HKSAR v. LKHAIJAV BAYANMUNKH

CACC 320/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 320 OF 2011

(ON APPEAL FROM HCCC NO. 395 OF 2010)

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant was convicted on his own plea of trafficking in dangerous drugs, namely 990.90 grammes of a mixture containing 625.24 grammes of heroin hydrochloride and 104.02 grammes of monoacetylmorphine hydrochloride.  The total narcotic content for which he fell to be sentenced was therefore 729.26 grammes.  He was sentenced by Deputy Judge Longley to 14 years imprisonment and now applies for leave to appeal that sentence.

The Sentencing Proceedings

2.  The applicant is a Mongolian national who carried within his body 100 capsules containing heroin.  He had travelled from Kula Lumpur and his final destination was Shekou, China.  He was travelling with three other Mongolians who, like him, were also carrying drug capsules within them.  They were intercepted by Customs & Exercise Officers in the transit area of Hong Kong International Airport.

3.  In sentencing the applicant the Deputy Judge treated him as only a courier who was being used by others.  Nevertheless there was little in the applicant’s background to distinguish him from those who are similarly used to traffic in drugs.  He is 32 years old, married and has a 10 years old son.  He got into financial difficulties and this tempted him into agreeing to become a drug mule.  He expected to receive US$5,000 but as he did not complete his journey he did not receive any payment.  At the time of sentencing his counsel referred to the applicant’s medical condition but as it was still being investigated he was unable to provide the Deputy Judge with any information on it. Consequently in sentencing the applicant the Deputy Judge made no allowance for it saying:

“…… since arriving in Hong Kong you have been suffering from some problems with your liver which are still under investigation. On the information now before me, the only real mitigating circumstance in this case has been your plea of guilty and that justifies the usual discount of one-third.”

4.  The total quantity of narcotic in which this applicant trafficked brought him within the 600 – 1,200 grammes band as laid down by the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437.  This band attracts a sentence of between 20 ‑ 23 years imprisonment. As the trafficking involved an international element a certain degree of enhancement was required.  The Deputy Judge started at 20 years enhanced it by one year and then allowed the applicant a one third discount for his guilty plea, thereby arriving at 14 years imprisonment.

The Grounds of Appeal

5.  The applicant does not and cannot make any complaint about the reasoning which resulted in the final sentence of 14 years imprisonment.  The applicant is unrepresented and in his self-drafted grounds of appeal he says that he is seeking a reduction of his sentence on humanitarian grounds and refers to the health condition which was still being investigated at the time of his sentencing  hearing.  A medical report has now been obtained on the applicant and this reveals that he is suffering from a hepatitis C virus infection and has “mild coarsening of liver parenchymal echotexture that could present liver parenchymal disease”.  He has regular follow up appointments to monitor his health condition and he has been recommended to have a course of treatment of interferon and ribavirin.  However this course of treatment costs about $40,000 and must be paid for by the applicant.  He lacks the financial means to pay for this course of treatment.

Discussion

6.  Two issues arise in this appeal.  The first is whether the applicant’s medical condition is a legitimate mitigating factor which would entitle him to a discount of his sentence.  If not the second issue arises of whether the medical condition nevertheless provides a legitimate basis for the court reducing the applicant’s sentence as an act of mercy.

Health as mitigation

7.  This court 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 the Court of Appeal said at page 493:

“Accordingly it is now well established that except in the rarest cases, a prisoner’s medical condition is not a matter to which this 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.”

8.  This statement of principle was endorsed by the Appeal Committee of the Court of Final Appeal in its determination in Yip Kai Foon v HKSAR (2000) 3 HKCFAR 31 where Li CJ said at page 35:

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

9.  An exposition of some 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 by the English Court of Appeal in R v Bernard [1997] 1 CR App R (S) 135.  They are:

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 powers 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.

2.  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.

4.  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.

