SECRETARY FOR JUSTICE v. HO WAN CHIU

CAAR 4/2014 and
CAAR 5/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2014

(ON APPEAL FROM DCCC NO. 410 OF 2014)

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 5 OF 2014

(ON APPEAL FROM DCCC NO. 153 OF 2014)

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BETWEEN

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REASONS FOR JUDGMENT

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

Introduction

1. With leave granted by the Chief Judge of the High Court on 1 August 2014 and 8 August 2014, the Secretary for Justice (the applicant) applies, under section 81A of the Criminal Procedure Ordinance, Cap 221, for a review of the sentences imposed on Chau Tsz-tim (Chau) and Ho Wan-chiu (Ho), who had each pleaded guilty to a separate charge of drug trafficking before Judge Brown (the judge) in the District Court and were sentenced to the Training Centre on 11 July 2014 and 22 July 2014 respectively.

2. These applications concern the issue of whether it is wrong in principle to sentence young offenders, but not offenders of extreme youth, who are convicted of serious drug trafficking offences, to the Training Centre.

CAAR 4 of 2014

3. Chau pleaded guilty to trafficking in 0.19 kilogramme of a powder containing 0.14 kilogramme of ketamine.

4. Chau was intercepted on 16 March 2014 in a Mongkok street by the police and was found to be carrying 15 packets of ketamine, the subject matter of the charge, two mobile phones and $4,045 in cash.  The value of the ketamine was about $25,000.

5. Chau, under caution, said he was promised a reward of $100 for delivering each packet of what he thought to be cocaine.

6. Chau was born on 13 August 1996 in the Mainland.  At the time of the offence, he was 17 years and 7 months old.  The applicant came to Hong Kong in late 2009 to join his mother and his step father who were respectively a labor worker in a restaurant and a security guard, earning minimal income.  The respondent’s mother divorced his step father in 2012.

7. Chau had received six years of primary education and half a year of secondary studies in the Mainland before coming to Hong Kong and he quit school after completing his repeated Form 3 in Hong Kong due to poor academic performance and unruly behaviour.  Thereafter, Chau had taken up jobs as a lorry attendant and then a kitchen apprentice.  He quit his job in January 2014 and remained jobless until his arrest in March 2014.

8. Chau was cautioned by the police for a theft offence in February 2011, but he claimed not to have taken any dangerous drugs.

9. In mitigation, it was suggested that Chau grew up in an unhealthy environment with no family support and had difficulty adapting to the Hong Kong education system and that his lack of communication skills made it difficult for him to find and keep a job.  He said he was discriminated against by his colleagues and he started to mingle with some undesirable peers.  He was then asked by a friend to carry the drugs to earn a few thousand dollars.  The respondent attributed his wrongdoing to his greediness without considering the legal consequence.

10. According to the Training Centre Suitability Report, Chau admitted to have joined a triad society since mid 2013 and he started engaging in drug trafficking activities in early March 2014, earning about $1,500 a day.  Chau was considered mentally and physically fit for detention in the Training Centre.

CAAR 5 of 2014

11. Ho pleaded guilty to trafficking in 48.89 grammes of a solid containing 35.05 grammes of cocaine.  He was intercepted by the police on 8 January 2014 at a Wong Tai Sin bus stop and was found to be carrying, in his jacket pocket, three plastic bags containing the cocaine in question.  The value of the cocaine was about $48,000.

12. Ho said he was asked by “Ah Wai” to obtain the cocaine from “Ah Mun” and then to deliver the cocaine to “Ah Wai”.  Ho further said he would receive $550 for each bag of cocaine that he had successfully delivered.

13. At the time of his arrest, Ho had, on his person, $53.2 and a mobile phone with a SIM card.

14. Ho was born on 12 June 1995 in Hong Kong and at the time of his arrest, was 18 years and 7 months old.  He lived with his parents and two elder sisters in a public housing unit in Tin Shui Wai.  Ho studied up to, but did not complete, his Form 4 studies and he quit school in early 2012.  Ho had worked with his father as a decoration apprentice, a baggage carrier at the Hong Kong International Airport and then as a waiter.  He quit his job in December 2013 and remained unemployed until his arrest in January 2014.

