Attorney General v. Suen Yuen Ming

CAAR000025/1988

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Coram: Silke, V.-P, Kempster & Macdougall, JJ.A.

Date of hearing: 11 April 1989

Date of judgment: 11 April 1989

Date of handing down Reasons: 30 May 1989

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J U D G M E N T

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Silke, V.-P.:

1. On 10th November 1988 in the District Court before His Honour Judge Wilson the Respondent, Suen Yuen Ming, pleaded guilty to two charges: each of which was possession of dangerous drugs for the purpose of unlawful trafficking, offences contrary to section 7 of the Dangerous Drugs Ordinance. The first concerned a quantity of. 305.94 grammes of a mixture containing 19.6 grammes of salts of esters of morphine. That quantity was found on his person when he was stopped and searched in the street. The second concerned a quantity of 282.15 grammes of a mixture containing 17.57 grammes of salts of esters of morphine. That was found in premises at Canton Road where he lived with his girlfriend and by whom he has a two year old child He had, after his arrest, led the police there.

2. In each case the trial judge had made a Training Centre Order.

3. The Attorney General by leave applied to this Court to Review the sentences passed upon the Respondent on the grounds that they were manifestly inadequate and/or wrong in principle.

4. At the conclusion of he hearing we stated that we would refuse the Attorney General's application and hand down our Reasons later, this we now do.

5. The offences took place on 14th May 1988. At that time the Respondent was aged 17 years and 8 months. At the time of his conviction he was 18. He had a clear record. Before making the orders he did, the trial judge called for and considered reports from the Social Welfare Department and from the Commissioner of Correctional Services. In the latter report the Intake Officer recommended that a Training Centre Order be made. To this, and as he said not without hesitation the trial judge acceded.

6. The Respondent's family runs a cooked food stall in Yaumati where after leaving school, where he was in Form 2, the Respondent worked. He then had other jobs - in a plastic bag factory and on a construction site. He became involved with undesirable elements. He then returned to work at the family pocked food stall bringing with him his girlfriend, whom he had known since she was about 14, and who also worked with the family, and his child.

7. Shortly before the commission of the offences the Respondent had been approached, and this the trial judge accepted, by one of his erstwhile undesirable companions who asked him to store drugs. At first, he refused, but he was told that his girlfriend would be harmed and the business of the stall disrupted. He gave in to the threats. He is not a drug addict and his family are deeply concerned about him.

8. Mr. Cross who appears for the Attorney General has, with his usual clarity, drawn our attention, to the amount of the drugs concerned which, on the Chan Chi Ming [[1979] H.K.L.R.491] guidelines, warranted a sentence in the region of five to eight years being a "substantial" quantity. He submittd that these Courts have said on numerous occasions that those concerned in drug trafficking should receive no mercy; that the main factor in considering the appropriate sentence for such offences is both the punishment of the offender and the deterrence to others who are minded to engage, in whatever capacity, in this hateful trade. While the purpose of a Training Centre Order, custodial in nature though it may be, is to avoid the sending of young offenders to prison and to assist in their reformation the Courts, before making such orders, should carefully consider the nature of the offence; the need, and again this Court has emphasised this, to deter persons under disability, whether that disability stems from sex, age or infirmity, being used by those who are the organisers of drug trafficking to engender sympathy in the mind of the Court. [Lam Wai Hung v, R. C.A. 724/72 unreported: R. v. Sezto Ying Lun C.A. 204/85].

9. We accept that in the context of an offender such as Suen Yuen Ming there can bean apparent conflict between his interests, his rehabilitation, deterrence to him and to others and the interests of the community. We note that a section 7 offence is not an excepted offence under the provisions of section 109A of the Criminal Procedure Ordinance Cap.221. Clearly it is incumbent upon the Courts to be wary and to exercise great care before they commit young offenders to prison and this is a factor which the Legislature has recognised. [R. v. Her Wai Ming and another C.A. 497/84 unreported]. While there may exist the conflict to which we have referred a moment ago between the the varying aspects relating to the offence and the offender there equally well may be cases where the interestsof the community can be best served, though we accept that these will be rare in drug cases, by placing greater emphasis on rehabilitation as distinct from deterrence.

10. What we are being asked to do is to interfere with the discretion of a sentencing judge - an exercise not lightly to be undertaken by this Court unless the judge can be shown to have erred in principle, and this usually means shown to be so manifestly wrong in passing the sentence under contemplation so as to warrant our interference. The trial judge here gave careful consideration to the facts and to the reports before him. The Intake Officer's report ended with these words:

"In view of the fact that SUEN is convicted of a drug related offence which proved that he has connections with dangerous drug traffickers, it is opined that the short detention centre programme is insufficient to effect a positive reform on him. Instead, he is recommended to be detain in a Training Centre where he could undergo a more comprehensive programme including educational and vocational aspects of development. And also, followed by a longer period of social work oriented (sic) after-care supervision. He is a suitable subject for Training Centre."

11. In the light of the Respondent's pleas of guilty, his age, his clear record, his personal circumstances and the acceptance that threats were made to him, and without laying particular emphasis on any one of those matters we and also with some hesitation, came to the conclusion that in this particular case we would not interfere with the exercise of his discretion by the trial judge.

12. We would repeat and stress that it is only in very rare cases, such as we think this to be that a Training Centre Order would be considered a proper sentence where substantial quantities of dangerous drugs are involved.

Representation:

I.G. Cross, Esq. & Miss Catherine Fung for Crown/Applicant

Miss Munira Moosdeen (David K.W. Tsang & Co.) for Respondent