Read the full judgment text of CAAR 8/2011 on BabelCite. This Court of Appeal judgment was delivered on 14 September 2012 before Stock VP, Lunn JA, McWalters J.
Criminal law – drug trafficking – ketamine – sentencing – review of sentence under s 81A Criminal Procedure Ordinance – training centre order – whether training centre order appropriate for trafficking in 183.99g of ketamine – whether offence committed on bail warrants custodial sentence – general deterrence in drug trafficking – comparison of practical effects of training centre order versus imprisonment – consideration of time already spent in custody and intrinsic justice. Facts: respondent aged 17 collected 249.61g of powder containing 183.99g of ketamine from a public toilet for HK$500 to deliver to a person called Ah Nam; the drugs were valued at HK$28,455; he was arrested before delivery; the offence was committed whilst on bail for theft offences. The respondent pleaded guilty in the Magistrates' Court and was committed to the Court of First Instance, where Deputy Judge Longley imposed a training centre order after obtaining a favourable suitability report. The Secretary for Justice applied for review. First issue: whether a training centre order was appropriate for trafficking in a substantial quantity of ketamine committed on bail. Held: the judge erred. The Court of Appeal reiterated that drug trafficking calls for a stern policy of general deterrence and that a training centre order is appropriate only in rare and exceptional cases such as AG v Suen Yuen Ming. Under Hii Siew Cheng, the guideline range for 50–300g of ketamine is 6 to 9 years' imprisonment. Although the band is not entirely mathematical (Lau Tak-ming) and permits leeway for factors such as degree of involvement and prior record, the downward adjustment from 8 to 6 years was excessive, especially with the aggravating factor of an offence committed on bail. The respondent's circumstances were not exceptional. A sentence of approximately 4½ years' imprisonment after plea ought to have been imposed. Second issue: whether, having identified error, the court should substitute a custodial term. Held: no. By the date of the review, the respondent had spent over eight months in the training centre as part of a sequential history of custody, detention centre, and training centre. Substituting a substantial term of imprisonment at that stage would have been intrinsically unjust, disregarding the rehabilitative benefits already accrued to the respondent and to society. The appropriate term would need to be materially longer to justify that course. Outcome: application for review dismissed.
Legal issues: Propriety of training centre order for trafficking in substantial quantity of ketamine committed on bail · Whether to substitute a custodial term on review given time already served in the training centre
Outcome: Application for review of sentence dismissed; training centre order upheld notwithstanding the Court's view that the sentencing judge had erred.
Cited by 4 cases · Cites 1 case