HKSAR v. Kwok Ka-yee, Karen

CACC 341/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 341 OF 2016

(ON APPEAL FROM DCCC NO. 371 OF 2016)

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BETWEEN

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Before:  Hon Lunn VP and Zervos J in Courts

Date of Hearing: 7 April 2017

Date of Judgment:  7 April 2017

Date of Reasons for Judgment:  11 April 2017

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.The appellant appealed, with the leave of Macrae JA granted on 21 March 2017, against the sentence that she be detained at a Drug Addiction Treatment Centre (“DATC”) imposed on her by District Court Judge Woodcock on 31 October 2016 on her conviction of two offences. First, for her conviction after trial of unlawful possession of 9.56 grams of methamphetamine hydrochloride (“Ice”), 19.42 grams of ketamine and 0.08 grams of powder containing ketamine, contrary to section 8 of the Dangerous Drugs Ordinance, Cap. 134, which verdict was in the alternative to a charge of unlawfully trafficking in those dangerous drugs. Secondly, for her conviction of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance. The judge imposed concurrent sentences in respect of each conviction that the appellant be detained in a DATC. At the hearing, we dismissed the appeal and said that we would give our reasons in due course. That, we do now.

The facts

2.In the early evening of 13 January 2016, the appellant had been found at her domestic premises in Mei Tung Estate, Wong Tai Sin following the execution of a search warrants by a party of police officers.  The dangerous drugs werefound in 18 re-sealable bags and in liquid form in two glass bottles fashioned into hookahs.  Also, a large number of re-sealable bags and related paraphernalia for the weighing and consumption of drugs were found in the premises.

3.It was the appellant’s case at trial that the dangerous drugs were for her own consumption.  In acquitting the appellant of the charge of unlawful trafficking in the dangerous drugs, the judge noted:

“ She readily admits she previously had drug convictions. Her first conviction for possession of dangerous drugs was when she was 21 years old, in 1997. Her last conviction for possession of dangerous drugs was in 2008, when she was ordered to serve a drug addiction treatment centre order. Her evidence was that when she was released from this treatment centre, she did not relapse. However, in or about Chinese New Year 2015, she relapsed due to the pressure of caring for her husband and other family problems. Her evidence was that she hid her relapse from her boyfriend and her sister; hence her need to hide the dangerous drugs and pipes.

It is not in dispute that after she was arrested and remanded in custody, a urine test was conducted and came back positive for “Ice”.

In the result, the judge concluded that there was “the possibility the drugs were for self‑consumption”.

Sentence

4.The judge noted that the appellant was 41 years old at the time of sentence and that she had a number of previous convictions for possession of drugs.  First, in 1995, when she was 20 years old, she was ordered to be detained in a DATC.  There followed a number of convictions for possession of drugs in 1997, 1999 and 2003, for which she was variously fined or put on probation.  Then, she was convicted again for possession of drugs in 2008 and was ordered to be detained in a DATC.  So, a period of 8 years had elapsed since the last DATC order.  It is clear from her criminal history that she has had a drug addiction problem from an early age until now. 

5.In the course of the trial, the appellant testified that since her last release from custody she had abstained successfully from drug abuse, but had suffered a relapse in 2015. She attributed this lapse to the pressure of caring for her husband, who was bedridden and in need of constant care because of an organic brain syndrome, and other family problems.

6.In the result, the judge called for a DATC report, which the judge said stated that she was “drug dependent” and recommended that the appellant be detained at a DATC.  By this stage, the appellant had been in custody since her arrest in relation to the present offences for a period of about 9 months.  Counsel for the appellant raised the appellant’s concern that she would lose the benefit of the 9 months that she had already served in custody, if ordered to attend a DATC. 

7.Of the appellant’s criminal record, the judge said “Essentially, the defendant has been on and off dangerous drugs since 1995, over 20 years.”  Then, the judge said of the submission made on behalf of the appellant, namely that given that the appellant had been in custody since January 2016, she “would prefer me to consider a term of imprisonment for possessing this quantity of drugs.”  However, the judge said:

“ I have taken the report into account. In my view, rehabilitation is an essential element in sentencing. If a drug addiction treatment centre report recommends treatment for what is essentially a disease, I will rarely find otherwise. There is no treatment for drug dependency, be it physically or psychologically in a prison setting.”

8.In the result, the judge imposed an order that the appellant be detained in a DATC.

The appellant’s submissions

9.Ms Vivien Chan, counsel for the appellant, submitted the imposition of a DATC order was manifestly excessive in light of the appellant’s antecedents, the history of proceedings, the reasons for sentence, and the failure of the judge to pay sufficient regard to the period that the appellant had been detained prior to her sentence.

10.Ms Chan submitted that, as far as the offence of possession of dangerous drugs is concerned, the Court of Appeal had confirmed that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment^[1].

11.Taking into account the nature and quantity of dangerous drugs involved in the present case, the antecedents and mitigation of the appellant, Ms Chan submits that a starting point for a sentence should not be more than 18 months’ imprisonment.  Further she submitted, that even if a court was minded to take into account the latent risk factor to reflect the fact of the considerable amount of drugs that were found, the enhancement should not be substantial as the degree of risk was low on the basis of the judge’s findings in the case.

