R. v. WU YAU MAN

Criminal Appeal No. 337 of 1996

Headnote

Held:

(1) Notwithstanding the latent risk of drugs in illegal possession falling into hands of the public, and that it was right to reflect this in the sentence, a deterrent sentence was not justified in the circumstances.

(2) Courts should be even more careful than usual before sending to prison relatively young offenders undergoing apparently successful DATC treatment.

IN THE COURT OF APPEAL

1996, No. 337
(Criminal)

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J U D G M E N T

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

1. Having heard counsel we allowed the appeal, set aside the sentence and substituted a DATC order. We now give our reasons.

2. The appellant, Wu Yau-man, was convicted on 8th May 1996 by His Honour Judge Muttrie in the District Court on his own plea of guilty to possession of dangerous drugs. On 22nd May 1996 he was sentenced to 2½ years imprisonment. He now appeals against sentence.

3. The facts, which are of some significance, are these. On 2nd December 1995, two police constables were on high rise patrol duty in a building on Nathan Road in Kowloon. They saw the appellant standing in the fifth floor lift lobby. He walked away immediately on seeing them. They intercepted and searched him. In a pocket of his jeans they found 32 packets containing 20.78 grammes of a mixture containing 18.16 grammes of heroin hydrocholoride. He was arrested, and stated that the drugs were for his own consumption. Later at the police station he made a full cautioned statement inter alia stating that he had bought the drugs for $10,500. The expert evidence was that their street value was over $28,000.

4. The appellant was represented before the judge below. In sentencing him, the judge said this:

"This is a classic kind of case where there is a latent risk that some of the drug will find its way into the hands of the public. Following the cases of Chiu Hung-wong, that is, Criminal Appeal 39/93 and Wong Chiu-kwan, Criminal Appeal 53/95, the sentence must reflect this. I do not see that there is any case for letting the defendant simply continue with DATC treatment, notwithstanding the terms of the report. A deterrent sentence is required.

I am going to take a starting point of 3 years and allow a discount of 6 months because possession was never disputed, and he will go to prison for 2½ years."

5. The appellant who was 24 years of age at the time of his conviction, had two previous convictions, the later of which was recorded on 26th February 1996 and was for possession of dangerous drugs. We are told that the date of that offence was sometime in October 1995. In respect of that conviction he was sent to a Drug Addiction Treatment Centre and had been subject to that DATC order for about 3 months when he was sentenced by the judge below on 22nd May 1996. Before sentencing him, the judge sought and obtained a DATC Suitability Report.

6. The report disclosed that he grew up in a working class family with three other siblings, all of whom lived in a public housing unit. It appears that association with an undesirable peer group led him out of curiosity to try taking heroin in 1995. He soon lost control and began taking the drug. His mother, who was deeply concerned about him, described him as good natured, timid and susceptible to the influence of others. The conclusion in the DATC report was expressed in the following way:

"The defendant is found to be a drug dependant by the Medical Officer. In view of his future rehabilitation and offering him a proper setting to quit his morbid habit, he is recommended to continue the treatment in DATC."

7. It is clear from the two cases referred to by the judge in his reasons for sentence, that a latent risk of some of the drug finding its way into the hands of the public is a relevant matter that may be taken into consideration. The risk is to be assessed by reference to circumstances such as the nature of the packaging and the amount. Here, there were no less than 35 packets representing 35 days consumption on the appellant's own statement. In the circumstances, and notwithstanding the appellant's early statement that the drugs were for his own consumption, the judge was, in our view, clearly right in concluding that there was a latent risk of some of the drugs finding their way to the hands of the public. Likewise, we accept that the sentence must reflect this. However, we are not able to agree that a deterrent sentence was required. There was no evidence of prevalence nor any other reason mentioned which might have justified a deterrent sentence.

8. On the face, therefore, of his reasons, it is not apparent why the judge did not see that there was any case for letting the appellant simply continue with DATC treatment. From the recommendation to continue the DATC treatment, it must be assumed that he was responding favourably to it, and at any rate, that the contrary was not the case. On any view, therefore, the prospects of rehabilitation of this relatively young offender were good. He had not been addicted to drugs for very long, and had not previously been afforded any proper course of rehabilitation treatment, particularly DATC treatment.

9. In these circumstances we would expect any court to be even more careful than usual before it sent a relatively young offender to prison, and in the process terminating an on-going period of DATC treatment so early, and while it was to all intents and purpose progressing satisfactory. While the judge was not required to set out all his reasons, we feel bound to say that the indications do not point to the sort of careful consideration we think was necessary. Nor do we find anything in the nature of the cogent reasons that would warrant the termination of the DATC order and the imposition of a substantial term of imprisonment. The judge's failure to accord the appellant the full one-third discount that this Court has repeatedly affirmed in recent times as the usual discount, notwithstanding his reference to the appellant's early admission of possession, only served to increase our disquiet.

10. In all the circumstances and having regard to the foregoing considerations, we had no hesitation in allowing the appeal, setting aside the sentence of imprisonment and substituting a DATC order.