The Queen v. Yu Chun Hoi

CACC000351/1990

Headnote

Possession of dangerous drugs for the purpose of unlawful trafficking - quantity involved 189.13 grammes of a mixture containing 171.1 grammes of salts of esters of morphine. Applicant aged 16 years and 7 months on the date of offence - pleaded guilty - sentenced to imprisonment for 6 years. Sentencing judge was satisfied that applicant was "determined to go his own way" and that this was not a suitable case for a training centre order. It was submitted that section 109A of the Criminal Procedure Ordinance precluded the court from considering issues other than the personal circumstances of the offender.  The Court of Appeal was satisfied that the sentencing judge must look not only at the circumstances of the offender but must also bear in mind the nature and gravity of the offence and the interests of the community. The court was satisfied that the applicant was a young person with a criminal maturity beyond his years. He was prepared fully to cooperate with those who use him in their trafficking activities and that he had shown no remorse and no genuine desire to be rehabilitated and that it should not interfere with the sentence.

BETWEEN

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Coram: Hon. Silke, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 27 November 1990

Date of Delivery of Judgment: 27 December 1990

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant pleaded guilty to a charge of possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced by Judge Cameron in the District court on 25th June 1990 to imprisonment for six years. He had been charged that he and two others, on the 25th of November 1989 at Shui Ning Street, Kowloon, had in their possession a dangerous drug, namely 189.13 grammes of a mixture containing 171.1 grammes of salts of esters of morphine, for the purpose of unlawful trafficking therein. After his plea, the Crown offered no evidence against the other two, who were D1 and D2 at trial, and they were discharged. The applicant, who was D3 at trial, aged 16 years and 7 months of age on the date of the offence, admitted the following facts:

"At about 2030 hours on 25.11.89, a party of police officers from the Regional Special Duties Squad, Kowloon Police Headquarters, spotted D1 walking along Ka Lok Street, Kwun Tong. D1 later took a seat at an unoccupied table of a congee shop. Dl was then kept under observation.

At about 2040 hours on the same day, a private car DX 6875 was spotted being driven along Shui Wo Street to the junction of Ka Lok Street and stopped outside the aforesaid congee shop. At that juncture, two males were seen on board the vehicle. Dl walked towards the vehicle and exchanged conversation with the persons on board the vehicle. Thereafter, D1 returned to his seat and the vehicle was driven away.

At about 2048 hours, D2 and D3 walked to Ka Lok Street from Shui Wo street and sat with Dl. At about 2050 hours, PC 20331 (PW1), PC 20393 (PW2), and PC 45198 (PW3) approached the defendants. PC 17476 (PW4) later arrived. A body search was conducted on all defendants. PW4 found from Dl and D2 two identical ignition car keys. PW4 was then instructed to check the whereabouts of the said private vehicle DX 6875.

At about 2100 hours, PW4 found the said vehicle being parked at a meter parking place at Shui Ning Street, Kwun Tony. All defendants were escorted to the vehicle and in their presence, the vehicle doors were opened with the ignition car keys.

PC 45196 (PW3) searched the car and from the glove box in the front compartment, a total of seven transparent polythene bags containing suspected dangerous drugs were found.

All defendants were arrested.

D3 made a statement under caution.

All suspected dangerous drugs were seized and sent to the Government Chemist for analysis. It was found to contain 189.13 grammes of a mixture containing 171.1 grammes of salts of esters of morphine."

3. The trial judge when sentencing said:

"In considering what sentence to impose in this case, I bore in mind the provisions of section 109A of the Criminal Procedure Ordinance, Cap.221 relating to the restriction on imprisonment of persons between 16 and 21 years of age. The Background Report did not disclose that D3 had an unfortunate upbringing and that there was lack of supervision by his parents. His parents had reminded him to behave himself and not get into trouble. It appeared that the Defendant was determines to go his own way.  I took into account the circumstances of the present case that No.4 Heroin was involved. I also had regard to what was said in Att. Gen. v. SUEN Yuen Ming, Application for Review No. 25 of 1988. 1n my view, this was not one of those 'rare cases' that a Training Centre Order would be considered a proper sentence and I imposed a sentence of 6 years imprisonment having first had it confirmed that persons of 21 years and under are segregated in different quarters from adult prisoners."

