HKSAR v. TSANG WAI KEI

CACC 452/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 452 OF 2002

(ON APPEAL FROM HCCC NO. 358 OF 2001)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

The Background

1. The applicant, Tsang Wai-kei and Fu Chiu-wa (Fu) were jointly charged before Deputy Judge Day in the High Court with trafficking in 4.9 kilograms of a powder containing 4.2 kilograms of ketamine.

2. The applicant pleaded guilty to the charge and was sentenced to 8 years' imprisonment.

3. The applicant now seeks leave to appeal against sentence.

The Prosecution Case

4. On 29 June 2001 shortly after 7 p.m., the applicant and Fu were intercepted as they were leaving Hut No. 29, G/F, Ma Yau Tong Village in Tseung Kwan O (the house). Fu was found to be carrying a round metal cake box containing 5 plastic bags of dangerous drugs.

5. The applicant was also found to be carrying a brown paper carrier bag containing many bags of dangerous drugs.

6. The dangerous drugs found in the metal cake box and the brown carrier bag contained a total of 4.9 kilograms of a mixture containing 4.2 kilograms of ketamine (the subject matter of the charge).

7. The police managed to gain entrance into the house with a key found from the applicant. On the dining room table, drug-packing paraphernalia were found and seized.

Grounds of Appeal Against Sentence

8. The parties agreed at the trial that the Ecstasy guidelines suggested in HKSAR v Lee Tak Kwan [1998] 2 HKC 371 should be adopted for ketamine and the judge proceeded on such basis. The court in Lee Tak Kwan set the tariff at 8 years or upwards for over 800 grammes. Mortimer VP said at page 378 H-I:

"An arithmetic progression for trafficking in much higher quantities than 800g should be avoided. The sentence in such cases must be entirely within the discretion of the judge depending upon the circumstances."

9. The judge then decided to adopt a starting point of 12 years' imprisonment. The sentence on the applicant was reduced by one-third on account of his guilty plea. The judge was aware of the applicant's medical condition but refused to accept it as a further ground for reducing sentence. The judge said the following:

"Mr. Tsang's (the applicant) medical history avails him little when it comes to sentence. His was a pre-existing illness and it is well-established that, except in the rarest of cases, an accused's medical condition is not a matter to which the court will have regard in mitigation. The prison authorities will ensure he receives proper treatment, as they have been doing since his remand. I refer there to R v Ho Mei Lin [1996] 4 HKC 491, and HKSAR v Tong Fuk Sing [1999] 3 HKC 332."

10. Mr. Chan for the applicant does not suggest that the starting point adopted by the judge is in any way excessive. He however argues that the judge should have had more regard to the medical condition of the applicant and the additional hardship to him arising from such condition when he is serving the sentence.

11. It appears that the applicant suffered a serious road accident in mid-1990s and had an operation for thyroid cancer in 1998. He continues to have treatment consequent upon the removal of his thyroid. Although the management of his treatment has not been entirely successful, it is under control. The applicant will require treatment for the rest of his life.

12. Mr. Chan points out that between June 2001 and January 2002, the applicant had been admitted to hospital on 4 occasions because of hypocalcaemia (with nausea and vomiting) probably caused by the calcium supplement medication required because of the removal of the thyroid gland. The latest affirmation from the applicant suggests that there were further admissions into the hospital since the sentence was imposed on him in August 2002.

13. Mr. Chan further points out that the applicant needs to take calcium replacement therapy for the rest of his life and the dosage would have to be adjusted according to his blood calcium level which requires regular monitoring.

14. Mr. Chan says the applicant suffers hardship in his daily routines in the prison setting. The latest affirmation of the applicant also indicates that when using the toilet, he has to squat on the edge of the toilet bowl. It is a particular difficult manoeuvre for him as he has numb and weak limbs. Mr. Chan relies on R v Chan Kui Sheung [1996] 3 HKC 279 and R v Anderson (1996) 18 WAR 244 to support his proposition.

15. Chan Kui Sheung (supra) concerns a paraplegic defendant convicted of indecent assault. The court decided to reduce what otherwise would be a proper sentence ad misericordiam. Yang CJ said at P 284 of the judgment:

"These views are echoed in a very recent case in England. In R v Bernard (English CA, The Times, 2 July 1996, unreported), the Court of Appeal set out the relevance of a defendant's medical condition to his sentence. Of the four principles stated in the judgment, the third and the fourth are of relevance to the case before us."

