SECRETARY FOR JUSTICE v. TANG KING WA

CAAR 4/2022, [2023] HKCA 646

On Review From [2022] HKCFI 1091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 4 OF 2022

(ON REVIEW FROM HCCC NO 224 OF 2021)

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R E A S O N S    F O R    J U D G M E N T

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

A.  Introduction

1.  The respondent pleaded guilty before a magistrate to one count of Trafficking in a dangerous drug, namely 214 grammes of a solid containing 190 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed for sentence to the High Court where, on 4 February 2022, he confirmed his plea and admitted the Summary of Facts before Campbell-Moffat J (“the judge”). On that occasion, the judge considered it necessary to adjourn the hearing for a Training Centre Suitability Report to be prepared on the respondent. The Suitability Report having in due course confirmed that the respondent was suitable for admission to a Training Centre, the judge made a Training Centre Order on 14 April 2022.

2.  On 6 May 2022, the Secretary for Justice applied for leave to apply to review the sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, contending that the sentence was wrong in principle and manifestly inadequate. Leave was granted by Poon CJHC on 10 May 2022.

3.  Prior to the first hearing before this Court on 28 March 2023, we requested a Training Centre progress report on the respondent. After hearing from both parties on 28 March 2023, we withheld our decision and adjourned the hearing to 25 April 2023 for a further progress report on the respondent in light of certain submissions we had received. At the resumed hearing on 25 April 2023, we allowed the application and substituted for the original Training Centre Order, a sentence of 4 years’ imprisonment, taking into account the period he had already spent in a Training Centre, both for the purposes of assessing his suitability for such an Order and of serving the Order itself.

B.  Facts accepted by the respondent

4.  On 2 January 2021, at 9:03 pm, two police officers were on anti-crime patrol near 18 Tin Yan Road, Tin Shui Wai, New Territories when they noticed a private vehicle parked by the roadside near a lamppost. The respondent was seen with a bag under his left arm walking furtively from the right rear end of the vehicle. Upon seeing the police officers, the respondent suddenly jumped into the rear passenger seat of the vehicle.

5.  The vehicle was immediately intercepted by the officers, whereupon the respondent was found sitting in the middle of the rear passenger seat, still with the bag under his left arm; while a 30-year-old male, whom we shall refer to simply as “Chung”, was sitting in the driver’s seat. Chung was immediately instructed by the officers to switch off the engine, and both men were ordered to alight from the vehicle.

6.  Upon a search of the bag under the respondent’s arm, a red plastic bag with nine transparent re-sealable plastic bags were found, in which there were a total of 214 grammes of a solid containing 190 grammes of cocaine. No other suspicious items were found in the vehicle.

7.  It was later confirmed by the owner that he had lent his vehicle to Chung to drive on a casual basis about a month before the incident. Chung denied any knowledge of the dangerous drugs found on the respondent. The respondent and Chung were duly arrested by the police, but they each remained silent under caution. They also refused to sign on police notebooks.

8.  In an interview conducted between 2:32 pm and 2:43 pm on 3 January 2021, the respondent claimed that he alone owned the drugs in question and purported to exonerate Chung, whom he said had no knowledge of the drugs. The respondent also confirmed that the packets of drugs shown to him during the interview were the same as those which had originally been inside his bag.

C.  The hearing on 4 February 2022

C.1.  Mitigation (written material)

9.  A mitigation bundle was submitted to the court before the initial sentencing hearing on 4 February 2022 by Mr Joshua Choy, who represented the respondent at trial, as he did before us at this application. Amongst the material were counsel’s written submission, three medical reports and various letters of mitigation. The information established that the respondent was 17 years and 1 month of age at the time of the commission of the offence, and had a clear criminal record. He had two brothers, the eldest of whom had died when he was 6 years old. His parents divorced in the same year and the responsibility of providing for the family had since rested on his mother[1].

10.  It was explained in the written submission that, on the day in question, the respondent had received a call from a friend known as “Wing Chai”, who had asked him for a favour, which was to collect some dangerous drugs from a third person and pass them to a fourth person; the respondent would then be later notified as to where and when he should deliver the drugs[2]. (At the hearing before us, Mr Choy has explained that the respondent had in fact been instructed to pass the dangerous drugs to Chung and await instructions for their further distribution.)

11.  It was further revealed that the respondent had suffered from depression in 2016, when he had consulted a psychologist. However, his depression persisted and, in 2018, he stopped consulting the psychologist. A year later, however, his condition worsened and he turned to a psychiatrist, Dr Ronnie Pao Sze Yuan (“Dr Pao”), who prescribed some medication to the respondent. In 2020, he consulted a different psychiatrist, Dr Au Yeung Kwok Leung (“Dr Au Yeung”) and then, later the same year, a Government psychiatrist, Dr Eric Lai Chun Lun (“Dr Lai”), when he attempted suicide and was admitted to the Accident and Emergency Department of Tuen Mun Hospital[3]. He was diagnosed on this latter occasion as suffering from an adjustment disorder.

