The Queen v. Lau Hon Ming

CACC000476/1985

BETWEEN

Coram: Hon. Kempster, J. A. & Power, J.

Date of Hearing: 9th April 1986

Date of Judgment: 9th April 1986

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JUDGMENT

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Kempster, J. A.:

1. On 18th October 1985 LAU Hong-ming - then aged 18 years - was convicted at Victoria District Court, after trial, of three offences.  The first was the possession of dangerous drugs for the purposes of unlawful trafficking; the second the possession of apparatus fit and intended for injecting a dangerous drug and the third the possession of apparatus fit and intended for the inhaling of a dangerous drug.  On 31st October he was sentenced to 5½ years imprisonment for the first of those offences and 1 year in respect both of the second and third offences; all sentences to run concurrently.

2. LAU Hong-ming applied for leave to appeal against convictions and, alternatively, sentences.  The application for leave to appeal against his convictions was dismissed by this Court on 7th March last.  On that date we allowed - indeed invited - the applicant to rely on further grounds in relation to sentence; namely that the judge had failed to heed the provisions of section 109A(1) of the Criminal Procedure Ordinance which provides that no Court may sentence a person of over 16 and under 21 years of age to imprisonment unless of the opinion that no other method of dealing with such person is appropriate. It is to be emphasised that a sentencing judge should, in relevant circumstances, state his opinion in terms so that in the event of an appeal it can readily be appreciated that he has applied his mind to this section. We also ordered that a report on the suitability of the applicant for Training and Detention Centre orders should be furnished to us, such information not having been sought by the sentencing judge, and that his application for leave to appeal against sentence should be adjourned until the report was to hand.

3. Now the report is to hand and it indicates both that in the opinion of the Intake Officer of the Correctional Services Department the applicant is suitable for detention in a Training Centre and that he is no longer a drug dependent.

4. The circumstances of the offence were that at about half past seven in the evening of the 17th June 1985 the applicant and others were seen to emerge from premises in Hong Lok Street whereupon they were approached by police officers who told them that they were concerned about the presence of drugs.  The police entered and searched the premises in question. There were found in particular 492 grammes of a mixture containing over 85 grammes of heroin and also materials appropriate for the injection and inhalation of dangerous drugs. The overall quantity of dangerous drugs discovered was 492 grammes.

5. The sentences passed upon the applicant would have been perfectly appropriate and quite unassailable in the context of a young man or possibly a young woman over 21 years of age.   But the applicant was not over 21 and the sentencing judge, as far as we can ascertain from his "Reasons for Sentence", did not consider the alternatives as he was required to do.  In view of the report to which we have already referred we think that a method of dealing with the applicant other than sentences of imprisonment can be taken which may better serve the interests of society.  In so concluding we think it proper to indicate to the applicant that the course we propose to take is also very much in his own interests and in no way reflects his deserts. He may regard himself as fortunate in the outcome of his application.

6. The application for leave to appeal against sentences is allowed. We treat this as the hearing of the appeal and for the sentences of imprisonment we substitute in each instance, running concurrently, orders that the applicant be detained in a Training Centre.

Representation:

Mr. Michael Lunn (D.L.A.) for applicant

Mr. B.M. Ryan for Crown Prosecutor