HKSAR v. CHOI KA YI

DCCC 199/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 199 OF 2016

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REASONS FOR SENTENCE

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1.  This is about the sentence of D3 who was convicted after trial of one charge of aiding, abetting, counselling and procuring D1 living on earnings of prostitution of others. Reference is made to the Reasons for Verdict (dated 6 October 2016) and the Reasons for Sentence for D1 and D2 (dated 10 November 2016). The sentence of D3 was deferred in order to obtain a Further Community Service Order Suitability Report (“Further Report”). Despite the seeking of the Further Report, D3 had been warned on the previous occasion that all sentencing options remained open.

2.  Now the Further Report is at hand. Ms Lai confirmed that the Further Report has been explained to D3 and the latter understands and agrees to its contents.  Ms Lai also submitted two letters from Operation Dawn concerning D3, the contents of which I have duly noted.  I am also grateful to Ms Yu Wing Lung, a representative of Operation Dawn Ltd (Gospel Drug Rehab Centre), who has given evidence in court as to what assistance her institution could offer to D3 in their drug withdrawal programme to which D3 has recently been admitted.  I also have the benefit of having the Probation Officer, Ms Chow Fung-ping, in court to elaborate and clarify her recommendation regarding D3. 

3.  As I have said in the Reasons for Sentence for D1 and D2, the case of D3 presents some sentencing difficulties in view of her personal circumstances and the nature and gravity of the offence that she stands convicted of.  Ms Chow, in the Further Report, is of the considered view that a Probation Order with conditions attached is a preferred option than a Community Service Order.  Ms Chow explains in court that her recommendation is based on D3’s problematic family background and circumstances, her lack of a stable address and employment, her drug addiction and her psoriasis which make her an unsuitable candidate for a Community Service Order.  On the other hand, from a rehabilitation point of view Ms Chow opines that D3 would require intensive and regular counselling in order to help handling D3’s family problems, changing her outlook of life, value system and self image and such counselling service is more readily available in case of a Probation Order.  Moreover, if a Community Service Order was imposed, D3 would need to terminate her current residential drug treatment programme, to be replaced by a community-based programme which is likely to be less effective.  This is because D3 has a number of associates outside who are less than desirable.

4.  The possibility of having D3 performed CSO during her treatment with Operation Dawn had been canvassed.  However, Miss Yu explains that that is not a viable option, as the institution does not have sufficient manpower to arrange D3 attending outside community service and the kind of voluntary service arranged by the institution is not recognised by the authorities as a valid placement for the purpose of a Community Service Order.

5.  I have considered in detail all the available sentencing options and D3’s circumstances.  I am alive to the fact that D3 is not a typically suitable candidate for a CSO as considered in the case of R v Brown [1981] 3 Cr App R(s) 294.   I am also aware that a proper balance has to be stroke among various sentencing considerations including rehabilitation, punishment and deterrence.

6.  Having said that, I agree with Ms Chow’s observation that D3’s problems stemmed out from her bad and stormy relationship with her parents as a youngster, which later led to her immature and irresponsible attitude towards life, her subsequent teenage pregnancy, lack of ability as a single mother and her lack of inter-personal and survival skills, all of which aggravated by her drug abuse.  D3 had to resort to “compensated dating”, and in other times public assistance, for her livelihood.  Her misfortunes do attract some sympathy.  Given her background, her still relatively young age and lack of previous conviction, I agree a chance should be given to facilitate her rehabilitation.  Moreover, given that she has already showed her determination to turnover a new leaf by voluntarily participating in a residential drug withdrawal programme, I am reluctant to obstruct the progress unless there is no other appropriate way to deal with her. 

7.  In this regard, I am given to understand by Ms Yu and Ms Chow that the programme offered by Operation Dawn will last for at least 12 months.  It would not be right to compare the programme offered by the institution with the regime of the DATC or the prison.  However, I note that the residential programme of Operation Dawn does entail some loss of liberty on the part of its participants.  I am also given to understand that the Probate Office maintains a close work relationship with Operation Dawn so that in case a Probation Order is imposed, Ms Chow would be able to closely monitor the progress of D3 in the programme. 

8.  Having repeatedly considered the matter, in my view justice and public interest would be best served and D3 would stand a better chance of rehabilitation if a Probation Order is imposed with stringent conditions.  Therefore, I sentence D3 to 12 month probation with the following conditions attached:-

(a) she shall work and reside as directed by her Probation Officer;

(b) she shall abstain from possessing or abusing any dangerous drugs, poisons or substances;

(c) she shall submit to random urine tests as and when directed by her Probation Officer;

(d) she shall complete the full course of residential drug withdrawal treatment programmes as and when directed by her Probation Officer; and

(e) she is not to commit any offences during the probation period.

9.  D3 has expressed consent to accept a probation order.  The consequence of any breaches of the above conditions has been explained to her.