12.  As to the respondent’s mental condition at the time of the offence, in or about January 2021, Dr Lai stated in his medical report, dated 19 April 2021, that[4]:

“On 28 September 2020, [the respondent] attended the accident and emergency department of Tuen Mun Hospital for suicidal attempt. He reported experiencing episode of low mood of increased frequency in the preceding one month, in reaction to the escalation of the tension in the relationship with his girlfriend. The repeated suicidal attempts of wrist cutting, drug overdose and drowning were triggered by the initiation of break-up from his girlfriend. He was diagnosed with adjustment disorder and hospitalization was suggested. Yet as he reported his mood symptoms subsided significantly after a brief stay in the emergency ward and declined in-patient treatment, and his mother supported his decision, he was discharged and arranged follow-ups at Tuen Mun Child and Adolescent Mental Health Centre afterwards.

Through the subsequent follow-ups, it was observed that he was able to accept the loss of the relationship without any significant emotional disturbance. His functioning was restored as evidenced by his ability to cope with studying, part-time work and socialization. Mental state examination as on the last consultation on 4 December 2020 revealed euthymic mood with reactive affect, coherent and relevant speech, with no psychotic features or suicidal ideas. He was aware of contingency plans in times of deterioration in mental state. He was thus put on follow-up on as-required basis.

In summary, King Wa was diagnosed with adjustment disorder which had subsided with the resolution of stressor of unstable romantic relationship. He no longer required psychiatric follow-up since December 2020.”

13.  In his written submissions before the judge, Mr Choy endeavoured to explain the reasons behind the commission of the offence. It was said that in 2018, the respondent had been offered cannabis and ketamine by his peers to alleviate his depression. Regrettably, he seemed to find such narcotics more helpful than the medication prescribed to him[5]. Accordingly, the respondent resorted to taking cannabis and ketamine on a regular basis. It was said that he committed the offence because he had no income and he could not resist the temptation of an offer of $1,200 from a friend to traffic in the drugs in question; he also hoped that he would be able to purchase ketamine at a lower price for his own use[6]. The court was informed that the respondent had presented a urine test result which was positive for dangerous drugs whilst on remand[7].

C.2.  Mitigation (oral submissions)

14.  After the respondent had confirmed his plea and the Summary of Facts, as well as his formal antecedents, Mr Choy began his plea in mitigation by formally producing the mitigation bundle he had previously served on the court and commencing his submissions with the words, “If I may first begin with the tariff…”[8]. The judge, however, immediately interjected to say, “No, no. Don’t even go there at the moment… I’m really concerned about this young man”[9], before indicating, “I’m trying to work out… what is best for this young man”[10].

15.  Defence counsel then explained that the respondent had had psychiatric problems since his early teens[11] and had even tried to commit suicide[12]. He went on to suggest, “it was the temporary boost in these dangerous drugs which the defendant foolishly relied on in battling depression and his disorders”[13]; although it was accepted that the respondent was not a drug addict[14].

16.  Having indicated during this exchange that “just simply punishing him isn’t going to help (the problem) either”[15], and acknowledging that “[e]ven though that is wrong, what he did was wrong… But I don’t want his life ruined”[16], the judge indicated, “I’m not thinking of locking this guy up in an adult prison… that is not what I’m thinking of doing… I don’t see how him mixing with real drug traffickers… in prison is going to help him”[17]. As she then rather more starkly put it, “I don’t just want to put him in prison, I really don’t think this is the disposal this young man deserves. He has some mental health problems he has to face up to”[18]. She then stood the matter down to enable counsel to take instructions from the respondent as to whether he would agree to an Order requiring him to be detained in a Training Centre.

17.  When the hearing resumed, defence counsel confirmed that the respondent was willing to serve a Detention Centre Order, a Training Centre Order or a Rehabilitation Centre Order[19]. Following the judge’s remark that the appropriate sentence after plea for the quantity concerned should have been 8 years’ imprisonment on an arithmetical basis[20], Mr Choy pointed out that, in the case of a Training Centre Order, the respondent would be detained for a maximum of 3 years and then be subject to another 3 years of supervision, which, as he put it, “adds up to 6 years, which will be very comparable to the actual sentence … after the one-third discount for his plea of guilty [and] another one-third discount by the Prison Rules.”[21] The judge evidently accepted this submission.

18.  Counsel told the judge that the respondent had aspired to setting up his own hair dressing salon[22]. In response to this information, the judge remarked that in Training Centres, “they have hair salons and restaurants and all sorts of other things where they can get help. So it would appear to me to be a just way to resolve this issue for everybody…”[23].

19.  The judge then turned to prosecuting counsel, accepting that the imposition of a Training Centre Order rather than a sentence of imprisonment would in the circumstances be “very exceptional, and I will have to seek to justify it”[24]. Nevertheless, she considered that such an exceptional course might be justified since “the Herry principles[25] allow you to go up and down.”[26] She said she would hear submissions from prosecuting counsel as to “why you say I should not make the order”[27]. She acknowledged, “I do know I’m working outside what everybody expects at the moment, but it’s me and I don’t want somebody’s life ruined and I don’t want a young man in prison with a load of drug traffickers, learning how to traffic in drugs in the future”[28]. Finally, before adjourning the case for a Training Centre Suitability Report, she emphasised that the present case was “a typical situation of where we need to find the right fit of both punishment and deterrence but also we need to individualise”[29].

