HKSAR v. LAM MEE FAT

HCMA1104/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1104 OF 2002

(ON APPEAL FROM ESCC 359 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The appellant was convicted after trial of an offence of obstructing a police officer in the execution of his duty contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212 ("OAPO") (being the 1st charged offence); of an offence of possession of 3.53 grammes of heroin contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134 ("DDO") (being the 2nd charged offence); and of an offence of obstructing a person acting in aid of a police officer, namely a doctor, in the execution of his duty also contrary to section 36(b) of the OAPO (being the 3rd charged offence).

2. The appellant was sentenced to six months' imprisonment on each of the offences the subject of the 1st and 3rd charges, the sentences to be served concurrently except for two months of the sentence imposed in respect of the 3rd charged offence which was to be served consecutively to that imposed in respect of the 1st charged offence, resulting in a totality of eight months' imprisonment.

3. In respect of the 2nd charged offence, the appellant was ordered to be detained in a Drug Addiction Treatment Centre ("DATC"). The appellant appeared before me in person as far as his appeal against conviction is concerned. He was represented by Mr Hoosen of Counsel regarding his appeal against sentence.

4. The facts of this somewhat unusual case as found by the magistrate were that two police plain-clothes officers saw the appellant acting suspiciously in a street in Wanchai and accordingly followed him to a public toilet where one of the officers, PW1, observed the appellant apparently inserting a packet containing white particles into his anus. PW1 then left the toilet and reported what he had seen to his superior. Following that, PW1 and his colleague PW2 proceeded to intercept the appellant after the appellant had left the toilet and commenced to cross a nearby footbridge.

5. At that point PW1 produced his warrant card and declared his identity. PW1 then tried to search the appellant but the appellant struggled, pushed the officers aside, and attempted to run away. PW1 and his colleague chased and caught the appellant and a determined struggle ensued. The appellant was subdued only after other nearby members of the two officers' team came to the scene and assisted in restraining the appellant. These facts were the basis of the appellant's conviction of the 1st charged offence. The appellant was then arrested and eventually was given a superficial body search. Nothing was found and subsequently a request pursuant to section 52(1A) of the DDO was issued to the medical officer of Tang Shiu Kin Hospital for a body cavity search.

6. The appellant was taken to that hospital but refused his consent to the proposed body cavity search and when the duty physician attempted to examine him, the appellant again struggled to the extent that the cavity search was unable to be carried out and was abandoned even after the assistance of police officers present had been provided. That forms the basis of the 3rd charged offence.

7. The appellant was then taken to another hospital, the Ruttonjee Clinic, where he was placed in a custodial ward and kept under observation for an indefinite time so that his eventual evacuation of the packet would allow its retrieval.

8. For this purpose the appellant was attached to the hospital bed by restraints and kept under observation by police guards. Eventually some 36 or so hours after his arrest a guarding police officer saw the appellant place a rolled up tissue into a bowl of congee next to the appellant's bed. That tissue was retrieved and found to contain a plastic packet containing the charged drugs. Those facts are the basis of the appellant's conviction in respect of the 2nd charged offence.

9. The appellant's complaints about his convictions for these offences centre on his allegation that the magistrate failed to appreciate and weigh the evidence against him properly.

10. So far as the 1st charged offence is concerned he says the magistrate was wrong to accept the evidence of the arresting officers as credible. In particular he says the evidence of PW1 and his colleague made no sense in that if PW1 had truly seen him, the appellant, inserting something into his anus which may have been drugs, then PW1 would have arrested him immediately without reporting to his superior.

11. This issue had been firmly placed before the trial magistrate by the appellant's then representative whose submissions to this effect were as follows :

"Now, the trouble is, first of all, if PW1 actually saw what he said he clearly saw, in my respectful submission, it is incredible that the defendant was not stopped then and there, ...

But this is not what PW1 did, and instead he told us that he had to report to his superior first and then, instead of stopping the defendant whilst he was going out or coming out from the toilet, they had to stop him when he was already some distance on the footbridge."

In his reasons for verdict given after trial, the magistrate said this :

"Mr Wong has very clearly, properly, helpfully, pointed out the contradictions, inconsistencies and weaknesses of the prosecution case, and I have considered each of these submissions.

Having considered each of them individually, I find that these are not material and these are not such as to impugn the credibility of the prosecution witnesses."

And later :

"I have considered very carefully all the nuances and the evidence surrounding the observations made by PW1 in the toilet cubicle ..."

12. In his formal Statement of Findings the magistrate said, generally and briefly :

"I found the prosecution witnesses to have been honest, reliable and truthful; I believed them and accepted their evidence. There were some discrepancies and inconsistencies in the prosecution evidence. I considered these and found that they were not such as to impugn the integrity and credibility of the witnesses."

