HKSAR v. CHEUNG CHO CHUN

DCCC 873/2018 & 757/2019
(Consolidated)

[2021] HKDC 1316

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 873 OF 2018 AND 757 OF 2019 (CONS)

________________________

________________________

________________________

Reasons for Sentence

________________________

1.  The defendant was convicted after trial of one offence of conspiracy to launder money, that is to be in the colloquial version of the description of the offence, occurring between 2009 and August 2012. The total sum of money that went through the defendant’s Hong Kong Jockey Club account was HK$161 million. The defendant gave an acquaintance the use of his Hong Kong Jockey Club account which was used to receive monies for which bets amounting to the HK$161 million were placed with the Hong Kong Jockey Club. The defendant was convicted on the basis he would have had reasonable grounds to believe the monies in the account were the proceeds of crime. Clearly when such vast sums of money are processed through an account, that is an obvious conclusion.

2.  The defendant himself has some minor convictions of little relevance.  He is now aged 72.  He is married.  He is in poor health.

3.  I will deal with the general sentencing considerations in a case of this kind.  There is no existing tariff because of the wide range of culpability in money laundering cases.  An authority for that is HKSAR v Hsu Yu Yi [2010] 5 HKLRD at page 545.  The general approach is foreshadowed in the case of HKSAR v Boma Amaso [2012] 2 HKLRD 33 which identifies the various factors to be considered by the sentencing court.  The nature of the predicate offence, if known.  It was never fully articulated but is believed to be bookmaking.  Secondly, whether any international dimension exists.  In this case, the word “cross-border transfers” or “cross-boundary transfers” where the transfer between the People’s Republic of China and Hong Kong Special Administrative Region could be properly described as an international transaction given the issues of sovereignty involved is a matter perhaps to be settled at a higher level than this court.  Thirdly, the sophistication of any planning.  As far as this defendant is concerned, he is simply the provider of an account where the money was laundered after the discovery of the offence.  It does not appear to be relevant here.  And the amount of benefit, if any, received by the defendant.

4.  I will deal with the factors brought to bear in sentencing in this defendant’s case.  Firstly, the question of delay which has common to all the defendants in this case.

5.  The 5^th defendant was arrested in 2012.  His trial commenced in March of 2020.  It coincided with the pandemic and did not start again until 1 June 2020.  During the course of these proceedings, the defendant had suffered serious illnesses.  He suffered a serious stroke at the end of April 2020.  Following that, lung cancer resulting in an operation for lung cancer in July of 2020.  Despite this, the defendant continued to attend his trial during his recuperation from these serious illnesses.  I was aware throughout the proceedings of the hazardous nature and state of the defendant’s health, so when sentencing came around I requested full details of his medical condition.  These were required from the Hospital Authority and took some time. I obtained them with a welfare assessment.  The defendant was released on bail during the proceedings so as not to prejudice any final outcome of the hearing for sentence.

6.  There are three medical reports of 19 July, 12 July and 27 July 2021 that I have been referred to.  I will give a brief summary of the contents.  The report of 19 July 2021 contains the most detail, relevant detail.  The defendant had a significant episode of stroke in March 2020.  He is still on anticoagulation and high blood pressure medication.  On a physical examination conducted in July of 2021,

“He was elderly and frail. Confined to a wheelchair. He is alert and responsive and answers appropriately. He is weak and stiff on his left side unable to stand independently. Lungs are emphysematous indicating results of heavy smoking in the past. There is no sign of heart failure. Specifically there is no definite evidence of cancer recurrence on examination at present, no signs of enlarged lymph nodes or organ enlargement or obvious tumour spread to liver or bone. His primary limitation is sequelae from previous stroke resulting in left sided weakness.”

Carrying on,

“Mr Cheung, the defendant, carries a diagnosis of non-small cell lung cancer stage IIB, post-surgical resection with clear margins and post one cycle of adjuvant chemotherapy delivered 9 months after surgery and complicated with serious sepsis due to severe low white cell count.”

7.  What this means is the following.  In conclusion, Dr Kevin Loh concludes that,

“Mr Cheung is elderly and frail, suffers from various serious medical conditions, chronic emphysematous lung disease, history of stroke, left sided weakness, lung resection surgery. He is frail and needs assistance in daily activities of daily living.

Following his stage II lung cancer after surgical resection, he still carries a guarded prognosis with a relapse rate of 40 per cent and a five-year survival rate of around 50 per cent.

To reduce the risk of cancer recurrence, adjuvant chemotherapy is usually recommended after surgery for four cycles over three months. Such therapy is usually and best administered within one to three months after surgery. This may reduce the risk of cancer recurrence by 5 to 10 per cent.

In Mr Cheung’s case, the defendant’s case, adjuvant chemotherapy is not recommended. A previous attempt at chemotherapy resulted in severe and life-threatening infectious complications.”

That will of necessity affect the defendant’s life expectancy.

8.  I am told that the estimated five-year survival rate for his condition is around 52 per cent.  That would be improved by 8 to 9 per cent were adjuvant chemotherapy available, which is not available in this defendant’s case.  The defendant is at this point subject to regular monitoring every three to four months for this condition.

