HKSAR v. CHONG TSZ HO BILLY

HCMA814/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 814 OF 2008

(ON APPEAL FROM KCCC 4126 OF 2008)

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J U D G M E N T

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1. The appellant pleaded guilty to one charge of possession of dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 314 and was sentenced to be detained at a Detention Centre.  The appellant now appeals against his sentence.

Admitted facts

2. The admitted facts disclosed that the appellant was walking with a friend along Chatham Road South at around 5 a.m. on 21 May 2008 when they encountered a police officer.  As they appeared to be nervous, the police officer stopped them.  The appellant then took out a plastic bag from the pocket of his jeans and threw it onto the ground.  The police retrieved it and arrested the appellant for possession of dangerous drug.  Under caution the appellant admitted the dangerous drug was for his own consumption.  Later analysis confirmed the packet contained 0.37 grammes of a powder containing 0.30 grammes of ketamine.

Reasons for sentence

3. The learned magistrate set out the background of the appellant, the mitigation advanced on behalf of the appellant and the contents of the various reports on each occasion the appellant appeared before him, i.e. :

(a)  on 8 July when the appellant pleaded guilty;

(b) on 29 July when the Probation Officer’s Report and the Drug Addiction Treatment Centre suitability report were available; and

(c) on 12 August when the Detention Centre Report was available. 

4. There is no need to repeat all the contents here.  Suffice it to say that the appellant was a man of clear record, and he was aged 20 at the time of the offence.  Contrary to the submission made on 8 July (which gives one the impression that the appellant was merely in possession of the ketamine out of curiosity and that he had never taken any), the appellant admitted to both the Probation Officer and the In-take Officer of the Correctional Services Department that he had abused ketamine before.  As to when he started, there are two different versions : according to the Probation Officer, since April 2004; according to the In-take officer, since early 2006.  The appellant had started abused ketamine for either two or four years by the time he was caught with the packet of ketamine in May this year. 

5. The appellant was admitted to St. Stephen’s Society (a voluntary residential drug treatment centre), but he discharged himself before completing the programme.  Probation and Community Service Order were not recommended (the appellant rejected the idea of probation supervision with residential drug treatment).  The medical officer was of the view that the appellant was not drug-dependent so detention in a Drug Addiction Treatment Centre was also not recommended.  The Commissioner of Correctional Services considered the appellant suitable for detention in a Detention Centre after a medical officer confirmed the appellant’s physical and mental fitness for such detention and that a place was available for him.

6. The learned magistrate, in his ‘Reasons for Sentence’, stated clearly he was aware of the appellant’s age and previous clear record.  He recognized deprivation of liberty would not be the usual way of dealing with the appellant’s case.  The magistrate then set out how the appellant had failed to realize the reality of his situation and how he was in danger of becoming dependent on drugs.  The magistrate was of the view that the appellant needs counselling and support to address ‘the heart of the appellant’s problem’. 

Grounds of appeal

7. Mr Lau, counsel for the appellant, set out six particular aspects of the learned magistrate’s reasons for sentence and submitted that the sentence imposed was manifestly excessive.  Basically, Mr Lau complained that the magistrate had not given sufficient consideration to the appellant’s age and previous clear record; that the quantity of drug involved was 0.30 grammes of ketamine — a relatively small amount; that he had confused the appellant’s attitude before and after the commission of the offence to come to his conclusion that the appellant was not remorseful; and that the appellant has already been incarcerated for five weeks before the Detention Order was imposed.

8. In relation to the alleged confusion by the magistrate, Mr Lau submitted that the magistrate was of the view that the appellant did not ‘help formulate a rehabilitation plan with external supervision and assistance’ when in fact what was on offer was a ‘probation supervision with residential drug treatment’.  Since the appellant was not drug-dependent, he had good reason to reject such a proposal, Mr Lau submitted. 

9. Mr Lau also submitted that as the appellant’s plea was an indication of remorse, the magistrate erred in coming to the view that the appellant’s failure to complete the drug addiction treatment programme offered by St. Stephen’s Society belied his expression of remorse.

10. Mr Lau also drew an analogy between a Detention Centre order and a Training Centre order and submitted that the appellant should only be sentenced to a Detention Centre ‘when there was compelling reason to do so’, and where ‘the offence committed was of sufficient gravity to merit an immediate custodial sentence’ — citing HKSAR v. Leung Shuk Yee, HCMA334/2001 and Wong Chun Cheong v. HKSAR (2001) 4 HKCFAR 12 in support.

11. Mr Lau submitted that taking into account the relatively small quantity of ketmaine involved (0.30 grammes), the fact that the appellant was not drug-dependent, and that he had been in custody for five weeks, sentencing him to a Detention Centre was manifestly excessive.