4. The Notice of Appeal raises two grounds:

Mr. Alan Hoo, Q.C., who appeared with Mr. Anderson Chow for the applicant, referred to s.109A of the Criminal Procedure Ordinance and s.4 of the Training Centre Ordinance.

5. Section 109A of the Criminal Procedure Ordinance reads:

"109A. (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 the Third Schedule. (2) In this section 'court' includes the District Court and a magistrate."

6. Section 4 of the Training Centres Ordinance reads:

"4.   (1) Where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than 14 but under 21 years of age, and the court is satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre. (2) A person sentenced to detention shall be detained in a training centre for such period, not extending beyond 3 years from the date of his sentence, as the Commissioner may determine, and shall then be released; Provided that the Commissioner shall not release any such person before the expiration of 6 months from the date of his sentence, unless required to do so by direction of the Governor. (3) Before a sentence of detention is passed, the court shall consider any report or representations made by or on behalf of the Commissioner on the offender's physical and mental condition and his suitability for such sentence; and if the court is the District Court or a magistrate and has not received such a report or representations, it shall after conviction remand the offender into the custody of the Commissioner for such a period of periods, not exceeding 3 weeks in the case of any single period, as the court thinks necessary to enable the report or representations to be made."

7. Mr. Hoo placed particular reliance on the words in s.109A which state that the court shall not sentence a person over 16 and under 21 to imprisonment unless it "is of the opinion that no other method of dealing with such person is appropriate" after obtaining and considering "information about the circumstances". He submitted that these words have application to the personal circumstances of the offender and preclude the court from consideration of wider issues such as the nature and seriousness of the offence and the public interest. It was his submission that, whatever the offence committed, if the offender was able to be dealt with in some way other than imprisonment, the court was required by the legislation to deal with him in that other way.

8. He referred also to the words in s.4(1) of the Training Centre Ordinance which state that where a person is between the ages of 14 and 21 on the day of his conviction the court may, in lieu of a sentence of imprisonment, pass a sentence of detention in a training centre where it "is satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime" so to do.

9. He conceded that the argument available under s.109A is not available under s.4 as the court is enjoined under s. 4 to take into account both "the circumstances of the offence" and "the prevention of crime".

10. Mr. Hoo went on to argue that, given the wording of s.109A, where a court is dealing with a person between the ages of 16 and 21, no question of deterrent sentence can be considered. He submitted that the court must simply ask itself whether, given the personal circumstances of this offender, it can appropriately deal with him by some way other than imprisonment. He suggested that the trial judge had misled himself by placing too much emphasis on the words "rare cases" used in Attorney General v. SUEN Yuen-ming, Application for Review No.25 of 1988. In that case, the Court of appeal refused to interfere with a Training Centre order made in relation to an offender aged 17 years and 8 months who had pleaded guilty to a charge involving 282.15 grammes of a mixture containing 17.57 grammes of salts of esters of morphine. Silke V.-P. delivering the. judgment of the court said:

" ...... in the context of an offender such as SUEN Yuen-ming, there can be an 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. Hor 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 varying aspects relating to the offence and the offender there equally well may be cases where the interests of the community can best be served, though we accept that these will be rare in drug cases, by placing greater emphasis on rehabilitation as distinct from deterrence."

11. Mr. Hoo urged the court to adopt the approach indicated in The Queen v. KUNG Man-wing Crim. App. No.409 of 1985. In that case Kempster J.A. said:

"The statutory provisions inhibiting the imprisonment of a man of the applicant's age do not apply to a conviction of robbery. But we think that on general principles, a court should hesitate long before sending so young a man to mix with hardened adult or even adolescent criminals. This is just the sort of youth who would benefit both from the positive regime of a Training Centre and from the protracted period of supervision which in due course may well follow his release. It is in the interest of the community that he should be detained accordingly."

