HKSAR v. SIU KWOK HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 277 OF 1998

(On Appeal from North Kowloon Magistracy

Case No. NKC 907 of 1998)

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J U D G M E N T

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1. This Appellant appeals against sentence in respect of a charge of possession of dangerous drugs to which he pleaded guilty on 17th February 1998. The dangerous drug was heroin being 0.18 gram of mixture containing 0.13 gram of heroin hydrochloride.

2. The Appellant, at the time he was sentenced by the Magistrate, had a number of previous convictions. I have an updated record which shows that he had two offences of theft in 1996, on the first he was given an 18 month Probation Order; on the second he was sent to Drug Addiction Treatment Centre and the probation order was discharged.

3. In January 1997, on the same day, he was sentenced in respect of a robbery, a second robbery and a theft, all separate cases; a DATC order was made in respect of those offences also.

4. On 24th February 1998, he was sentenced, for two offences of Robbery, to Drug Addiction Treatment Centre and on 3rd March 1998, he was sentenced for this offence of Possession of Dangerous Drugs.

5. The Magistrate sought various reports in respect of the Appellant including a Probation Report and a Community Service Order report and, rather unsurprisingly, Appellant was not recommended for either programme. He was recommended as being suitable for Drug Addiction Treatment Centre, which, as he was there, was one way of dealing with this matter.

6. However, the Magistrate sought assistance from the Young Offender Assessment Panel, which takes an overview of all reports and deals with the sentencing enquiry as a joint Social Welfare and Correctional Services investigation; that report sets out the full background. Appellant comes from a broken family with weak and inadequate parental supervision. He left school without completing Form 2. His history of addiction and criminal offences was detailed. He was interviewed by the Panel and told the Panel that he wished to continue the Drug Addiction Treatment Centre programme.

7. However, the Panel considered that he was unable to adequately explain why he resorted to heroin so soon after his last discharge from Drug Addiction Treatment Centre. The interviewing Panel considered, with good reason, that he had not gained insight into his problems, nor did he have any proper idea as to his future rehabilitation.

8. The Panel opined that Appellant was in need of long-term character training to impose on him the correct concept of law and order and to provide a means of segregating him from his peers. The Panel recommended the Training Centre program and that recommendation went to the Magistrate. The Training Centre program has a major rehabilitative element and is commonly used for youth sentencing. No principle of sentencing is offended by the Magistrate's sentencing this Appellant to Training Centre order for this particular offence. The number of reports that he had, and the careful consideration that he gave to sentence, indicate that the realistic sentencing options were prison or Training Centre.

9. This is not a disproportionate sentence as has been argued today. This is not a case like that of R. v. Roote (1980) 2 Cr. App. R. (5) 368 which was dealing with an adult offender and with the length of sentences of imprisonment.

10. Here the court had an obligation in dealing with a youth sentence to consider all factors, including those relating to the nature of the offence and the personal qualities of the offender, to find the best way to sentence, bearing in mind both rehabilitation and retribution. I cannot fault the Magistrate for the care and time that he took in respect of this sentence, nor was he incorrect in sentencing this Appellant to Training Centre. Training Centre is the ideal programme for a youthful offender such as this who has a poor record, no insight and has already had, and effectively rejected, the opportunity given by Probation and DATC orders.

11. Accordingly, I dismiss the appeal. I am extremely surprised that legal aid was granted for this appeal and that counsel apparently feels able to come and argue against what is a perfectly proper sentence, thereby raising false hopes in the mind of this Appellant that he has some chance of being dealt with in a fashion that he regards as preferable. I consider this grant of legal aid is a waste of public funds on an entirely unmeritorious appeal.