HKSAR v. GURUNG, LOK BAHADUR

HCMA 208/2025

[2026] HKCFI 2666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 208 OF 2025

(ON APPEAL FROM KCCC 1093 OF 2025)

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J U D G M E N T

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Background

1.  The Appellant pleaded guilty to a charge of “possession of dutiable goods” contrary to section 17(6) as read with section 46(3) of the Dutiable Commodities Ordinance, Cap. 109. He was sentenced to 2 months’ imprisonment.

2.  The Appellant filed Notice of appeal to a judge against sentence on 13 May 2025.

3.  He was represented by a privately instructed solicitor in the court below and by Mr Martin at the appeal hearing.

Facts

4.  The Appellant agreed to the facts that the police raided a shop situated at Chungking Mansions on 8 August 2024. Upon enquiry, the Appellant claimed to be the owner of the shop. Upon search, 98 packets containing a total of 7,120 sticks of cigarettes in four different brands were found. Upon arrest and under caution, the Appellant claimed that his friend gave him the cigarettes for free, and the cigarettes were intended for his personal use or for sharing with friends.

Mitigation hearing on 29 April 2025

5.  The first mitigation hearing took place on 29 April 2025. It was submitted that the Appellant aged 65, a Hong Kong resident, was married with two children and was of clear record. The Appellant suffered severe schizophrenia and was undergoing treatment in Nepal. He actually returned to Hong Kong to attend the hearing and would return to Nepal to receive treatment. As such, the chance of him re-offending was minimal. It was further submitted that in light of the Appellant’s guilty plea, his age and his health condition, a non-custodial sentence was appropriate.

6.  The magistrate remanded the Appellant for 14 days for a background report.

Mitigation hearing on 13 May 2025

7.  In the resumed hearing on 13 May 2025, the Appellant agreed with the content of the background report. The solicitor emphasised that the Appellant was remorseful and would not re-offend.

Reasons for Sentence

8.  In the Reasons for Sentence, the magistrate referred to the sentencing factors for the present offence outlined in 香港特別行政區 訴 張偉慶 HCMA 296/2017. He also referred to 香港特別行政區 訴 葉亮森 HCMA 481/2010 and 香港特別行政區訴 陳國榮 HCMA 327/2018 in which the court imposed custodial sentences for the subject offence.

9.  Having considered the number of cigarettes, the role played by the Appellant, and the fact that the goods possessed were intended for sale (as he so admitted to the probation officer), the magistrate adopted a starting point of 3 months’ imprisonment and gave a one-third discount to reflect the Appellant’s guilty plea. The magistrate found no other mitigating factors justifying a further reduction, nor did he find it appropriate to suspend the sentence. As a result, the Appellant was sentenced to 2 months’ imprisonment.

Ground of Appeal

10.  There is only one single ground of appeal, i.e. the magistrate erred in failing to order a suspended sentence in the circumstances of the present case. Mr Martin submitted that, taking into account the Appellant’s age, clear record, and ill health (as he currently suffers from dementia), a suspended sentence should have been imposed.

First Appeal Hearing

11.  The first appeal hearing took place on 12 December 2025.

12.  Mr Martin noted that the solicitor in the court below described that the Appellant’s condition as schizophrenia; however, he said this should have actually been “dementia”. Medical reports from Annapurna Neurological Institute in Nepal (“ANI reports”) dated 17 June 2024 and 21 March 2025[1] were submitted in mitigation, stated it was a “Follow-up case of dementia”.

13.  Having referred to the ANI reports, Mr Martin applied to submit two other medical reports, one by Dr Varut Vardhanabhuti, Specialist in Radiology of Trinity Medical Imaging Centre dated 20 November 2025; and the other by Dr Leung Yuen Shan of Holistic Development and Psychological Treatment Centre dated 2 December 2025. The Respondent did not object to it. Mr Martin said the Appellant would soon attend a follow-up treatment at Kowloon Hospital, and that obtaining this medical report might assist the court. The hearing was therefore adjourned for an updated medical report and for further written submissions.

14.  At this stage, it is appropriate to mention the content of the two medical reports.

15.  In gist,

(a)  Dr Vardhanabhuti said:

“Generalised cerebral atrophy, chronic small vessel ischaemic changes (Fazekas I), and small bilateral lacunar infarcts are noted”; and

(b)  Dr Leung said:

“The patient has a significant chronic history of alcohol use disorder and presented with profound short-term memory impairment. … The current working diagnosis is alcohol-associated major neurocognitive disorder (alcoholic dementia)”.

Second Appeal Hearing

16.  The appeal hearing resumed on 5 May 2026.

Appellant’s submissions

17.  Mr Marin adduced the medical report of Dr Kwan Man-man, Associate Consultant, Department of Psychiatry of Kowloon Hospital dated 20 January 2026. The Respondent raised no objection to the production of this report.

18.  It is of note that Dr Kwan said:

“Regarding the incident that occurred on 8 August 2024, the patient explained that he was working at a shop owned by his son. … The patient stated that he was taken to the police station along with a colleague due to what he described as a ‘cigarette-related issue’, but he could not recall further details about the event. He reported that he was unaware of the presence of cigarettes inside the shop prior to the police intervention.