It is true in his stated findings the magistrate did not specifically deal with this issue. But given what he had earlier said at the time of the appellant's conviction, it is plain that in convicting the appellant he had the issue in mind and had resolved it. Further, the evidence of both PW1 and his colleague PW2 was that, when PW1 had left the scene briefly to report to his senior officer what he had seen, PW2 had remained behind to continue to keep the appellant under observation and had done so continuously until the appellant's arrest on the footbridge. Given that evidence the magistrate was entitled to accept it, as he plainly did, as a sensible and acceptable explanation as to why PW1 was able to leave the scene briefly to report to his senior before attempting to arrest the appellant. There is nothing in this complaint.

13. The complaint of the appellant as to his conviction on the 2nd charge relating to his possession of the drugs, is what he claims to be the unlikelihood of him being able to remove the drugs from his rectum and place them in the bowl of congee while restrained and without being seen to do so by the guarding police officers in the hospital ward. The first answer to this is that the appellant was in fact seen to do so according to the police evidence. The magistrate summarizes this aspect of the evidence in his Statement of Findings as follows :

"PW6 PC 58309 took over guard duties at about 10.50 PM. He was briefed about the congee. At about 6.05 AM on 1 February PW6 saw the defendant open his eyes and sit up in bed. At about 7.00 AM the defendant coughed loudly, covered his mouth with a piece of tissue and spat into it. He then put this tissue into the congee.

PW4 returned to guard duty at about 7.00 AM. PW6 briefed him on what had transpired during his shift, including the incident of depositing tissue into the congee. During the briefing PW6 noticed that the level of the congee in the bowl had apparently risen. He examined the congee. He found two lumps of whitish tissue and [a] plastic transparent wrap."

14. Further the magistrate in his findings was alert to the issue of the appellant being able to perform and having performed this task whilst under restraint and appreciated that was the central issue so far as the 2nd charged offence was concerned.

15. He said in his findings in this regard :

"The main issue for consideration was, briefly put, how did the heroin get into the congee? I considered all the relevant and admissible evidence and submissions of counsel. I bore in mind the defendant's physical restraints and the close proximity of the police. I found that no one had interfered with the defendant's congee from the moment it had been placed on the table until PW6 noticed the heightened level and examined it. There was noting foreign in the congee when delivered to the defendant. The defendant was at all times under surveillance from a close distance by police officers specifically tasked to do so. His hands enjoyed about 18 inches of free movement notwithstanding the cuffs and chain. The defendant had coughed loudly into tissue and placed the tissue in the congee."

16. The magistrate properly considered the issues and resolved them. There is nothing in this complaint concerning the appellant's conviction of the 2nd charged offence.

17. The appellant's final complaint against conviction is that, in regard to the 3rd charged offence of resisting the examining physician's attempt to perform a cavity search, he says the magistrate had failed to properly consider his evidence that he had refused to submit and struggled against the examination as a result of his suffering from haemorrhoids or piles. This was effectively put to the examining physician PW7 in cross-examination, and PW7 denied that the appellant had ever said or suggested this but said that he had simply refused to be examined.

18. The magistrate accepted PW7's evidence and concluded from it and from the other evidence in the case that the only reason for the appellant to have struggled so violently and successfully in resisting that examination was because the appellant knew what he had concealed in his body. The magistrate was entitled to arrive at this conclusion on the basis of all of the evidence before him. There is no merit in this final complaint and the appellant's appeals against his convictions are dismissed.

19. I turn now to sentence.

20. Miss Poon for the Department of Justice before me conceded that the imposition of custodial sentences at the same time as an order that a defendant be detained in a DATC is wrong in principle.

21. In R. v. Lau Chi, HCMA 1583 of 1990, Wong J (as he then was) dealt with the appeal of a defendant sentenced to a DATC for possession of a small amount of heroin and who, at the same time, had had activated a suspended sentence of nine months' imprisonment. The defendant in that case had appealed his sentences on the basis that it was wrong in principle that he be sentenced to a term of imprisonment at the same time as he be ordered to be detained in a DATC.

22. In the course of his judgment upholding the appeal, Wong J reviewed a number of cases, which dealt with simultaneous sentences of imprisonment and orders for detention, including detention in training centres. There is no doubt that so far as that category of case is concerned it has been quite categorically decided that such sentences, imposed simultaneously are wrong in principle : Attorney General v. To Ka Shing [1987] HKLR 69.

23. In To Ka Shing in the course of the court's judgment, Sir Alan Huggins VP also, obiter, made reference to the undesirability of imposing simultaneous sentences of imprisonment and an order for the detention of an offender in a DATC. In this regard, he said :

"A sentence of detention in a training centre is not necessarily to be regarded in the same light as one of detention in a DATC, but we think that the fact that the effective date of neither order can in law be postponed makes it undesirable that either should be imposed to run together with a term of imprisonment."

24. In Leung Cheung Chung v. The Queen, HCMA 17 of 1984, O'Connor J dealt with an appeal against an order of a magistrate that a sentence of imprisonment run consecutively to a DATC. He said :

"A number of comments are appropriate in regard to the course taken by the magistrate. The power of a magistrate to pass a consecutive sentence is statutory. His powers to do so are contained in s.57 of the Magistrates Ordinance. They are confined to passing a sentence of imprisonment consecutive to another sentence of imprisonment. A magistrate does not appear to have jurisdiction to order a sentence of imprisonment to run consecutively to a drug addiction treatment centre order. The scheme of the Drug Addiction Treatment Centres Ordinance is that such an order should not precede a sentence of imprisonment, see s.6A Cap.244. This is understandable as the object of a treatment order is rehabilitative. It is wrong in principle to order a sentence of imprisonment consecutive to an order of a rehabilitative nature."

