SECRETARY FOR JUSTICE v. LAU SHING KIT

CAAR 8/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 8 OF 2011

(ON APPEAL FROM HCCC NO. 239 OF 2011)

____________

BETWEEN

____________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 30 June 2011 the respondent pleaded guilty in the Magistrates’ Court to an offence of trafficking in a dangerous drug; the particulars of which were that on 6 January 2011 in Wong Tai Sin he trafficked in 249.61 g of a powder containing 183.99 g of ketamine.  He was committed to the Court of First Instance for sentence and on 19 September 2011 he was sentenced by Deputy Judge Longley to undergo a period of detention in a training centre.  

2.  The Secretary for Justice applied for a review of that sentence pursuant to s 81A of the Criminal Procedure Ordinance, for which application leave was granted by the Chief Judge of the High Court on 10 October 2011.

3.  On 31 May 2012 we dismissed the application and said that we would give our reasons later.  These are our reasons.

The facts

4.  The facts fall within a short compass.  At about 8:15 pm on 6 January 2011, the respondent was observed by a police officer to come out of a public toilet near Sheung Yuen Street and he was searched.  In a pocket of his jacket was discovered a black plastic bag containing a transparent bag inside of which were the drugs in question.  Under caution the respondent said: “I trafficked this drug for Ah Nam.  This is the first time I engage in drug trafficking.  Please give me a chance … .”  He told the police during an interview that the previous night he had met Ah Nam at a basketball court and that Ah Nam offered him $500 to collect some drugs from the toilet in question and to bring the drugs to Ah Nam at a playground.  The respondent picked up the drugs at the public toilet and was arrested before he could deliver them to Ah Nam.  The value of the ketamine seized was HK$28,455.

History

5.  The circumstances in which the judge came to make the order which he did are unusual.  

6.  The respondent was born in October 1993 so that at the date of the offence in question was aged 17 years.  He had left school in March 2010 and in August that year he was accused of stealing a computer chip and a computer RAM from a cyber café.  The following month, September 2010, he was cautioned for that alleged offence under a superintendent’s discretionary scheme.  Then he obtained a job as an assistant in a cyber café.  Given the nature of the matter for which he received a caution, this was unfortunate because in December 2010 he was arrested for theft and this time charged with stealing a CPU chip, a computer RAM and $40 cash.  He was granted bail pending his appearance in the magistracy for those offences of theft.  It was while on bail that he committed the offence with which we are concerned, the trafficking in a dangerous drug – a matter of weeks after his arrest for the theft offences.

7.  After his arrest on 6 January 2011, he was remanded in custody.  On 11 March 2011, he appeared in the magistracy for the theft offences and was sentenced on that occasion to a Detention Centre.

8.  He was released from the detention centre on 29 August 2011.  That was the very day upon which he first appeared before Judge Longley for sentencing in relation to the drugs matter.  That was no coincidence: the hearing date before Judge Longley was deliberately fixed to coincide with the date of release from the detention centre.

The judge’s reasoning

9.  The judge was much exercised by the fact that the respondent had just completed a period of training and discipline in a detention centre and was concerned – so much is clear from exchanges which took place in court on 29 August 2011 – that such rehabilitative benefit from that period of detention as may have accrued would be wasted by the imposition of a lengthy term of imprisonment; whereas, on the other hand, depending upon how he had responded to the detention centre regime, a period of training in a training centre might consolidate or augment the rehabilitative effect of the sentence just completed.  So, although with considerable reservation, the judge ordered the preparation of a training centre suitability report and the respondent was remanded in custody pending its preparation and presentation.

10.  The report, dated 15 September 2011, was favourable to the respondent.  It described a young man brought up in a stable home but who had behaved poorly at school because of his association with undesirable elements.  As for how he had fared in the detention centre, it was reported that he had been able “to tune in the disciplinary training to make steady progress”.  Generally, he had managed to behave well in the Centre and had incurred no disciplinary report.  During the time he was on remand pending the preparation of the suitability report, he had behaved satisfactorily and had observed the rules.  He appeared to be polite and remorseful when interviewed and was open about his past misbehaviour and associations.  The conclusion was that “a period of disciplinary training coupled with statutory supervision is considered beneficial to him.”