9.  There are other reports.  They add little to the report of Dr Loh.  There was a medical report obtained from the Lai Chi Kok Reception Centre in May 2021 for initial sentencing which sets out the same conditions that were affirmed by the Hospital Authority.  The medical officer at Lai Chi Kok also noted that the defendant had hypertension.  The cycle of chemotherapy had not been completed at that stage.  The observation from the Correctional Services Department is the defendant’s general health condition remained unremarkable.

10.  Following that, I also required an assessment of the defendant’s general condition.  There was an affidavit provided by family as to the extent of care required by the defendant at this stage.  There is a helpful report from the Probation Services obtained very recently dated 10 September. I will read from paragraph 11.  It gives us some flavour of the defendant’s conditions.  Paragraph 11 says:

“For the social welfare of the accused, the investigating probation officer assessed his welfare need during home visit. The accused’s wife and sons revealed that the health condition of the accused deteriorated after he had a stroke and operation for lung cancer in 2019. The accused could speak and respond to investigation probation officer with single word and simple sentence during interview. He could tell investigating probation officer his daily life schedule and the menu of his meal. His memory was not good. He seemed to be weak in recall his past memory but his mind was clear. The accused was sitting in a wheelchair during interview. Left hand and walking ability were limited after the stroke. He could eat and shower by himself. He could stand and walk for short distances with the frame. He needed assistance in walking, to stand up, to go into the toilet and needed to use adult diaper at night.”

As a result of this, the defendant was recommended for residential service for the elderly, entry into a subvented aged home. That has not been accepted by the family.

11.  I conclude from this the defendant’s condition has deteriorated.  He needs medical assistance in daily life.  His mobility is limited.  He needs a frame to stand, but can stand independently.  He requires follow-up attention but is in no immediate danger or threat, and requires no further medical attention.

12.  I must now consider what the sentencing approach should be as a result of the defendant’s condition.  What should the sentencing approach of the court be where ill health is a factor?  I can articulate at this stage, where ill health is not a factor, the general starting point for sentence in respect of this defendant as articulated in this case so far would be in the region of 60 months’ imprisonment.  He would, as with other defendants, be entitled to a full 12 month discount having regard to the way his case was conducted in court and also to the long delay in bringing the matter to a final conclusion.  That would lead at this stage to a sentence of 48 months’ imprisonment.  That would be the sentence where ill health is not a factor.

13.  Ill health can be a factor in sentencing, and for that one can see the case HKSAR v Bayanmunkh from paragraph 7 onwards.  The reference for that case is [2012] HKCA 164 and that is a judgment by the Honourable Mr Justice McWalters given in 2012 where the defendant’s ill health was factored in sentencing.  The court referred to the question of health as mitigation.  It says, “As far as this court”, being the Court of Appeal,

“...has said on many occasions that ill health will rarely be a mitigating factor that a court can properly take into account when determining the appropriate sentence. In R v Ho Mei Lin [1996] 4 HKC 491, page 493:

‘It is now well established that except in the rarest cases, a prisoner’s medical condition is not a matter to which the court will have regard for mitigation of a proper sentence, though it may well be a matter for the executive if brought to their attention and deserving of consideration.’

This statement of principle was endorsed by the Appeal Committee of the Court of Final Appeal in Yip Kai Foon v HKSAR (2000)  3 HKCFAR 31 where Li CJ said:

‘Under the guidelines and principles evolved by the court, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity.’”

14.  Of course Yip Kai-foon committed a very serious set of offences involving armed robbery and discharge of firearms at police officers being a crime of gravity.  However, money laundering is a serious offence and would require exceptional circumstances for the imposition of a suspended sentence.

“An exposition of these guidelines and principles can be found in R v Chan Kin Sheung [1996] 3 HKC 279 where the Court of Appeal at page 284 had regard to four principles set out in the English Court of Appeal decision of R v Bernard.

“(1)  A medical condition which might at some unidentified future date affect either life expectancy or the prison authority’s ability to treat a prisoner satisfactorily might call into operation the executive’s power of release by reference to the prerogative of mercy or otherwise but is not a reason for the Court of Appeal to interfere with an otherwise appropriate sentence.”

Or presumably for a Court of First Instance to pass an appropriate sentence. In this case, the specific problem was the defendant was HIV positive. That led to the second paragraph:

“The fact that an offender was HIV positive, or had a reduced life expectancy, was not generally a reason which should affect sentence.

(3)  A serious medical condition, even when it is difficult to treat in prison, will not automatically entitle an offender to a lesser sentence than would otherwise be appropriate.

Turning to (4)  finally:

“An offender’s serious medical condition might enable a court, as an act of mercy in the exceptional circumstances of the particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate.”

15.  The reasons for that are set out; so the courts cannot shield an offender from the consequences of their conduct or pass sentences which created a licence to commit crime.  It is assumed in paragraph (2)  that “the Correctional Services Department will provide medical services adequate to each prisoner’s needs.”  The other two paragraphs are perhaps not relevant to this case.

