SECRETARY FOR JUSTICE v. YAU SI HO

 [English Translation]
CAAR 7/1999

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 7 OF 1999

(ON AN INTENDED APPEAL FROM HCCC 196/1999)

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JUDGMENT

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Leong JA (giving the judgment of the Court):

1. On 20 August 1999 the respondent Yau Si-ho pleaded guilty before Deputy Judge Z E Li in the Court of First Instance to two counts of trafficking in a dangerous drug. The combined weight of the dangerous drug involved in the two counts amounted to 136.17 grammes of heroin hydrochloride. The dangerous drugs specified in the first count were found on his person when the respondent was stopped and searched by police officers in the street. On a subsequent search of his home, the officers found the rest of the dangerous drugs.

2. Having considered the age of the respondent and the reports from a probation officer and the Pre-sentence Assessment Panel of the Correctional Services Department as to the suitability of the respondent for probation or for detention in a training centre, the Judge sentenced the respondent to a training centre for training.

3. The Secretary for Justice seeks a review of the sentence on the grounds that the sentence is manifestly inadequate and wrong in principle pursuant to s. 81A of the Criminal Procedure Ordinance, Cap. 221.

4. The respondent was 19 years and 3 months of age at the time of his offences.

5. The respondent was born in Shanghai and brought to Hong Kong at the age of 3. At that time his parents had already separated, and his natural father was killed in an accident in South America several years ago. The respondent had been living with his mother and stepfather ever since he came to Hong Kong, but he was frequently ill-treated by his stepfather. He therefore did not receive proper care and was scarcely subject to discipline. The respondent left school after he completed Form 3 at secondary school.Thereafter he made friends with people with demoralizing influence on him and became addicted to drugs. In spite of his mother’s repeated exhortation to give up the addiction, he obstinately refused to come to his senses and had no intention of giving it up. Subsequently he even switchedover to what is known as “ice”. On many occasions, without his mother’s consent, he sold the family’s electrical appliances for money to buy the drugs he took. Because of his drug addiction, the respondent was unwilling to go to work. But in order to get money, the respondent broke up dangerous drugs into smaller quantities for drugs dealers, and then delivered them to places designated by the drugs dealers. The respondent had previously been convicted of possession of dangerous drugs and placed on probation. He was on bail pending trial at the time he committed the present offences.

6. The report from the Commissioner of Correctional Services Department pointed out that although the respondent’s background and his current circumstances are adverse, he can turn over a new leaf if he is subject to a period of disciplinary training under heightened supervision and if he is given proper guidance and counseling.

7. In his reasons for sentence Judge Li referred to the amount of drugs involved in the present case, which warranted a sentence of 8 to 10 years’ imprisonment. Having said that, the Judge, however, sentenced the respondent to training centre. The Judge did not give his reason why he sentenced the respondent to training centre. It is evident that the Judge accepted the recommendation in the report from the Commissioner of Correctional Services Department and attached weight to the respondent’s youth with a view to giving the respondent an opportunity to turn over a new leaf.

8. Mr. Wong, SGC of the Department of Justice, for the Secretary for Justice submitted that if the sentencing guidelines for offences of this nature were followed, the respondent should have been sentenced to 8 to 12 years’ imprisonment in view of the amount of drugs involved in the present case. There was no justification for Judge Li not to follow the guidelines by sentencing the respondent to prison.  Nor was there any justification for the Judge not to state the reason why he departed from the sentencing guidelines. Mr. Wong submitted that Judge Li sentenced the respondent to training centre merely by reason of his youth. He, however, referred us to various decisions, including the following three decisions: R v. LAU Tak-ming & Another (1), AG v. SUEN Yuen-ming (2) and R v. YIU Kwong-shui (3) to show that the Judge erred in sentencing and was wrong in principle. That is because the age or physical disabilities or any other disabilitiesof the defendant should not be accepted as mitigating factors for reducing the sentence for trafficking in a dangerous drug.

9. In our view there are many decisions (including the decisions cited by Mr. Wong) which make it clear that the age of an offender has very little mitigating effect on the sentence where the offence committed is a serious crime. As to an offender who trafficks in a substantial quantity of dangerous drugs, age, whether young or old, carries little weight in the consideration of sentence. It is only in the rarest of cases that the court would consider sentencing a young offender to training centre, where a substantial quantity of dangerous drugs is concerned. (See R v. SUEN Yuen-ming and R v. YIU Kwong-shui.)