Mr. Hoo also referred to HO Kau v. The Queen Crim. App. No.524 of 1978 in Which Addison J. restated the principle that deterrent sentences should not be imposed upon first offenders.

12. Mr. Saw appearing for the Crown submitted that the court should be guided by the observations of Silke V.-P. in SUEN Yuen-ming's case. He pointed out that the observations in KUNG Man-Wing's case were no authority for the suggestion that the Court did not have the power to send a young offender to prison but simply stated that it "should hesitate long" before so doing. He submitted that when the Legislature has laid down that the court should not sentence to imprisonment unless it was of the opinion that "no other method of dealing with such persons is appropriate" it clearly meant appropriate to all of the circumstances, including the nature and gravity of the offence and the interests of the community. He pointed out that the offence was a very serious one which, had it proceeded in the High Court, would have attracted a sentence of about twelve years after trial.

13. We have no doubt as to the correctness of these submissions. We are satisfied that we must not only look with care at the circumstances of the offender but must also bear in mind the nature and gravity of the offence and the interests of the community.

14. As to the applicant it must firstly be noted that he is not a first offender. On the 3rd of February 1988 he was placed on probation for eighteen months on charges of claiming to be a member of a triad society and common assault. One month later on 3rd March 1988 he was again placed on probation for eighteen months for attempted robbery and robbery.  About four weeks later on 28th March 1988 he was again placed on probation for eighteen months on a charge of assault occasioning actual bodily harm. His probation supervision ended just two months before the commission of the present offence.

15. When considering the sentence to be imposed on a young offender, an important factor must be whether he has shown real remorse and a genuine desire to rehabilitate himself. This applicant told the police in a cautioned statement made after his arrest that he "took" the drugs from Pai Kwat Cheong whose real name he did not know for the purpose of resale. He stated that, although he had boarded the motor vehicle driven by D2 and had placed the drugs in the glove box, D2 had not been aware that he had cone so. He said that he intended to give the drugs to a drug addict named Hak Chai, whose real name he did not know, at the Jockey Club Off-course Betting Centre at Ka Lok Street. He said finally that he intended to resell the drugs to drug addicts for $22,000 making a profit of $1,000 and that he had left them in the vehicle because Hak Chai had not yet arrived.

16. We have the gravest doubt as to the truthfulness of this statement and have no doubt that the trial judge must have been equally unimpressed by it. 1t purports to involve two unknown persons by giving their nicknames and exonerates the other two accused, each of whom was found with keys which opened the doors of the vehicle in which the drugs were found. Indeed, given the circumstances, we find it difficult to understand the Crown's decision not to proceed against the other two accused.

17. When the applicant came to make a statement to the Probation Officer he told him that he had lost $35,000 in gambling, and that three persons named Ah Cheong, Cheung Chai and Ah Tak had settled the debt for him and asked him, in order to clear the debt, to traffic in dangerous drugs. He said that he had undertaken this activity four times and that each time he had been rewarded with $2,000 to $3,000. He went on to add that he knew the consequences of his actions. This story was, in our view, sufficiently different from the version which he gave in his cautioned statement to raise further doubts as to his credibility. When interviewed by the In-take Officer of the Training Centre he told him simply "that he got involved in the present crime because of pecuniary advantage".

18. There has, in our view, been no indication that the applicant has at any time shown any real remorse or been prepared to make a truthful statement as to the circumstances surrounding the offence.

19. Mr. Hoo places particular emphasis upon the report of the In-take Officer that he is a suitable subject for detention in a Training Centre. While this is an important factor it is only one of the matters which the court must take into account. This was a serious offence committed by a young person with a criminal maturity beyond his years who was, it is clear, prepared fully to cooperate with those who used him in their trafficking activities. He has shown no remorse and no genuine desire to be rehabilitated. The sentence is, while severe, not one with which we can properly interfere. The application for leave to appeal against sentence must, therefore, be refused.

Representation:

Mr. D.G. Saw & Miss K.M. Tsang (Crown Prosecutor) for the Respondent.

Mr.Alan Hoo, Q.C. & Mr. Anderson Chow (instructed by Messrs. S.T. Poon & Co.) for the Applicant.