16.  It would appear to me from a perusal of this authority, which is of course binding on me, that the only basis on which the defendant could put forward his ill health is on the following basis; that he has a serious medical condition which can enable the courts, as an act of mercy in his exceptional circumstances, to impose a lesser sentence than would otherwise be appropriate.

17.  There is some investigation of what an act of mercy involves later in the judgment.  In paragraph 13 it says:

“The extension of mercy to an offender has always been part of a judge’s armoury in dispensing justice. How is it to be exercised?”

18.  It was addressed by Stock JA in paragraph -- in another case called HKSAR v Chan Kin Chung & Anor [2002] 4 HKC 314. In summary, the learned judge says,

“A balanced approach to sentencing is one that has proper regard to essential sentencing principle and policy, which includes the principle that the adverse effect of imprisonment upon an offender’s family will not normally be taken into account; and one that has full regard to the seriousness of the crime, although not ignoring credible evidence that may justify a merciful sentence.”

19.  Finally, in the case of HKSAR v Yeung Kwai Kuen [2002] 3 HKLRD 91 it was said that,

“Sentencing is, as has often been emphasised, an art, and not a mechanical application of rules or policy to the exclusion of facts and justice of individual cases. It follows that there will be cases where a court will be moved to take action in an appellant’s favour by reason of post-sentence...”

In this case it was “post-sentence events”,

“...because a failure to do so by that court and at that stage will defeat the ends of justice and the public interest.”

20.  It is clear that for the purposes of sentencing this defendant it would not be correct for me to take into account a condition that might affect the defendant’s life expectancy in the future.  I have an assessment of the defendant’s life expectancy at present; there has been no recurrence of his cancer.  That even though the defendant has a serious medical condition, I believe it is established on this medical evidence that he does so. There may be some difficulties in treating it and caring for him, that does not automatically entitle him to a lesser sentence than would otherwise be appropriate.

21.  I am bound to consider that the Correctional Services Department themselves would provide medical services adequate to each prisoner’s need, and care and attention to the prisoner’s need.  If that is not the case, I have not been told so, and I would have expected either the Correctional Services Department or the prosecution to have informed me of that were that the case.  So I must proceed on the basis that the defendant’s condition can adequately be managed in a custodial environment and that the level of care he is presently receiving or a similar level of care which would not endanger or damage his health could also be provided in a custodial environment.  Those are the assumptions on which I am proceeding.

22.  I do consider that the defendant’s ill health and post-conviction ill health can be taken into account in sentencing the defendant in this case.  I do consider that the defendant to a certain extent falls within the fourth principle expounded in the case of Chan Kin Sheung in 1996 and adopted in the case of HKSAR v Bayanmunkh in 2012 in Hong Kong.

23.  The report of Mr Loh, or Dr Loh, says the defendant has multiple serious medical conditions.  He does so.  That is a fact, and an undeniable fact and an unchallenged fact, which would enable the court in exceptional circumstances to impose a lesser sentence than would otherwise be appropriate.  I note that a sentence of imprisonment on a frail elderly person is very different from one imposed on a healthy person.  The question I have to address is to what extent should the defendant’s medical condition interfere or alter the proper and appropriate sentence in this case which I have already said would be in the region of 48 months’ imprisonment.

24.  The defence in their submission has asked me to impose a sentence which would release the defendant from any further custodial sentence either by passing a sentence which would take into account the amount of time he has already served in custody, which is a short period of time post-conviction, or secondly by the imposition of a suspended sentence of imprisonment.  A suspended sentence of imprisonment of course can only be imposed on a sentence of 24 months or less, which would be half of what I consider the appropriate sentence to be in this case.  I do consider that approach would be artificial in this case.  I am prepared to sentence the defendant on the basis that an act of mercy is appropriate having regard to his serious medical condition but I am not prepared to pass what I consider to be an artificial sentence on the defendant to enable his release from custody.  An appropriate sentence must be passed.

25.  I have already indicated my starting point for sentence in this case would have been 60 months’ imprisonment and reduced to 48 months’ imprisonment having regard to all the other factors of mitigation which were appropriate to all the defendants in this case.  I consider that the defendant’s ill health does warrant a further deduction from that sentence. The defendant’s health is precarious, his position is he is frail; a sentence of imprisonment will be difficult for him and will provide great challenges to the Correctional Services Department.  If those challenges become too great, of course they can always ask the executive to interfere in the defendant’s sentence.

26.  What I propose to do is deduct the defendant’s sentence by a further 15 months to take into account his ill health and his present medical condition, which would lead, by my calculations, to a sentence of 33 months’ imprisonment for the defendant for this charge.  I consider that to be a generous disposal of this case given that the defendant was involved in a conspiracy to launder a total of HK$161 million, and that would be the sentence that I will impose.

27.  I think also that the Commissioner of the Correctional Services, subject to the consent of the defendant, should have the medical reports that I am in possession of and also the welfare report that I am in possession of so that he can be accommodated properly in a prison environment.