made on 11 August 2011 that the appellant be detained in a Training Centre pursuant to section 4(1) of the Training Centre Ordinance Cap. 280 and substituted an order that she be detained pursuant to section 4(1) of the Rehabilitation Centres Ordinance Cap. 567.  We said then that we would hand our reasons down in due course.  These are our reasons.

Background

2.  The appellant was born on 12 August 1994.  She is now 17 years of age.  She was originally charged together with a male Yim Hung Lui (“Yim”) with :

(1)  Trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap. 134 (charge 1).

In addition she was also charged with :

(2)  Permitting a divan contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance Cap. 134 (charge 2).

(3)  Possession of apparatus fit and intended for the inhalation of dangerous drugs contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance Cap. 134 (charge 3).

3.  Given the nature and quantity of dangerous drugs in charge 1, namely :

(a)  12 tablets containing 0.07 grammes of nimetazepan,

(b)  6.34 grammes of a crystalline solid containing 5.89 grammes of methamphetamine hydrochloride and 95.81 grammes of a powder containing 78.44 grammes of ketamine,

the venue of trial was the District Court.

4.  On 26 July 2011 in the District Court the appellant pleaded not guilty to charge 1 and guilty to charges 2 and 3.  Yim pleaded guilty to charge 1. The prosecution did not then proceed with charge 1 against the appellant. Yim was sentenced to a term of 50 months’ imprisonment which was ordered in part to be served concurrent to a term of 8 years’ imprisonment which had been earlier imposed for another unrelated drug trafficking offence.

5.  The appellant was sentenced to be detained in a Training Centre pursuant to section 4(1) of the Training Centres Ordinance Cap. 280.

The Facts

6.  The appellant was arrested on 6 July 2010 at rented premises at flat 1, 9^th floor, New Lucky House, 298-306 Nathan Road, Yaumatei, Kowloon (“the flat”).  When the flat was searched the police officers found the dangerous drugs particularized in charge 1 together with paraphernalia for drug use including that described in charge 3 namely : 6 bottles with straws inserted which were or had been used to consume methamphetamine hydrochloride.

7.  The appellant admitted that she and others had consumed drugs in the flat using the bottles with straws.

8.  The flat was rented for $3,000 per month.  The appellant was the registered tenant which accounts in part for charge 2.

9.  Yim was not present when the appellant was arrested and was himself not arrested until some time later.  He initially denied any knowledge of the dangerous drugs in the flat but eventually admitted that they were his and that he possessed them for the purposes of trafficking.

10.  Yim was at the time 42 years of age and a seasoned drug trafficker.  It is apparent that his influence on the appellant was to her detriment.

11.  The appellant appeared before HH Judge Anthea Pang on 26 July 2011.  Subsequent to the pleas of guilty to charges 2 and 3 counsel on behalf of the appellant submitted in his mitigation that as she had been remanded in custody for in excess of 10 months as at that date it was unnecessary to obtain institutional or DATC reports.  He urged the judge to impose an immediate custodial sentence.  No other submissions of any moment were made.  We assume that the appellant’s counsel presumed that any term of imprisonment imposed was likely to result in the appellant’s immediate release.

12.  The judge was not minded to adopt that course and ordered the preparation of background and Training Centre Reports and adjourned sentencing to 10 August 2011.

13.  On 10 August the judge approached sentencing on the assumption that a sentence of 1 to 2 years’ imprisonment was not uncommon for the offence of permitting or keeping a divan.  She went on to observe that in the case of the appellant her prime consideration was her reformation.  She decided that a Training Centre order was called for and this she imposed having considered a report which confirmed that the appellant was a suitable candidate.

14.  The appellants’ counsel had not then or earlier suggested any other rehabilitation based order.

The Appeal

15.  The grounds of appeal advanced on behalf of the appellant were to the effect that :

(a)  the judge failed to take into account the period of the appellant’s pre-trial custody when making the order she did; and

(b)  the judge failed to consider the alternative and more appropriate Rehabilitation Centre Programme.

16.  As to 15(a) above we observe that the appellant’s counsel in the lower court advised the judge that the appellant had been in custody.  He said :

“As for the 1^st defendant, as she was already be remanded for the — for this case since September last year, so the 1^st defendant has been — already remanded for about 10 months. So I would urge you not to obtain any custodial institution reports or the DATC report, instead the defence would urge you to impose a prison term on the 1^st defendant.”

17.  It is apparent from the above passage that the judge was obviously alerted to the period of pre-trial custody of the appellant. 

18.  However it does appear that no consideration was given to the possibility of making a Rehabilitation Centre order — which was the course urged upon us in the appeal.

19.  The matter was before us on 5 January 2012.  We were told that the appellant wished to have a Rehabilitation Centre order substituted for the Training Centre order and that she appreciated that we could not do this unless and until a report was obtained pursuant to section 4(3) of the Rehabilitation Centres Ordinance Cap. 567.  Having considered counsel’s submissions we ordered the preparation of that report and adjourned the further hearing of the application to 20 January 2012.  We were satisfied that the appellant met the criteria set out in para. 4(2) of the Rehabilitation Centres Ordinance.

20.  On 20 January 2012 the Rehabilitation Centre Suitability Report was available. Whilst the appellant was originally considered to be suitable for detention in a Training Centre, it is clear from the report dated 18 January 2012 that she was also suitable for detention in a Rehabilitation Centre.  Given the above we were invited to substitute an order for detention in a Rehabilitation Centre — this was the course we adopted.

21.  When considering the options of Training Centre or Rehabilitation Centre we were told that an order for detention in a Training Centre provides for a period of detention of not less than 6 months and not more than 3 years — and that the normal period of detention is of the order of 18 months and that in the case of an order for detention in a Rehabilitation Centre the period of detention, in aggregate, is not less than 3 months and should not exceed 9 months.

22.  We decided to substitute the Rehabilitation Centre order not because the order for detention in the Training Centre was inappropriate but because of the unique circumstances of the appellant.  She clearly met the pre-requisites for both orders but given the length of her detention prior to being sentenced we decided that the shorter Rehabilitation Programme was at this point in time to be preferred.