15. Ho had a clear record.  In mitigation, it was suggested that Ho, under the influence of his friends, was persuaded to carry the dangerous drugs to earn some quick money.  It was said that he felt remorseful for what he did as it had brought disgrace and distress to his family.  He said he had the support of his parents and two elder sisters.  Ho indicated that he would rather be sentenced to jail than to the Training Centre.

16. According to the Training Centre Suitability Report, Ho joined the 14K triad society in early 2010 and he shifted to “Wo Shing Wo” triad society in late 2011.  He quit his job in December 2013 and under the introduction of his triad peers, he started trafficking in cocaine in early 2014, earning $5,000 a week and he spent all the money on entertainment.

The Judge’s Decision

17. The judge pointed out that the quantity of dangerous drugs in question would attract a starting point of not less than 6 years’ imprisonment for each of Chau and Ho.  However, in view of their background and circumstances, in particular, their young ages and their guilty pleas, the judge took the view that the regime and training provided by the Training Centre would be far more beneficial to them and to the society.  The judge therefore accepted the recommendation set out in the Training Centre Suitability Reports for both Chau and Ho, and sentenced them to be detained in the Training Centre.

18. In making the decisions as he did, it seems that the judge was referred to HKSAR v Ng Ping-hei (HCCC 299/2012).

Grounds of Application

19. It is the applicant’s basic contention that the Training Centre orders imposed on Chau and Ho are simply wrong in principle and/or manifestly inadequate.  The suggestion is that such a sentence is unduly lenient as it “fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate”: per Lord Lane CJ in Attorney General’s Reference No. 4 of 1989 (1989) 11 Cr App R (S) 517 at 521.

20. The applicant emphasizes that youth, except extreme youth, has little weight on sentence in drug trafficking cases as the need for deterrence should be given priority over rehabilitation of an individual offender.  It is pointed out that Chau and Ho, aged over 17 and 18 respectively, are not persons of extreme youth.

21. Mr Martin Hui, SADPP on behalf of the applicant submits that under the sentencing guidelines laid down in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking in 50 to 300 grammes of ketamine will attract a starting point of 6 to 9 years’ imprisonment, and that under those laid down in R v Lau Tak Ming and others [1990] 2 HKLR 370, as extended and applied to cocaine by AG v Pedro Nel Rojas [1994] 2 HKCLR 69, trafficking in 10 to 50 grammes of cocaine will attract a starting point of 5 to 8 years’ imprisonment.

22. Mr Hui further submits, applying those sentencing guidelines, that the proper sentences for Chau and Ho, after plea, should respectively be 4 years and 8 months’ imprisonment and 4 years and 7 months’ imprisonment.

The Respondents’ Position

23. Ms Lorinda Lau, for Chau, argues that the judge was entitled not to send him to prison and that the Training Centre Order imposed on Chau is not unduly lenient.  Ms Lau emphasizes that “it is incumbent upon the courts to be wary and to exercise great care before they commit young offenders to prison” and she cited a number of authorities to support her contention.

24. Ms Lau submits that Training Centre Orders are sometimes imposed on young offenders of 17 who had committed drug trafficking cases when there are exceptional circumstances.  Ms Lau suggests that Chau’s tragic background constituted exceptional circumstances.

25. Ms Lau further emphasizes that Chau was detained since March 2014 and was transferred to the Training Centre in July 2014.  Relying on SJ v Lau Shing Kit [2012] 5 HKLRD 297, Ms Lau submits that it is unfair to substitute the Training Centre Order with a substantial term of imprisonment.

26. Ms Lau also refers to R v Chiang Sun Keung [1997] HKLRD 24, HKSAR v Pau King Kong [2013] 3 HKLRD 676 (CA), R v Cheung Wing Wai and Others [1993] 2 HKCLR 139, HKSAR v Ng Chun To Raymond and another (CACC 178/2010) and HKSAR v Wong Chun Cheong (2001) 4 HKCFAR 12 to support her contentions.

27. Mr Selwyn So, on behalf of Ho, argues that tariffs are not mandatory and the judge was entitled to depart from the sentence tariffs for drug trafficking cases.  Mr So emphasizes that the judge had properly considered Ho’s case and having reminded himself of a proper starting point of 6½ years’ imprisonment, had nevertheless rightly concluded that a Training Centre Order would be in Ho’s interest and also in the interest of the society.

