ATTORNEY GENERAL v. NGAN KAM-MING

Application for Review No. 15 of 1995

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JUDGMENT

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Power, V.-P.(giving the judgment of the Court):

1. We deal here with two applications for review of sentence by the Attorney General. In each case the respondent was at the time of sentencing a youth of 19 years of age. Each had pleaded guilty to possession of an offensive weapon contrary to s.33 of the Public Order Ordinance Cap.245 and each was ordered to be detained in a Drug Addiction Treatment Centre. The first respondent admitted possession of a pair of scissors which he intended to use for the purpose of robbery. He had a clear record. He was unsuitable for training centre or for detention centre but was a drug dependant and was suitable for admission to a Drug Addiction Treatment Centre and Permanent Magistrate Line made an order that he be detained therein.

2. The second respondent was dealt with by Britton D.J.. He had been intercepted and searched and it was found that he was carrying a 6-inch knife. He admitted that he intended to use that knife to rob. He was 18 years and 6 months at the time of the offence. He had 14 previous convictions, seven of which were robbery related. He was drug dependent and he had previously been to a Detention Centre, for both of which reasons he could not have been sent again to such a centre. Britton D.J. ordered that he be detained in a Drug Addiction Treatment Centre.

3. It is the Attorney's submission that Section 33 of the Public Order Ordinance is mandatory and leaves a court no option but to sentence an offender between 17 and 25 either to imprisonment or detention centre. The section has been amended on a number of occasions over the years but the relevant part of it now reads:

          "A person convicted of an offence under sub-section (1) shall -

Section 4(1) of the Drug Addiction Treatment Centre Ordinance reads:

          "Where a person is found guilty of a relevant offence and the court is satisfied that in the circumstances of the case and having regard to his character and previous conduct, it is in his interest and public interest that he should undergo a period of care and rehabilitation in an addiction treatment centre, the court may, in lieu of imposing any other sentence, order that such a person be detained in an addiction treatment centre."

4. Both the Magistrate and the District Judge came to the conclusion that s.33 can be interpreted to mean something other than what it appears to say. Before so doing each gave anxious consideration to the legislative history of the two Ordinances and to their interpretation in accordance with the applicable canons of interpretation, to s.19 of the Interpretation and General Clauses Ordinance, to the meaning of the words "relevant offence" in s.4 of the Drug Addiction Treatment Centre Ordinance" and, in the case of Judge Britton, to Article6(3) of the Bill of Rights Ordinance. Each was satisfied that they had power to send the applicants to a Drug Addiction Treatment Centre.

5. That we do not canvass in extenso the reasoning in the two judgments and the researched arguments of Mr. Cross, who appeared for the Attorney, and Mr. Dykes, who appeared for the respondents, must not be taken as implying any disrespect for the care and scholarship that the magistrate, the judge and counsel have displayed in their approach to this matter. We refer specifically only to Mr. Dyke's argument that the 1974 amendment to the Drug Addiction Treatment Centre Ordinance allowing the Governor of a prison to transfer a prisoner who has less than 18 months to serve to a Drug Addiction Treatment Centre indicates clearly that the Legislature never had the intention to exclude drug addicts, for whatever offence they were sentenced, from treatment in a Drug Addiction Treatment Centre. We are not persuaded that this somewhat anomalous provision in any way undermines the clear mandatory terms of s.33.

6. No purpose would be served by canvassing further the arguments of counsel as we are left in no doubt, using the words of McMullin J.A (as he then was) when dealing with that section in Ng Yun-fong v. The Queen (1978) H.K.L.R. 186 at 187, that:

"The legislative intention of s.33 seems clearly to be the intention to provide an exclusive tally of the sentencing powers available to courts dealing with offences created by that section."

The intention of the legislature is clear, and as McMullin J.A. later said, cannot be overridden except "by some explicit provision elsewhere in the law". There is no such provision. We find reinforcement for the view which we take in each of the judgments in The Attorney General v. Wong Yiu-chung (1973) H.K.L.R. 131, Huggins, J. (as he then was) observed that if there had been loophole allowing him to hold that s.33 was not laying down mandatory sentences, he would have thought it appropriate to have seized upon the loophole. He concluded that "this is not a case where it is appropriate to do so and there is no loophole." With these views we concur. We are satisfied that the provisions are mandatory and that both applications must, therefore, be allowed and the sentences quashed. Before leaving this matter we think it proper to indicate that neither of the cases which we have cited above was referred to the courts below. We will hear counsel as to the sentences that we should impose.

7. After hearing counsel we are satisfied that it would be proper to sentence the applicant to be detained until the rising of the court. We order accordingly.