R v. CHEUNG SUN WAH

HEADNOTE

[The principle that an offender's medical condition is not something which the court can regard as mitigation for an otherwise proper sentence does not apply to immigration offences of the kind to which the guidelines in R. v. So Man King [1989] 1 HKLR 142 relate. An offender's medical condition can, in an appropriate case, amount to "strong humanitarian considerations" justifying a departure from the tariff sentence of 15 months' imprisonment.]

1997, NO. MA 413

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL

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J U D G M E N T

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INTRODUCTION

1. On 25th March 1997 at Shatin Magistrates' Court, the Appellant pleaded guilty to 3 charges. The first was assaulting a police officer. The second was arson. The third was remaining in Hong Kong without the lawful authority of the Director of Immigration. He was sentenced to one month's imprisonment on the first charge, 12 months' imprisonment on the second and 15 months' imprisonment on the third. Those terms were all to be served concurrently with each other, but were suspended for a period of 18 months.

2. The prosecution applied for a review of those sentences. The magistrate agreed to review the sentences, and fixed 8th April for the hearing of the review. The Appellant was ordered to remain in custody in the meantime. When the Appellant returned to court on 8th April, the magistrate decided that he had to impose terms of imprisonment of immediate effect. He sentenced the Appellant to one month's imprisonment on the first charge, 6 months' imprisonment on the second and 6 months' imprisonment on the third. Those terms were all to be served concurrently with each other, making 6 months' imprisonment in all which the Appellant had to serve. He now appeals against those sentences.

THE FACTS

3. The Appellant is 28 years old. He comes from Hunan Province. He contracted polio when he was a child, and as a result he is severely disabled. He cannot walk properly without crutches. He was abandoned by his parents at the age of 9. Since then, begging on the streets has been his only means of livelihood. For the two years or so before he came to Hong Kong, the Appellant had been living on the streets of Shenzhen.

4. The Appellant arrived in Hong Kong clandestinely three days before his arrest. He had hidden in the cargo of a cross-border train. When he was arrested, he was begging in Shatin. He was being questioned back at the police station when he hit one of the arresting police officers with one of his crutches. The police officer was slightly injured, but the Appellant continued to wield his crutches in a threatening manner. He claims that he did so because he thought that the police were stealing his money, and because he believed that the police had been humiliating him. When the Appellant was left alone for a while, he set fire to his money. It consisted of $300.00, and represented the proceeds of his begging. He threw the burning notes onto a desk, and they caused a set of police forms to burn. That was the property to which the charge of arson related. He claims that he did that because he did not want the police to steal his money.

THE EVENTS OF 8th APRIL

5. It was what happened when the Appellant came into court on the morning of 8th April which has given this case the notoriety which it has received. The magistrate was told by the Appellant's counsel that his crutches had been taken away from him "necessitating in him crawling on his hindquarters on the filthy floor to come into court". The magistrate did not think that he could ask the officer in charge of the court to give the Appellant his crutches back (as they had been retained as exhibits in the case ever since the Appellant's arrest on 11th March), but the magistrate requested the police to carry the Appellant in and out of court. The case was adjourned until the afternoon. When the case was heard in the afternoon, no complaint was made about the way he had had to come into court that afternoon, but in relation to the events of the morning, his counsel said:

"I wish the Attorney General could have been here this morning to see this unfortunate man crawl on his belly across the filthy floor into the courtroom."

6. The position with regard to the Appellant's crutches was that they were among a number of items which the prosecution on 25th March requested the magistrate to confiscate. He ordered that they be confiscated. However, after he had sentenced the Appellant in the afternoon of 8th April, he reviewed the confiscation order. He ordered that the Appellant's crutches be returned to him. The Appellant's unchallenged evidence is that he did not get his crutches back until 9th May, and that he had to make do with substitute crutches in the meantime.

THE PRINCIPAL GROUND OF APPEAL

7. It was these events which prompted the argument that the Appellant had been so badly treated at the hands of the authorities that the sentences eventually passed by the magistrate could not stand. However, it is not simply alleged that he was cruelly denied the use of his crutches on the

morning of 8th April, and was therefore subjected to the public humiliation of having to crawl into court. It is also alleged that for the time that he was on remand in Lai Chi Kok Reception Centre there was a palpable lack of concern for his disability which resulted in not inconsiderable hardship to him in a number of respects. This treatment is said to amount to a breach of the Appellant's rights under Art. 6(1) of the Bill of Rights, which provides :

"All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

In the circumstances, it is said that further punishment of the Appellant would be "excessive and superfluous and wholly out of proportion to the offences for which the Appellant was convicted".

8. These allegations could only be determined by the giving of evidence. It was common ground between Mr. Peter Lavac for the Appellant (who appeared for him on 8th April) and Mr. Andrew Bruce Q.C. for the Crown that this was a proper case for evidence to be called on appeal pursuant to section 118(1)(b) of the Magistrates Ordinance (Cap. 227). Accordingly, I heard evidence from 6 witnesses:

(i) the Appellant himself;

(ii) Ronald Ng, the Court Liaison Officer for the Duty Lawyer Service, who gave evidence relating to the Appellant's appearance in court;

(iii) Yu Ka Yan, an Acting Principal Officer of the Correctional Services Department working at Lai Chi Kok Reception Centre, who gave evidence as to the circumstances in which the Appellant came to be without crutches on 8th April;

(iv) Mak Kai and Wong Siu Kay, two senior police

and (v) constables who were on duty at Shatin Magistracy on 8th April, and who gave evidence relating to the Appellant's appearance in court;

(vi) Au-Yeung Hou Sheung, a Chief Officer of the Correctional Services Department working at Lai Chi Kok Reception Centre, who purported to give evidence of the Appellant's treatment there before he was transferred to Stanley Prison later in April.

