ATTORNEY GENERAL v. CHAN PAU YAU

Applications for Review
Nos. 21 and 22 of 1988

Criminal procedure - whether ss.81A and 81B of the Criminal Procedure Ordinance; properly construed, permit the Court of appeal to decline to enhance a sentence imposed by the lower court which it has held to be wrong in principle or manifestly inadequate; and, where appropriate, to issue guidelines.

Sentencing guidelines - offences under S.8 of the Dangerous Drugs Ordinance - appropriate range of sentences for offenders who persistently appear before the courts on "simple" possession charges.

__________

----------------------

J U D G M E N T

----------------------

Fuad, V.-P.:

1. This is the judgment of the Court.

2. With the consent of the parties, we heard together these Apphications for Review brought by the Attorney General under s. 81A of the Criminal Procedure Ordinance. They have common features.

3. On 27 September 1988 Chan Tak King, the Respondent in A.R. 21 of 1988 ("R1") and Chan Pah Yau, the Respondentin A.R. 22 of 1988 ("R2") appeared in separate cases before Mrs. Judianna Barnes in the Magistrates Court and they each pleaded guilty to "simple" (possession of dangerous drugs under s.8 of the Dangerous Drugs Ordinance, Cap.134. They had been stopped and searched on different occasions by the police. R1 was found in possession of 4.35 grammes of a mixture containiny 0.28 of a gramme of salts of esters of morphine, while 4.3 grammes of a mixture containing 0.24 of a gramme of salts of esters of morphine were found on R2.

4. R1 was sentenced to pay a fine of $1,000. R2 was fined $750. The magistrate declined to review either of these sentences on 20 October 1988.

5. R1 is aged 48. He had 53 previous convictions of which 26 were drug related. The latter went back to 1962. Since then over a period of some 22 years he has been sentenced to imprisonment for simple possession drugs follows - 1 month; 2 months on 2 occasions; 3 months; 4 months on 4 occasions; and 18. months. Apart from the 1 month sentence which was in 1984, since 1981 he has not been sent to prison for his drug offences. Instead, he has been bound over on 3 occasions and has been ordered to pay fines varying between $250 and $500 in 5 cases. For 3 of these cases he served short sentences in default of paying his fines. He has been sent to a drug addiction centre on two occasions, in 1977 and 1984.

6. R2 has 21 drug related previous convictions out of a total of 35. He is 52 years. of age. Like R1, he lives alone. His first conviction for a drug related offence goes back to 1954. He has, since then, received the sentences of imprisonment for these offences - 1 day on 2 occasions; 1 month; 2 months on 2 occasions; 3 months; 4 months, on 2 occasions; 6 months on 5 occasions, 8 months; 9 months on 3 occasions; 10 months and 3 years (in 1961). He was sent to a drug addiction. centre in 1982 and boundover in 1985. On his last two appearances before the Court he was fined $500 in November 1986 and $600 in October 1987.

7. The magistrate gave full reasons for the sentences she had imposed. She reviewed the Respondents previous records and said that since they had long drug histories (R1 20 years and R2 30 years) she did not feel that it was remotely likely that either would benefit from detention in a drug addiction centre, particularly since this had been tried twice for R1 and once for R2. She said that R1 did not have a strong will to rid himself of his addiction and was a confirmed addict. As to R2 she said it was impossible for him to rid himself of his addiction and that he was receiving methadone treatment every evening. He also suffered for chest pains. She noted that R1 was a fruit hawker and R2 a caretaker.

8. The magistrate cited a passage from the judgment of Mills-Owens J. in Lee Nam v. The Queen, Criminal Appeal 306 of 1970 (unreported, 13 July 1970) and said, in relation to both the Respondents "I therefore do not consider that a substantial term of imprisonment is appropriate in his case." In both cases she thought that the Respondent would "go to his grave without 'kicking the habit'; a term of imprisonment does not really serve any purpose except to punish him." She felt that each deserved one more chance particularly having regard to his plea of guilty. Both deserved "more sympathy than punishment being the miserable victim of his own weakness." A substantial fine in each case would she thought, appropriately mark the disapproval of the Court. Each Respondent had been gainfully employed up to the time of his arrest. In respect of both Respondents she said "It is better to fine him and let him continue with his job rather than send him to prison and increase the temptation to resort to unlawful means to satisfy his need for drugs."

