Read the full judgment text of CAAR 000013/1996 on BabelCite. This Court of Appeal judgment was delivered on 31 January 1997 before Litton V-P, Bokhary JA, Saied J.
Criminal law – drug trafficking – trafficking in dangerous drug – heroin – review of sentence by Attorney-General under s.81A Criminal Procedure Ordinance Cap 221 – respondent convicted after trial in District Court before His Honour Judge Bailey – trafficking in 107.43 grammes of mixture containing 13.01 grammes of heroin hydrochloride – offence occurred 13 June 1996 – respondent found in possession of plastic bag containing drugs in five small transparent bags upon police interception – judge rejected respondent's evidence that he was holding drugs for friend Liu – concluded respondent had drugs for purpose of trafficking – respondent born 28 July 1978 – aged 17 at time of offence and 18 when sentenced 27 November 1996 – clear record – poor educational achievement – succession of menial jobs – apparently used by more experienced drug trafficker – judge indicated appropriate sentence after trial for quantity of heroin would be five years' imprisonment for offender of full age before mitigation – Commissioner of Correctional Services advised respondent unsuitable for detention centre but suitable for training centre – judge erroneously rejected Commissioner's assessment and imposed detention centre order – overlooked provisions of s.4(4) Detention Centres Ordinance Cap 239 – s.4(4) requires court to be informed by Commissioner that accused is suitable for detention and place is available – detention centre order ultra vires – whether training centre order appropriate in substitution – training centre detention only appropriate in rare cases for drug trafficking per Attorney General v. Suen Yuen-ming [1989] 2 HKLR 403 – exceptional circumstances – judge correctly concluded respondent should not be sent to prison – respondent momentarily under influence of experienced companion rather than embarking on calculated criminal conduct – sympathetic pre-sentence report from Miss Li Wai Man – family background stable – father an electrician, two elder brothers employed and in education – real prospect of long-term reform through training centre – training centre not a soft option – up to three years detention plus three years supervision – period longer than imprisonment otherwise served – Court of Appeal quashed detention centre order and substituted training centre order.
Legal issues: Validity of detention centre order under s.4(4) Detention Centres Ordinance · Appropriate substitute sentence for young drug trafficking offender
Outcome: Detention centre order quashed; training centre order substituted.
Cited by 2 cases