SECRETARY FOR JUSTICE v. C.C.C. AND OTHERS

CAAR 16/2021

[2022] HKCA 1381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 16 OF 2021

(ON REVIEW FROM DCCC NO 24 OF 2021)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court):

Introduction

1.  This is an application for review of sentences by the Secretary for Justice against Drug Addiction Treatment Centre (“DATC”) orders imposed on the three respondents by H H Judge Casewell (“the judge”) on 7 September 2021 following their guilty pleas. The 1^st respondent was convicted on three counts of robbery[1] (Charges 1 to 3) and one charge of common assault[2] (Charge 4). The 2^nd respondent was convicted on one charge of robbery[3] (Charge 1). The 3^rd respondent was convicted on two charges of robbery[4] (Charges 1 and 2). Leave was granted by Poon CJHC on 18 October 2021.

2.  Having heard submissions from all parties, we allowed the application for review against all three respondents. In respect of both the 1^st and 3^rd respondents we imposed a Training Centre order in substitution for the DATC order passed by the judge but made no order in respect of the 2^nd respondent. We now give our reasons.

Summary of facts

Charge 1 (against all respondents and 4 others)

3.  On 23 September 2019, at about midnight, a lone male aged 44 (“PW1”) was assaulted and robbed by the three respondents and four others with wooden poles, kicks and fists whilst walking home. An iPad (worth about HK$5,000), a wallet containing various sums of cash (HK$7,000, US$1,000 and some Euros), a HK identity card, a Home Visit Permit, one credit card, three bank cards and two keys were stolen from him. Only HK$2,300 was recovered. PW1 suffered abrasions on his back and on his elbows.

4.  After the three respondents were arrested, they admitted committing the offence under caution.

Charge 2 (against the 1^st & 3^rd respondents and another)

5.  On 24 September 2019, at about 1:00 am, the 1^st and 3^rd respondents and another male assaulted another lone male aged 30 (“PW2”) with wooden poles, kicks and fists and robbed him of an iPhone (worth about HK$10,000). PW2 suffered laceration wounds to his forehead, eyebrow, right hand and right little finger, a bruise on his forehead and abrasions on his back, back of his head, elbow and left wrist. The incident, including the acts of the 1^st and 3^rd respondents, was captured by CCTV camera. 1^st respondent denied the offence, whilst the 3^rd respondent made an admission. The stolen iPhone was never recovered.

Charge 3 (against the 1^st respondent and 4 others) and

Charge 4 (against the 1^st respondent only)

6.  On 26 September 2019, at about midnight, the 1^st respondent and 5 others met another lone male aged 15 (PW3) at a rear lane. PW3 was accused of having assaulted the brother of one of them and he was required to surrender his iPhone. PW3 resisted and was assaulted. No weapon was used. PW3’s bag which contained miscellaneous items and an iPhone (worth about HK$3,500) was taken from him (Charge 3). After the robbery, the 1^st respondent grabbed the T-shirt of PW3 and punched him twice (Charge 4). The offences were captured by CCTV cameras. The 1^st respondent admitted both offences under caution. PW3 did not seek medical treatment but felt pain on his head after the incident.

Background and Mitigation

7.  The 1^st respondent was born on 13 October 2006 (aged 12 years 11 months at the time of offences and 14 years 10 months at the time of sentence). He had a clear record.

8.  The 2^nd respondent was born on 18 October 2006 (aged 12 years 11 months at the time of offences and 14 years 10 months at the time of sentence). He had a clear record.

9.  The 3^rd respondent was born on 5 December 2005 in Venezuela (aged 13 years 9 months at the time of offences and 15 years 9 months at the time of sentence). He had a clear record[5]. He had been subject to a Care and Protection order since 2019 and was admitted to a residential school.

10.  It was urged by counsel for the three respondents that:

(1)  The robberies were not premeditated and the wooden poles were not “dangerous weapons”. The guidelines in respect of armed robberies laid down in Mo Kwong-sang v R[6] should not apply. The injuries to the victims were not serious;

(2)  All the respondents were of extreme youth with clear records. Cases where Training Centre orders had been endorsed by the Court of Appeal as the appropriate sentences for young offenders committing robbery or serious offences were referred to[7];

(3)  The court was urged to consider non-imprisonment sentences.