20.  The Training Centre Suitability Report was duly prepared pursuant to the judge’s request and furnished to the court. However, the resumed hearing, originally scheduled for 3 March 2022, was delayed because of a General Adjourned Period until 14 April 2022. The Suitability Report concluded that the respondent was mentally, psychologically and physically fit to be detained in a Training Centre. However, we also note that in the Suitability Report the author had stated[30]:

“[w]hile on remand, [the respondent] failed to comply with the institutional regulations and rules repeatedly and he was put on adjudication respectively for those rule-violating behaviour. On 26.1.2021, he was engaged in fighting with other persons-in-custody. On 11.2.2021 and 22.2.2021, he was found disobeying staff’s order repeatedly. On 1.8.2021 and 13.9.2021, he was found in possession of unauthorized articles. On 5.9.2021, he and other persons-in-custody were found shouting loudly. On 13.11.2021, he used abusive words towards staff.”

D.  The hearing on 14 April 2022

21.  Whilst accepting that the respondent had exhibited a rebellious streak during the remand period, defence counsel pointed to the influence of unsavoury characters upon him in the past[31]. Mr Choy stressed that the respondent was in need of help and rehabilitation and urged the judge to adopt a lenient and exceptional approach to sentence[32].

22.  In response, prosecuting counsel referred the judge to the decisions of this Court in Secretary for Justice v Lau Shing Kit[33] and Secretary for Justice v Chau Tsz Tim[34] (which had been heard together with another application for review, namely Secretary for Justice v Ho Wan Chiu[35]). The applications for review in all three cases concerned offences of trafficking in dangerous drugs where the respondents had originally been sentenced to a Training Centre Order, notwithstanding that the quantities of drugs involved in the three cases would normally have attracted starting points in excess of 6 years’ imprisonment under the relevant guidelines. In both cases, the Court had criticised the passing of Training Centre Orders.

E.  The judge’s sentencing

23.  After prosecuting counsel had made his submissions, the judge began her reasons for sentence by making it clear that “[t]he court intends to take an exceptional approach to sentencing by making a Training Centre Order…”[36]. She highlighted the background of the respondent so far as his family, friends, school life and medical history were concerned. In particular, she noted that, at the age of 15, he had been diagnosed by Dr Pao as having a moderate depressive episode but he did not persevere with the prescribed medication; at the age of 16, he was diagnosed by Dr Au Yeung as having depression and dysthymia and described as having limited insight into his mental illness; at the age of 17, he was diagnosed by Dr Lai with an adjustment disorder but the respondent had refused the recommended course of hospitalisation.

24.  The judge expressed sympathy for young people such as the respondent, who consistently lacked parental and professional support[37], commenting[38]:

“That was March 2019, the defendant was clearly depressed and emotional and without professional support. If the information I have been given is correct, this would be the beginning of a window, between 2019 and 2021, when the defendant had sought refuge in recreational drugs to ease his depression. It was a naïve ‘quick fix’ and it allowed him to mix in a bad crowd. Although it has to been said that the friends he made at this time appeared to him to be the only ones who cared and that, in turn, nurtured a loyalty towards him.”

She went on to say[39]:

“Unfortunately, his mother, who was his legal guardian, also did not understand the degree of professional help he required and supported his decision not to seek in-patient care. He was therefore provided with out-patient care at the Tuen Mun Child Adolescent Mental Health Centre where he was seen for follow-up examinations. At no point in time does it appear that Dr Lai discussed the previous diagnoses of both Dr Pao or Dr Au Yeung.”

25.  The judge considered that the appropriate starting point for the respondent in playing the role of a simple courier was 12 years’ imprisonment under the guidelines (in fact, it was agreed before us that the appropriate sentence after trial under the relevant guidelines on a strictly arithmetical basis was 11 years and 8 months’ imprisonment). Having regard to the respondent’s youth, she considered that a one-year discount should be given (were he to be sentenced to prison)[40]. The judge nevertheless went on to explain why the respondent should exceptionally be sentenced to detention in a Training Centre[41]:

“…I believe you need help. You are a young man of good character, who has never been in serious trouble before and who has always responded well to intervention. Several letters in mitigation state what a decent young man you are. There is no doubt that you have a mental illness which will be with you your whole life but which can be addressed if you will allow mental health professionals to help you. To do that you have to come to terms with that illness and obtain proper support. You entered the world of drugs at a vulnerable age because you did not have that support. The adults in your life, both familial and professional, needed to take better care of you. It has been shown that, with discipline and support, you can be your true self and you can achieve. There will be no need to go near any dangerous drugs if you have a true understanding of your illness and proper medical support for the rest of your life.

