HKSAR v. CHEUNG KA LON

CACC 315/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2000

(ON APPEAL FROM DCCC 561 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 19 July 2000, the Applicant, aged 19, pleaded guilty in the District Court before Judge Line to a charge of burglary. The Applicant had broken into a shop in Tuen Mun and stolen a small amount of property on 5 April 2000. He had prised upon a roller-shutter in the early hours of the morning using a crowbar. After the offence, he was arrested outside the shop. The Applicant was sentenced to detention at a training centre. He now seeks leave to appeal against his sentence.

2. In his written application, he gave no reason why leave was being sought although today he has expressed the hope that this court might make an order that he go to a drug addiction treatment centre (DATC) because, at the time when sentence was passed in the District Court, he was already subject to such an order. The Applicant also hoped to be given a concurrent order at DATC because apparently his girlfriend is pregnant and because at the time of the offence he was so affected by the drug known colloquially as "cross" that he really did not know what he was doing.

3. The judge in deciding to send the Applicant to a training centre set out with his usual clarity the reasons for his decision. We are satisfied that, as the circumstances with which the judge was confronted amounted to a familiar sentencing problem confronting judges in the District Court, it would be right to repeat what the judge had to say in his Reasons for Sentence as they could not have been better expressed. In passing sentence the judge said:

"In January of this year, you committed an attempted theft. It was not very serious. You were bailed until 5 April. On that day you were put on probation. In the meantime in February, you had committed a further attempted theft, a more serious one, going into premises and looking in showcases in the place where mobile telephones were kept. You were bailed in respect of that. In the early hours of the morning before your appearance on 5 April, you were out burgling, trying to get into a shop with a crowbar.

I have got reports on you. It reveals that you take almost any drug that you come into contact with, that you have been leading what is called a loafing lifestyle, that you have turned your back upon and ignored the good advice of your parents, and the history reveals that being caught, arrested, brought to court and the like has absolutely no effect upon your criminal conduct.

One only has to recite those facts to make it absolutely apparent that you are a young man - because you are only 19 - who needs training.

After those crimes that I have described, you committed the further offence of being in possession of drugs. You are in DATC at the moment. I am asked to leave you there but I cannot do that. The crime you committed of seeking to burgle commercial premises, has a starting point of up to 21/2 years' imprisonment. If you were not addicted to drugs and behaved in the same way, you could have expected, with your record, to have gone to Training Centre. The idea that the extra vice of being addicted to drugs should result in you being locked up for less time, only has to be stated to be seen to be unreasonable.

I appreciate the report from the Correctional Services says that you are unsuitable for Training Centre, but the sole reason for that is your drug dependency. But I regret to say that, for the reason I have just given, is not sufficient reason to leave you in DATC and not give you the proper sentence for the crime you committed.

The problem of what to do with young men who are drug addicted but need to go to Training Centre is one that has vexed the courts for a long time now. It is a matter of regret that the DATC element of your incarceration has to finish today because I send you to Training Centre. The same authority runs both institutions but one has to treat them, under the present rules and law, completely separately. That is a matter of regret.

It is as long ago as 1987 the Court of Appeal, in the case of Lee Yuen-yee, which was Appeal Case No. 346 of that year, was complaining that the court did not have the power to do the sensible thing, which was to let you do your DATC, then go for training. That is what ought to happen. But despite the weight of that suggestion from the Court of Appeal in 1987, no one has done anything about it and we are faced again with this problem that we have now.

I can walk out of my chambers this morning, putting my hands on two judgments from the Court of Appeal which happened to be cases from me, that is why they were in my chambers, they are 1997/746 Criminal Appeal and 1998/765 Criminal Appeal, where I was faced with virtually the identical situation that I am faced with you today. In both of those cases, I said much what I have said today, and the Court of Appeal were kind enough to say that they agreed entirely with what I said. But despite that, the rules have not changed.

If it be that having a drug addict in their Training Centre programme causes the Correctional Services some extra problems, I regret it, but in the end, since they can prompt change in legislation, it is their fault, not ours. And I have seen enough cases like this for people to know that once they have been caught once and they are drug addicts, they know they are going to go to DATC. They think that it is a licence then to commit further crime because they will not go to Training Centre. Anyone who has that perception must know it is wrong.

Please do not think that I have forgotten the positive things. I have remembered you co-operated. You were sensible enough to plead guilty and the like, but even with those in the scales, Training Centre, in my judgment, is obviously the right sentence."

4. Once again, this court can only express wholehearted agreement with the judge's sentence.

5. The application is dismissed.