25. In Yeung Tak Shing v. R. (1980) HKC 537, a reverse situation applied. The trial court ordered that the appellant be detained in a DATC only after he had completed a term of 18 months' imprisonment he was currently serving. Silke J (as he then was) said :

"As presumably he would be given some medical treatment while in prison, as he would be transferred to the centre under the provisions of S.8A of the Drug Addiction Treatment Centres Ordinance, and as presumably he would not have access to drugs while he was there, I thought the imposition of a period of detention in the treatment centre starting over a year after that particular sentence was imposed to be wrong in principle."

26. What can be gleaned from these judgments generally is that it is undesirable, and indeed wrong in principle, to sentence an offender at the same time for separate offences before the court to a term of imprisonment and to detention in a DATC.

27. There is one fundamental reason for this. The sentencing court should look at the effect of the totality of sentence it imposes. If that totality requires that factors of deterrence should prevail and a sentence of imprisonment should be imposed then so be it. There is no point in imposing a separate wholly rehabilitary sentence such as any form of detention order.

28. On the other hand, if factors of rehabilitation predominate, then a detention order in the appropriate institution, whether DATC, or detention, training, or rehabilitation centre should be made and should not be negated or undermined by a sentence of imprisonment. What then of section 6A of the Ordinance? That section says :

"(1) If a person in respect of whom a detention order, a supervision order or a recall order is in force is sentenced to imprisonment- (Amended 32 of 2000 s. 4)

(a) for a term of 9 months or less (or in the case of a detention order, supervision order or recall order made before the commencement of the Drug Addiction Treatment Centres (Amendment) Ordinance 1986 (24 of 1986), 2 years or less), the detention order, supervision order or recall order shall be suspended until the expiration of his term of imprisonment;

(b) for a term of more than 9 months (or in the case of a detention order, supervision order or recall order made before the commencement of the Drug Addiction Treatment Centres (Amendment) Ordinance 1986 (24 of 1986), 2 years) or a new detention order is made in respect of him, the first-mentioned detention order, or the supervision order or recall order, as the case may be, shall cease to have effect. (Amended 24 of 1986 s. 4)"

[Emphasis added]

29. The purpose of that section is to allow for an offender who has previously been sentenced to detention in a DATC and is already under going a process of rehabilitation to continue to have the benefit of that process once begun even if subsequently he is sentenced to a short term of imprisonment in respect of a separate offence.

30. The operation of section 6A may not sit wholly seamlessly with the principles of the case law set out above, but it is designed to allow a short prison sentence to be, if necessary, interposed within a drug rehabilitation program so as to allow that program, including its supervisory aspects, to continue to have effect after the term of imprisonment is concluded. In other words, it is designed to prevent that part of the rehabilitation program, already completed, going to waste.

31. As I say it operates only in circumstances where an offender is already subject to a detention order and subsequently is sentenced to a term of imprisonment: R. v. Lau Chi. Indeed that that was the legislative intention can be seen from the opening phrase of the section as underlined. A magistrate's jurisdiction is statutory and the imposition of sentences must be in accordance with the terms of the statutory provision allowing that jurisdiction. Section 6A read literally envisages only the interposition of a term of imprisonment in an already commenced period of detention in a DATC.

32. It is not a provision which is designed to allow the imposition at the same time of sentences of imprisonment and detention in a DATC. Any such sentences would, in my view, be wrong in principle.

33. In the present case, the appellant resisted two police officers PW1 and PW2. The struggle he put up required the intervention of other members of those two officers' team. Such an offence in the normal course would justify the imposition of a sentence of imprisonment.

34. Further the appellant again struggled violently so as to prevent a lawful physical examination so far as the 3rd charged offence was concerned. The magistrate obviously concluded that in respect of these offences factors of deterrence prevailed. He was entitled to do so.

35. In my view, the facts of this case are considerably more serious in terms of the degree of obstruction offered by the defendant than the facts of the case relied upon by Mr Hoosen, R. v. Yam Kit Chung, HCMA 806 of 1996, where the appellant had simply attempted to run from the police. Once the magistrate had determined that factors of deterrence prevailed and a sentence of imprisonment should be imposed that, in my view, was the end of the matter. The appellant should not then have been sentenced to detention in a DATC.

36. Accordingly, in respect of the 2nd charged offences, the sentence of detention in a DATC is set aside and substituted with a sentence of eight months' imprisonment. Given the nature of the offences, some part at least of that sentence would normally be made consecutive but in the circumstances of this appeal and given that the appellant has already served four months of his present term of imprisonment, I order that it be served wholly concurrently with the sentences he is presently serving. For the avoidance of doubt that means that the totality of sentence imposed upon the appellant by the magistrate remains at eight months' imprisonment.