HKSAR v. NG NGA TIK

HCMA 1229/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1229 OF 1999

(ON APPEAL FROM TMC 2823/1999)

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J U D G M E N T

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1. The Appellant appeals against a sentence of Training Centre passed on him in the Magistracy for an offence of Possession of Light Diesel Oil from which Marker or Colouring Substance has been Removed contrary to Regulation 9(d), as read with Regulation 13(1) of the Dutiable Commodities (Marking and Colouring of Hydrocarbon Oil) Regulations, Cap. 109, Laws of Hong Kong. He was charged that he had in his possession 27,800 litres of light diesel oil from which the marker or colouring substance had been removed.

2. The grounds of appeal are that the sentence of Training Centre Order was too severe in the circumstances of the case and that the Magistrate had failed to give consideration to the fact that the Appellant pleaded guilty; that the maximum sentence for the offence was 2 years' imprisonment; that the usual duration of remand in Training Centre is 18 months; that the Appellant had attempted to get rid of his drug problem; and that other avenues of sentencing were not open to him including Detention Centre and Drug Addition Treatment Centre. Statistics were produced which suggested that the usual sentence for such offences would be a heavy fine, or, at most, imprisonment of around 3 months. It was urged on this court that the Appellant should not be left with a sense of grievance because in his eyes he was treated more seriously by a Training Centre Order, than with a short prison sentence.

3. When Appellant appeared before the court the Magistrate obtained various reports. He was significantly hampered in his sentencing options because of the Appellant's record. In 1994 for offences of Assault and Robbery, he was placed on probation for 18 months. In 1995 for Assault Occasioning Actual Bodily Harm, he received a Community Service Order of 120 hours. In 1995, he was dealt with by a further Community Service Order of 120 hours. These offences were followed by a Breach of Probation Order, Breach of Community Service Orders and a further Breach of Probation Order, all of which were dealt with at the same period. In 1996, for Breach of Probation Order the Appellant went to DATC. In 1997 for Possession of DD he went to DATC again. In 1998, he went to prison, for the possession for the purposes of trade or business of infringing copies of copyright works.

4. I mention those offences not to suggest that the Appellant needs a particularly severe sentence, but to point out the difficulties the Magistrate was under when he considered the sentencing options available to him.

5. He obtained reports but because the Appellant was not drug dependent at the time of the examination, he was not suitable for a further Drug Addiction Treatment Centre period. He was unsuitable for the Detention Centre, first of all, because he was a drug dependent and had previous drug offences, but also because he had served a prison sentence; a person who has served a prison sentence is not a suitable candidate for a Detention Centre. A Training Centre report was obtained by the Magistrate and Appellant was considered suitable for Training Centre.

6. In mitigation, it was before the Magistrate that the Appellant had pleaded guilty, that he had been co-operative with the Customs and Excise Officers and that he had given early advice of his plea. The Magistrate was asked to impose a fine or a suspended prison sentence because he did not have previous offences of a similar nature.

7. The Magistrate considered the offence was a serious one and that imprisonment was the only way an adult who committed this offence could be sentenced. He then took into account the provisions of section 109A(1) of the Criminal Procedure Ordinance, Cap. 221 Laws of Hong Kong, which makes it clear that a person over 16 and under 21 years should not go to prison if there is some viable alternative for sentencing available to the court. He also considered the purpose for which training centres were established.

8. In the Magistrate's judgment, it was expedient for the Appellant's rehabilitation and for the prevention of crime that he should be detained in a Training Centre and he concluded that there was an appropriate method of dealing with the Appellant other than by imprisoning him. When sentence was imposed, a review of sentence was requested and the Magistrate's attention was drawn to the case of the R v. Choi Hoi Hung Mag App 438/99 (Original in Chinese) which was cited as authority for the conversion of a Training Centre Order into a sentence of imprisonment. I have considered this case, but do not agree with its conclusions.

9. The Magistrate was well aware of the fact that a Training Centre Order is an indeterminate sentence. He noted section 4(2) of the Training Centre Ordinance which provides that the minimum period of detention is to be 6 months and the maximum can be as high as 3 years. The exact period of detention is in the province of the Commissioner of Correctional Services to decide and depends on the progress that an inmate may make during the period of the order.

10. The Magistrate quite correctly said that he did not consider it was helpful to indulge in any notional conversion of periods of detention to periods of imprisonment. There appears to be misunderstanding amongst counsel as to the true purpose of a Training Centre Order and the need to have sentences of this type within the Magistrate's range of sentencing options.

11. It is important that the needs and background of an individual offender be looked at, as well as his prospects for rehabilitation and considerations of deterrence. Statistics as to average sentences are of limited value as are, in most cases, previous sentences for comparable offences. It is not possible, or desirable, for courts to try and equate possible periods of service under a Training Centre Order with a sentence of imprisonment.

12. The Magistrate took into account the very obvious fact that the Appellant had failed to respond to previous court orders that had endeavoured to offer him counselling, guidance and support within the community and concluded, with some justification, that it was essential to give Appellant an opportunity in a disciplinary setting to have rehabilitation opportunities afforded him. It was on that basis that the Magistrate ordered that Appellant be detained in a Training Centre.

13. I have listened to Mr Ng's arguments on behalf of the Appellant today, but I cannot agree that this is an unsuitable sentence. Nor can I agree that it was an improper sentence in the circumstances. If this Appellant had been before me, it is an option that I would have chosen myself, as being the best and most effective way of dealing with this Appellant, given his age, background and the stage his offending behaviour had reached.

14. All the facts were before the Magistrate and he took account of them in a careful and detailed Reasons for Sentence, having looked at the reports available to him. There is no reason or justification for interfering with the sentence and this appeal against sentence is dismissed.