Training Centres are operated by the Correctional Services Department for offenders between the age of 14 and 21. The emphasis is upon rehabilitation, education and vocational training. The order is an indeterminate one. It is not for this Court to say for how long you will be held within the Training Centre. That will be for the CSD to decide but the minimum amount of time you will be detained is six months and the longest period of detention can be up to three years. There is therefore a huge incentive to avail yourself of all that such a custodial option offers. You will also be subject to up to three years’ supervision after release. In accordance with Wong Chun Cheong v HKSAR [2001] 4 HKCFAR 12, I take the view that:

i) The offence to which you have pleaded guilty attracts a sentence of imprisonment;

ii) You are 18 years of age;

iii) In all the circumstances of this case, the interests of the community are nevertheless achieved by taking a rehabilitative approach to sentencing, given your good character, your known character when given appropriate support, your remorse, and your illness; and

iv) Whilst it may appear extremely lenient in the face of a likely actual term of effective imprisonment of 7 years 4 months, which may attract an effective term with good behaviour of 4 years 9 months less the 15 months spent on remand, this Court can take cognisance of your adaptability to discipline and otherwise good character, as against the upper limit of 3 years’ Training Centre and 3 years’ supervision. Should that period be less, then that is to your credit and indicates that this offending has been brought about by your underlying illness and not by any malicious intent.

In coming to this decision, I have taken into consideration the recommendation of the suitability report and have also considered the guidance provided in Secretary of Justice v Lau Shing Kit [2012] 5 HKLRD 297 and Secretary of Justice v Chau Tsz Tim [2015] 1 HKLRD 853. This Court accepts that drug trafficking is a truly evil business and that it is the policy of the Courts to render no mercy to those who are involved in it and that deterrence takes precedence over rehabilitation but I am not at all sure that it is an issue of deterrence versus rehabilitation in this case. This young man is mentally ill and anyone who has first-hand knowledge of those with depressive disorders will know that they cannot deal with it on their own. It does not go away. It will never go away and society should be ashamed of itself if it points a finger at someone who was only just 17 at the time of offending and say it is his fault that he was offending and that society requires this offender to be punished by imprisonment only. There is room for humanity in sentencing when the circumstances warrant it. A Training Centre Order will be tough. It is not a soft option, but it will better serve your obvious difficulties with authority. It will ensure you receive proper mental health care. It will allow you to regain the education you missed and obtain a qualification which would give you employment. Plus, it will provide supervision and support in the community. I say again, it is no easy option and it is an exceptional option. If you were to go to prison for 7 years and 4 months, you would serve a sentence in the order of 4 years and 9 months with good behaviour. Your time in custody to date would have counted against that. You have been in custody since your arrest in January 2021, a period of 15 months. You would have approximately 3 years and 5 months to serve. But you would be amongst common criminals older than yourself and many drug dealers. They will become your friends whilst inside the prison system and they will inevitably be your support and your mentors. You would learn how to become a professional criminal. I do not want that for you. Your family do not want that for you and your teachers do not want that for you. This is not simply an issue of your age even though you only reached your 17^th birthday at the time of offending. That has been accounted for above. In all other circumstances you would most certainly go to prison. It is an issue of your mental health. Society gains nothing by punishment in these circumstances and it gains everything by seeking to support, educate and rehabilitate you.”

F.1.  Progress report on the respondent

26.  Prior to the hearing of this application for review, this Court considered it prudent to call for a progress report on the respondent whilst he had been undergoing the Training Centre Order. That was duly filed with the Court on 27 March 2023, a day before the first hearing. The relevant part of the report stated:

“…

TANG had not been subjected to any disciplinary report for the period of his admission. In general, he managed to stay away from trouble and showed acceptable response towards counselling. He was also able to make adjustment to the institutional life and tune in the disciplinary training with fair progress.

As observed, TANG showed … little sense of remorse for his misdeeds and was willing to adopt a positive attitude towards his future.”

In view of its brevity, we called for a fuller report, specifically to deal with certain positive matters that had been placed before us at the hearing on 28 March 2023 concerning his conduct whilst undergoing the Training Centre Order.

F.2.  Further progress report on the respondent

27.  The further progress report on the respondent, filed with the Court on 14 April 2023 for the purposes of the second hearing, stated, inter alia:

“TANG had not been subjected to any disciplinary report for the period of his admission. In general, he managed to stay away from trouble and showed acceptable response towards counselling. He was also able to make adjustment to the institutional life and tune in the disciplinary training with fair progress. Since he was able to manage to behave himself, he acquired a total of five merit notes during the training period which were issued on 19.8.2022, 12.10.2022, 23.11.2022, 11.1.2023 and 1.3.2023 respectively. Consequently, he was promoted to the Immediate Grade and the Advanced Grade on 22.9.2022 and 21.3.2023.

Regarding the occupational training, he was awarded two certificates, namely the ‘Food Hygiene Certificate for Hygiene Manager’ and the ‘Certificate in Basic Western Snack and Dessert Making’ issued by the Vocational Training Council, as he was able to complete the courses. In addition, he was arranged to attend the examination of ‘City & Guilds - Word Processing Techniques (Essential)’ and ‘The British Council - Cambridge English: YLE Movers’, which will be held on 10.5.2023 and 8.6.2023 respectively.

For the individual counselling, TANG showed a little sense of remorse for his misdeeds and failed to show his determination to turn over a new leaf. His insight into his law-breaking behaviour and staying away from his adverse peers was still weak. Thus, he was undergoing an offending behaviour programme organized by the Psychological Services Section and his response towards counselling was acceptable. Last, for providing comprehensive rehabilitation services, TANG and his family members were invited to join [an activity] to enhance the inmate-parent relationship on 18.1.2023.