Suitability reports and Panel opinion

11.  Various suitability reports for admission to the relevant centres[8] and the opinion of the Young Offender Assessment Panel (the “Panel”) were called for. As it was discovered that all the respondents were drug dependent, the Panel recommended the DATC programme for all of them. [9]

Reasons for sentence

12.  The judge agreed with the submission of counsel that the guidelines in Mo Kwong-sang did not apply, although he noted that the robberies in this case involved “gang violence by young people, a kind of thuggery committed by delinquents and people who are beyond control”[10]. The judge, whilst making the remark that the nature and aggravating features in their case warranted a starting point of “up to 4 years”[11], nevertheless adopted the recommendations of Panel and imposed a DATC order on each of the respondents.

Grounds of application for review of sentence and submissions.

13.  Three grounds for review were advanced by Mr Derek Lau, Acting Senior Assistant Director of Public Prosecutions, together with Ms Grace Au, Public Prosecutor for the applicant.

Ground 1: the judge failed to sufficiently take into account the relevant aggravating factors and gravely misjudged the severity of the offences

14.  It was submitted that the judge erred in finding the wooden poles were not “dangerous weapons” and the robberies were not armed ones: SJ v Au Chi Hang and Others[12], HKSAR v Muhammad Akram[13], HKSAR v Tam Tak Cheung[14]. Six aggravating features which justified a starting point of at least 5 years’ imprisonment for each robbery charge were identified: the infliction of actual violence, the use of weapons, the involvement of a gang, the commission of the offence in the small hours, losses to the victim and the multiplicity of offences.

Ground 2: the judge erred in according undue weight to the factor of rehabilitation and insufficient weight to the factors of punishment and deterrence when sentencing

15.  It was contended that in serious cases, youth and the clear record of an offender were not strong mitigating factors[15]. Had the respondents been adults, these robberies would have attracted a lengthy term of imprisonment. A DATC order (with a possible detention period between 2 months to 12 months) was manifestly inadequate as against the gravity of the offences.

Ground 3: sentences of DATC orders were wrong in principle and manifestly inadequate

16.  The respondent submitted that drug dependency alone did not preclude the options of a Training Centre order and imprisonment or justify an unduly lenient sentence: HKSAR v Li Tak Wing[16], HKSAR v Suen Kwok Nam and Another[17], section 8A of the Drug Addiction Treatment Centres Ordinance, Cap. 244. With the prime objective of providing treatment for drug addiction by way of a short period of detention, a DATC order was inadequate to deal with the respondents’ rehabilitation needs. By contrast a long-term disciplinary training programme in a Training Centre would be more appropriate for the reform of the respondents’ characters.

The respondents’ submissions

17.  All counsel submitted that the judge was correct in adopting the recommendations of the Panel, having carefully considered all the relevant circumstances and aggravating factors of the case. It was stressed that the respondents’ “extreme youth” militated against the option of imprisonment, or if a prison sentence was inevitable, such may operate to moderate their culpability[18]. Counsel for the 2^nd and 3^rd respondents contended that the judge righty found that the “wooden pole” picked up at random by the respondents was not a dangerous weapon and thus did not warrant a starting point of 5 years’ imprisonment. In addition, counsel for the 3^rd respondent submitted that as the 3^rd respondent had already served a DATC order, this Court would have no jurisdiction to re-sentence him to a Training Centre order. To do so would be tantamount to imposing a Training Centre order consecutive to an existing DATC order: The Queen v Lee Yin-yee.[19] In Suen Kwok Nam (supra) , the court was able to do so because the offenders were sent to DATC for other offences unrelated to the case being sentenced[20].

Discussion

18.  Under section 81B of the Criminal Procedure Ordinance, Cap 221:

“Review of sentence by Court of Appeal

(1) Upon the hearing of the application the Court of Appeal may, by order -

(a) if it thinks that the sentence was not authorized by law, was wrong in principle or was manifestly excessive or manifestly inadequate, quash the sentence passed by the court and pass such other sentence (whether more or less severe) warranted in law in substitution therefor as it thinks ought to have been passed;

(b) in any other case, refuse to alter the sentence.”

19.  The power of the Secretary for Justice to review an offender’s sentence aims at maintaining “uniformity of sentence and to avoid the injustice caused by substantial disparity in sentences imposed by different magistrates and judges dealing with similar offences” (Secretary for Justice v Wong Chi Fung)[21]. This purpose is served:

“44. …through enabling the Court of Appeal to correct important legal errors in the sentencing process and to expound upon sentencing principles. But, it also serves the very important purpose of maintaining public confidence in the administration of criminal justice.”[22]

20.  With these principles in mind, we now turn to examine the facts of the present case to see what the appropriate sentences should be before we consider the circumstances of each respondent. Amongst the three respondents, the 2^nd respondent faced one charge of robbery, whilst the 1^st respondent faced three charges of robbery and one charge of common assault and the 3^rd respondent faced two charges of robbery. Lone males were targeted. During the course of the gang robberies, violence was used and on two out of the three occasions, wooden poles were employed in addition to fists and kicks. Property of value was stolen and all the victims sustained injuries.

