HKSAR v. Bautista Dominic Catedrilla

HCMA 123/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 123 OF 2016

(ON APPEAL FROM KCCC NO 3917 OF 2015)

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BETWEEN

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J U D G M E N T

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1.The appellant, Bautista Dominic Catedrilla, was convicted on his own plea by the Late Dr Eric Cheung, Magistrate, of one charge of theft (by pickpocketing) on 22 December 2015. 

2.On 19 February 2016, the magistrate sentenced the appellant to be detained in a Drug Addiction Treatment Centre (“DATC”).  The appellant now appeals against his sentence.

3.As said, the case was one of theft by pickpocketing.  At about 6:08 pm on 9 November 2015, the 46-year-old male victim was at the junction of Cameron Road and Carnavron Road, Tsim Sha Tsui, for crossing the road.  He was then carrying a tote bag on his right shoulder, and his mobile phone was placed inside the unzipped front pocket of his bag.  The appellant bumped against the victim from behind and stole his mobile phone.  The victim chased after the appellant and shouted for help. Police officers in the vicinity joined in the chase and finally stopped the appellant.  During the pursuit, the appellant dropped the victim’s phone on the street which was then recovered.  Under caution, the appellant admitted stealing the mobile phone and asked for a chance.

4.The learned magistrate called for a DATC report before sentence and, at the request of counsel who then represented the appellant, the learned magistrate also called for a psychiatric report and a psychological report before sentence. 

5.After a few episodes of the defendant’s absence because of an injury sustained by him while in custody, he was eventually sentenced by the magistrate on the 19 February 2016.

6.Counsel who then represented the appellant mitigated on the appellant’s behalf and submitted that the appellant was no longer drug‑dependent.  However, the appellant’s counsel considered that he would not call any medical evidence and the medical officer who prepared the DATC was not required to give evidence.  In short, he submitted that the appellant preferred a term of imprisonment.  He further submitted that a DATC order would not be effective for the appellant had been sentenced to DATC twice.  Counsel further submitted that the facility and the course organised by the DATC were not favorable to the appellant as the appellant is an ethnic minority and does not understand Punti.  Hence, a DATC order is not an effective rehabilitation for the appellant.

7.The learned magistrate in sentencing the appellant noted the background of the appellant and the recommendation of the DATC report.  He was aware that the appellant had two previous convictions of theft in 2007 and 2013, and he had been sentenced to a probation order and DATC order respectively.  He was also aware of the facts that the appellant had three previous convictions of drug‑related offences.  The criminal record of the appellant shows that he had been sentenced to DATC twice in November and December of 2013.

8.The appellant was 25 years old at the time of his sentence.  The DATC report revealed that he kept abusing cannabis and ‘Ice’.  The intake officer of the DATC said at Part VII Addiction History of the report:

“As alleged, his last dosage of the drugs was taken into July 2015. However, his urine specimen collected from his admission to Lai Chi Kok Reception Centre on 11 November 2015 was found to be positive to methamphetamine and benzodiazepine.”

9.The intake officer concluded that the appellant “is a drug‑dependent and is suitable for admission to the Drug Addiction Treatment Centre.” [1]

10.The learned magistrate says at para 25 of the Reasons For Sentence that: “The court should be borne in mind the principle of proportionality between the offence and sentence.”  The learned magistrate noted that the appellant was convicted on his own plea of guilty, and the case was one of pickpocketing.  He indicated that if he were sentencing the appellant to a term of imprisonment, he would have adopted a starting point of 12 to 15 months according to the case HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  In that case, the Court of Appeal stated that a starting point of 12 to 15 months of immediate imprisonment should be imposed by first‑time offenders of pickpocketing.

11.The learned magistrate reckoned the fact that the appellant committed the present case while he was on police bail in an Eastern Court case, he considered that to be an aggravating factor.  On the other hand, the learned magistrate found that a DATC order is proportional to the gravity of the offence, ie, theft (by pickpocketing). 

12.The learned magistrate did consider counsel’s submissions that since the appellant had been sentenced to DATC twice, another DATC order would be of no use to the appellant’s rehabilitation.  The magistrate considered what Wright J said in HKSAR v Chan Kwok Leung HCMA 1139/2004:

“Committal to Drug Addiction Treatment Centre is a provision specifically designed to assist in the rehabilitation of those who are drug dependent. The appellant says that he has not been helped by his two previous admissions and believes he will not be helped by a third admission. I find wholly unrealistic any suggestion that a prisoner is able to dictate his sentence by such observations.”