As presented, his performance during his training period was considered to be fair.”

G.  The applicant’s submissions

28.  Ms Sabra Lo, on behalf of the Secretary for Justice, advanced three grounds of appeal in support of the submission that the sentence was wrong in principle and/or manifestly inadequate. Ground 1 averred that the Training Centre Order failed sufficiently to reflect the gravity of the offence given the large quantity of dangerous drugs in which the respondent had trafficked. Ms Lo submitted that in serious trafficking cases such as the present one, the deterrence of other potential offenders must take precedence over the rehabilitation of the individual offender. She complained that the judge placed undue weight on the respondent’s supposed rehabilitative needs over the community’s interest in deterring other potential offenders in the war against drugs. She contended that the respondent was not a person of extreme youth; that his background could not be described as exceptional; and that, in any event, he appeared to lack any real determination to reform himself. She noted in particular that the latest progress report indicated that the respondent showed “little sense of remorse for his misdeeds and failed to show his determination to turn over a new leaf”, while “[h]is insight into his law-breaking behaviour and staying away from his adverse peers was still weak”. His performance had so far only been assessed as “fair”. Accordingly, the present case did not warrant the exceptional course taken by the judge.

29.  Ground 2 complained that the judge erred in comparing a notional sentence after plea with the aggregate of 3 years’ detention and 3 years’ supervision in the case of a Training Centre Order, together with the period of 13 months he had served on remand prior to the sentence being passed. Ms Lo submitted that, on the one hand, the judge fell into the error of affording an unreasonably generous one-year discount to the respondent who could not be said to be of extreme youth, as a result of which error the notional sentence after trial was understated; on the other, she wrongly assumed that the respondent would be detained in a Training Centre for 3 years, which was the maximum period of detention, as distinct from the minimum period, which was 6 months. A realistic comparison of the two sentencing options demonstrated that the imposition of a Training Centre Order was extremely lenient and could not be justified.

30.  Ground 3 averred that the respondent’s sentence was significantly out of line with the other sentences approved or applied by this Court in similar cases. Ms Lo cited six authorities from the Court of Appeal in support of her position, two of which had been produced to the judge by prosecuting counsel: namely, Chau Tsz Tim; Lau Shing Kit; Secretary for Justice v Ko Fei Tat[42]; Secretary for Justice v Yau Si Ho[43]; Attorney General v Kong Kin Man[44]; and Attorney General v Suen Yuen-ming[45].

31.  The applicant emphasised that had the respondent been an adult, the appropriate starting point on a strictly arithmetical calculation would have been 11 years and 8 months which, after a full one-third discount, would have been reduced to 7 years and 9 months’ imprisonment. Even if the relative, but not extreme, youth of the respondent were to be taken into account, a Training Centre Order was wrong in principle as an appropriate sentence and should be substituted with one of substantial imprisonment.

H.  The respondent’s submissions

32.  Mr Choy realistically accepted that the respondent’s sentence was extremely lenient, and arguably inadequate. However, he sought to resist the application on the basis that the sentence could not be said to be wrong in principle, relying upon this Court’s rejection of a discretion-less sentencing approach in trafficking cases in Herry Jane Yusuph. He argued that a sentence of immediate imprisonment was not the only sentencing option in the case of a young offender who, upon reflecting on his position, was gradually rehabilitating himself. He also pointed out that, contrary to the applicant’s submissions, the judge was alive to the fact that the respondent might spend a minimum of 6 months and a maximum of 3 years in a Training Centre and contended that this would therefore provide him with an important incentive to rehabilitate himself. He urged us in the circumstances not to disturb a sentence that appeared to be working and which may in fact be nearing its end. His fall-back position was to ask for an appropriate discount of sentence, given the element of double jeopardy and the fact the respondent had already served just over one year in custody under the Training Centre Order.

I.  Discussion

33.  The sentence passed was unprecedented in respect of such a serious case of drug trafficking. That ought to have been clear from the two authorities of this Court cited to the judge by prosecuting counsel prior to sentence, both of which concerned Applications for Review of Sentence by the Secretary for Justice in which the respondents had originally been sentenced to a Training Centre Order for trafficking in significant quantities of dangerous drugs. In Lau Shing Kit, the dangerous drug trafficked by the respondent aged 17 years and 2 months at the time of the offence was 183.99 grammes of ketamine, which the Court said ought to have warranted a sentence of 8 years’ imprisonment after trial. Although the Court did not disturb the Training Centre Order in that case, given the protracted history of the matter, it made it clear that a sentence in the region of 4½ years’ imprisonment ought to have been imposed by the judge. In Chau Tsz Tim, the drug trafficked by the first respondent aged 17 years and 7 months was 140 grammes of ketamine, which would normally have warranted a sentence of over 7 years’ imprisonment. The Court on review substituted a sentence of 4 years’ imprisonment for the Training Centre Order.

