HKSAR v. CHAN WING CHUNG

HCCC27/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 27 OF 2011

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Stand up, please. In your case I am going to make a probation order provided that you consent to it and I will deal with the technicality of that in due course.

Before I do that, though, I need to explain why such an exceptional course is being taken in your case. I shall not do that by addressing you directly so you can have a seat for the time being whilst I explain to the public and any other person who may be interested why that is my proposed sentence.

The defendant in this case has pleaded guilty to trafficking in a dangerous drug. The drug in question was ketamine and he was caught carrying 739 grammes of it into Hong Kong from the Mainland, it was strapped to his legs.

If the usual guidelines were followed the starting point would have been in the category of 12 to 14 years’ imprisonment after trial reflecting 600 to 1,000 grammes trafficked. There would have been some enhancement for the international element and there would have been a one-third discount following the plea of guilty on the usual basis.

So it is the case that if this were a normal case a sentence of at least 8 years would be in prospect.

What makes this case exceptional is the diagnosis of mental retardation. I have a battery of reports upon the defendant and there is no disagreement between the reports produced by either side. The fact is his overall IQ is 65 and in relation to conceptual matters he has the mental ability which would be the equivalent of an eight or nine year old child.

In fact, the last paragraph of the probation officer’s report sums it up nicely and I shall read that.

“The accused is a mild grade mentally retarded person who is known to have a mental age with regard to abstract conceptual thinking equivalent to that of children who are eight or nine years old. Owing to his mental capacity he might have difficulty in defending his own interest upon the demand of others and making appropriate decisions under stressful conditions. Therefore he could be easily taken advantage of and exploited by others to become a prey in unlawful ventures.”

Based on that a powerful plea is made by Mr Loughran that the guidelines should not apply in this case and he puts it in two ways. Firstly, the mental condition robs the defendant of the usual appreciation of the seriousness of the conduct of drug trafficking in that the defendant has only a childlike understanding of its gravity and no real appreciation of the moral culpability. That in effect he lacked those qualities of a person of completely sound mind and without the retardation that would allow them to judge the situation they were faced with.

The second thrust of the argument is that the condition renders the defendant suggestible and exploitable and the submission is made factually here that that is what happened.

Those facts were related to Professor Lee, they are at paragraphs 35 to 38 of his supplementary report. There is no need for me to set out the individual facts, they amount to pressure put upon him with, in effect, the carrot and stick approach, promises of benefit, threats of detriment.

I am willing to proceed on the basis of those facts as they are summarised there and no one urges me to the contrary.

The plea in mitigation ends with the assertion that this defendant is not a suitable vehicle for general deterrence in this area of the law. I was referred to some Australian cases. There is no need for me to deal with them specifically because they all just keep restating in various ways that it is unfair to visit general deterrence on someone weak like this.

Having seen the nature of the mitigation coming, at an early stage I asked Mr Polson, who appears for the prosecution, to come armed with submissions from his side. In a sensitive way he has done that and his position is whilst there is room for some sort of flexibility basically the guidelines should apply. That was done in a spirit that acknowledged the difficulties of the defendant and really took the position that it is for the court to make the decision and it should not be made by concession from the Department of Justice. I agree with that, too.

Neither prosecution nor defence have found a case that is identical or almost identical on the facts here. None of us has ever come across it by research or by personal knowledge.

Mr Polson bases the stance of the prosecution on what was said quite a long time ago now in Lau Tak Ming. In particular what was said by the Vice-President, Mr Justice Silke, at page 386 of the report which is reported at [1992] HKLR. He said this:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in carrying out their nefarious trade.”

Of course, that is general guidance that the courts habitually adopt and apply. But I do not take the words used there, of little weight being given to disability, to have been intended to apply to a case like this.

The other point that I would make with great respect about what was then said is this. That, in fact, it is not the experience of anyone in this court today, and I might add I have a couple of old campaigners in front of me, that drug dealers in Hong Kong ever attempt to elicit sympathy for their couriers. That might have been the case 25 or so years ago in Europe. It is not the case, in our experience, in Hong Kong.

In this regard Mr Loughran made what I regard as sensible submissions along these lines: that even if people did come to know of the soft sentence in this case, realistically that is going to have no impact at all on the drug trafficking trade here. It is completely unrealistic to suggest that those men with their nefarious trade would go looking for people like this defendant in a way that would have any sort of impact that could be approaching the significant.

He says even if that turned out to be wrong and there was a supply of people with similar mental retardation that were looked out by drug traffickers, wait and see. Because if that did eventuate the future is the time to deal with it not now with the burden of deterrence falling upon the shoulders of this individual.

It is right to mention that the reports point out that he knows the difference between right and wrong, of course he does, nine year olds do. It is right that he faces some sort of punishment.

Mr Loughran makes the submission, with which I agree, that in this case there has been an element of personal deterrence to him because he has been in custody now for 14 months and happily the fact of that means that I do not have to face the difficult decision of what would have been some appropriate direct punishment if he had not been locked up until now.

That 14 months of incarceration is ample personal deterrence for a man like this defendant, in my judgment. It makes it much the easier for me to offer the probation I have in mind.

So those are the reasons why I have gone out of the guidelines in what I regard as an exceptional case.

(Discussion re probation)

Stand up would you please, Mr Chan. You did a very foolish thing. You knew it was wrong. You have been punished, have you not? Have you not?

ACCUSED: Yes.

COURT: If you do anything like this again you will be back in prison, do you understand that?

ACCUSED: Understand.

COURT: Now, because I am proposing to make a probation order I have to tell you certain things so please listen carefully. If you agree to a probation order it means that for a period of 3 years you will be subject to the supervision of a probation officer.

ACCUSED: Yes.

COURT: You will be obliged to lead an honest and industrious life.

ACCUSED: Yes.

COURT: To obey the reasonable requirements of the probation officer.

ACCUSED: Yes.

COURT: And to commit no crime.

ACCUSED: I know.

COURT: If you are in breach of your obligations under the probation order, or if you committed a further offence in the next 3 years you will be in breach of the probation order.

ACCUSED: Yes.

COURT: And that would mean that you would be brought back to court and you could be re-sentenced for this offence.

ACCUSED: Yes.

COURT: Do you understand?

ACCUSED: Yes, okay.

COURT: So bad behaviour, not complying with the requirements, you could be back here and be sent to prison.

ACCUSED: Okay.

COURT: Now obviously, because it requires your cooperation I will not make the order unless you formally now tell me in court that you consent to it. Do you consent?

ACCUSED: Yes, consent.

COURT: Thank you. Have a seat. You are going to be free today. But you have got to wait here until you get a written copy of the order I have just made and then you have got to go to

see the probation officer at a certain time and certain place that will be supplied to you in writing.

ACCUSED: Yes.