13.Finally, the learned magistrate determined that a rehabilitative approach should be adopted in the sentencing process of the appellant.  He gave primacy to the rehabilitation of the appellant instead to deterrence.  He considered that the appellant was in need of drug addiction treatment.  A DATC order will serve the best interests both to the appellant and to the public.  The learned magistrate was satisfied that in the circumstances of the present case and having regard to the character and previous conduct of the appellant, it was in his interest and the public interest that he should receive a period of care and rehabilitation in the DATC. 

14.For the reasons given, the magistrate sentenced the appellant to be detained at a Drug Addiction Treatment Centre.

15.The appellant, who appears before me today in person, complains that his sentence is too lenient, and is wrong in principle. The appellant argues that a general deterrent sentence should be passed on him. 

16.The appellant submits the usual starting point for theft by pickpocketing should be one of 12 to 15 months’ imprisonment.  The appellant also complains that there had been a long lapse of time since the calling for a DATC report and the sentencing on 19 February 2016.  He submits that a fresh DATC report should be called for before sentence.  The appellant also reads extensively from Sentencing in Hong Kong (7^th ed, 2015), chapter 20, page 229 to 239, authority number 8 relied upon by the respondent.

17.The respondent submits that the primary concern of the magistrate was the rehabilitation of the appellant instead of deterrence. The respondent submits that a DATC order is by no means a lenient sentence, given the length of time that the detainee has to spend in a DATC and the period of supervision after discharge. 

18.The respondent submits that the learned magistrate had obviously borne in mind the principle of proportionality and there is nothing wrong in the sentence that the magistrate passed on the appellant.  Hence, the appeal against sentence should be dismissed.

19.I have considered all the matters urged by the appellant before me and the submissions in reply made by the respondent.  As said, the appellant complains that his sentence is too lenient and he argues that a general deterrent sentence should be imposed on him.

20.From the reasons of sentence so carefully prepared by the learned magistrate, it is obvious that he had borne in mind the principle of proportionality between the offence and sentence.  In fact, the learned magistrate had identified the starting point he had in mind had the appellant been sentenced to imprisonment.  He reckoned that according the case HKSAR v Ngo Van Huy, a starting point of 12 to 15 months’ immediate imprisonment should be imposed for a first offender, and the learned magistrate also identified the aggravating feature in the present case. 

21.On the other hand, the magistrate took the view that given the background of the appellant, his age and the pre-sentencing report, he should adopt a rehabilitative principle rather than deference in the sentencing of the appellant.  It is quite clear from the DATC report that the appellant was drug-dependent at the sentencing. 

22.Though counsel for the appellant submitted that he was no longer drug-dependent, there was no medical evidence to that effect before the learned magistrate. 

23.The magistrate was aware of the time lapse between the calling for the DATC report and the time for the sentencing hearing.  I agree with the respondent’s submissions that the fact that the appellant had already been detained for three months did not necessarily mean that a DATC order was not suitable at the time of the sentencing hearing.

24.Section 4(1) of the Drug Addiction Treatment Centres Ordinance, Cap 244, states:

“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 the public interest that he should undergo a period of cure and rehabilitation in an addiction treatment centre, the court may, in lieu of imposing any other sentence, order that such person be detained in an addiction treatment centre.”

25.It is immediately apparent that section 4(1) refers to a wide range of considerations, and not merely to an offender’s drug addiction or the dependency at the material time. 

26.In AG v Chan Tak King [1989] 2 HKLR 428, the Court of Appeal received evidence as to the treatment of a drug addict.  In short, the treatment of a drug addict is both physical and psychological.  Whilst physical detoxification usually took around one to three weeks, the main problem was the psychological dependence of the patient.

27.It is one thing that the appellant’s remand for three months could physically detoxify the appellant, but it is another matter whether the appellant could heal his psychological dependence on drugs. 

28.It is also clear from the DATC suitability report that the appellant is prone to drug abuse.  The report referred to the appellant’s association with undesirable friends and his weak-minded character.

29.I agree with the respondent’s submissions that the lapse of time between the preparation of the DATC report and the time of sentence did not, and should not, prevent the magistrate from following the recommendation in the report.

30.The magistrate was right to give primacy to the rehabilitation of the appellant instead of the deterrence. 

31.Given the fact that the appellant was obviously an addict, it will serve his interest, and also the interests of the public, that he be rehabilitated at a Drug Addiction Treatment Centre. 

32.The decision to sentence the appellant to a Drug Addiction Treatment Centre is correct.  There is nothing wrong in the sentencing process.  Hence, the appeal against sentence is dismissed.

Mr Derek Wong Chun Hin, Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant appeared in person