The Queen v. Lee Yin Yee

IN THE COURT OF APPEAL

No. 346 of 1987
(Criminal)

BETWEEN

THE Queen

and

LEE Yin-yee

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Coram: Hon. Roberts, C.J., Hunter, J.A. & Nazareth, J.

Date of Hearing:10^th September 1987

Date of Judgment: 24^th September 1987

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JUDGMENT

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Hunter, J.A.

1. On 18th June 1987 the applicant pleaded guilty before His Honour Judge Cameron to a charge that on 15th January 1987 she unlawfully trafficked in a dangerous drug, namely, 38 grammes of mixture containing 3.93 grammes of salts of esters of morphine. Having obtained reports upon her, on 2nd July the judge imposed a Training Centre Order which was to be consecutive to an existing Drug Addiction Treatment Centre Order.

2. The background facts were these. The applicant was born on 15th June 1968 and so at the time of sentence was just 19 years old. She dropped out of school at the age of 16 and her post-school history makes unhappy reading. She mixed in and with very undesirable company, and very soon became addicted to drugs. She neither sought nor obtained sensible employment and seems to have done occasional work in unsavoury establishments. This led to two convictions in 1986, one for theft, and one for "assisting in the operation of an unlicensed massage establishment".

3. Early 1987 she started to run drugs for a boy-friend. She was arrested on 15th January for the offence to which she pleaded guilty before the judge. Whilst on bail for that offence she was unable to break her involvement with drugs. She came before the court again on 5th May 1987 on a charge of possession of dangerous drugs. The DATC Order was then made.

4. Both before Judge Cameron and this Court the applicant pleaded that addiction was the root of her problem, and that the DATC Order was sufficient both to cure and to punish her. The Judge did not agree, and thought that she would also benefit from a period in a Training Centre.

5. We entirely agree. Curing her of drug addiction is only a start. If this applicant is to be dissuaded from ruining her life completely, she must also be brought face to face with a little discipline, and some of the realities of life. If the matter had rested there we would without hesitation have dismissed this application.

6. Unfortunately it does not. Mr McCoy for the Crown has raised serious questions as to the Court's jurisdiction under the Training Centre Ordinance. We are much indebted to him for his most carefu1 assistance.

7. The same point arises under the three "Centres" Ordinances, namely the Drug Addiction Treatment Centres Ordinance (DATCO) Cap.244, the Detention Centres Ordinance (DCO) Cap.239 and the Training Centres Ordinance (TCO) Cap.280. These ordinances have certain features in common namely:-

(1) Their prime purpose is to provide an opportunity for rehabitation rather than pure custodial punishment.

(2) Each ordinance provides that "the court may, in lieu of any other sentence pass a sentence" under it, e.g. TCO Section 4(1).

(3) Each ordinance provides for varying periods of treatment, in the discretion of the Commissioner of Correctional Services, to be calculated from the dare of sentence, e.g. TCO S.4(2).

(4) Each ordinance contains express provision governing the relationship between imprisonment and an order under that ordinance, to the effect that the order is either postponed or set aside depending upon the length of the S.5A; DATCO S.6A; or “shall lapse” D.C.O. S.7(1)

(5) Two of the ordinances, DATCO S.8, 8A and TCO S.7 contain transfer provisions enabling persons to be removed from prison to the centre and vice versa in appropriate circumstances. The provides for transfer to prison, S.8A.

8. The first question raised by Mr. McCoy was whether the trial judge had jurisdiction to impose a Training Centre Order consecutive to an existing Drug Addiction Treatment Centre Order, and thus postpone its commencement to some future uncertain date. He submitted that the judge had no such jurisdiction, and we have to agree.

9. In Attorney General v To Ka-shing[1] this Court held that a court had no such jurisdiction under either the DATCO or the TCO. The court accepted the Attorney General's submission that a Court needed express statutory power so to act, and that no such power was given either generally or by either ordinance. This decision in directly applicable. Indeed great problems of computation would arise under s.4(2) of the T.C.O. and the corresponding provisions in the DATCO and DCO if it were otherwise.