9. In Lee Nam, the appellant was 60 years age and had 12 drug related previous convictions. Mills-Owens J. reduced a sentence of 9 months imprisonment to one of 3 months. The passage from his judgment cited by the magistrate was as follows:

"Such appellants present an unfortunate, dismal picture and one cannot but ask oneself what good a substantial term of imprisonment can do in such cases. He is one of a class of persons who are liable to be picked up again and again for possessing or using dangerous drugs as they come out of prison after having served their last sentence."

10. The first issue we have to resolve arose in this way. When these applications first came before this Court, differently constituted, on 2 March 1989, Counsel appearing for the Attorney General intimated that, although although he would be inviting the Court to hold that the sentences imposed by the magistrate in relation to both the Respondents were wrong in principle and manifestly inadequate, the Crown would not be seeking the imposition of enhanced sentences in either case. The object of the applications was to give this Court the opportunity, if it thought fit, of issuing guidelines to trial Courts for use in future cases. The Court then indicated that it wished to hear full argument on the question whether s.81B(1) of the Criminal Procedure Ordinance permitted such a course. The applications were adjourned for this purpose and an amicus curiae, Mr. Nunns, was later appointed to assist the Court in determining that issue.

11. Mr Cross, for the Attorney General, was able to cite three cases to us where  the Court of Appeal had concluded that the sentences which were the subject of review were wrong in principle and mabifestly inadequate and yet had declined, for one reason or another, to interfere with the sentences imposed by the trial Courts. However, in done of these cases was the point now in issue raised.

12. In Attorney General v. Chan Wai Lan and Others [1982] HKLR 68, where the Respondents had been given absolute discharges for failing to produce proof of identity for inspection contrary to s.17C(3) of the Immigration Ordinance, this Court suggested that as a guideline to magistrates, the usual penalty for a first offender is such cases should be a fine of between $150 and $200, but no order was made. The reason for this, although not expressly stated, is clear for Roberts C.J. noted that the 5 Respondents had been selected by the Crown at random from a group of 37 defendants who had all pleaded guilty before the same magistrate on the same day and no applications for review had been made in respect of the other 32.

13. In Attorney-General v: Lee Chi-keung A.R. No.3 of 1984 (unreported, 12 July 1984) the Respondent had been fined $5,000 for managing a vice establishment contrary to s.139(b) of the Crimes Ordinance. The magistrate had declined to activate a suspended sentence of 3 months imprisonment for an earlier offence of assisting in the management of a vice establishment. The final, paragraph of the judgment of the Court delivered by Sir Alan Huggins, Acting Chief Justice at the time, was as follows:

"For these reasons we were persuaded that the sentence imposed by the magistrate was manifestly inadequate and that she erred in not activating the suspended sentence. Nevertheless, the Respondent has been subjected to prolonged proceedings since he pleaded guilty on 7th January 1984, and the suspended sentence, if it had been activated, would already have been served. The new offence was of less than average seriousness, because the Respondent was only temporarily in charge of the establishment. In addition, he had now gone back to his normal employment as a construction worker, and in all the circumstances we thought it would be unjust to commit him to prison at this stage. Accordingly we dismissed the application for a review."

14. In Attorney General v. Tai Wai-hang A.R. No. 15 of 1984 (unreported, 14 December (1984) this Court held that the of $2,500 imposed on the Respondent for managing an unlicensed massage establishment contrary to s.4(1) of the Massage Establishments Ordinance was man inadequate and suggested that magistrates ought to consider even when dealing with first offenders, imposing fines for such offences starting at $5,000 and going upwards. The Court also gave guidance as to the appropriate sentence where the defendant had previous convictions of a similar nature. On the facts at least a suspended sentence of imprisonment should have been imposed. Roberts, C.J., giving the judgment of the Court, concluded the judgment with these words:

"The respondent is a young man of 24 with no previous convictions. He worked in the establishment for only one month. He has left it and secured himself a decent job elsewhere. He has no intention of returning to this kind of work. We are therefore not disposed to interfere with his sentence and the application by the Crown is dismissed."

