HKSAR v. Fung Siu Fong and Another

DCCC 751/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 751 OF 2010

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Reasons for Sentence

1.The Defendant (D2 on the indictment and so termed throughout) had pleaded guilty before me on 13 December, 2010 to charge 2 on the indictment, inhaling of a dangerous drug, contrary to Section 8(1)(b) and (2) of the Dangerous Drugs Ordinance, Cap. 134, namely methamphetamine. D1 on the indictment had admitted charge 1 on the indictment of possession of dangerous drugs before my learned brother Deputy Judge Johnny Chan and had been sentenced by him to the DATC on 13 October, 2010.

2.Facts admitted by D2 disclose on 22 April, 2010, police officers conducted an anti-narcotics operation and laid ambush near Room 306, 3^rd floor, Kam Wan House, Choi Hung Estate, No. 1, Hung Mui Avenue, Wong Tai Sin. At 0305 hours, they saw a male opening the front gate of the premises to leave the premises – the police officers rushed out. On seeing them, the male retreated back into the flat and locked the door. Despite the police officers declaring their police identities, and that they were there to execute a search warrant and asking those inside to open the door, they were ignored. At about 0335 hours, the police finally successfully broke into the premises. D1, D2 and the male were inside the premises. Dangerous drugs the subject matter of charge 1 was found from D1’s bedroom in the flat. D2 was arrested. In a video-recorded interview later that day, under caution, she admitted that on 22 April, 2010, before the police broke into the flat, she had inhaled ‘ice’, namely methamphetamine, in the flat.

3.D2 is aged 18 years. She has a clear record. Counsel submitted that at the time of the offence, she was a Form 5 student facing the stress of a public exam. She was a visitor to the flat. She was very remorseful after her arrest, and had stayed drug-free. She had also changed her mobile telephone number so she could not be contacted by her previous peers. D2 herself had written a letter expressing her remorse. I adjourned sentence until 10 January, 2011, extending her bail and calling for a Probation Officer’s Report and directing that D2 was to submit to random urine tests as directed. I did warn her that I kept open to myself all options of sentence.

4.When the matter resumed before me on 10 January, 2011, D2 was present with her father. I had before me also the Probation Officer’s Report and the urine test result of a urine sample taken on 21 December, 2010, which was negative. The Probation Officer opined that D2 was in need of some institutional training to enable her to assume responsibility for the development of decent values and because of the lack of parental guidance, and recommended that she be detained in custody while a Training Centre Report and Further Probation Officer’s Report be called for. Defence Counsel accepted that the report was not a favourable one, and asked the Court to call for a Further Probation Officer’s Report, extending D2’s bail, that there had been misunderstanding between D2 and the interviewing officer. I granted this application and adjourned the matter to 24 January, 2011, calling for a further Probation Officer’s Report and extending D2’s bail.

5.However, when the matter resumed before me, the further Probation Officer’s Report was still an unfavourable one, the interviewing officer opining that in view of D2’s denial of her drug and idleness problem, as well as her father’s lack of faith in any professional intervention, probation supervision was unlikely to be conducive to her rehabilitation and hence was not recommended.

6.It was clear that the interviewing Probation Officer had formed some very strong and negative views of D2 and her father as well.

7.After hearing what Counsel had to say, I adjourned the matter until today, calling for another Probation Officer’s Report, asking that the report be prepared by another probation officer. I have before me now the 2^nd Further Probation Officer’s Report, which has been prepared by the same interviewing officer. I am told that due to an oversight, another probation officer was not asked to prepare the report.

8.The three reports set out in great detail the background of D2 and I do not intend to rehearse their contents herein. Suffice to say that it is clear that she has grown up without proper supervision from either parent. Her parents are divorced. She lived together with her elder brother, a student, in a rented flat, the rent for which was paid for by her father, who has lived with his present wife in Shenzhen since 2008. The mother left the family when the children were small, and they were cared for by the father’s co-habitee until they separated, when D2 and her brother were in secondary school. D2’s performance at school was poor, and she had multiple discipline problems, leaving school in June 2009 after Form 4. She had worked as a waitress until shortly before the present court proceedings. D2 had not told her father about her arrest for this offence, and it was only when the probation officer visited her home on 28 December, 2010 and he was there at that time that he learnt about the matter. D2 on that occasion told the probation officer that the police had framed her. I was told by Defence Counsel that she did so to protect her father’s image of her, and she maintained her plea and admission.

9.Since finding out about this incident, D2’s father seems to have taken a greater interest in what D2 has been doing. He accepted that his lax parental supervision may be a cause for the children’s poor motivation to study. He had since arranged for D2 to work in his office in Hong Kong under his business partner. His business partner has written a letter to the Probation Officer to verify the improvement he has seen in D2’s work performance recently. The results of the urine tests conducted have all been negative and also confirm that D2 has not been indulging in dangerous drugs in this period. The Probation Officer has now recommended probation.

10.I have carefully considered all that has been urged upon me by Counsel on behalf of D2 as well as the contents of the various reports before me. But for her having been arrested with D1, this matter would in all probability have been dealt with in the magistracy. I accept that D2 is now genuinely remorseful, which is reflected from her plea and the letter she has written to the court. I note in particular that but for her own admission to the police under caution to inhaling dangerous drugs , there was no other evidence against her. She is 18 years old, and this is her first offence. It is clear that what has been lacking in her upbringing has been proper parental guidance, and this is what she is in need of. I am happy to see that her father is now more aware of the needs of his children and is prepared to play a greater part in their lives. Rehabilitation is my primary concern in respect of D2. In my view, probation supervision with conditions is the most appropriate sentence for D2 in the circumstances.

11.In respect of Charge 2, D2 is placed under the super vision of a Probation Officer for 18 months, with special conditions as follows:

(a)  She shall study/work and reside as directed to by her supervising probation officer;

(b)  She shall abstain from all dangerous drugs;

(c)  She shall undergo random urine tests as and when directed to by her supervising probation officer;

(d)  She shall remain at her place of residence each night from 11 p.m. until 6 a.m. the following morning, unless accompanied by her father or with the prior approval of her supervising probation officer; and

(e)  She shall obey all lawful and reasonable directions from her supervising probation officer as to her association with any person or groups of persons.

(Effect of Probation Order and consequences of breach thereof explained in punti to D2 and understood by her)

Progress Report in 3 months.