34.  Yeung VP, on behalf of the Court in Chau Tsz Tim, noted that the respondent was not a person of extreme youth and that his young age was not a significant factor when set against the magnitude of the offence he had committed[46]. He made reference to the remarks, the quotation of which we have expanded, by Stock JA (as he then was)[47] in HKSAR v Law Ka Kit[48], albeit a case involving serious armed robberies:

“27. Yet it has for long been recognised that ‘youth may pale into insignificance because of the magnitude or prevalence of the offence’: see Re Applications for Review [1972] HKLR 370, 417. … That is because in such cases ‘the public interest must be served over and above the individual interests of the [accused] despite their youth’: see R v Chan Chi Fai (Cr App R 59/1983, unreported); and the commentary on offences by youth in Cross and Cheung ‘Sentencing in Hong Kong’ (3^rd Ed), pp 480 et seq. …

28. …

29. Difficult though it is to sentence youths of this age to prison and indeed to long terms of imprisonment, there are several considerations which dictate that in cases of such gravity, even in the case of those of the age of the younger offenders in this case, the courts must steel themselves, unless there are particularly powerful and peculiar contrary reasons attaching to the circumstances of the offender and his involvement in the offence, to the imposition of substantial prison terms. The public interest requires that an unequivocal message be delivered to youngsters, and to those who would engage them for the purpose of crime, that they must expect little quarter from the courts when it comes to the commission of such serious offences, especially when guns are carried and used in the commission of crime.”

35.  It should nevertheless be observed, and we shall return to this matter later, that the Court in Chau Tsz Tim did to some extent bear in mind the “relative young ages” of the respondents when identifying the starting point for sentence upon review[49].

36.  The quantities of dangerous drugs in the present case were far more serious than those in either Lau Shing Kit or Chau Tsz Tim, the latter being an appeal emanating from the District Court. Not only was the judge’s sentence in the case before us unprecedented for the quantity of cocaine involved, it ought to have been clear from the principles authoritatively explained by the Court of Final Appeal in Wong Chun Cheong v HKSAR[50] concerning the imposition of Training Centre Orders that such a disposal was not an option in this case. The judge was clearly aware of the decision in Wong Chun Cheong itself, because she made reference to it albeit in a different context[51]; but, in any event, its strictures on the application of Training Centre Orders in serious crimes such as drug trafficking were also extensively set out and referred to by the Court in Chau Tsz Tim[52].

37.  Ribeiro PJ, giving the judgment of the Court in Wong Chun Cheong, had said[53]:

“As the decided cases show, the ‘interest of the community’ condition means that a sentencing tribunal has to consider whether, looking at the circumstances overall, a training centre order is in the community’s interest and, if not, to reject that option, despite the offender’s need for rehabilitative treatment, save in exceptional cases.

Thus, the training centre option may be rejected as not ‘in the interest of the community’ where the need for deterrent sentences has to be given priority over the rehabilitative needs of the individual offender.

This approach is well-established in drug-trafficking cases. Thus, in A-G v Suen Yuen Ming [1989] 2 HKLR 403, Silke V-P stated:

‘We accept that in the context of an offender such as Suen Yuen Ming, there can be an apparent conflict between his interests, his rehabilitation, deterrence to him and to others and the interests of the community ... Clearly it is incumbent upon the courts to be wary and to exercise great care before they commit young offenders to prison and this is a factor which the Legislature has recognised ... While there may exist the conflict to which we have referred a moment ago between the varying aspects relating to the offence and the offender there equally well may be cases where the interests of the community can be best served, though we accept that these will be rare in drug cases, by placing greater emphasis on rehabilitation as distinct from deterrence.’

Authorities to a similar effect include R v Yu Chun Hoi [1991] 1 HKLR 479; R v Chiang Sun Keung [1997] HKLRD 24 and A-G v Kong Kin Man [1997] HKLRD 350, [1997] 1 HKC 537. In the last of these cases, Litton V-P stated:

‘The authorities on sentencing clearly establish that age − whether youth or old age − carry little weight when drug trafficking is concerned. It is only in rare cases that detention in a training centre is appropriate on a conviction for drug trafficking: see in particular A-G v Suen Yuen Ming [1989] 2 HKLR 403. There is a considerable public interest involved in showing by deterrent sentences that the courts will treat drug trafficking most severely.’ ”

38.  The principle that there are some crimes where, because of their intrinsic seriousness, individual rehabilitation must yield to public deterrence has been accepted and applied in the context of drug trafficking offences at least since the making of Silke VP’s celebrated statement in R v Lau Tak Ming & Anor[54] more than 30 years ago[55]:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability – though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

39.  More recently, in Herry Jane Yusuph, the Court identified two particular facets of sentencing in drug trafficking cases. The first concerned the usually identifiable quantity of dangerous drug involved in a given case; the second concerned the intrinsic seriousness of the offence. Of the second facet, the Court said[56]:

“Secondly, the offence of trafficking in dangerous drugs is an extremely serious crime in this jurisdiction, where the offence carries a maximum sentence of life imprisonment and a fine of HK$5 million; indeed, in many neighbouring jurisdictions in this region of the world, the offence carries the death penalty. Given the appalling consequences which the proliferation of dangerous, particularly addictive, drugs has on families, communities, the workplace, indeed, on the whole fabric and functioning of society, the reasons for a defendant’s involvement in the crime and his personal circumstances are of far less importance than society’s duty to protect its citizens and the court’s paramount function of ‘denunciation, deterrence and punishment’[57] of those who would seek to traffic in dangerous drugs. As the Court said in Lau Tak Ming & Anor in 1990, mitigating factors in cases of this nature will have less weight than they might otherwise have for less serious offences; a point emphasised again two decades later in Stojanovic Milka[58], and reiterated in Kilima[59].”