15. The material parts of sections 81A and 81B of the Criminal Procedure Ordinance, which must be read together, are in these terms:

81A. (1) The Attorney General may, with the leave of the Court of Appeal, apply to the Court of Appeal for the review of any sentence (other than a sentence which is fixed by law) passed by any court, other than the Court of Appeal on the grounds that the sentence is not authorized by law, is wrong in principle or is manifestly excessive or manifestly inadequate.

...................."

81B. (1) Upon the hearing of the application the Court of Appeal may, by order -

(a)    if it thinks that the sentence was not authorized by law, was wrong in principle or was manifestly excessive or manifestly inadequate, quash the sentence passed by the court and pass such other sentence (whether more or less severe) warranted in law in substitution therefor as it thinks ought to have been passed.

(b)    in any other case, refuse, to alter the sentence.

.....................

16. Mr. Cross submitted that upon the true construction of these provisions, the Court of Appeal was not bound to enhance a sentence if it reached the conclusion that it was manifestly inadequate or wrong in principle; unless the wording of the sections compelled such a course, the Court should strive to avoid adopting a construction which would lead to injustice.

17. We entertain no doubt that to impose a strait jacket upon the Court of Appeal that would require it to interfere with a sentence to the detriment of an offender whenever s.81B(1)(a) is satisfied, without having regard to any of the considerations which are normally taken into account when determining an appropriate sentence, would not be fair or just, arid we approach the task of interpretation before us from the standpoint that the legislature is not likely to have intended to perpetrate injustice.

18. Mr. Cross has given us a number of examples of the injustices which would occur if the Court of Appeal held that a particular sentence was indeed manifestly inadequate but was precluded from considering the situation as it may have developed by the date when the application for review is heard:

(a)    the Court would have to ignore altered circumstances such as the securing by the Resondent of a decent job since his conviction (Tai Wai-hang is an example);

(b)    the Court could not take into account any assistance the Respondent may have given to the police after his convictions;

(c)    the Court could not have regard to the lapse of time between the filing of the application for review and the hearing, which may, through no fault of the Respondent, be quite considerable (some 6 months in Lee Chi-keung and the same period will have elapsed in the instant cases);

(d) the Court could not allow an offender to continue with possibly successful treatment at a Drug Addiction Treatment Centre ("DATC") which he is undergoing as a result of an order made after the imposition of the sentence under review (this, as it happens, is now the position of R1);

(e) Re Court would be unable to reflect the fact that a Respondent has been chosen at random out of many offenders who received similar sentencs, as occurred in Chan Wai-lan.

19. It is not difficult to think of other examples. After what might have been a manifestly inadequate sentence was imposed, an offender might have contracted a dreadful illness; a female offender might have had a baby with no one to look after it if a sentence of imprisonment were to be substituted on review; a person whose offence deserved a much heavier fine than the one imposed by the trial Court might find himself in greatly reduced circumstances in the meantime; a person who should have been given a custodial sentence might be about to go abroad to study or to emigrate. It seems to us that it would be most unfortunate if the Court of Appeal were obliged to disregard matters of this kind when deciding how to dispose of the application if the ends of justice are to be served.

20. We would also mention in passing that a strict application of the words " ...... and pass such other sentence ..... as it thinks ought to have been passed" occurring in s.81B(1)(a) would mean that ever since the review procedure was introduced, for the past 17 years or so, unremarked by the legislature the Court of Appeal has consistently erred in giving the Respondent a discount when enhancing a sentence on review: As an example, when the principles relevant to an application for review were re-stated in Chan Wai-lan, Roberts, C.J. said this, at p.71:

"However, we must make it clear that we shall continue to follow the practice, which has been well established by this court, if we decide that a sentence was manifestly inadequate or wrong in principle, we will pass upon the respondent a lesser sentence than we consider proper for the offence of which he has been convicted, to take account of the fact that he has been placed in double peril by the application for review.

21. As was to be expected, Mr. Cross relied heavily on the use of the word "may" in the opening words of s.81B(1). He cited what Cotton, C.J. had to say in In re Baker, Nicholas v. Baker 44 Ch.D. 262 at p.270:

"I think that great misconception is caused by saying that in some cases 'may' means 'must'. It can never mean 'must', so long the English language maintains its meaning; but it gives a power, and then it may be a guestion in what cases, where a Judge has a power given him by the word 'may' it becomes his duty, to exercise it."

