HKSAR v. TANG HON MAN

CACC 498/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 498 OF 1999

(ON APPEAL FROM DCCC 366/1999)

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. The applicant Tang Hon Man pleaded guilty before Judge Chua in the District Court on 22 June 1999 to three charges of obtaining services by deception and three charges of theft. He was sentenced to 9 months imprisonment on each charge, concurrent.

2. The facts he admitted show that he deposited three cheques in substantial amounts with a stockbroking company. Because of such deposits, he was able to use the services of the company to buy and sell shares. The cheques he deposited bounced because there were no funds in his bank accounts. As a result the stockbroking company lost $3,801.59. He did the same thing in respect of a forex company by depositing cheques which he had no funds to meet in order that he could use the services of the company to trade in foreign currencies. Based on his cheque deposits, the forex company issued three cheques of various amounts to him. As a result the forex company lost $2,210.

3. The Judge considered a sentence of 20 months after discount would be appropriate for the criminality involved in these offences.

4. At the time of sentence, the applicant was a drug addict and was detained in the Drug Addiction Treatment Centre ("DATC") for a drug related offence he committed in May 1999. The DATC report called for by the Judge after the applicant's conviction of the present offences states that the applicant was making progress in the DATC and he was suitable for continued treatment in the Centre. The Judge considered it desirable that the applicant's treatment should be continued. Section 6A(a) of the Drug Addiction Treatment Centre Ordinance, Cap.244 provides that if a person detained in the DATC is sentenced to imprisonment for 9 months or less, the detention order may be suspended until the end of his prison term. The Judge therefore imposed a sentence of a total of 9 months imprisonment for all the offences so that the applicant could return to the centre for continued treatment after he had served his prison sentence.

5. The applicant had filed a notice of appeal out of time against conviction, but on 13 January 2000 this was not pursued, and that application was dismissed. On 23 November 1999, he filed a notice of appeal out of time seeking leave to appeal against sentence. In his grounds, he stated that at the time of sentence, he was not aware that he would have to go back to the DATC after he had served his imprisonment. He also stated that after he had been detained in the DATC for 1 1/2 months and in prison for 6 months, he was no longer addicted to drugs and it would be pointless to send him back to the centre. In addition, he said if he were to go back, he would be put among drug addicts again and his addiction could relapse when he succumbed to temptation. He asked that his detention in the DATC be converted to a prison sentence.

6. We are satisfied that but for the course taken by the Judge in respect of the applicant's drug treatment, the sentence of 9 months for the fraud perpetuated by the applicant would have been far too lenient to be appropriate. The transcript shows that at the time of sentence, the Judge had explained to the applicant the course she proposed to take. The applicant fully understood the purpose was for his rehabilitation. The applicant should have no cause to complain against the Judge for the lenient course she took.

7. Under section 4(2) of the DATC Ordinance a person subject to a DATC detention order shall be detained for a period of not less than 2 months and not more than 12 months from the date of the order. The Commissioner of Correctional Services has the discretion to determine the length of detention within that period, having regard to the progress made by the person detained and his likelihood of being free from drug addiction on release. The applicant has not appealed against the DATC detention order and thus if he were to go back to the DATC for continued treatment under that order, it would be a matter for the Commissioner of Correctional Services to consider if he could be released earlier than 12 months. However, if after he has served his prison term, he is indeed drug-free, it would serve no useful purpose to send him back to the centre for treatment which he no longer needs. In order to enable us to better assess his state of drug dependency, we adjourned the hearing on 13 January 2000 and ordered an up-to-date DATC report. We have now the benefit of such a report. It states this:

8. In the light of this report, we do not think that further detention in the DATC centre would be appropriate and we feel that the DATC order should not stand. We have been referred by Mr Cheung for the respondent to the case of R. v. WU Yau-man [1996] 4 HKC 255 which concerns a sentence of 2 1/2 years imprisonment for a drug offence of a 24-year-old defendant who was a drug addict detained in the DATC at the time of sentence. The Court of Appeal held in that case that since the defendant's rehabilitation prospects were good, there was no reason warranting the termination of the DATC order and the sentence of imprisonment. In the present case, the applicant is now drug-free.

9. Bearing in mind that the Judge had considered 20 months would have been an appropriate sentence but for the course she had taken, in our view, 18 months imprisonment would appropriately reflect the criminality of the offences of which the applicant had been convicted and do justice in these particular circumstances.

10. Accordingly, we grant leave to appeal and allow the appeal by setting aside the sentence of 9 months imprisonment and substitute a sentence of 18 months imprisonment for each offence and the sentences should run concurrently. The DATC order will as a result no longer stand.