R. v. JEFFREY SAVAGE

CACC000016/1997

Criminal Appeal No. 16 of 1997

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H E A D N O T E

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           Criminal Law and Procedure - Sentencing

           Unhappy result of juxtaposition of DATC order on the one hand and sentence of 9 months imprisonment to be followed by deportation on the other, imposed more or less contemporaneously by different courts on related facts. Attention invited to dictum of Watkins LJ in R v Bennet (1980) 2 CrAppR (S) 96, 98 cited at p. 260 of the 2nd edition of Cross and Cheung's Sentencing in Hong Kong:

IN THE COURT OF APPEAL

1997, No. 16

(Criminal)

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Coram: Hon Nazareth Atg CJ, Bokhary and Mayo JJA in Court

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J U D G M E N T

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Nazareth Atg CJ (giving the judgment of the Court) :

1. On his own pleas of guilty to three charges of possession drugs and one of possession of arms without licence, the applicant Jeffrey Savage was convicted of those offences by His Honour Judge Whaley in the District Court on 12th December 1996. He then very carefully considered the circumstances, which included these. The packages of drugs found were relatively very small indeed. One lot was of 4.20 grammes of "ice" containing 4.09 grammes of methamphetamine hydrochloride, another 406.87 grammes of cannabis and a third 1.34 grammes of a mixture containing 0.86 grammes of cocaine hydrochloride. The judge very rightly took the view that that in the circumstances clearly showed that the drugs were for the purpose of personal consumption.

2. The possession of firearms was possession of a stun gun which occurred in the extenuating circumstances that someone who came to stay with the applicant left it behind.

3. Having addressed the circumstances very clearly, the judge came to the conclusion that the major circumstance he had to address was that the applicant was a drug addict and having addressed all the circumstance, he came to the conclusion that it would be best to give him a last chance to undergo drug rehabilitation treatment in a Drug Addiction Treatment Centre, particularly as he never had any such treatment before.

4. We do not think anyone could quarrel with that conclusion. However, when Judge Whaley was addressing the matter, he was aware that the applicant was to be dealt with in another case and, that in that context, he might be subjected to a term of imprisonment. What the judge did was remand the applicant for a drug addiction treatment report. Meanwhile the applicant had been convicted on 4th December by Judge Lugar-Mawson in the other case which was then adjourned. On 12th December the applicant came back before Judge Whaley and was sentenced to a Drug Treatment Training Centre order. He then went back before Judge Lugar-Mawson and was sentenced to 9 months in that other case. This has produced the unsatisfactory result in this case that the applicant has had his drug treatment period suspended. He is serving his 9 months imprisonment and will then have to undergo his drug addiction treatment in the Centre after which there is ordinarily a compulsory period of 1 year's supervision. In sentencing him Judge Lugar-Mawson also ordered that he be deported after serving the 9-month sentence. This means that he will not be able to undergo the 1 year's supervision, which considerably diminishes the value of the drug addiction treatment of which it is an inherent and important part. In hindsight, what the two judges should have done, and this is the only respect in which Judge Whaley's commendably meticulous approach in sentencing the applicant falls short, was to adopt the course that is suggested at p. 260 of the Second Edition of Cross and Cheung's Sentencing in Hong Kong, and in particular taken note of what Watkins LJ said inR v Bennet(1980)2 CrAppR (S) 96, 98 which is there stated:

Had that happened, and we do not overlook what the solicitors and counsel may also have been able to do, we would not have had the unhappy juxtaposition of the two sentences.

5. The question remains as to what we should do now. As the applicant has been detoxified, will in fact have served his sentence of 9 months before he can be taken to a Drug Addiction Treatment Centre to commence that treatment, he will not have the benefit of the period of compulsory supervision, and also as the counselling he might have in the Drug Addiction Treatment Centre is perhaps tailored more for prisoners who are inhabitants of Hong Kong rather than someone from the United States who will be deported immediately after, it seems to us the appropriate course here is that when the applicant is released from the 9-month sentence, he should immediately be deported. He would perhaps be fortunate in the result because he probably would have received a higher sentence had the limit of 9 months not been set to preserve the earlier drug addiction treatment order under s.6A(a) of the Drug Addiction Treatment Centres Ordinance (Cap. 244).

6. We have accordingly come to the conclusion that he should be released after serving the sentence of 9 months and go back to America to commence the new life he apparently genuinely intends to do. After what he has been through we think he will want to do that. We achieve that result by setting aside the order for detention in a Drug Addiction Treatment Centre and imposing instead concurrent sentences of 6 months imprisonment for each of the several offences of possession of drugs and the possession of the stun gun. These sentences are to run concurrently from 12th December 1996. This will mean that he will have served them before he completes his sentence of 9 months and that on completing the sentence of 9 months, he will be deported. We hope he will take the opportunity given by the courts below and which we have given him to reconstruct his life.

Representation: