HO MEI LIN v. R.

1996, No.217
(Criminal)

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H E A D N O T E

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Criminal Law And Procedure

It is well established that a prisoner's medical condition is not a matter to which the Court of Appeal will have regard for mitigation of a proper sentence save in the rarest cases, though it may well be a matter for the Executive if brought to their attention and deserving of consideration.

1996, No.217
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, V.-P. (Giving the Judgment of the Court) :

1. On 26th March this year, the applicant Ho Mei Lin after trial was convicted in the District Court by HH Judge Lugar-Mawson on one count of trafficking in dangerous drugs. She was sentenced to imprisonment for five years.

2. The facts are these. On 8th July 1995, the police searched her room in her presence. They found what was subsequently established to be 17.97 grammes of a mixture containing 13.06 grammes of heroin hydrochloride. Also found was the usual sort of paraphernalia for the retail packaging of dangerous drugs. She was arrested. It is clear that packaging of dangerous drugs was being carried out in her room.

3. In his Reasons for Sentence, the judge said this :

" I have listened carefully to all Mr CHAU has said on your behalf. It is clear that in recent years, your fortunes have declined and I have sympathy for you. However, one thing you should not have done was involve yourself in the filthy trade of dangerous drugs.

The amount of dangerous drugs involved in this case is 17.97 grammes of mixture in which the narcotic content is 13.06 grammes. There are very clear guidelines laid down for all judges as to how they should sentence for people who traffic in dangerous drugs and judges are expected to keep to them.

For this offence, you could have been sent to prison for as long as 8 years. I am going to sentence you to the minimum sentence recommended, which is 5 years' imprisonment."

4. In her notice of application for leave to appeal, the applicant said this :

" I, Ho Mei Lin, have neck bone, backbone and waist bone complaints and the pain in (my) neck bone has been intensified because I have stopped seeing a doctor and receiving treatment since there are bone spur(s) in (my) backbone and waist bone, (my) right hand and right leg are in great pain. I have been receiving treatment in the orthopaedics department in the Queen Elizabeth Hospital. So, (I) hope (my) sentence can be reduced so that (I can) receive treatment as soon as possible."

5. Before us today, she has added that this is her first offence and she asks the Court to give her a chance so that she can receive treatment as soon as possible. We feel bound to say, first of all, that we can see no reason why she cannot receive treatment. The standard position, as we have always understood it, and which has been confirmed by Mr Alain Sham for the Crown, is that what treatment is not available in prison or in a place of detention is made available by taking prisoners to medical facilities outside.

6. But what is to the point is that the applicant is not contending that the sentence of five years is wrong or is manifestly excessive or wrong in principle. In that, she is quite right because it is squarely within the tariff in R. v. Lau Tak Ming [1990]2 HKLR 370. What the applicant relies upon are her medical complaints. It has to be said, first of all, that she has not established the evidential foundation for such complaints. She relies simply upon her word and no more. It is doubtful whether that could ordinarily be sufficient. But however that may be, it is well established that ill health is not normally a reason for reducing a proper sentence. In this respect, this Court has adopted a stronger stance than that which Professor Thomas in his Principles of Sentencing suggests prevails in England (see p.216 2nd Ed.) i.e. :

" The additional hardship suffered by a prisoner as a result of bad health or physical disability may also be treated as a ground for mitigation .... In less extreme cases [i.e. relative to onset of blindness, and to risk of further heart attacks] the Court is less likely to treat the condition as a ground for mitigation."

That stance can be seen from the following decisions of this Court which do not appear to have been reported.

7. In R. v. Suen Shek Cri.App.No.317 of 1987, which was a case in which the appellant was suffering from terminal cancer, it was said :

" It is our decided view that in cases of this nature where a convicted defendant is said to be ill the exercise of clemency is for the Executive and not for the Courts. Having regard to the serious nature of the offences, we do not feel that the sentence imposed was a day too long ...."

8. In R. v. Yuen Siu Wah and Another Cri.App.No.438 of 1987, what Silke V-P said was to the same effect :

" Ill health is not a matter for mitigation of a perfectly proper sentence though it may well be a matter for the Executive in relation to a consideration of that sentence if it is brought to their attention and deserves such consideration."

9. Moreover, in Cri.App.No.334 of 1989 R. v. Chan Yiu Kai, Silke V-P, in giving the judgment of the Court, adopted what was said in Suen Shek's case in the passage we have already quoted.

10. Finally, in R. v. Wong Sik Yuen Cri.App.No.2 of 1991, a sad case in which the applicant was a hemophiliac who had contracted AIDs in receiving blood transfusions, this Court said this :

"However as this Court has said on other occasions, and we again reiterate, that, except in the rarest cases, a prisoner's medical condition is not a matter this Court considers to be within our province when the sentence is a perfectly proper one but is for the Executive to consider."

11. 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. Plainly, therefore, there is nothing before us that would warrant the intervention of this Court, whatever view the Executive may take if it comes to that.

12. Application for leave is therefore refused.