Discussion

12. Section 4 of the Detention Centre Ordinance provides :

“(1)    Where a person who is apparently a young offender is found guilty of a relevant offence the court may, if it is of the opinion that in the circumstances of the case and having regard to his character and previous conduct it is in his interest and the public interest that he should undergo a period of detention in a detention centre, in lieu of imposing any other sentence, make a detention order against him.

(1A)  In making a detention order against a person the court shall state in such order whether such person is apparently under 21 years of age or apparently of or over 21 years of age. 

(2) A person against whom a detention order is in force shall be detained in a detention centre for such period from the date of the order as the Commissioner, having regard to the health and conduct of such person, may determine, being a period which—

(a)   in the case of a person stated in the detention order to be apparently of or over 21 years of age, is not less than 3 months and not more than 12 months;

(b)   in the case of a person stated in the detention order to be apparently under that age, is not less than 1 month and not more than 6 months,

and shall then be released. 

(3) A detention order shall not be made against a person who has previously served a sentence of imprisonment or of detention in a training centre. 

(4) A court shall not make a detention order against a young offender unless the Commissioner has not earlier than 1 month before the date of the order informed the court that in his opinion the young offender is suitable for detention and that a place is available for him in a detention centre. 

(5) A court may, after conviction of a young offender, remand him in the custody of the Commissioner for such period, not exceeding 3 weeks, as the court thinks necessary to enable the Commissioner to form an opinion as to whether or not the young offender is suitable for detention.”

13. The regime of a Detention Centre, according to the information paper on the Young Offender Assessment Panel Annex I April 1998, quoted in Sentencing in Hong Kong are as follows :

“The programme is designed to instil among the inmates a respect for the law, the creation of self-respect, an awareness of neglected capabilities in legitimate pursuits, and an ability to live with other people in harmony.  Emphasis is placed on hard work, strenuous exercise, and the highest standard of discipline, the intention being to provide the inmate with a ‘short, sharp shock’ regime in the early stage of his deviation from law and order.  The high tempo and brisk pace are designed to extract the very best effort from the inmates.  Meanwhile a progressive system is adopted and a Board of Review makes assessment to the progress, attitude, effort and response of each inmate on monthly intervals.”

14. I appreciate the analogy drawn by Mr Lau between a Training Centre order and a Detention Centre order.  However, I must point out that the two schemes are quite different, with different objectives.  A Training Centre Order aims not at providing an inmate with a ‘short, sharp shock’ regime, but to provide educational training, vocational training and character development training (See HKSAR v. Cheung Man Yui, HCMA612/2002).

15. Furthermore, a person sentenced to a Training Centre is expected to undergo training from 18 months to three years — a considerably longer period of detention than a Detention Centre order (in this case between 3 months to 12 months as the appellant was over 21 at the time of sentence).

16. The quantity of ketamine involved was fairly small.  The appellant was a first offender and he was 20 when he committed the offence.  When a person is guilty of possession of a dangerous drug and admitted to be an abuser, a drug addiction treatment programme would be a natural choice as a rehabilitative method — unless that person is found to be not suitable.  In the present case, the appellant was found not to be a drug-dependent so not suitable for admission.

17. Judging from the contents of the various reports, I agree with the magistrate that the appellant is in danger of becoming drug-dependent.  He has a history of abusing drugs (whether it was two years ago or four years ago), he was admitted to a voluntary drug addiction treatment agency but discharged himself without completing the programme, and then he was caught with the drug ketamine. 

18. There is no doubt the learned magistrate tried to ‘address the heart of the appellant’s problem’ and felt that the appellant needed counselling and support in addition to punishment.  However, I do feel that the learned magistrate has not given sufficient consideration to the fact that the appellant was found medically not a drug-dependent, which would have had some bearing on the Probation Officer’s suggestion of ‘probation supervision with a residential drug treatment programme’.  The appellant’s claim that he was not a drug dependent at the time of the interview was therefore, not a false claim. 

19. It could well be that, at the time of the assessment and examination by the medical officer, the appellant was only not dependent on drug physically, but was susceptible to drug abuse psychologically or mentally.  As a first offender, the learned magistrate should have considered giving the appellant a chance for open probation when he was medically confirmed not to be a drug-dependent.  The magistrate could have considered imposing special conditions that the appellant be refrained from abusing dangerous drug and be subjected to random urine tests, and of course to receive counselling as and when directed by the Probation Officer.  Should the appellant fail to comply with those conditions, the court would then be in a position to sentence him afresh — thus keeping a leash on this wayward young man but still giving him a chance upon his first ever conviction, to which he had pleaded guilty.

20. As it happened, the appellant had been remanded for five weeks when the magistrate sentenced him on 12 August to a Detention Centre.  By now the appellant has been incarcerated for 15 weeks.  In these circumstances, I do not think it appropriate to now place him on probation.

21. For these reasons, I allow the appeal against sentence, set aside the Detention Centre order and sentence the appellant to such a period of imprisonment so as to allow his immediate release.