28. Mr So submits that the Court of Appeal should not interfere with the judge’s exercise of discretion as it was only made after a detailed and careful consideration of the overall circumstances.

Discussion

29. Drug trafficking is an evil business and the courts have repeatedly emphasized that whoever carries on such an evil business, irrespective of his/her background or the circumstances in which the offences are committed, can expect no mercy, otherwise the “aged”, the “young” or the “crippled” will be encouraged to take part.

30. Young age is very often a mitigating factor, particularly in trivial offences, and it is generally considered more important to rehabilitate a young offender than to severely punish him as a deterrent.  There is also no doubt that the court must exercise great care before committing young offenders to prison.

31. However we are dealing with serious drug trafficking offences and in respect of such offences the courts have said that the public interest requires that deterrence of other potential offenders must take precedence over the rehabilitation of the particular offender before it.  It is, therefore, not in the interest of the community to sentence even young offenders of serious drug trafficking offences to the Training Centre.

32. Whilst a Training Centre Order is not a soft option, the period of detention there (an average of 18 months to 2 years) is certainly shorter than what otherwise would be an appropriate prison sentence. A Training Centre Order does not possess the qualities needed for a deterrent sentence and can certainly be perceived as a lenient sentence for serious drug trafficking offences and can be so described by drug traffickers to entice youngsters to take part.  The court must guard against such possibility in the interest of the community.

33. In Wong Chun Cheong (supra), Ribeiro PJ said at p 22:

“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] 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…There is a considerable public interest involved in showing by deterrent sentences that the courts will treat drug trafficking most severely”

34. Similar observation was made by Stuart-Moore V-P in S-J v Ko Fei Tat [2002] 4 HKC 59 at 64C to 65E:

“In regard to the respondent’s age and clear record (aged 16 at the time of offence), this court stated in R v Lau Tak Ming [1990] 2 HKLR 370 at 386E-G, with specific reference to trafficking in heroin, but having equal force when applied to trafficking in ‘ice’:

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 their nefarious trade.

…

We are in no doubt, as this court said in A-G v Suen Yuen Ming [1989] 1 HKC 430, [1989] 2 HKLR 403, that save in ‘very rare cases’, a training centre order for trafficking in substantial quantities of dangerous drugs should not be imposed. In that case, the exceptional circumstances found by the court to have justified the making of a training centre order included the fact that the respondent had been threatened that if he did not comply with a demand that he should store the drugs in question, his girlfriend would be harmed and the family’s cooked food stall business would be disrupted, mitigation which had been accepted by the first instance judge. (It is to be noted that this case was decided before the amendment in 1994 to s 109A to include trafficking in dangerous drugs as an ‘excepted’ offence.)

Exceptional circumstances, which are somewhat elusive, were also found in A-G v Kong Kin Man[1997] HKLRD 350…

In that case, where a District Court judge had made a detention centre order for trafficking in a mixture containing just over 13 grammes of heroin, the court found, when substituting a training centre order, that there were no indications of the respondent having embarked on a calculated course of criminal conduct and that it was more a case of a young man ‘momentarily coming under the influence of a more experienced companion’.

Returning to the present case, we consider the well-established principle of imposing deterrent sentences in Hong Kong for this type of case was, with the greatest respect to the judge, overlooked.  Here, there were no exceptional circumstances.  Substantial quantities of ‘ice’ were being trafficked by an active, persistent and willing participant in the trade who was driven by greed to act in the way he did.”

35. Ms Lau accepts that a Training Centre Order is not appropriate for serious drug trafficking offences even for young offenders in the absence of special circumstances.  The authorities cited by her all suggest that Training Centre Orders for serious drug trafficking cases are only imposed in “very rare cases” when there are exceptional circumstances. 

36. Cases unrelated to drug trafficking are not really relevant.  Kong Kin Man (supra) concerns a 17-year old defendant convicted of trafficking in 13.01 grammes of heroin and sentenced to the Detention Centre.  The Court of Appeal allowed the sentence review application of the Attorney General on the basis that the sentence was ultra vires.  Litton VP (as he then was) stated in no uncertain terms:

“The circumstances of the offence itself do not indicate that the respondent has embarked upon a calculated course of criminal conduct; it was more a case of a young man momentarily coming under the influence of a more experienced companion.

