ATTORNEY GENERAL v. FONG MAN-HUNG

IN THE COURT OF APPEAL

1997, No. 5
(Application for Review)

______________

______________

______________

J U D G M E N T

______________

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

1. When we gave judgment on 16th May, we said that we were satisfied the judge misdirected himself in imposing Drug Addiction Treatment Orders in respect of all the offences. But then, having regard to the mitigating factors, the assistance Fong had given, the great benefit that he might be receiving from his DATC treatment and the consideration that the appropriate period of imprisonment having regard to these and other matters might not greatly exceed that which would remain of his DATC period, we thought it prudent to secure a progress report. We accordingly adjourned the matter pending receipt of such a report. It has now come in. Counsel have received it and Fong has had it interpreted to him. It is one that displays a singular lack of enthusiasm about him. Although it concludes with saying that a further and longer treatment period with intensive care is desirable for his rehabilitative interest, it shows that he lacks remorse and does not appear to have benefited so far. Besides, this is his second DATC order. Even if he had cooperated to benefit fully from the treatment, that would not necessarily have to be regarded as an exceptional circumstance such as to justify a DATC order (AG v Yau Wing-hong [1995]3 HKC 95, 99B-D; AG's Ref Nos 21, 22 and 23 of 1993 (Tanya Denise Churms)(1994) 15 CrAppR(S)741, 744). In these circumstances we think a custodial sentence should now be imposed.

2. Proceeding then to assess this, we think that the same starting point that was used in relation to Choi would be appropriate, i.e. 4 years. We would, therefore, take that as the starting point on the first charge to which he pleaded guilty. As to the other two offences, we think that the same starting point should be imposed, i.e. 4 years, but that these too should be concurrent as in the case of Choi. But the totality of those, we think would be much too high and accordingly we propose that only the final year of the 4-year concurrent sentences on the 2nd and 3rd counts should be consecutive to the 4-year sentence on the first count. That would produce a total of 5 years.

3. The applicant Fong, as we stated on 16th May, not only pleaded guilty but gave valuable assistance. For that we think he should receive the full usual discount of 50% which would bring down the 5 years to 2 years and 6 months. It is also usual on review to allow some discount where there is a sharply increased sentence. We think that is the case here, because in lieu of the DATC detention he will now go to prison. So, we allow 6 months for that which will bring it down to 2 years. That then is the sentence we impose. In effect, he will have to serve only about 1 year and 9 months because the 3 months he has already spent in custody will count towards the sentence. We accordingly set aside the three DATC orders made below and substitute in respect of each a sentence of imprisonment for 2 years to run concurrently.