HKSAR v. Zain, Ali

HCMA 72/2020

[2020] HKCFI 1342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 72 OF 2020

(ON APPEAL FROM TMCC 2807/2018)

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J U D G M E N T

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1.The appellant, pleaded guilty to two counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (“the charges”) on 22 May 2019. On 28 February 2020 he was sentenced to be detained in a Drug Addiction Treatment Centre (“DATC”) by Acting Principle Magistrate Kathie Cheung (“the magistrate”).

2.The appellant now appeals against his sentence.

The theft charges

3.The appellant was jointly charged with two others. He is the third defendant in the charges.

4.In Charge 1, the appellant admitted that on the 14 May 2018, outside McDonald’s, Grandeur Terrance, Tin Shui Wai, New Territories, together with other persons stole (1) one red recycle bag containing: (2) cash of HK$12,000; (3) ten e-banking security devices of the banks in mainland China; (4) three ‘Xiaomi’ mobile phones (total valued at HK$3,000); and (5) one paper notebook, the property of Yuet Sing Foreign Exchange Company.

5.In charge 2 the appellant admitted that on the same day at the same place and time in charge 1, together with others he stole one octopus card (valued at HK$200); and (2) one jacket (valued at HK$200), the property of Cheung Pui-Ling.

The Admitted Facts

6.The facts admitted in support of the two charges by the appellant were as follows.  Ms Cheung Pui-ling (“Ms Cheung”) was an employee of a Yuet Sing Foreign Exchange Company (“the Company”).  Ms Cheung was responsible for safe-keeping the Company’s e-banking devices and cash obtained in the course of the Company’s business.

7.At about 7:45 am while Ms Cheung was on her way to work, she was carrying a bag containing the Company’s properties as well as her own belongings as set out in the two charges respectively. Suddenly a man approached her from behind and snatched her bag and fled.  She chased after him but lost sight of him after he boarded a private car.  A report was made to the police. 

8.Subsequent investigation revealed the identity of one of the appellant’s co-defendants.  With information provided by that co-defendant, the police arrested the appellant.  Under caution, the appellant admitted that 1-2 weeks prior to the snatching, someone mentioned the plan and showed them picture of Ms Cheung.  Later, one of the co-defendants called the appellant to confirm whether the appellant would join the scheme. The appellant replied in the affirmative.  On the offence date, the appellant was assigned to keep observation of Ms Cheung.  When he saw Ms Cheung, he then called a man to notify him of the clothing of Ms Cheung.  He then saw a man snatching Ms Cheung’s bag from behind.  Later on, the man who snatched Ms Cheung’s bag gave the appellant HK$3,000.

Mitigation

9.In mitigation it was submitted that the appellant is aged 22, and has a clear record.  At the time of commission of the offences, he was under a bind over order.  He used to be a construction site worker earning about HK$16,000 per month.  He was the sole breadwinner of the family.  He was willing to pay compensation of HK$6,000.  He did not know the seriousness of the offences. Since he acted only as look out in the offences, he requested the court to consider a Community Service Order. 

DATC and Detention Centre reports

10.Prior to sentencing the appellant, two DATC reports and a Detention Centre report (“DC report”) were called for.  In all three reports the medical officers were of the opinion that the appellant was a drug dependent.  As the appellant was a drug dependent he was medically unfit for detention in the detention centre and considered suitable for admission to DATC. 

11.The first DATC report was dated 23 January 2020[1] (“the first DATC report”) and the second dated 24 February 2020[2] (“the second DATC report”).  The magistrate acceded to calling for a second DATC report as the appellant alleged that he had not taken dangerous drug for the last 8 years and requested to get another DATC report with the assistance from an Urdu interpreter.  As a result, the second DATC report was called for with the assistance from an Urdu interpreter. 

Grounds of appeal

12.In the appellants’ Form 102[3], the sole ground of appeal is that the sentence is too severe. 

13.At the hearing of the appeal in his oral submissions, the appellant argued that the recommendation in the DATC report on his suitability for his admission was incorrect.  He denies that he is drug dependant.  He submitted that the magistrate erred in sentencing him to the DATC.  He contended that the correct sentence should have been to a period of imprisonment.

14.Further, he asserted that he had not consumed cannabis since 2014 and the reason for the positive urine test was that he might have inhaled cannabis when he attended a party between 23 and 26 December 2019.

Consideration

15.The issue in this appeal is whether the magistrate erred in sentencing the appellant to the DATC.

16.The appellant was remanded in custody after his court appearance on 27 December 2019.  The urine specimen collected upon his admission to Pik Uk Correctional Institution on 27 December 2019 was found positive to cannabis. 

17.According to the DC report[4] the appellant denied taking any dangerous drugs other than cannabis in the past.  In the DC report the appellant alleged he began to smoke cannabis in mid-2014[5].  In the second DATC report the appellant claimed he started to abuse cannabis in 2012[6]. 

18.In the DC report the appellant reported his last dose of cannabis was taken on 26 December 2019[7]. In the second DATC report when asked about the positive result of cannabis he insisted that his last dosage was taken in late 2012[8]. 

19.As can be seen in the second DATC report the appellant’s claim remains that he has not taken cannabis for the last 8 years.

20.The medical officer in the second DATC report carefully examined the appellant and is of the opinion that he is a drug dependant.  The medical officer was of the view that the appellant tried to cover up his drug problem and had no determination to cut off the habit of abusing drugs[9]. The second DATC report also referred to the appellant’s association with undesirable peers and his weak law-abiding concept which eventually landed him into committing the present offences.

21.In sentencing the appellant the magistrate said[10] :-

“13. Given the appellant’s young age, it would be important to help him to tackle his problem to reduce the chance of his re-offending in the future. Although he denied taking drug for the last 8 years, he was tested positive during the recent remand. Apparently he must have taken drugs. As he is assessed to be drug dependent, it would be beneficial to him if his drug problem can be tackled. According to the court’s experience, it is very common to see people repeatedly committing offences in order to support their habits of drug abuse.

14. In the circumstances, I consider the most appropriate way to deal with the appellant is to sentence him to detention in DATC although I am aware of the fact that he has been detained for over a few months already...”

22.It is clear from the reports that the appellant is a drug dependent.  The positive urine test cannot be disputed or ignored.  The magistrate in her reasons for sentence, as she was entitled to do, rejected the appellant’s submission that he had not taken drugs for the last 8 years.  Section 4 of the Drug Addiction Treatment Centres Ordinance, Cap. 244 refers to a wide range of considerations and not merely to an offender’s drug dependency or addiction at the material time.  Section 4 states:

“(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.”

Conclusion

23.In the present case the magistrate took into account the appellant’s drug dependency and his young age.  She was of the view that detention in the DATC was to tackle his drug dependency and reduce the chance of his re-offending in the future.  The magistrate’s paramount focus was on the longer-term rehabilitation of the appellant.

24.There can be no criticism of the magistrate in the sentence she imposed.  There is no merit in this appeal and it is dismissed.

Mr Dimitri Au-yeung, PP of the Department of Justice, for the respondent

The appellant appeared in person