10. We therefore cannot escape the conclusion that the judge's very sensible sentence was beyond the present powers of a court.

11. The second and more difficult question is what should replace it? What are the sentencing powers of a court in relation to a person who is subject to an existing centre order, e.g. under the DATCO. The answer upon the true construction of the phrase “in lieu of any other sentence”.

12. Two things are clear:-

(1) This phrase prevents a sentencing court from imposing any other sentence in addition to the particular centre order. In Attorney General v. Wong Loy-hing[2] Briggs C.J. s aid:-

"No other sentence should be imposed on a person in respect of whom such an order has been made."

(2) This phrase, and the physical impossibility of being in two places at once, also prevents a sentencing court from imposing any concurrent centre order of a different kind. The trial judge thus could not have imposed a concurrent Training Centre Order. He could have imposed a concurrent Drug Addiction Treatment Centre Order bur this would have been pointless and manifestly inadequate.

13. It is arguable that a judge wishing to secure a training centre result in such circumstances might achieve it through the circular route of imprisonment. A term of imprisonment in the two/three year range here (as well as being not disproportionate to the offence) would bring about the discharge of the Drug Addiction Treatment Center Order under TCO s.5A(1)(b). The way would then be clear for the Governor (if he saw fit) to return the applicant to a Training Centre under TCO S.7. Such a course would not only be lamentably devious in itself, but most difficult to justify under S.109A of the Criminal Procedure Ordinance.

14. It is against this background that we have to consider whether the direct route is open: whether the trial judge had jurisdiction to make a Training Centre Order which would itself displace and replace the existing Drug Addiction Treatment Centre Order.

15. This depends upon whether this phrase "in lieu of any other sentence" means not simply any other sentence in the mind of the sentencing court; but also any other existing centre order imposed by a previous sentencing court. There could only be two types of, existing continuing penalties, namely a centre order or a sentence of imprisonment. The relationship between a centre order and imprisonment had to be and is expressly dealt with in each of the ordinances, e.g. TCO S.5A. But having regard to the special nature and purpose of centre orders, and to the similarities of the ordinances, we do not think that there was the same compelling need for express provision in relation to them. Simple substitution suffices.

16. The decisive argument in favour of the broader construction is that, it, and it alone, enables the court to perform the duty cast upon it by S.4 of each centre ordinance. That is to consider the suitability of that centre for the particular offender at the time of his conviction and in the light of the circumstances then prevailing. This the Court could not do if it was in any way restricted or bound by some earlier centre order imposed in quite different circumstances. The later order must be capable of superseding the first, and the effect of this phrase is that a different later order not only can but must have this result.

17. We conclude that Judge Cameron could and should have imposed a Training Centre Order. We therefore allow this application, treat the hearing as the hearing of the appeal, and substitute a Training Centre Order which takes immediate effect for the sentence imposed below.

18. We reach this conclusion with regret. Judge Cameron's sentence was more beneficial in its effects than ours. This type of case cannot be unique. The Court must frequently have before it addicts who could benefit from a combination first of a period in a Drug Addiction Treatment Centre, and secondly of a period of training at a Detention or Training Centre. If the courts were empowered so to order then the individual would be moved on from the Drug Addiction Treatment Centre at the right moment for him (or her) namely when his treatment had sufficiently progressed; not on the fortuitous date when he happened to reappear in another court. We hope that sufficient time has now elapsed for the applicants’ drug addiction treatment to have progressed. This may well not have been the case when Judge Cameron came to sentence on 2nd July. We would therefore suggest that the Court's present inability to make consecutive centre orders be reconsidered.

Applicant LEE Yin-yee in person

G.J.X. McCoy, Senior Crown Counsel for the Crown/Respondent

[1]  Application for Review No. 6 of 1986 (Unreported)

[2]  1977 HKLR 96