R v. KONG KIN MAN

IN THE COURT OF APPEAL

1996, No. 13
Application for Review

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J U D G M E N T

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Litton V-P giving the judgment of the Court:

1. We have before us an application for review brought with leave by the Attorney-General under s81A of the Criminal Procedure Ordinance, Cap 221.

2. The respondent was convicted on 15 November 1996 after trial in the District Court before His Honour Judge Bailey of trafficking in a dangerous drug namely 107.43 grammes of a mixture containing 13.01 grammes of heroin hydrochloride.

3. The offence occurred on 13 June 1996 when upon interception by the police the respondent was found to be in possession of a plastic bag which contained the dangerous drugs in five small transparent bags. The judge rejected the respondent's evidence that he was holding the drugs for a friend, Liu, and that he had no idea what was in the bag. The judge concluded that the only reasonable inference was that the respondent had the drugs for the purpose of trafficking.

4. The respondent was born on 28 July 1978. He was therefore 17 when the offence occurred and 18 when sentenced on 27 November last year. He had a clear record. The judge sent for reports and noted that the respondent was a young man of poor educational achievement; that he has had a succession of menial jobs none of which lasted long; and it appeared that he was made use of by a more experienced drug trafficker.

5. The judge accepted that the offence was very serious and said that this court had indicated that an appropriate sentence after trial for the quantity of heroin involved would be five years' imprisonment for an offender of full age and before considering mitigation.

6. One of the reports before the judge dated 26 November 1996 was from the Commissioner of Correctional Services where the Commissioner advised the judge that the respondent was unsuitable for detention in a detention centre, though suitable for detention in a training centre where he would undergo a more comprehensive program including educational and vocational training followed by a longer period of after-care supervision. The judge, however, decided to reject the Commissioner's assessment and concluded that the respondent would "benefit from a short, sharp, shock of the type provided by the Detention Centre". In this regard the judge unfortunately overlooked the provisions of s4(4) of the Detention Centres Ordinance, Cap 239, and this over-sight was not corrected by counsel present.

7. Section 4(4) directs that the court shall not make a detention order against a young offender unless it has been informed by the Commissioner that the accused is "suitable for detention and that a place is available for him in a detention centre". In the light of the Commissioner's report it was not open to the judge to order that the respondent be detained in a detention centre. The sentence he imposed was ultra vires.

8. The question now for this court is what sentence we should impose. The respondent is now 18½ years of age. The authorities on sentencing clearly establish that age - whether youth or old age - carry little weight when drug trafficking is concerned. It is only in rare cases that detention in a training centre is appropriate on a conviction for drug trafficking: see in particular the Attorney General v. Suen Yuen-ming [1989]2 HKLR 403. There is a considerable public interest involved in showing by deterrent sentences that the courts will treat drug trafficking most severely.

9. Here the judge has plainly reached the conclusion that in this particular case the respondent should not be sent to prison. This is understandable. There was before the judge a report by Miss Li Wai Man, Pre-sentence Assessment Panel Officer, who gave a clear and sympathetic account of the respondent's background. The respondent's father works as an electrician and he has two elder brothers, one working as a clerk with Cathay Pacific and the other is a Form 5 student. Miss Li formed the opinion that there was a real prospect that training in a training centre may effect long-term reform in the respondent.

10. The circumstances of the offence itself does not indicate that the respondent has embarked upon a calculated course of criminal conduct; it was more a case of a young man momentarily coming under the influence of a more experienced companion.

11. Whilst the judge has plainly erred in imposing a Detention Centre order his general approach in ensuring that the respondent should not be sent to prison cannot be faulted in principle; for this, in our judgment, is an exceptional case.

12. It must be emphasized that training in a training centre is not a soft option. Depending on the respondent's own reaction to the regime he can be detained in a detention centre for up to three years followed by three years of supervision: a period longer than the term of imprisonment he might otherwise have served.

13. Having regard to the reports which are before us - in particular the report on his suitability for training - and the exceptional circumstances of this case we have come to the view that the appropriate order to make in substitution for the detention order which we quash is an order for detention in a training centre and we so order.