10. In R v. LAM Chak-hing (4) the Court of Appeal advises the courts, in sentencing young offenders, to be doubly careful so as to prevent syndicates from having the advantage of using young people to pursue their criminal business for them. If young people are treated too leniently, they will be susceptible to being recruited as instruments in other people’s criminal activities. R v. LAU Tak-ming is very familiar to those who are responsible for sentencing in court.  In that case sentencing guidelines for drug offences were laid down. Though the guidelines do not prescribe mandatory sentences for offences of this nature, the courts have been following these guidelines in passing sentences for offences of this nature except in very unusual circumstances. The Court of Appeal, in laying down the guidelines, clearly points out that trafficking in dangerous drugs is one of the most serious crimes and that age and physical disability are not mitigating factors. It is only where the offender is extremely young that the court would give special consideration. The Court of Appeal in recent cases, such as HKSAR v. LI Yun-sang (5), also holds that if unduly lenient sentences are imposed on youngsters who trafficked in dangerous drugs, they would be exploited by those who deal in dangerous drugs in pursuit of such criminal activities.

11. In HKSAR v. LI Yun-sang the defendant was only 15 years old. He pleaded guilty to trafficking in 59.58 grammes of heroin hydrochloride and was sentenced to 4 1/2 years’ imprisonment. The Court of Appeal did not think that it was wrong in those circumstances to send the youthful defendant to prison. On the contrary they regarded the sentence imposed on the defendant as a lenient one.

12. Mr. Wu for the respondent agreed that the amount of dangerous drugs involved in a case should be taken as the basis of sentencing, and the amount in the present case warranted a sentence of 8 to 12 years’ imprisonment. He did however cite a series of cases to show that it was not necessary for the courts to send young traffickers of drugs to prison. He submitted that the respondent was remorseful, that he provided the police with information and that he assisted the police in looking for other drug traffickers. Mr. Wu, therefore, submitted that it was not inappropriate that the judge did not sentence the respondent to imprisonment.

13. Counsel for the respondent further cited AG v. FONG Yuen-ming (6) to support his submission. This Court has to point out that that case did not relate to dangerous drugs and that it predatedthe decision of R v. LAU Tak-ming. In that case four sentencing principles were set out, namely retribution, deterrence, prevention and rehabilitation. It appears from what Judge Li said in passing sentence that of these four principles, he gave excessive weight to rehabilitation.

14. The Court is satisfied that from the information provided by Counsel for the respondent about how young offenders were sentenced by the courts in recent years, it is clear that since 1998, in sentencing young dangerous drug offenders, the courts have not departed from the guidelines on account of their youth. Looking at the circumstances of the present case from whatever perspective, in our view, there is no justification for the trial Judge to depart from the sentencing guidelines laid down in R v. LAU Tak-ming by not sentencing the respondent to imprisonment. On the contrary, from the respondent’s attitude and conduct, and from the impression he made on the probation officer and the in-take officer of the Correctional Services Department, it is clear that he was not remorseful, that he had no intention of giving up his drug addiction, and that he was willingly enslaved by dangerous drugs. Furthermore, he committed the offences in the present case while he was on bail, and this case is far more serious than the dangerous drug offence he had first committed. In the circumstances of this case, this Court is satisfied that Judge Li was wrong in principle that on account of the respondent’s youth and other mitigating factors, he did not sentence the respondent to imprisonment. In sentencing the court should not only take into account the opportunity of rehabilitation for offenders, it is also necessary to take into account the effect of deterrence on those who intend to commit these offences. The sentence should also be commensurate with sentences passed on offences of a similar nature and should follow the sentencing guidelines. We are satisfied that sentencing the respondent to detention in a training centre is manifestly inadequate. The appropriate sentence should be a prison term in accordance with the guidelines.

15. For such an amount of dangerous drug as 136.17 grammes of heroin hydrochloride, the starting point should fall within the range of 8 to 12 years’ imprisonment, and the sentence should be one of 10 years. But after giving 1/3 discount on sentence for respondent’s pleas of guilty, the sentences imposed by the trial Judge, therefore, should have been a total of 6 1/2 years for the 2 charges. Since there were 2 charges, sentence should be passed on each charge. Having had regard to all factors, we allow the Secretary for Justice’s application and review the sentence in question. Accordingly, we order that the original sentence of detention in a training centre be set aside and, a concurrent sentence of 6 years’ imprisonment be imposed in substitution on each of the drug trafficking charges.