21.  The applicant asked us to find that the wooden sticks used were “dangerous weapons” so that the Mo Kwong-sang guidelines would apply. The respondents argued to the contrary.

22.  In the case of Secretary for Justice v Au Chi Hang and Ors[23], the Court of Appeal which was of the view that the trial judge’s findings that a “more than one-foot-long broomstick and the more than one-foot-long metal pipe … were not ‘dangerous weapons’[24], had “relied on the facts of the case within the bounds of reasonable possibility which were favourable to the accused”[25]. The Court said:

“30. It is necessary for the court, in passing sentence, to take into account the mode of robbery, the kind of weapon used, how it was used, the target of the robbery and how the victim was treated in the robbery. The need arises not only because the court wishes to achieve consistency for reference by the public and the legal profession by imposing appropriate sentences to accord with the gravity of the offences and the culpability of the offenders, but more importantly, to produce a deterrent effect for the potential offenders and, consequently, to provide better protection to the public. …”

23.  The Court went on to say that for a gang robbery committed in the early hours of the morning, which involved the use of weapons with violence resulting in injuries to the victim, should attract a starting point of 5 years’ imprisonment[26]. In relation to another charge which did not involve the use of actual violence but the display of the weapon intimidated the victim into submission, 4 years’ imprisonment would have been an appropriate starting point.[27]

24.  With the aggravating features identified in paragraph 20 above, we are of the view that even if the guidelines in Mo Kwong-sang were not applicable, a starting point of 5 years’ imprisonment on each charge would have been appropriate had the respondents been adults. Although all three respondents were found by the medical officer of the Correctional Services Department to have fallen prey to the vice of drug addiction, the length of a DATC order being from 2 to 12 months, and thereafter a one-year statutory supervision upon discharge, was totally inadequate for the offences committed in the present case. Furthermore, a DATC order which focuses mainly on ridding the drug addiction does not provide the strict discipline of a Training Centre which is designed to provide facilities for the training and rehabilitation of offenders for a period of between 6 months and 3 years.

25.  That said, we now turn to look at the circumstances of each of the respondents. We are not precluded from considering any situation which may have developed by the date of review: AG v Chan Tak-king and Chan Pau-yau[28]. There, it was considered whether the true construction of section 81B(1) imposes a limitation upon the Court of Appeal requiring it to interfere with a sentence to the detriment of an offender whenever section 81B(1)(a) is satisfied. The Court held that even if it were to view a particular sentence as manifestly inadequate, matters between sentence and the hearing of the application for review could be taken into account in deciding how to dispose of the application if the ends of justice are to be served.

26.  Turning then to individual respondents, the 1^st respondent was discharged from DATC on 2 March 2022. According to the up-to-date Training Centre report, urine samples collected from him between March and April 2022 were confirmed to be free of drugs. However, on 14 May 2022 he was arrested for an offence of Trafficking in Dangerous Drugs and has been in remand since then.

27.  The 2^nd respondent was discharged from DATC on 23 February 2022. He has resumed his schooling as a Form 2 student. The progress report shows that nine urine samples collected from him between March and July 2022 were confirmed to be drug-free. The last urine test, which this Court has ordered to be taken from him within 48 hours of the adjourned hearing, was also free of drugs.

28.  The 3^rd respondent surrendered to the police a month after the commission of charge 2 of the present case. He was placed under a Care or Protection Order for 12 months and was arranged to study at a boarding school. On 22 March 2021, he assaulted a classmate and was convicted of Common Assault on 11 June 2021. He was sentenced to DATC in respect of the present case and the Common Assault in September 2021 and was discharged on 16 February 2022. Two months later, he was arrested for Dealing with Dutiable Commodities and sentenced to a Detention Centre order on 23 June 2022. It was found that he consumed cocaine again before his conviction. At the time of the present review, he was serving a sentence in a Detention Centre.

29.  In our view, the DATC order has proven, by subsequent events, not to be conducive to the rehabilitation of the 1^st and 3^rd respondents. We have no doubt that the judge was concerned about their addiction and their suitability for participation in the structures of the Training Centre programme. The applicants in Suen Kwok Nam (supra), who were serving their sentences in a DATC for an unrelated matter, tried to argue that their addiction would prevent them from completing and benefiting from all the programmes in a Training Centre. The Court, noting that the applicants would not necessarily be detained in a Training Centre for 3 years, said:

“22. (2) …we do not accept that their physical conditions will adversely affect their performance, thereby subjecting them to disciplinary punishment and extending their detention period. The training centre will surely decide on the necessary training for offenders having regard to their physical conditions. It will also make appropriate arrangements for the two applicants without question. …”

30.  A not dissimilar situation arose in Li Tak-wing (supra). The appellant was convicted of one charge of burglary and the judge, having taken into account the seriousness of the offence, declined to follow the suitability report which recommended against a Training Centre programme on the basis of the appellant’s addiction. The Court was “in complete agreement” with the trial judge and upheld the Training Centre order.

31.  Counsel for the 3^rd respondent contended that, by imposing a Training Centre order on the 3^rd respondent upon a review would be double punishment because of the addition of a sentence consecutive to his original sentence. This submission is misconceived. A sentence passed upon review is a substitution for an original sentence which the Court of Appeal has found to be wholly inadequate. There are cases where respondents who have received non-custodial sentences were subsequently sentenced to immediate terms of imprisonment upon a review of sentence. In such instances, a discount will usually be given for this factor: see for example HKSAR v Ng Ho Nam[29].

32.  We accept the recommendations in the up-to-date Training Centre reports for the 1^st and 3^rd respondents and substitute the original sentence of a DATC order with a Training Centre order.

33.  Unlike the 1^st and 3^rd respondents, the 2^nd respondent faced only one charge of robbery. He resumed his schooling after his discharge from DATC. All urine samples collected were clear of drugs. The question we posed at the review hearing was, if we come to the view that the DATC order was a sentence which was manifestly inadequate, are we compelled to quash the sentence and replace it with another?

34.  In Chan Tak-king (supra), two repeated offenders of drug-related offences were fined by the magistrate. On review, the Court of Appeal heard submissions on the interpretation of section 81B and said:

“…we do not think that the provisions of s. 81B compel us to construe them as making it obligatory for the Court to impose the sentence it considers should have been imposed at the trial or to dismiss the application. We conclude that no violence would be done to the language used by the legislature to interpret that section as imposing no obligation on the Court to take one or other of these courses…”[30]

35.  Ultimately, the Court, having made the observation that the magistrate should have considered an immediate custodial sentences in the 6 to 9 months’ range, disposed of the applications by making no orders.

36.  Chan Tak-king’s case was referred to in Secretary for Justice and Cheng Tsz Hin[31]. There, McWalters JA, giving the judgment of the Court, said:

“58. … even if the Court of Appeal concludes the sentence is unduly lenient, it has a discretion as to whether it should use its powers to alter the sentence. …

…

60. In exercising its discretion as to whether it alters the sentence, the Court of Appeal will have regard to whether the public interest requires correction of the sentence. …

61. In determining whether the public interest requires correction of the sentence, the Court of Appeal will be mindful of the fact that the sentencing process is a crucial, though at times controversial, elements of the criminal justice system. Maintaining public confidence in the sentencing element of the system is key to maintaining public confidence in the administration of criminal justice. …

62. The question of whether allowing the sentence to remain unaltered would damage public confidence in the criminal justice system brings into play the views of the victim and the victim’s family. In Attorney General’s Reference (No.3 of 1999) [2001] 2AC 91, Lord Steyn eloquently spoke of the need of the criminal law to ensure fairness to all sides. Explaining how this is achieved he said:

“In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public”

63. Thus, proving inadequacy of sentence does not automatically mean the Court of Appeal must intervene and must correct the sentence. It will only do so when it is necessary in the interests of justice. Determining whether it is in the interests of justice involves balancing Lord Steyn’s triangulation of interests of all those affected by the criminal justice process. …”

37.  Applying the above principles, we take into account that the DATC order which 2^nd respondent has served has worked positively for his rehabilitation and to send him to another period in a Training Centre would be unduly harsh on him and counter-productive. We came to the decision that, in respect of the 2^nd respondent, it would not be just to impose another sentence which should have been imposed by the judge in the District Court. Accordingly, we allow the Application for review in respect of the 2^nd respondent and declare the sentence which ought to have been passed on him at first instance to be a Training Centre order. However, the justice of the case demands that we leave the sentence that was passed undisturbed.