HKSAR v. NG KING CHEUNG

CACC 90/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 90 OF 1999

(ON APPEAL FROM DCCC 1245/1998)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to 1 count of trafficking in dangerous drugs in the District Court before Judge McMahon. He was sentenced to 3 years 8 months imprisonment and now seeks leave to appeal against that sentence.

2. Particulars of the charge were that:

"NG King-cheung, on or about the 26th day of September, 1998, at Ground Floor, No. 67, Prince Edward Road West, Mongkok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 26.35 grammes of a mixture containing 23.32 grammes of heroin hydrochloride and 30 tablets containing 529 milligrammes of midazolam maleate."

3. The only unusual aspect of this case is that the applicant's medical condition did cause the Judge some concern. He said at p. 5 of the appeal bundle:

"In the course of mitigation, Mr CHAN brought to my attention the fact that the defendant had suffered a stroke after his arrest which although not incapacitating him has somewhat affected his memory and apparently also to some extent his physical functions. He is currently receiving physiotherapy for this condition arranged through the Correctional Services Department.

From the face of the medical report provided to me by Mr CHAN it appears likely that this stroke was brought about by the defendant's long term drug habit.

Oddly enough, the defendant himself does not wish for a shorter sentence on the basis of his medical condition as a mitigation factor as he feels he is better off in prison than on the streets. I am sure from the point of view of his physical condition he is correct.

Mr. CHAN, however, was right to bring this to my attention but in my view, drug induced or related illnesses should not normally be a factor in mitigation unless they are so severe as to make the state of imprisonment significantly harsher for the particular individual than others so imprisoned. In my view, this is not the position in this case on the basis of what has been put before me and I accordingly disregard it as a mitigating factor. That leaves as the only substantial mitigation the defendant's own plea of guilty."

4. It should be added that the starting point adopted by the Judge was well within R. v. Lau Tak-ming [1990] 2 HKLR 370 guidelines.

5. Before us, he again referred to his medical condition and the difficulties he suffered from.

6. Notwithstanding this we consider that the Judge's approach to this matter was entirely proper. The application is without merit and is dismissed.