22. We do not think it necessary to refer to all the other authorities cited to us on this point. However, we consider that the following passages from two of the speeches of their Lordships in the House of Lords in Julius v. the Bishop of Oxford 49 LJQB 577, where the expression "it shall be lawful" fell to be construed, afford us considerable guidance. Earl Cairns L.C., at pp.578-579 had this to say:

"The question has been argued and has been spoken of by some of the learned "Judges in the Courts below as if the words, 'it shall be lawful, might have a different meaning, and might be differently interpreted in different statutes, or in different parts of the same statute. I cannot think that this is correct. The words, 'it shall be lawful,' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible, which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves-do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking geneally, it falls to the Court of Queen's Bench to decide, on an application for a mandamus. And the words, 'it shall be lawful', being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems, to me, who contend that an obligation exists to exercise this power, to shew in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation.

At pp.588-589, Lord Blackburn observed:

"I do not think the words, 'it shall be lawful,' are in themselves ambiguous at all. They are apt words to express that a power is given, and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power to exercise it for the benefit of those who have that right, when required on their behalf. Where there is such a duty it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it. It by no means follows that because there is a duty cast on the donee of a power to exercise it, that a mandamus lies to enforce it; that depends on the nature of the duty and the position of the donee."

23. Approaching the matter in this way, we do not think that the provisions of s.81B compel us to construe them as making it obligatory for the Court to impose the sentence it considers should have been imposed at the trial or to dismiss the application. We conclude that no violence would be done to the language used by the legislature to interpret that section as imposing no obligation on the Court to take one or other of these courses, although the discretion of the Court will obviously be exercised only in one way if the unusual case of an excessive or unlawful sentence comes before it on review, for it will have been observed that the review procedure may be employed also where the sentence imposed by a lower court is "not authorized by law" or is "manifestly excessive." We express a measure of relief that we have not felt bound to invalidate a practice already well established by this Court (and left undisturbed for some years by the e legislature) which we consider to be both sensible and equitably.

24. We accept the arguments addressed to us by Mr. Cross, and in his helpful submissions Mr. Nunns had no contrary contentions to advance. We are firmly of the view that the Court acted lawfully in Chan Wai-lan, Lee Chi-keung and Tai Wai-hang and propose to adopt same practice in the instant. Reviews, although, as will be seen, we have concluded that the sentences were indeed wrong in principle and manifestly inadequate.

25. On the question of the treatment of drug addicts, we derived considerable assistance from the evidence of Dr. along Hin-hing which we received at the hearing of the appeal. Dr. Wong is the Acting Senior Medical Officer responsible for the DATC Programme of the Correctional Services Department, with may years' experience of the problems involved. He told us that drug addicts were usually male; between 30-50 years of age; manual workers and therefore in the low income group; and educated only up to primary school level.

26. He said that the treatment of a drug addict fell basically into two parts - physical and phychological. An in-patient of a Drug Addiction Treatment Centre (DATC) could usually be physically detoxified in around 1-3 weeks, depending on his physical condition. The main problem, however, according to Dr. Wong, was the psychological dependency of the patient and success, depended greatly on his personality and motivation; his social-economic background; his family background and their support; and his drug addition history. Those who have been treated previously took longer to benefit. As an example, a male aged about 50, who had been addicted for 20 years, who had never previously been treated and who had, not subjected himself to any treatment by a voluntary agency, would need to stay in a DATC for about 6 months. On average, a patient would need 5-6 months in-centre rehabilitation and a further year under supervision until he could go back into society.

27. Dr. Wong also told us that offenders who were not suitable for DATC treatment could be looked after by the medical officer attached to the institution where he is detained until sufficently de-toxified to serve normal imprisonment. In such circumstances, withdrawal symptoms might disappear in 1-3 weeks.

