Attorney General v. Fong Man Hung and Another

CAAR000005/1997

IN THE COURT OF APPEAL

1997, No. 5
(Application for Review)

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Coram: Hon Power, Atg C.J., Nazareth, V.-P. and
       Stuart Moore J in Court

Date of hearing: 16 May 1997

Date of judgment: 16 May 1997

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. This is an application by the Attorney General for review of the sentences passed upon the 1st respondent, Fong and the 2nd respondent, Choi by His Honour Judge Whaley in the District Court. They pleaded guilty before him in the two cases mentioned in the title to this appeal on 26th February 1997. Fong to three offences and Choi to ten offences, all of robberies committed in lifts in different housing estate blocks in Tseung Kwan O, Kowloon. They were committed in the same general way. The victims were all women. They were grabbed round their necks and made to hand over gold necklaces, pendants, other items of gold jewelry, personal items and cash. No weapons were used nor violence, apart from the victims being grabbed by the neck from behind. Both the respondents were drug addicts and it was accepted by the judge that the offences were committed to fund their addiction. DATC suitability reports were obtained on both and in addition a probation officer's report on Fong. Both were sentenced to DATC orders on 14th March 1997.

2. Turning to Fong, his three offences were committed jointly with Choi between 19th and 30th October 1996. He was born on 20th January 1979, so that he was about 3 months short of 18 years at the time of the offences. He had four previous convictions. The first on 18th October 1994 for theft. The second on 23rd March 1995 for assault occasioning actual bodily harm. The third on 18th October 1995 for theft and breach of a probation order for which he was sentenced to a drug addiction treatment centre; and the fourth was on 20th August 1996 for possession of dangerous drugs and possession of apparatus fit for injection of dangerous drugs for which he was put on probation for 15 months.

3. In regard to these convictions, Mr Saw QC for the Attorney General points out that significantly some were committed while he was on probation. The judge addressed the matter of the sentences to be imposed with some care. He dealt with Fong separately. He correctly noted that robbery was a serious offence. He pointed to the importance of having regard to the particular facts of each case before him and to the absence of weapons, violence and assault as mitigating factors. It has to be said in that regard that there was in fact violence, and assault had been committed by the victims being grabbed by the throat, also that the absence of these cannot be said to be a mitigating factor. The judge then said this having referred to the age of Fong and to his previous convictions:

"His record is not an impressive one. I note from the reports that he has shown behavioural problems for a long time and has been deeply influenced by triad friends. He has been addicted to heroin for three years. I note that he has been to a drug addiction treatment centre in the past which has obviously failed to achieve its purpose.

He was also placed on probation in the past, and again most recently in August last year. The progress report from the probation officer shows that the defendant's performance has been below average while on probation on this occasion. He failed to attend for voluntary treatment for his drug addiction in breach of his undertaking to attend, and he has relapsed to consuming heroin. Indeed, it has been submitted, and I accept for present purposes, that he committed the present offences in order to fund his heroin habit.

The Commission has stated that, in view of his drug addiction, he is unsuitable for detention in a training centre or detention centre, but suitable for admission to a drug addiction treatment centre.

Having regard particularly to the defendant's age - he is still a young man - and his drug addiction and the fact that these offences seem to have stemmed from his drug addiction, I consider that he should be given another chance to cure himself of his drug habit by a further period of detention in a drug addiction treatment centre. I consider that it will be in the public interest to adopt this course, not only because it gives this young man another chance to redeem himself by curing this dreadful problem that he has of addiction to heroin, but also in the interest of the community, since once he has cured himself of his addiction, hopefully, with this second period of detention in a drug addiction treatment centre, and the disciplinary and counselling treatment that he receives in the centre, that he will have a golden opportunity to turnover a new leaf, put these offences behind him and live a decent life henceforward."

The judge then noted that the defendant had been cooperative with the authorities, which was consistent with his pleas and that further he had provided the police with information which had led to the arrest of other persons and for that he certainly deserved some credit. He has noted that he had a supportive family. He concluded by sentencing him to a drug addiction treatment centre.

4. We turn then to Choi's case. As we have said, he was convicted of ten charges of lift robbery. These were committed one in July, and the remainder between 11th and 28th October 1996. Only one of these offences was committed by Choi on his own. Three, of course, were committed jointly with Fong and the remainder were with other persons. All the offences, apart the one, had been committed by two persons on each occasion. Choi's date of birth was 20th September 1977, so that he was 19 at the time of the offences. A DATC suitability report was also secured in respect of him as we have said. He had only one previous conviction, that was on 12th April 1996, the offence being possession of dangerous drugs for which he was fined $500.