11.  The judge noted that Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 set guidelines for trafficking in ketamine of 6 to 9 years’ imprisonment for a quantity between 50 and 300 g.  In relation to the appropriate starting point were a term of imprisonment to be imposed, he took the view that in the respondent’s case the appropriate starting point would be at the bottom of the tariff band, namely, 6 years’ imprisonment.  That may at first appear surprising since the guideline would suggest a starting point in the range of 8 years’ imprisonment for the quantity of drugs in the case; but it would appear from the contents of a discussion between the court and counsel at the hearing on 29 August 2011, that the judge had in mind a passage from Lau Tak-ming [1990] 2 HKLR 371 at 386 – albeit in that case relating to heroin – that within suggested bands were factors which a sentencing judge may properly take into account, such as the degree of involvement of the offender and his previous history of narcotics offences; a qualification or leeway by the Court in Lau Tak-ming that tends with the passage of years to have been overlooked, with the result that drug trafficking sentences have become entirely mathematical.  The judge noted in this regard that the respondent had never been involved with drugs before and had only just collected the drugs from the public toilet for which effort he was to be rewarded the rather paltry sum of $500.

12.  The judge recognised that sentencing policy in relation to drug trafficking was heavily weighted towards general deterrence rather than towards individual deterrence or rehabilitation and that it was, as he put it, “only in rare and exceptional cases that a training centre order is appropriate where an offender has trafficked in a substantial quantity of drugs.”  But, with considerable hesitation, he said, he had ordered a report as to the respondent’s suitability for detention in a training centre because the respondent had only very recently finished serving a rehabilitative sentence of detention and if he were to impose a sentence of imprisonment in respect of the drug offence “it would mean the courts, at least substantially, abandoning the rehabilitative approach to [the respondent’s] future which had started with the detention in a detention centre.”

13.  Upon receipt of the report, the judge noted the steady progress made by the respondent in the detention centre and that he had generally behaved well.  “The prospects,” said the judge “of [the respondent] now leading a law-abiding and responsible life seem fair.”  He then – in the context of the history with which he was presented – compared the effect between, on the one hand, imposition of a sentence of imprisonment based on a starting point of 6 years and, on the other, a sentence of detention in a training centre.  After the usual discount of one-third for the plea of guilty, the sentence – were it a sentence of imprisonment – would be one of 4 years’ imprisonment and, assuming the usual remission for good behaviour, he assessed a probable date of release 2 years 8 months hence.  On the other hand, were a training centre order to be made, the authorities are empowered to detain the respondent for up to 3 years and after that the respondent would be subject to supervision and, if necessary, recall for a further 3 year period. He noted, in addition, that the respondent had been in remand in prison for almost 3 months (two months after his arrest in January 2011 up to his sentence by the magistrate; plus almost one month in August – September 2011 whilst waiting for the report).  In the round therefore, viewed from this perspective, a training centre order was not, in his judgment, materially less in its restrictive effect upon the respondent than would be the appropriate term of imprisonment.

14.  Against the matrix of all those circumstances, the judge expressed himself satisfied that it was in the best interests of society to take an exceptional course “and to continue to give you the opportunity to change the course your life had appeared to be heading.”

The applicant’s complaints

15.  The argument advanced in behalf of the applicant is that:

(1) The sentence imposed failed sufficiently to reflect the gravity of the offence.  In this regard emphasis was placed upon well-known and oft-repeated dicta of this Court over many years that drug trafficking cases call for a strict policy of general deterrence at the expense of individual rehabilitation.  “There is,” it was said in AG v Kong Kin Man [1997] 1 HKC 537, by Litton VP, “considerable public interest involved in showing by deterrent sentences that the courts will treat drug trafficking most severely”; and in the same judgment emphasis was placed on the fact that age, whether youth or old age, carried little weight where drug trafficking was concerned: “It is only in rare cases detention in a training centre is appropriate on a conviction for drug trafficking.”  The same sentiment is to be found in Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59 at 64 where Stuart-Moore VP said that save in very rare cases a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.  One such rare case was AG v Suen Yuen Ming [1989] 1 HKC 430, where the respondent had been threatened that if he did not comply with the demand that he should store the drugs in question, his girlfriend would be harmed and his family’s business would be disrupted.  There was, the applicant urged, nothing rare or exceptional about the circumstances of this respondent’s offence.

(2) The judge accorded undue weight to the respondent’s age and to his rehabilitation – a submission based upon the same principles to which we have already referred.  And the applicant pointed further to the facts that that this was not a case of extreme youth, that the applicant was not a person of hitherto unblemished character and that the quantity of the drugs was substantial.

