HKSAR v. Leung Lai Kwan

CACC000597/1999

CACC 597/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 597 OF 1999

(ON APPEAL FROM HCCC 313 OF 1998)

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Coram: Hon Stuart-Moore, VP and Mayo, VP

Date of Hearing: 22 February 2000

Date of Judgment: 22 February 2000

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court) :

1. On 27 September 1999, the applicant, aged 18, pleaded guilty in the Court of First Instance before Pang J to the 2nd count on an indictment which alleged possession of 1.02 grammes of cannabis and a crystalline solid containing 2.065 grammes of methamphetamine hydrochloride ("ice"). Following this plea, a two-day trial took place on the 1st count of the indictment on which the applicant was acquitted. If it had not been for the 1st count on the indictment, the applicant would not have been brought to the Court of First Instance, but would instead have been tried in the Magistrates' Court.

2. The judge then adjourned sentence for a Drug Addiction Treatment Centre Report and a Background Report from the Probation Service. These reports were unhelpful to the applicant.

3. On 15 October 1999, the judge then further ordered a Training Centre Report to be prepared and sentencing was adjourned to 2 November 1999 when an order was made that the applicant should be detained in a Training Centre. She now appeals against that sentence.

4. The facts were extremely straightforward. Police went with the applicant to her home address in Mongkok on 26 May 1998. They searched her bedroom where they found the small quantities of drugs referred to in the charge, together with apparatus suitable for smoking the drugs. On arrest, she admitted that she had taken part in the consumption of the drugs but went on to say that some of the drugs belonged to her boyfriend who she named. Later she admitted it was her boyfriend who had given her the drugs to consume.

5. In passing sentence, the judge had this to say :

"You have pleaded guilty to one count of possession of about 2 grammes of 'Ice'. I have called for various reports in order to assist me to come to the appropriate sentence. You are no longer a drug dependant although you have confessed that in the past you had resorted to the habit. You are 18 years of age. I note that you had been placed on probation back in 1995 as a result of your wayward behaviour. It did not appear to me that you have cherished the opportunity given to you. You continued to mix with undesirable elements, which to a great extent contributed to your present predicament. Your so-called boyfriend landed you in the present trouble.

It's been urged upon this court by your counsel that a community service order would be the appropriate sentence. In my view, some form of strict guidance and disciplinary action is required in your case. I am not persuaded that I should depart from the recommendation from the training centre intake report. You are sentenced to rehabilitation in a training centre."

6. The applicant had, by the time she was sentenced on 2 November 1999, been in custody from 15 October and had previously been in custody following her arrest, from 26 May 1998 to 3 July 1998. The period of time spent in custody before she was sent to training centre cannot be counted towards the length of her detention in the training centre. She has now, as a result of the detention at the training centre, been there for a further three and a half months.

7. The judge had been unable to make an order for detention in the drug addiction treatment centre because the applicant was said no longer to be a drug dependant at the time the report was made. This finding was consistent with the applicant's claim not to have taken drugs since July 1998 when she was first granted bail for the present offence. Probation was also ruled out following a discouraging report as to the applicant's behaviour during the previous period she had been placed on probation. The recommendation of the probation officer was specifically that a further period on probation was inappropriate.

8. We have come to the conclusion, in the light of all the factors with which we have been confronted including the fact that the applicant comes from a caring family, that the six months or so that she has already physically spent in custody will have acted as a salutary lesson for the future. We express the hope that this will have sufficiently brought home to her the grave consequences likely to result from future conduct of this kind.

9. In all the circumstances, whilst making no criticism of the sentencing judge whose hands were tied as to the alternative courses to adopt, we feel that it is just possible that the applicant has served long enough in custody to have brought home the seriousness of her position.

10. Accordingly, we shall grant leave, and treating the hearing as the appeal, we propose to quash the order of detention in a training centre and to substitute that order with a sentence of nine months' imprisonment which will enable her to be released very soon. To this extent, the appeal is allowed.

Representation:

Miss Lily Wong, GC of the Department of Justice, for the Respondent.

Applicant in person.