5. The judge approached his sentence in a similar way to that he adopted in respect of Fong, pointing to similar considerations. He had, of course, acquired a greater quantity of spoils in his many offences. No weapons were used. The judge again referred to the absence of assault or violence. He pointed to ten charges of robbery being a very serious matter indeed. But he mentioned particularly that he was treating Choi as having a clear record, which he was entitled to do, and that he appeared to the judge to be genuinely remorseful, pointing out that that was consistent with his frank admission. He concluded by saying that he was going to adopt an admittedly exception course in Choi's case and sentenced him also to a drug addiction treatment centre as we have said.

6. Mr Saw submits that the sentences passed on the two respondents were wrong in principle and/or manifestly inadequate. He submits that the offences were separate offences, and although committed within a month or two, the judge would have been entitled to impose consecutive sentences. He also submits rightly, in our view, having regard to the authorities which he cited and to which we will turn in a moment, that it has been accepted that the imposition of a sentence of detention in a drug addiction centre, although not wrong in principle for an offence of robbery, is nonetheless an exceptional sentence. He points first to Re Application for Review of Sentences [1974] HKLR 55 at 61 where Sir Geoffrey Briggs CJ said this:

"Treatment for drug addiction forms part of the curriculum of all prison institutions.

We do not think that a sentence of detention in an addiction treatment centre is wrong in principle in a case of robbery. Each case must depend upon its own facts. But we think that it is only in the rarest case that such an order should be made. A court might pass such a sentence in a case where no violence is used, no weapon displayed and where there is no accomplice and where the desire of the offender to cure himself of his addiction is proved to the satisfaction of the court. There must be factors which are exceptional and compelling before such a sentence is passed."

Similarly, in Attorney General v Wong Sai-cheong AR No. 1 of 1985 (unreported) Li V-P in setting aside a DATC order and imposing a sentence of 3 years' imprisonment said this:

"The order to a drug treatment centre, although not wrong in principle, should be made only in very rare and exceptional circumstances."

We are not able to see any exceptional circumstances in these two cases. The commission in the case of Fong of the offences after two DATC orders were imposed upon him, and while he was on probation; and in the case of Choi, no less than ten successive offences, clearly call for immediate custodial sentences. Although we understand the judge's concern to have these young offenders cured of their addiction in the public interest, neither that nor the mitigating circumstances to which we referred, such as they are, nor the non-availability of sentencing to a detention centre in the particular circumstances which must have troubled him, could in our view warrant other than an immediately custodial sentence.

7. We are satisfied that the judge misdirected himself in imposing drug addiction orders in respect of all the offences. These in addition are plainly manifestly inadequate. It would seem also that the judge erred in giving undue weight to the offences having been committed to fund the drug habit of the two respondents. That cannot be a mitigating circumstance. See R v Yau Kwok-tung [1987] HKLR 782. Clearly, therefore, the applications for review must be allowed and the custodial sentences imposed set aside. However, in the case of Fong, having regard to the fact that he committed only three offences, that no weapon was used, that the violence was not of an aggravating nature but consisted only of grabbing the necks of the three victims, also to his plea of guilty and the assistance he gave to the police, not to mention the 3 months or so that he has spent in custody, and to some discount he may be due for a custodial sentence being imposed upon review in lieu of a DATC sentence, it would seem that the appropriate sentence would be reasonably close to the period he would spend in a DATC centre. Moreover, it is of some concern to us as to whether it would be appropriate to remove him from a drug addiction treatment centre to prison, particularly for a period that might not be very much greater, if he were making good progress in the drug addiction treatment centre.

8. In those circumstances before we decide the matter of the sentence we should impose, or indeed whether we should interfere with the order for detention in a drug addiction treatment centre, we propose to seek a report upon the progress he is making. We therefore stand down his appeal on sentence which we adjourn to a day to be fixed, which should not be before the report is received.

9. Turning then to Choi, his situation is aggravated by the unusually large number of offences, no less than ten. In his case, there is also the absence of the assistance that Fong gave to the police. We think that in the circumstances of his particular offences, a starting point of 4 years would be appropriate. As we have said, the sentences on these ten offences could have been consecutive. That, of course, can immediately be seen to produce a disproportionate result viewed in totality. We, therefore, think that while it would be appropriate to take a starting point of 4 years on all the offences, the sentences on the nine offences other than the first should be concurrent to each other but consecutive to that on the first count as to 2 years, so that the total sentence he would have to serve would be 6 years. From that, he would have to be allowed a discount of one-third for his plea; that would leave a total of 48 months. And from that we would deduct 3 months for the period he had served, and another 3-month discount for the greatly increased sentence on review, which would bring it down to 42 months. We accordingly set aside the DATC order made in respect of him and substitute a sentence of imprisonment for 3 years and 6 months.

Representation:

Mr D.G. Saw QC (SACP) and Mr Y.M. Liu (SCC) for the Applicant

Mr Duncan Percy (DLA) for the Respondent