12.Ms Chan submitted that, having been detained since her arrest on 13 January 2016, the appellant had been detained in custody for 9½ months at the date of her sentence on 31 October 2016.  At the time of this hearing, namely, 7 April 2017 she had been detained in custody for around 15 months.  Of that period, she submitted that if account is taken of the normally anticipated account of one-third from the sentence for good behaviour the appellant is to be regarded as having served a term of 22 months’ imprisonment at the date of this hearing.

13.Finally, Ms Chan submitted that given the fact that the appellant was entitled to expect to be afforded a discount of one-third from the starting point to be taken for sentence by the judge, to reflect her plea of guilty to Charge 2 and her offer to plead guilty to the offence of which she was found guilty in respect of Charge 1, namely possession only of the dangerous drugs, the notional starting point for sentence would have been 33 months’ imprisonment.  That would have been a manifestly excessive term of imprisonment to impose on the appellant for this offence.  Accordingly, so it was submitted that the imposition of the DATC order was manifestly excessive in all circumstances.

The respondent’s submission

14.For the respondent, Ms Sheroy Tam submitted that the imposition of a DATC order was not wrong in principle.   She said that, pursuant to section 54A(1) of the Dangerous Drugs Ordinance, the judge was obliged to call for a DATC report before sentencing the appellant, given that the appellant was being sentenced for an offence of possession of dangerous drugs and for possession of apparatus fit and intended for the consumption of dangerous drugs.  The judge was fully aware that the appellant had been detained for over 9 months and was alive to the appellant’s antecedents and domestic circumstances before she imposed sentence.  She submitted that it was clear that the judge determined that the rehabilitation of the appellant required the imposition of a DATC order.

A consideration of the submissions

15.Section 4 of the Drug Addiction Treatment Centres Ordinance, Cap. 244, provides:

“ (1) 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.

(2) A person in respect of whom a detention order is made shall be detained in an addiction treatment centre for such period, not less than 2 months and not more than 12 months from the date of such order, as the Commissioner may determine, having regard to the health and progress made by such person and the likelihood of his remaining free from addiction to any dangerous drug on his release, and shall then be released.” [Italics added.]

16.In the judgment of this Court in the Attorney-General v Chan Tak-king & Chan Pau-yau, Fuad VP addressed the issue of the treatment afforded to drug dependent inmates in both the ordinary institutions of the Correctional Services Department and in DATCs:^[2]

“ On the question of the treatment of drug addicts, we derived considerable assistance from the evidence of Dr. Wong the Acting Senior Medical Officer responsible for the DATC Programme of the Correctional Services Department, with many 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.

He said that the treatment of a drug addict fell basically into two parts - physical and psychological. 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 addiction 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.

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 sufficiently de-toxified to serve normal imprisonment. In such circumstances, withdrawal symptoms might disappear in 1-3 weeks.

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.

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

17.It was not suggested that the summary in that judgment of the treatment afforded to drug addicted prisoners in the two different institutions had changed in any way relevant to the determination of the issue before the court today.  It is clear that physical dependency can be dealt with in either form of the institutions within 1 to 3 weeks.  On the other hand, it is equally clear that a DATC provides a focused emphasis addressing the psychological dependency of the detainee in which he undergoes “a period of cure and rehabilitation”.^[3]

18.It is to be noted that the appellant, who is now 42 years of age, falls within the group described by Doctor Wong as the “largest group admitted to DATCs.”  Furthermore, Doctor Wong observed that “an addict whose treatment had failed on 2 or 3 occasions might still benefit from later treatment.”  Whilst it appears that the first treatment of the appellant at a DATC in 1995 was less than successful, given that she was convicted in the period 1997 to 1999 of three offences of possession of a dangerous drug and one offence of possession of equipment fit and intended for consumption of a dangerous drug, it appears that the second treatment of the appellant in a DATC in 2008 was successful, at least for 7 years.  No doubt, it was mindful of those circumstances that the author of the DATC report called for by the judge, having noted that the appellant was “drug dependent” said that the appellant was “considered suitable” for admission to a DATC.  Ms Chan accepted candidly that it was anticipated, but not guaranteed, that the appellant would be released from the DATC this month.

Conclusion

19.We were satisfied, having regard to all the circumstances, that the judge was entitled to order that the appellant be detained in a DATC.  Accordingly, we dismissed the appeal.

Ms Sheroy Tam, SPP, of the Department of Justice, for the respondent

Ms Vivien Chan, instructed by K. B. Chau & Co., assigned by Director of Legal Aid, for the appellant

[1] HKSAR v Mok Cho-tik [2001] 1 HKC 261; HKSAR v Singh (CACC 96/2006, unreported, 15 September 2006); HKSAR v Cheung Ka-yan (CACC 406/2014; unreported, 25 November 2015).

[2] Attorney-General v Chan Tak-king & Chan Pau-yau [1989] 2 HKLR 428, at 435 A-H.

[3] Section 4(1) of the Drug Addiction Treatment Centres Ordinance, Cap. 244.