…

In summary, Mr. Gurung displayed features characteristic of dementia, notably impaired recent memory, disorientation to time, and navigational difficulties. His cognitive deficit is likely to have impaired his understanding of the legal proceedings, and his ability to instruct his defense. Accordingly, I am of the opinion that Mr. Gurung is mentally unfit to plead in relation to the index charges against him.”

19.  At the appeal hearing, Mr Martin confirmed that he was not saying that the Appellant lacked mens rea at the time of the offence or sentencing. The Appellant did not ask to reverse his plea of guilty. He submitted that there was a sound evidential basis for finding that dementia was operative at the time of the offence[2], and, in addition is a factor affecting the Appellant now. Both are relevant factors for this court to consider in imposing a suspended sentence (i.e. they relate to circumstances of the offence and the offender).  

The Respondent’s reply

20.  Mr Tsui for the Respondent submitted that the sentence imposed on the Appellant was not manifestly excessive. He sought to rely on other cases[3] to show that the usual sentence for possession of a large quantity of illicit cigarettes, like in the present case, was an immediate custodial sentence.

21.  Regarding the content of Dr Kwan’s report, Mr Tsui remarked as follows.

22.  Firstly, the brief facts stated that the Appellant, under caution, admitted that the cigarettes were intended for personal use or sharing with friends.

23.  Secondly, the background report stated that the Appellant remembered how and why he had committed the present charge, and this rebutted any claim that he did not know the existence of the cigarettes inside his shop.

24.  Thirdly, the Appellant was legally represented in the court below. Had the Appellant’s mental condition at the time of the offence or during the proceedings in the court below been as poor as Dr Kwan observed, the Appellant and his legal team would have drawn the magistrate’s attention to it and raised the issue of his unfitness to plead. On the contrary, the Appellant pleaded guilty to the charge and admitted the facts.

25.  As such, the Respondent said Dr Kwan’s medical opinion could only support that the recent assessment of the mental condition of the Appellant is so bad that the Appellant is now unfit to plead. The Respondent considered that there was no evidence suggesting that the Appellant was substantially influenced by his mental condition at the time of the offence. Regarding the Appellant’s current medical condition, the Respondent considered that the court has a wide discretion to impose a suspended sentence if exceptional circumstances existed.

Consideration

26.  In HKSAR v Hui Lai Ki [2024] HKCFA 7, the Court of Final Appeal held that the magistracy appeal is conducted by way of rehearing. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate. Therefore, for sentencing appeals, the court needs to consider all the evidence of the case, the background of the Appellant, and the mitigation put forward.

27.  Before I consider if a suspended sentence should be imposed on the Appellant, I note that the solicitor, in mitigation, merely produced the ANI reports to the magistrate. He then simply submitted that “in light of his age and his health condition, we ask for the court’s leniency…for imposing a fine…”[4]. There were then discussions among the parties regarding the usual sentence to be imposed in similar cases. Apart from saying that the Appellant suffered from schizophrenia (when in fact it was dementia)[5], the solicitor made no further mention of how the Appellant’s medical condition affected him, nor did he draw the attention of the magistrate to the content of the ANI reports. Therefore, the magistrate was not informed about how dementia affected the Appellant and the fact that the Appellant was on medication. Had he been so informed, he might have given this factor more weight. In my view, the sentence he imposed there and then was correct.

28.  Turning to the present appeal, there is no objection for the Appellant to adduce the medical reports of Dr Vardhanabhuti, Dr Leung and Dr Kwan. I consider it in the interests of justice to admit them for the purpose of this proceeding. It is not in dispute that the Appellant suffered from dementia prior to the commission of the present offence, and his condition has deteriorated markedly.

29.  In Secretary for Justice v Wade Ian Francis CAAR 1/ 2015, 5 February 2016, unreported, Lunn VP said:

“46. In the result, we are satisfied that the bald statement that the test for a court in deciding whether or not to suspend the sentence of imprisonment is one of ‘exceptional circumstances’ overstates the position in Hong Kong. That proposition is valid in respect of certain offences only, stipulated to be such by the courts. When dealing with other offences, the courts must have regard to all the circumstances of the commission of that offence and that of the defendant in determining whether or not it is appropriate to exercise its power to suspend the operation of the sentence of imprisonment.”

30.  I have considered the facts of the case and the Appellant’s criminality in the offence. The number of cigarettes in the present case is lower than in other cases referred to in mitigation or relied upon by the Respondent. The value of the cigarettes ($35,600) was not a substantial sum of money. I have also considered the circumstances of the Appellant including his age (now 68), his clear record, his low chance of re-offending, his 14-day remand for the background report, his remorse shown at different stages, and most importantly, his health condition at the time of the offence and at the present stage, and the fact that he wants to return to Nepal to continue his treatment. I must emphasize that the subject offence is serious, and the usual sentence for the number of cigarettes involved here warrants a custodial sentence. However, I agree with Mr Martin that the circumstances of this case are unique, and individual circumstances of the Appellant are not to be ignored[6]. I therefore allow the appeal. The 2-month sentence imposed on the Appellant is to be suspended for 18 months.

31.  This is a wholly exceptional case and this judgment is not intended to set any sort of precedent for the future.