Whilst the judge has plainly erred in imposing a detention centre order his general approach in ensuring that the respondent should not be sent to prison cannot be faulted in principle; for this, in our judgment, is an exceptional case.”

37. Litton VP appeared to have taken the view that the defendant in that case had not “embarked upon a calculated course of criminal conduct; it was more a case of a young man momentarily coming under the influence of a more experienced companion” as special circumstances.

38. In Chiang Sun Keung (supra), the Court of Appeal affirmed a 3½-year sentence on a 17-year old defendant on each of two charges of trafficking in about 14 grammes of heroin.

39. In Pau King Kong (supra), the Court of Appeal also confirmed that a prison sentence was suitable for a 17-year old defendant who had pleaded guilty to six charges of trafficking in small quantities of dangerous drugs albeit the total starting point of 5½ years was reduced to 4½ years.

40. Whilst the Court of Appeal in Lau Shing Kit (supra)refused to review a Training Centre Order imposed on a 17-year old defendant who was convicted of trafficking in 183.99 grammes of ketamine, it was done on the very special factual circumstances of that case and we need only repeat what Stock VP said at page 305 of the judgment of the court:

“Had we at this stage allowed the review and substituted a term of imprisonment, the history of the matter would have run as follows: a period of two months in prison custody pending plea in respect of this offence; before plea in respect of this offence sentence to a detention centre for the earlier theft offence; service by the respondent after the commission of, and arrest for, the present offence of a full period of detention in a detention centre; immediately after that, a short period of imprisonment pending sentence for the current offence; then, immediately after that, more than eight months in a training centre; and then, immediately after that, assuming we substituted a sentence of imprisonment, a substantial term of imprisonment. We were satisfied that that would not be an acceptable scenario now to create. It would have been a course with no regard to significant benefits thus far accrued, to the respondent and to society, (in addition to the punishment thus far imposed) and would be intrinsically unjust.”

41. Similarly in Ng Ping-hei (supra), the case that the judge had referredto, there were usual circumstances as pointed out by him:

“In the present case, the defendant is aged 16 years 7 months. He committed the offence when he was about 15 years 11 months old which, in the view of the court, although just falls outside the category of extreme youth…it is a factor the court should take into consideration in sentencing.

Due to the young age of the defendant, the present case had first started in the Juvenile Court and was transferred to the adult court when the defendant reached the age of 16 years.  If the proceedings had been completed in the Juvenile Court the defendant would have had the benefit of being dealt with there where different sentencing considerations would apply.”

42. Chau and Ho, being well over 17 and 18 at the time of their respective offences, are not persons of extreme youth. (See HKSAR v Pau King Kong (supra)) Their relative young age pales into insignificance because of the magnitude of the offences that they had committed. (See the comment by Stock JA (as he then was) in HKSAR v Law Ka Kit [2003] 2 HKC 178 at paragraphs 27 and 29 of the judgment):

“…youth may pale into insignificance because of the magnitude or prevalence of the offence…That is because in such cases ‘the public interest must be served over and above the individual interests of the [accused] despite their youth….

…The public interest requires that an unequivocal message be delivered to youngsters, and in 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…”

43. Both Chau and Ho committed the offence of drug trafficking because of greed as they wanted to make some easy money.  They also appeared to have been influenced by their triad connections.  The judge did not identify any exceptional circumstances and neither could we to justify the imposition of a Training Centre Order on either Chau or Ho.  Being brought up in difficult family circumstances, as emphasized by Ms Lau, is not in our view such an exceptional circumstance.

44. We are persuaded that the Training Centre Orders imposed on Chau and Ho are unduly lenient and they fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.  We are of the view that the only proper sentence on both respondents is one of immediate imprisonment.

45. Bearing in mind the relative young ages of the respondents and the fact that this is a review of sentence, we are of the view that the proper starting point for both respondents is one of 6 years’ imprisonment.  The respondents pleaded guilty to the charges and they are entitled to the usual one-third discount and their sentences should both be 4 years’ imprisonment.

Conclusion

46. We therefore grant the applications.  In both CAAR 4 and CAAR 5 of 2014, we set aside the Training Centre Orders and in substitution thereof, we sentence both Chau and Ho in their respective cases to 4 years’ imprisonment.