HKSAR v. LEUNG SHUK YEE

HCMA334/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.334 OF 2001

(ON APPEAL FROM TMCC 299 OF 2001)

--------------------

--------------------

----------------------

J U D G M E N T

----------------------

1. The appellant was convicted on her own plea of an offence of possessing a Part I poison, ketamine, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap.138. That offence was committed prior to ketamine being included in the Schedule of Dangerous Drugs to Cap.134. The maximum penalty at the time of the offence for possessing this drug was accordingly two years' imprisonment.

2. Prior to sentencing, the magistrate sought various reports consisting of a probation report and reports as to the suitability of the appellant for detention in a drug addiction treatment centre, and in a training centre, and quite appropriately in this case, also sought a report from the chairman of the Young Offenders Assessment Panel.

3. The appellant was found to be unsuitable for detention in a drug addition treatment centre as she was not drug dependant. She was also found to be unsuitable for probationary supervision. This was not surprising as in 1998 and 1999 she had been the recipient of two such orders and had been brought back to court in respect of five separate breaches of those orders. Those orders had been imposed in respect of an offence of wounding and three offences of common assault arising out of two incidents.

4. The appellant was, however, found to be suitable for detention in a training centre by the reporting Correctional Services Officer and that course was also recommended by the Young Offenders Assessment Panel. The learned magistrate, after considering these reports, ordered her detention in the training centre.

5. She now complains in person that that order was too harsh. As I understand her complaint, she says that such an order will result in her undergoing a period of custody of at least six months and perhaps up to three years and that, very likely, she will be in custody for over a year. She says that any such period of custody is disproportionate to the offence she committed in possessing that very small amount of ketamine, i.e. 0.03 grammes.

6. Obviously, in terms of any consideration of the appropriate length of a prison sentence, the question of proportionality between the length of the sentence imposed and the seriousness of the offence is an important matter for the sentencer to bear in mind. But a training centre order, though custodial in nature, is not a sentence of imprisonment. It is an indeterminate term of custody, imposed upon an individual for the purposes of his or her rehabilitation.

7. Accordingly, precise questions of proportionality between the level of seriousness of the offence and the length of sentence imposed generally do not arise. Once a court sentences an individual to detention in a training centre, how long he or she is kept in custody pursuant to that order is within the discretion of the Commissioner of Correctional Services. The exercise of that discretion is constrained by the time limits imposed by section 4(2) of the Training Centres Ordinance, i.e. it must be a period of between six months and three years' detention. That discretion is given to the Commissioner of Correctional Services by our legislature because it is thought that with proper advice he is in the best position to decide when the offender has been rehabilitated sufficiently to allow his or her release into society.

8. But whilst primarily rehabilitative in nature and purpose, it is true that a training order carries with it a considerable element of deterrence and retribution.

9. Bokhary JA said in R v. Cheung Wing-wai and Others [1993] 2 HKCLR 139 at p.142 :-

"... it must be remembered that detention in a training centre can be for up to three years and that even then there can be post-release supervision for up to another three years thereafter. The principal purpose of detention at a training centre is of course rehabilitation. But there can be no doubt that rehabilitation under such circumstances carries with it considerable punitive and deterrent elements."

10. Accordingly, whilst primarily rehabilitative in purpose, detention in a training centre carries with it a significant element of punishment. Indeed, any loss of liberty for the period envisaged in a training centre order must carry with it an element of that nature.

11. For that reason, it seems to me that while whether a training centre order is appropriate in a particular case may well require the history and personal circumstances of the offender and that individuals suitability for a rehabilitative order to be taken into account as fundamentally important considerations, it is also true that the punitive aspects of such an order must be considered by the sentencing court.

12. Given that such an order can deprive a person of their liberty for up to three years and certainly for six months, it could well be inappropriate for trivial offences, even if nominally capable of attracting sentences of imprisonment, to be made the subject of a training centre order unless there was some compelling reason.

13. In other words, in my view, there is a threshold under which offences of a trivial and minor nature may well not be appropriate for the imposition of a training centre order. Precisely where that threshold lies will depend very much on the facts of each case. But it is something which fell to be considered in this case.

14. The appellant possessed 0.03 grammes of ketamine, i.e. an extremely small amount of a substance which, at that time, was not scheduled as a dangerous drug but was a controlled substance under Part I of the Poisons List to the Pharmacy and Poisons Ordinance.

15. Reluctant though I am to interfere with the sentence imposed by the experienced and careful magistrate in this case, it seems to me that the question of whether a training centre order in the circumstances of this offence would carry too great a punitive element given the minor nature of the offence was not wholly or sufficiently addressed. Given the amount and nature of the drug involved, in my view, the offence was of such a minor nature, certainly at the time of its commission, as to make a training centre order inappropriate. I say this, having considered the material before the magistrate as to the appellant's significant need for rehabilitation and the matters which were no doubt foremost in his mind as to her personal circumstances.

16. The appellant has now spent four months in custody. She likely will spend another year in the same custody, even in the event she made something approaching average progress towards her rehabilitation, if this order were to continue. Taking into account all of these matters, I propose to set aside the order that the appellant be detained in a training centre and replace it with a sentence which will result in her immediate release.

17. The order that the appellant be detained in a training centre is set aside and substituted with a sentence of one month's imprisonment.