HKSAR v. USAMA BIN TARIQ AND ANOTHER

DCCC 194/2018

[2019] HKDC 1185

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 194 OF 2018

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Reasons for Sentence

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1.  I will deal with the 1st defendant first. He has been convicted after trial on a number of offences relating to this incident, four offences in total, the most serious of which being the 5th charge, that of kidnapping, and, of course, the offence of kidnapping is a serious offence, combined here with intimidation and assault.

2.  But this, as I have indicated earlier, is not the most serious of its nature.  It is really a dispute between young people involving what is aggravated bullying because the assaults took place in a dispute over honour relating to some young lady.  In any event, no one was seriously hurt and the victim, such as he is, was released apparently on reasonably good terms with everybody towards the end of the incident.

3.  As a result of my approach to the incident of kidnapping and the age of the defendant, I wanted to consider all possibilities of sentence in relation to this defendant:  20 years of age as of the time of sentencing, so he was available for all the forms of sentencing in relation to the Correctional Services Department such as detention centre, rehabilitation centre or training centre, also for the non-custodial option such as probation and community service order, and, because of the defendant’s age and the nature of the offences, I wanted to consider the full suite of appropriate sentencing and sentence him to what is the right sentence for him.

4.  He has one previous conviction in the past for handling stolen goods, where he was placed on probation for some 12 months in 2015.

5.  The exercise in obtaining reports on the defendant has narrowed my options considerably, largely as a result of the defendant’s own attitude towards his own sentencing. 

6.  The simple conclusion by the Correctional Services Department in relation to the defendant is he really is not suitable for any of their programmes such as detention centre, rehabilitation centre or training centre.  The main reason for that is that he is medically unfit to do so because he is described as a drug dependent.  That is not something I can, as it were, get round, so I am rather stuck with their conclusions. 

7.  As a result of the fact that they find him to be a drug dependent, I have to consider whether his drug dependency should also be dealt with, so, in respect of that, I obtained a Drug Addiction Treatment Centre report.

8.  Now, parallel to this investigation into sentencing by the Correctional Services Department, I also asked that the defendant be examined for sentencing by the Probation Department to see if he could possibly be accommodated by Probation Services.  Unfortunately for him, the report from them was not positive. 

9.  Now, when I obtained the Drug Addiction Treatment Centre report, I also asked the Probation Services to reconsider their earlier conclusions about the defendant’s suitability for a further probation and so I ordered a further probation officer’s report, which would involve, as we can see, further interviewing of the defendant at the Pik Uk Correctional Institution. 

10.  Now, in the face of the interviewer, the defendant maintained his denial towards the present offence, which seems very strange, given the weight of the evidence against him.  But, more than that, he denied or he questioned the outcome of the urine test that had been given.  He cast doubt as to the accuracy of the result of the urine test. 

11.  He declined the investigating probation officer’s suggestion of receiving any voluntary drug withdrawal treatment such as those offered by various institutions such as Christian New Being and Christian Zheng Sheng Association.  The defendant expresses preference for a shorter period of compulsory placement at the Drug Addiction Treatment Centre over a longer period of voluntary residential centre.

12.  Defendant had been anxious to be discharged as soon as possible so he could go back to find his fiancée, who apparently has returned to Pakistan, being somewhat disillusioned with the defendant.  Also, the parents of the girl, for obvious reasons, considered the defendant to be an unsuitable future husband for their child.

13.  The defendant’s father would not attend an interview with the investigating probation officer, but the father supports the defendant going to a Drug Addiction Treatment Centre.

14.  Now, it appears to me from the social investigation report of the defendant that he has a number of problems.  He has a problem with his ability to behave within the law.  He has a lack of respect for the law and he has a fast and loose approach to it. 

15.  He has a problem with his dependency on drugs, although the dependency at this stage is on cannabis.  That is to a certain extent a gateway drug and one can anticipate the defendant’s problem becoming more serious as he ages. 

16.  In his favour, he has acted responsibly and obtained employment, so there is some reason to believe that he may be able to rehabilitate himself eventually. 

17.  But, in any event, in the social inquiries, he has expressed himself as being unable to receive any immediate non-custodial option such as probation, and as, I am told by the Correctional Services Department, he still has an ongoing problem in relation to his drug dependency, that clearly has to be dealt with by the court before his rehabilitation can be completed.

18.  For this reason, I have reached the conclusion, after all these inquiries, that in respect of this defendant, the appropriate sentence for him on each of the charges of which I have convicted him on, shall be one of Drug Addiction Treatment Centre.  Of course, they would run concurrently.  I will also indicate conviction be recorded on that.  So the sentence for this defendant will be one of Drug Addiction Treatment Centre.

19.  As far as the 2nd defendant is concerned, his sentencing can be dealt with much more quickly.  He, up to this point, was of clear record.  He, clearly being a younger man at the time, was brought into this by 1st defendant, as it were, to show some more - I think the expression is - muscle, in relation to the kidnapping of the victim.

20.  The 2nd defendant is not without problems.  He also appears to have some difficulty with drugs, but he has strong family background, is remorseful, regretful.  His involvement was of a lesser nature than the 1st defendant and seems to be at the instigation of the 1st defendant. 

21.  The probation officer assesses him as being a person involved in a typical school campus bullying exercise, which he says should have been settled by the school principal, in Fall 2017.

22.  The 1st defendant has no history of violence or gang history, and was simply giving a hand to the 1st defendant out of goodwill.

23.  Now, clearly he has been involved in serious offences, but, given his age and his previous clear record and the recommendation of Probation Services that he is suitable for probation supervision, that I consider is the appropriate order to make in respect of him.

24.  The recommendation at present is for an 18-month probation order, and I will follow that order in respect of the offences of which the 2nd defendant was convicted, which is the 2nd and 5th offences.

25.  The order requires the 2nd defendant’s consent.

COURT:

So you must listen to what the order is and what requirements, what conditions I am going to make in respect of that order in respect of you, and you have got to indicate whether you agree to that.

Right. This order means that you will be under the supervision of a probation officer for the next 18 months. You must keep the peace and be of good behaviour generally. You must attend all meetings that the probation officer requires for you to make with him. He will specify the time and place of those meetings. There is a condition that you attend those meetings. There is going to be a condition that you will work and reside as directed by your probation officer.

It will also be a condition that you submit a random urine test as and when directed by your probation officer, that you receive any drug withdrawal addiction treatment/training as and when directed by your probation officer, and that would include residential drug withdrawal treatment, if considered appropriate.

If you breach any of the conditions of the order or you commit any offence during the currency of the order, you will be brought back to this court and sentenced again for the offences of which you were originally convicted.

Do you understand that?

2ND DEFENDANT: (Through Urdu/Punjabi Interpreter from this point) Yes.

COURT: Do you consent to perform the -- to be placed under probation?

2ND DEFENDANT: Yes.

COURT: All right then. The order will be 18 months’ probation on each charge, to run concurrently, on the conditions as set out in court.