HKSAR v. Chochanga Vabindra

HCMA 630/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 630 OF 2003

(ON APPEAL FROM KCCC 5825 OF 2003)

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BETWEEN

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REASONS FOR JUDGMENT

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Introduction

1.The Appellant was convicted after trial by a Magistrate of one charge of Possession of a Dangerous drug, namely one packet containing 0.13 gramme of a mixture containing heroin hydrochloride, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap. 134.  He was sentenced to 5 months’ imprisonment.  He appealed against conviction and sentence. 

2.The Appellant was granted Legal Aid to pursue his appeal against sentence and Mr David Boyton of counsel was instructed for that purpose.  As far as the appeal against conviction was concerned, the Appellant was not legally represented. 

3.Mr Boyton asked for leave to allow him to act as a ‘McKenzie Friend’ and had prepared written submission on the Appellant’s behalf.  Having considered the case of Lobo v Kirpalani CACV99 of 1998 I refused his application.  When the Appellant pursued his own appeal, it became clear that he was only concerned with his appeal against sentence and he did not advance any reasons to support his appeal against conviction.

4.At the conclusion of the hearing I dismissed the appeal against conviction and allowed the appeal against sentence.  I set aside the term of imprisonment and substituted it with a 12-month Probation Order.  I now give my reasons.

Summary of Facts

5.The case as found by the learned magistrate is fairly straightforward.  At the material time a police officer (PW1)  was patrolling a street with another officer when he saw the Appellant turning away upon seeing them approached.  The two police officers followed him and intercepted him inside a public toilet.  Upon search, a packet containing the dangerous drug as set out in the particulars of the charge was found inside a pocket of his trousers.

Grounds of Appeal against Sentence

6.In short, Mr Boyton’s complain was that the sentence of 5 months’ imprisonment imposed on the Appellant was manifestly excessive.  He submitted that in view of the background of the Appellant: his age, clear record etc. and section 109A of the Criminal Procedure Ordinance, Cap. 221 the learned Magistrate should have considered an alternative to an immediate custodial sentence, i.e. a fine.

Response from Respondent

7.Ms Agnes Chan, Government Counsel has right pointed out that at the time Mr. Boyton specifically refer to only two options left to the learned Magistrate: fine or imprisonment.  She contended that the learned Magistrate has carefully considered the circumstances and all that was said in mitigation before imposing the sentence of imprisonment.  She submitted that the learned Magistrate’s approach could not be faulted.

Reasons for sentence

8.The learned Magistrate gave the following reasons for the sentence (page 20 of the bundle):

“Reasons for Sentence

13. In sentencing, I had taken into account the whole circumstances, including the facts, in particular the nature and quantity of the dangerous drug, everything said on the Appellant’s behalf on mitigation, and the information and recommendation contained in the Probation Officer’s Report and the DATC report.

14. The Appellant is 18 years of age. He is a carpenter earning about $10,000 a month. He was the sole bread winner of the family, his parents have just lost their job. He has one younger sister and two younger brothers living together with the family in a rented private flat.

15. The Appellant received primary education in Nepal. He came to Hong Kong in November 1997 to join his parents who had come a few months earlier. In Hong Kong, he had worked as a cleanser, noodle manufactory factory worker and a carpenter.

16. He participated in voluntary work in an organisation which concerned ethnic minority residents in Hong Kong. The social worker has a good comment on him. It was, however, said that the Appellant had association with drug-addicted playmates.

17. The Appellant is not drug dependant. Treatment in DATC is therefore not necessary. Probation supervision is also considered not necessary.

18.  Learned Defence Counsel asked me to consider a fine.  I did not consider it appropriate.  It was sufficient to reflect the seriousness of the offence.  I also did not consider a suspended sentence justified in the circumstances of the case.  Having regard to authorities like R v LEUNG MOON WAH HCMA NO. 643 of 1996 and HKSAR v LEE KWOK KEUNG HCMA No. 22 of 1998, I was of the view that an immediate custodial sentence was called for. There were no appropriate alternatives.  I adopted a starting point of 6 months.  I gave the Appellant a discount of one month for mitigation in particular that this was his first conviction.  I accordingly sentenced the Appellant to 5 months’ imprisonment.”

Judgment

9.It appears to me, reading the transcript of the hearing and the Reasons for Sentence, the learned Magistrate was led to believe and felt that he was left with only two alternatives: a fine or a custodial sentence -as neither probation nor DATC was considered necessary.  DATC was considered not necessary as the Appellant was not a drug-dependent.  Probation was not necessary as the Appellant told the Probation Officer he did not need supervision.  The Appellant was also taking the stance that he had not committed the offence charged.  It is therefore not surprising that the learned Magistrate had never considered probation order as an option.

10.Section 109A of Criminal Procedure Ordinance, Cap. 221 provides:

“(1)  No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A)  This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.
(2)  In this section "court" (法庭)  includes the District Court and a magistrate.”

11.Possession of dangerous drug contrary to section 8(1)(a)  and (2)  is not an excepted offence.  No reference was made to that section during the hearing.  However as the learned Magistrate had referred to ‘no other appropriate alternative’ in his Reasons for sentence, it can be assumed that he did have that section in mind when he sentenced the Appellant.  It was unfortunately that the learned Magistrate was led to believe that the only options open to him were either a fine or a term of imprisonment, as so strenuously put by Mr Boyton before him.

12.It is my view that when the court is dealing with a young person who has transgressed the law for the first time, irrespective of his/her ethnic origin, rehabilitation rather than retribution should be in the forefront of the sentencing judge’s mind, unless the offence was so serious that such an approach was not appropriate or that rehabilitation is not viable due to any language barrier.  If detention in an institution such as a Rehabilitation Centre, a Detention Centre or a Training Centre is under consideration, the offender’s ability to participate fully in these programmes must be one of the vital and deciding factors.

13.I wish to make it abundantly clear that there is no suggestion that the learned Magistrate has treated this Appellant any differently because of his ethnic origin.

14.I cannot fault the learned Magistrate’s reasoning for not imposing a fine for this offence, having considered all the circumstances and in particular the nature of the dangerous drug.  I am of the view that even if a custodial sentence is called for – there being no other alternatives - the sentence imposed was manifestly excessive under the circumstances.  The authorities considered by the learned Magistrate concerned defendants who had previous drug-related offences and were not of a young age as in the case of the Appellant.  Although Patrick Chan J (as he then was)  did say in the case of Leung Moon Wah that for the offence of ‘simple possession’ after 1992 on a plea of guilty the normal sentence should range between 9-15 months rising to 12-18 months or more (p. 5 of the judgment), the learned judge has specifically refer to the availability of non-custodial or rehabilitative sentence to the sentencing Magistrate in appropriate circumstances.  I do not think the learned Magistrate had given sufficient consideration on the young age and previous good character of the Appellant when he adopted a starting point of 6 months.

15.The learned Magistrate had noted that, according to the social worker, the Appellant had association with drug-addict playmates.  It appears to me that placing the Appellant under the supervision of a Probation Officer to ensure he does not fall into the temptation of ‘toying’ with dangerous drug is the best way to deal with him.  Before me, the Appellant confirmed that he was willing and ready to be placed on probation.  I therefore sentenced him to be placed on Probation for a period of 12 months, with the special condition that he submits himself for random urine test as and when required by the Probation Officer.

Ms Agnes Chan, SGC for Director of Public Prosecutions, for the Respondent

Mr David Boyton, instructed by Messrs Lee & Chow, assigned by
Director of Legal Aid, for the Appellant (appeal against sentence)

Appellant in person (appeal against conviction)