(3) The judge erred in his analysis of the comparative practical effects of the alternatives which he canvassed.  The 6 year starting point which the judge used in his analysis was, it was argued, materially too low and in any event the judge erred in assuming that the respondent would be detained in a training centre for as long as 3 years whereas, in truth, the period was one between six months and 3 years and in practice is often considerably less than 3 years.  We were informed by Mr Whitehouse, for the respondent, that the respondent anticipated release at the end of 2012 or early 2013.

16.  Accordingly it was submitted that the sentence imposed by the judge fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.

Our analysis

17.  With great respect to the conscientiousness of the judge and acknowledging the unusual fact which he faced of a defendant who had just emerged from about five months’ incarceration in a detention centre, we were nonetheless of the view that the judge erred.  True it is that the bands are not entirely mathematical in the sense that there is room for manoeuvre within them according to the circumstances of the case, but the room for manoeuvre in this case was not so great as permit an adjustment down from 8 to 6 years, especially having regard to the serious fact that the offence was committed whilst on bail.  If a 6 year starting point would have been generous given the quantity of drugs, a 6 year point before plea after taking into account the aggravating factor of an offence whilst on bail, would have been clearly too generous.  Further, there was nothing attaching to the circumstances of the commission of the offence that was exceptional, although that is not to suggest that the rare circumstances which may justify an exceptional course are restricted only to circumstances of the commission of the offence, as opposed to other factors.  Finally, it was not appropriate for the judge to assume, as he did, that the respondent would be kept in the training centre for as long as 3 years.

18.  Whilst we acknowledge a certain discomfort at the notion of sending an offender to prison immediately upon the termination of a period in a detention centre, that discomfort must yield to the nature and gravity of the fresh offence.  If the fresh offence is not of such a serious nature as to demand a substantial term of imprisonment, an imaginative sentencing approach of the type upon which the judge embarked is acceptable.  If on the other hand the fresh offence is, by reason of its facts or by reason of sentencing policy attaching to its category, such as to require a lengthy term of imprisonment, then a term of imprisonment should be imposed.

19.  In this case, the applicant had committed a fresh offence within a serious category for which a policy of general and stern deterrence is paramount and, given also that it was an offence committed whilst on bail, it is our judgment that the detention centre episode notwithstanding, a sentence of imprisonment in the region of 4½ years, after plea, ought to have been imposed.

20.  The question though that then faced us was what to do in the light of how matters stood at the date of the hearing of the review application, 31 May 2012.

21.  The respondent had by that date been in the training centre for over eight months; a delay between sentence and hearing of the application which was not attributable to the respondent or to those acting for him.  A significant part of that delay was attributable to the fact that the applicant, having been asked by the courts to provide dates for a hearing did so by reference to the availability of one counsel; presumably counsel who had had carriage of the case in the Department of Justice and dates were fixed accordingly.  In the event, Mr Edmond Lee appeared before us for the applicant at less than one day’s notice because counsel originally assigned was indisposed; and the excellence of Mr Lee’s submissions were themselves testimony to the fact that there is no need for dates to be fixed for review applications to accommodate the convenience of the diary of counsel for the applicant.  Unless the circumstances are exceptional it is not a practice that will be followed in the future.  The Court will give priority to the case rather than to counsel.

22.  Had we at this stage allowed the review and substituted a term of imprisonment, the history of the matter would have run as follows: a period of two months in prison custody pending plea in respect of this offence; before plea in respect of this offence sentence to a detention centre for the earlier theft offence; service by the respondent after the commission of, and arrest for, the present offence of a full period of detention in a detention centre; immediately after that, a short period of imprisonment pending sentence for the current offence; then, immediately after that, more than eight months in a training centre; and then, immediately after that, assuming we substituted a sentence of imprisonment, a substantial term of imprisonment.  We were satisfied that that would not be an acceptable scenario now to create.  It would have been a course with no regard to significant benefits thus far accrued, to the respondent and to society, (in addition to the punishment thus far imposed) and would be intrinsically unjust.  It may have been different had the appropriate term of imprisonment been materially longer.  Part of the messy history hitherto was created by the fact that the respondent was sentenced for the theft offence before he was sentenced for the drugs offence.  That ought not to have happened.  Had the magistrate who dealt with the theft offences been informed that the respondent was awaiting trial for the much more serious offence of drug trafficking, he would no doubt have adjourned sentence for the theft offences.

23.  For these reasons, we dismissed the application.