28. Dr. Wong pointed out that an addict whose treatment had failed on 2 or 3 occasions, might still benefit from later treatment. If, however, there had been 3 failures in the recent past, he would consider rejecting the offender for DATC treatment. Age was also a factor. Addicts in the range of 69-80 years would probably be rejected as beyond redemption. The largest group admitted to DATCs were between 41 and 60 years of age. If the offender was determined to avail himself of the help offered, around 6 months would be sufficient for the length of treatment - many were recommended for release after this period. A few might be released earlier; a smaller number might have to be detained for up to 11 months.

29. There were, Dr. Wong said, proper facilities for addicts institutions run by the Services Department, including group counselling - and later the welfare services would step in to help.

30. In seeking to persuade us that the sentences imposed on both of the Respondents were manifestly inadequate, Mr. Cross cited a number of cases to us. We will not refer to them all:

(i)    in Chin Shui v. The Queen, Criminal Appeal No.7 of 1969 (unreported, 6 March 1969), the Full Court expressed the View that a sentence of 9 months' imprisonment and not 4 would have been appropriate for a man with 7 previous convictions for drug offences, who had served sentences of up to 6 months in the past;

(ii)    in Tsui Ying-mo v. The Queen, Criminal Appeal No.773 of 1968 (unreported, 6 March 1969), a 6 months sentence for possession of drugs upon Ad offender with 2 previous convictions was upheld on appeal;

(iii)    in Fung Sin v. The Queen, Criminal Appeal No.219 of 1971 (unreported), Mills-Owens J. reduced a sentence of 9 months' imprisonment to 4 months for possession of drugs where the offender had 7 drug related previous convictions out of 12;

(iv)    in Li Man v. The Queen, Criminal Appeal No.1002 of 1978 (unreported, 8 November 1978), Huggins J.A. imposed a sentence of 3 months' imprisonment on a man of 63 who had 17 previous convictions for drug-related offences after quashing a conviction on for possession of drugs for unlawful trafficking;

(v)    in The Queen v. Li Wai-keung, Criminal Appeal No 537 of 1985 (unreported, 5 August, 1985), Rhind, J. reduced a sentence of 9 months' imprisonment imposed upon a man with one evious conviction for a drug offence to 6 months;

(vi)    in The Queen v. Liu Chi-kwong, Magistracy Appeal No.182 of 1988 (unreported, 1 June 1988), Bewley, J. substituted a conviction for simple possession of drugs for one of possession for unlawful trafficking and reduced the sentence imposed to one of 6 months' imprisonment. It does not appear if the offender had any previous convictions.

31. There can be no doubt that the melancholy history of both the Respondents presented the magistrate with a very difficult sentencing problem. But we have no hesitation in concluding that the fines imposed on these persistent offenders were wrong in principle and resulted in manifestly inadequate sentences. We respectfully disagree with the magistrate that "a substantial fine under the circumstances shows the disapproval of the Court and his breach of law is thus appropriately marked:" There were no mitigating circumstances in either case and the imposition of fines served no purpose. In circumstances like these, if the offender has available money, all a fine does is to put up the expense of feeding his addiction. If he has no money the fine may well be unpaid, and he is then likely to serve what for the offence would be a derisory sentence for non-payment. Another real risk is that he will succumb to the temptation to resort to crime again to find money. Even though they are to be pitied, it must be borne in mind that drug addicts help to support the vicious commerce in drugs.

32. In our view, in the light of the pleas of guilty, the magistrate should have considered immediate custodial sentences in the 6 to 9 months range having first complied with the provisions of .s.54A of the Dangerous; Drugs Ordinance where those provisions are applicable, and decided whether or not to send either offender to a DATC depending upon the content of the Commissioner's report.

33. In conclusion, we would state our view that the fact that an offender is a drug addict does not justify a sentence, which is out of proportion to the gravity of the offence he has committed so that he may receive treatment in prison However, the sort of sentence we suggest should be considered for persistent drug possession offenders would offer some chance of benefit being derived from the detention. In other words, if an offender's drug addiction can be treated in prison so much the better but no sentence should be passed which is disproportionate to the facts of the case when any mitigating circumstances are taken into account. We do not read anything that Huggins, J., as, he then was, said in Chan Shui as being inconsistent with this approach.

34. We dispose of these applications by making no orders having made observations, which we hope will help magistrates in dealing with these difficult cases.