The Court went on to say that because of these two particular facets of sentencing, consistency of sentence in drug trafficking cases “becomes so important”[60].

40.  Accordingly, the judge’s comment to defence counsel during mitigation, namely, “I don’t just want to put him in prison. I really don’t think this is the disposal this young man deserves…”, does not, with respect, sit well with these consistently strong and imperative statements on the need for deterrent sentences from different generations of appellate courts. The public interest plainly required that the judge send the respondent to prison for a substantial term.

I.1.  Relative youth

41.  It is here that we should say something about the question of age, and in particular youth. Children, and particularly teenagers, grow up much faster today than they did a generation ago, as a brief survey of case law in this and other kindred jurisdictions will quickly make apparent. Having made that observation, it is nevertheless well to remember that not everyone is constructed in the same way or develops at the same pace. Some mature at a faster rate than their peers: others, at a slower rate. As Stock JA pointed out in Law Ka Kit, “[w]hat is ‘extreme youth’ is not a matter of exact mathematics”[61]. Moreover, as he went on to explain[62]:

“…the degree to which that impacts upon sentence, if at all, must depend upon the case and on the offender. One offender aged 14 may be considerably more mature and hardened than the next of the same age. An offender aged 14 may in some cases be more of a leader and more cunning and street wise than an accomplice aged, say, 17 years…”.

42.  The respondent before us cannot be said to be of extreme youth. Whilst his actions were no doubt being directed by older, more seasoned criminal minds, we note that, despite his clear record, the respondent knew enough of his rights to remain silent under caution and then refuse to sign on the officer’s notebook concerning the detail of his arrest. Moreover, when he was formally interviewed the following day, he laid claim to all of the cocaine seized and asserted that Chung had no knowledge at all of the dangerous drugs. As Mr Choy now recognises, this was an outright lie.

43.  That is not to say that relative youth can never in appropriate circumstances be taken into account, although the effect of such a factor may be slight and in most serious cases of trafficking in dangerous drugs, it will make no discernible difference at all. Clearly, as we have pointed out, it was a factor referred to by the Court in Chau Tsz Tim, which expressly bore in mind “the relative young ages of the respondents and the fact that this is a review of sentence”[63]. This position is more consonant with the modern sentencing approach in Herry Jane Yusuph, with its emphasis on role and culpability rather than simply quantity, and its use of discretion rather than mere arithmetic. For, it is clear from the facts of this case that the respondent was to some extent manipulated by an older person, who must have persuaded him, against his own interests, to assume full and exclusive responsibility for the drugs in question.

I.2.  Medical evidence

44.  The judge also appears to have been unduly influenced by the notion that the respondent was “mentally ill”[64], for which he would be better suited to a Training Centre than a prison. She found[65]:

“There is no doubt that you have a mental illness which will be with you your whole life, but which can be addressed if you will allow mental health professionals to help you. To do that, you have to come to terms with that illness and obtain proper support”.

With respect, this was on the evidence an over-statement. It would seem that the respondent must have come to terms with his mental illness rather promptly after his arrest because the author of the Training Centre Suitability Report concluded that “during his remand period since early 2021, further suicidal ideation and mood problem was not revealed”[66], and he duly considered the respondent mentally, psychologically and physically fit for detention in a Training Centre[67]; moreover, the respondent’s mental problems were never mentioned again in either of the two progress reports from the Training Centre. As to the threat of the illness remaining with him for the rest of his life, we note Dr Pao’s conclusion that the respondent “suffered from a moderate depressive episode secondary to a broken love affair. Despite having symptoms of depression, he was not willing to accept medical treatment. Upon his return, he claimed his mood was improved”[68].

45.  The last psychiatrist to see the respondent was Dr Lai. His conclusion, in his report dated 19 April 2021, was[69]:

“In summary, [the respondent] was diagnosed with adjustment disorder which had subsided with the resolution of stressor of unstable romantic relationship. He no longer required psychiatric follow-up since December 2020”.

46.  Whilst we do not wish to minimise the fact that the respondent had had a psychiatric issue arising from a failed romantic relationship, its relevance was more to do with explaining why he had fallen in with bad company, how he came to commit the offence and its timing. Dr Lai had last seen the respondent in December 2020: the offence was committed on 2 January 2021. This factor, such as it was, was hardly a lifelong mental disorder: it arose from a failed teenage relationship, was plainly transitory and certainly no reason to prefer a Training Centre Order over a sentence of imprisonment.

I.3.  Computation of sentence

47.  Accordingly, we determined that the judge’s sentencing discretion seriously miscarried for a variety of reasons leading to a manifestly inadequate sentence. Apart from placing this Court in the awkward position of having to disturb a sentence which should never have been passed in the first place, the consequences are inevitably felt most by the respondent, who now has to be re-sentenced properly by this Court. As the Court said in Secretary for Justice v Pastana Carvalho Andreza Narely[70]:

“Sentencing is the most complete and all-embracing example of the exercise of judicial discretion. But, like all judicial discretions, it must be exercised in a principled way. Where a judge flouts established sentencing principles, or pays lip service to them but then applies them in such a way as to negate their very purpose, then the resulting sentence is not a proper exercise of the discretion and is likely to be arbitrary and unsound”.