There the Court of Appeal held:

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 Home Secretary's powers of release by reference to the royal prerogative of mercy or otherwise but was not a reason for the Court of Appeal to interfere with an otherwise appropriate sentence: R v Moore (Archbold) (1900) 12 Cr App R (S) 384).

2. The fact that an offender was HIV positive, or had a reduced life expectancy, was not generally a reason which should affect sentence: Moore (Archobold) and R v Moore (Richard) (1994) 15 Cr App R(S) 97).

3. A serious medical condition, even when it was difficult to treat in prison, would not automatically entitle an offender to a lesser sentence than would otherwise be appropriate: R v Wynne (CA, 18 April 1994, unreported).

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

16. Anderson (supra) (an applicant who pleaded guilty to 27 counts of fraud) also supports the proposition that "in extreme case, a sentencing court is entitled to take into account the fact of serious illness suffered by a member of the offender's family in circumstances in which that member will be subjected to an unusual measure of hardship as a result of the offender's imprisonment and in which the offender himself will, because of his family member's illness, be subject to an unusual measure of hardship as a result of his imprisonment".

17. Ill health is generally not a matter for mitigation of a perfectly proper sentence, particularly for crimes of gravity. (see HKSAR v Tong Fuk Sing [1999] 3 HKC 332 at 336D per Stuart-Moore VP and R v Ho Mei Lin [1996] 4 HKC 491 at 493B per Narareth VP). We do not, however, disagree with the suggestion that in appropriate and extreme cases, the court is entitled to take such matter into account.

18. The court must on the other hand keep a proper balance between the public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest must prevail. In HKSAR v Yip Kai Foon FAMC Nos. 35 & 36 of 1999 (unreported), the Court of Final Appeal, in confirming the sentence of an accused who received grave injuries in the course of serious criminal acts and became a paraplegic, has the following to say at page 4-5 of the judgment:

"The sentencing court has to take into account a variety of factors. It must be accepted that the injuries suffered by the applicant resulting in his present condition were very serious. But we are concerned with extremely grave offences. The applicant suffered his injuries in a gun battle between his gang and the police. Fortunately, no police officers or members of the public were injured but they were put to terrible risk. As the Court of Appeal said:-

'The judge was dealing with a criminal gang led by an escaped convict who, in the dead of night, while transporting explosives for an unknown but undoubtedly gravely serious criminal purpose, engaged in a fire fight with pursuing police officers in an endeavour to escape arrest. The offence was, we are satisfied, in the most serious band of such offences and it warranted the sentence of 20 years imposed by the judge. A court when sentencing in such circumstances must bear in mind the terrible risk to which police officers and, indeed, members of the public are exposed to such behaviour. Sentences must be imposed which, to use the words of Lord Denning, express "the emphatic denunciation by the community of" such crimes.'

....As the Court of Appeal quite rightly stated, the actions of the applicant and his gang came very close to declaring war on society and 'a court would be failing in its duty to the public if it did not impose heavy deterrent sentences in circumstances such as this."

19. If there is a class of cases where the court would not allow illness or personal disabilities of the defendant as a mitigating factor, serious cases of drug trafficking must be one of them otherwise people engaging in this evil business would be encouraged to make use of people with disabilities in such business. It is a sound policy and public interest requires it.

20. In The Queen v Lau Tak Ming & Another [1990] 2 HKLR 370, this Court in laying down the tariffs for drug trafficking cases also said the following:

"It must be borne in mind that these are offences of 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 the carrying out of their nefarious trade."

21. Such sentiment was an echo of what this Court said in R v Szeto Ying-lun Crim App No. 204 of 1985:

"Those who deal in this nefarious trade make use of the halt, the blind, and the maimed - and those of tender years - in order to elicit sympathy from the court should such persons be apprehended."

Any such attempt or idea must be nipped in the bud.

22. The applicant together with another unlawfully trafficked in 4.2 kilograms of ketamine. Having pleaded guilty to the charge, he gave evidence for Fu with a view to exonerate him. The jury did not accept his evidence.

23. His condition already existed when he committed the offence and if the court were to show exceptional mercy to him because of such condition, the court would be falling into the very trap that should be avoided, as suggested in Szeto Ying-lun (supra).

24. In our view, the judge was right in not allowing the hardship that the applicant would suffer because of his illness or disabilities as a further mitigating factor to reduce the sentence. The judge was also right in observing that "the prison authorities will ensure he receives proper treatment, as they have been doing since his remand".

25. Sympathy we may have for the applicant, but it fails to persuade us to further reduce his sentence which is fair, proper and perhaps can be described as lenient. The application for leave to appeal against sentence is therefore dismissed.