HKSAR v. Azhar Ghafar

DCCC 194/2018

[2021] HKDC 249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 194 OF 2018

________________________

________________________

________________________

Reasons for Sentence

________________________

1.On 2 August 2019, the defendant was convicted by this court of two offences, common assault and kidnapping are the two charges, 2nd charge of common assault and 5th charge of kidnapping.

2.After seeking all reports, the defendant was placed on a probation order.  The original probation order was for a period of 18 months with a requirement to be of good behaviour, maintain contact with a probation officer and inform the probation officer of any change of his residence.

3.The progress of the defendant under probation was not good.  By 19 November the following year, 2020, a progress report was initiated by the probation officer dealing with the deterioration of the defendant’s performance under probation since February 2020.

4.The random urine tests have detected the presence of dangerous drugs on five occasions since then.  The drugs discovered were cannabinoids and cocaine.  The probation officer at that point recommended the defendant be dealt with for the breach of his probation order in accordance with section 5(1) of that ordinance.

5.When the defendant was brought to court on 19 January 2021, he admitted his breach of the probation report.  He was then remanded in custody for the preparation of reports, the defendant being aware that he could now be sentenced for the offence of which he had originally been convicted because of the breach of the probation order.

6.I sought to see if further probation would benefit the defendant.  The probation services considered that the situation has gone beyond that.  Their conclusion from their report on 29 January was that the defendant had performed unsatisfactorily during and whilst serving probation.  He gave no insight into his misbehaviour and drug problem.  He refused a residential drug treatment which would have been an option for him.

7.They considered that his repeated acts of ignoring the supervising probation officer’s direction, his lack of self-reflection and remorse of his behaviour, as a result of those factors continuous probation supervision was not conducive to solving his problem. They further recommended the existing probation order to be discharged and the original offence to be dealt with accordingly.

8.It can be seen from this report that my options are severely limited as to how I deal with the defendant.  I had thought if it was possible that a residential drug treatment could be considered for him.  It might have benefited him, but he seems set against that and the probation services say it is not a practical option for him.

9.The defendant’s problem undoubtedly arises out of his consumption of recreational drugs.

10.The defendant was also examined by the Correctional Services Department to see his suitability for a Drug Addiction Treatment Centre Order.  The conclusion of the drug addiction treatment centre is that the defendant is a drug dependent.  They said that they found the defendant had persistent drug-taking behaviour with poor insight into his drug problem.  Given that, a programme of treatment coupled with statutory after-care supervision would benefit him.  I am told the defendant is suitable for admission to a drug addiction treatment centre and there is a place available for him. 

11.The defendant has indicated today that he would prefer a sentence of imprisonment.  The defendant is, of course, of an age where that is possible for him.  He is now 20 years old.  The other residential programmes of the Correctional Services Department would not be suitable for him as he is a drug dependent.

12.It appears to be the defendant’s main problem at present is his drug dependency.  That needs to be dealt with.  It needs to be dealt within an institution that is specifically designed for that and has after-care supervision.  He is still a young man and it would be hoped that this can put him back on a law-abiding lifestyle again.

13.I see effectively no other option for sentencing for this defendant at this stage other than drug addiction treatment centre order.  I shall make an order as recommended by probation services.  The defendant’s probation order will be discharged.  He will be sentenced again for the offences of which he was originally convicted, Charges 2 and 5, and be sent to a drug addiction treatment centre.  The conviction will be recorded.  That will be my order.