The respondent himself is largely blameless in this exercise. Indeed, it is clear from a perusal of the transcript of mitigation before the judge that Mr Choy was intending to address the judge from the outset on the applicable sentencing guidelines; and, having read the written submission he had served on the judge before the hearing, it is abundantly clear that he was fully expecting his client to be sent to prison for a lengthy period. As he was later, with artless candour, to tell the judge when she made her intentions clear, the notion of a Training Centre Order “was out of my expectation”[71].

48.  We have been urged by Mr Choy, in his very measured submissions, to be as lenient as we can be, given the history of this matter as to how the making of the Training Centre Order came about, and that this is an application for review of sentence. We have given his submissions full consideration in arriving at the appropriate sentence. In particular, we have carefully borne in mind the possibility that the respondent may be near the end of his period of detention under the Training Centre Order, after which he will subject to a lengthy period of supervision. But, at the end of the day, it would not be a fitting and appropriate sentence for the crime which the respondent has committed.

49.  As Poon CJHC remarked in Secretary for Justice v SWS[72]:

“…as required by public interest, the court is duty bound to impose a commensurate sentence on the defendant before it pursuant to relevant ordinances and applicable legal principles.”

He went on to point out that:

“…unduly lenient sentences which may be seemingly advantageous to the defendants turn out to do them no good in the end. In case the Secretary for Justice applies for a review of the sentence, the defendant will inevitably be subject to anxieties pending any decision to be made by the Court of Appeal. If the review succeeds, the defendant will face a more severe sentence which will cause him disappointment or even a blow and may also interrupt the rehabilitation plan that he is undergoing. Reference may be made to Cross and Cheung on Sentencing in Hong Kong (9^th ed.), p.609, paras.41-8 and 41-9. Nevertheless, it is not meant to imply that the court is to be invariably harsh. What is required of the court is passing a commensurate sentence on the defendants.”

50.  It is accepted by both parties that the starting point for sentence, if it were based on arithmetic alone, would have been 11 years and 8 months’ imprisonment. Given the respondent’s relative youth, his limited role in the offence and the fact that he was clearly being manipulated by older criminal minds, one of whom (Chung) had an extensive criminal record including possession of dangerous drugs, we consider that the starting point could properly be adjusted down to 10 years’ imprisonment. From that adjusted starting point, the respondent is entitled to a full one-third discount for his early plea of guilty, thus bringing the sentence to 6 years and 8 months’ imprisonment.

51.  We bear in mind the psychiatric evidence, which at least pre-dated the offence and goes some way to explain how a young man of good character fell in with bad company and transformed himself from someone who dabbled in dangerous drugs into someone who was prepared to traffic in 190 grammes of cocaine narcotic. But we are not prepared to give the psychiatric aspect undue weight and treat it, as the judge did, as some kind of permanent affliction for the respondent. Nevertheless, we shall reduce the sentence for this factor by 8 months to 6 years’ imprisonment. That is the sentence the judge could and should have imposed on the respondent, commensurate with the offence, upon his plea of guilty and after giving proper effect to the mitigation advanced.

52.  Although 6 years’ imprisonment was, in all the circumstances, the appropriate sentence in this respondent’s case, we must now give effect to the history of this matter, which has seen the respondent undergo almost 1 year and 3 months in a Training Centre (we shall include along with the Training Centre Order itself the period beforehand when the Training Centre Suitability Report was being prepared, which was extended because of the General Adjourned Period to a period of 2 months and 10 days between 4 February and 14 April 2022). Accordingly, rounding the period spent by the respondent in a Training Centre slightly upwards and discounting the sentence of 6 years’ imprisonment (which ought to have been imposed) by 1 year and 3 months, the sentence becomes one of 4 years and 9 months’ imprisonment.

53.  We further recognise that this is an application for review of sentence, in which the respondent may well have been coming to the end of his sentence sometime this year, notwithstanding that there would be 3 years of supervision to follow. For the element of double jeopardy, the anxiety involved and the fact that by our decision the respondent will now have to spend much longer in custody than he was expecting, we shall discount the sentence by a further 9 months’ imprisonment. That brings the sentence which we shall pass on the respondent to 4 years’ imprisonment.

54.  For the avoidance of any doubt, and for the benefit of the Correctional Services Department which will compute the new sentence, we have already taken into account the period of detention in a Training Centre and notionally increased that period slightly to 1 year and 3 months when arriving at the sentence of 4 years’ imprisonment. What we have not taken into account, and what the respondent will now be entitled to receive credit for in the normal way is the period between 2 January 2021 and 4 February 2022, when he was on ordinary remand. It is our intention that the sentence the respondent should now serve is 4 years’ imprisonment less the time on ordinary remand between 2 January 2021 and 4 February 2022, and less any period for good behaviour to which he may now be entitled.