10.  There are a number of very sound policy reasons why the Courts have adopted such an approach to the sentencing of offenders.  They are:

1) the courts cannot by their sentences appear to endorse the view that ill-health is a licence to commit crime or in some way shield an offender from the consequences of his conduct;

2) the courts assume that the Correctional Services Department will provide medical services adequate to each prisoner’s needs;

3) the appellate court’s role is not to provide on-going supervision of a prisoner’s condition but rather to determine whether the sentence imposed on the prisoner is manifestly excessive or wrong in principle;

4) the powers of the executive are the appropriate means for adjusting properly imposed sentences to take account of circumstances arising post-sentence.

11.  In respect of drug trafficking cases the first policy consideration is particularly relevant.  The courts have been at pains to make it clear that no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers.  Should it do so the courts are at risk of creating a group that drug traffickers can target for exploitation precisely because it is known that such persons will be treated more leniently.  This has been the position for drug trafficking offences from at least 1990 when in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 the Court of Appeal said of such personal circumstances at page 386 F – G:

“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 the carrying out of their nefarious trade.”

12.  In the present case there is one unusual feature and that is that the applicant has been told that he must fund his medical treatment.  However we do not regard this as a matter which can be used as a mitigating factor in the determination of what is a proper punishment for an offender’s crime.  It cannot be allowed to transform a personal circumstance which would otherwise not be a basis for reducing an offender’s sentence into one which can legitimately have this effect.  The answer to the applicant’s predicament is not to reduce the sentence but rather to address the question of why he is being denied the medical treatment recommended by the doctor.  If this treatment is being unlawfully denied him then he has other remedies to which he can have recourse.

Petitioning the Court for mercy

13.  The extension of mercy to an offender has always been part of a judge’s armory in dispensing justice.  But how is it to be exercised?  This question was addressed by the Court of Appeal in HKSAR v Chan Kin Chung & anor [2002] 4 HKC 314 where Stock JA said at page 326 E ‑ H:

“ Yet we would say that the very cases which we have cited themselves evidence the exercise of mercy, but always in the context of a balanced approach to sentencing, by which comment we respectfully endorse the reference in R v Miceli [1998] 4 VR 588, 594 to ‘mercy being exercised by considerations which are supported by the evidence and which make an appeal not only to sympathy, but to well-balanced judgment [an approach which] echoes the caution expressed by the New Zealand Court of Appeal in R v Radich [1954] NZLR 86, to the effect that if a court is weakly merciful and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty.’ A balanced approach to sentencing is one that has proper regard to essential sentencing principle and policy, which includes the principle that the adverse affect of imprisonment upon an offender’s family will not normally be taken into account; and is one that has full regard to the seriousness of the crime, although not ignoring credible evidence that may justify a merciful sentence.”

14.  How far a court can go in extending mercy to an offender in achieving a balanced sentence will inevitably vary from case to case, taking account of the crime the offender has committed and his personal circumstances.  As we have already made clear drug trafficking is a crime where an offender’s personal circumstances are not given the same weight that they might be given for other crimes.  Thus a just sentence is arrived at by a proper application of legal principle balanced with a consideration of personal circumstances.  Justice will not normally be served by departing from proper sentencing principles as a sympathetic response to a prisoner’s personal circumstances.  We qualify this last statement because we recognise that our courts are not just courts of law but courts of justice and circumstances may arise, usually post‑sentence, where justice and the public interest require an immediate response which only the court can give.  In HKSAR v Yeung Kwai Kuen [2002] 3 HKLRD 91 Stock JA in giving the judgment of the Court said at page 104 E – F:

“Sentencing is, as has often been emphasised, an art, and not a mechanical application of rules or policy to the exclusion of the 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 events because a failure to do so, by that court and at that stage, will defeat the ends of justice and the public interest.”

15.  Although in the present case it is true that the applicant’s position only became fully known post-sentence, that fact alone does not entitle him to the intervention of the court.  There must also be present some other factors which necessitate urgent action by the courts in order to ensure that justice is done or the public interest protected or advanced.  Here no such factors are present and consequently the applicant cannot receive through the exercise of mercy a reduction of his sentence to which by a proper application of legal principle he would not otherwise be entitled.

Conclusion

16.  The application for leave to appeal against sentence is refused. However the court has been informed by the prosecution that steps are being taken to ensure that the applicant will receive the medication that he needs for the treatment of his disease.