9. In the light of the evidence, I find the facts to be as follows. The Appellant first appeared in court on 13th March. He was remanded in custody and was detained in Lai Chi Kok Reception Centre. In view of his disability, he was kept in a hospital ward there. He was provided with substitute crutches, though they were elbow crutches unlike his own crutches which supported him under his armpits. He claims that he did not receive those crutches until he had been there for three days, but I find that he had been provided with them by the day following his detention there, because all inmates have to see the Chief Superintendent of the Centre on the day after being detained there, and I do not believe that the Appellant would have been permitted to see him without crutches. I believe that the three days during which the Appellant claims to have been without crutches may have included the two days between his arrest on 11th March and his remand to Lai Chi Kok Reception Centre on 13th March.

10. The Appellant claims that the sanitary and washing facilities in Lai Chi Kok Reception Centre were unsuitable for a person with his handicap. He alleges that the lavatory was a hole in the ground, and he had to squat in the mess created by other prisoners. In addition, the shower lacked handrails, making it necessary for him to squat on the floor of the shower. That was particularly unpleasant, because the water drained away too slowly, and he had to sit in dirty water. I make no finding about the speed at which the water drained away in the shower, but I reject the Appellant's other complaints. I find that the toilets in the ward he was originally detained in, and in the ward to which he was subsequently moved after an argument with another patient, were equipped with toilet bowls, and that the showers in those wards were equipped with handrails. I should record that it was originally suggested on the Appellant's behalf that the indignities to which he claims he was subjected continued after his transfer to Stanley Prison. However, the Appellant's own evidence was that the conditions in Stanley Prison were acceptable, and Mr. Lavac has withdrawn the ground of appeal which related to his treatment there.

11. Finally, I turn to the events of 8th April. I find that when the Appellant came into the Reception Office of Lai Chi Kok Reception Centre that morning, he was asked if he wanted to take the crutches he was using to court. The Appellant declined the offer because he thought he would be getting his own crutches back that day. It was understandable that he would think that. His case was going to be concluded that day one way or the other, and he would think that once the case was over he would get his own crutches back. The suggestion made by Mr. Lavac is that the prison authorities wanted the Appellant to go to court without his substitute crutches, because if the order of the court was one which involved the Appellant's immediate repatriation to China, they were worried that they would not get their crutches back. I reject that suggestion. Even if he would not have to be returned to Lai Chi Kok Reception Centre for his discharge to be formerly processed, there is no reason why, on the return to the Appellant of his own crutches, the substitute crutches would not be retrieved by the prison officers who had escorted him. In summary, therefore, I find that the reason why the Appellant was taken to court on 8th April without his substitute crutches was because he had declined to use them.

12. It is here that I should record that the Appellant is capable of self-propulsion even without crutches. He adopts a squatting posture, and uses his hands to move his feet. His bottom does not touch the ground unless he gets tired. What he does cannot be described as "walking", but it cannot be described as "crawling" either. I find that this was how he made his way into the court building on 8th April, how he made his way from his cell to the prisoner's waiting room, and how he came into court when his case was called on. The chair in the dock was not that far from where he had been in the prisoner's waiting room, and I find that by the time he got to the chair in the dock, he had not had to rest his bottom on the floor. It is noteworthy that Mr. Ng, who was called on the Appellant's behalf, agreed that the only parts of the Appellant's body which came into the contact with the floor as he manoeuvred himself to and from the chair in the dock were his two feet. I do not think that when he got to the chair he was helped into it by the dock officer, but I find that when he left court a few minutes later when his case was adjourned to the afternoon, he was helped out of the chair by the dock officer who supported him under his armpits. I think that there was a measure of indignity in the way the Appellant came in and out of court on 8th April, but that was only because he had declined the use of his substitute crutches.

13. It is plain to me that the incorrect use of language has bedevilled this case. There was no question of the Appellant having been forced to "crawl" into court, whether on his "hindquarters" or on his "belly". Mr. Lavac used that language to the magistrate, no doubt, because he was shocked at seeing a seriously disabled man come into court without crutches. At that time, he did not know that the Appellant had declined the use of the crutches he had been using for over three weeks. I note that the magistrate referred to the fact that it was "very undignified" for the Appellant to have to "crawl" into court, but it may be that the magistrate did not actually see how the Appellant came into court, and I suspect that he used that language simply because that was the language which Mr. Lavac had used, and the magistrate did not want to appear to be splitting hairs on an occasion which called for tact and sensitivity.

14. I am quite sure that the prosecution should not have applied on 25th March for the Appellant's crutches to be confiscated, and that the application should have been refused. Mr. Bruce realistically conceded as much. In addition, with the advantage of hindsight, it may have been better if the Appellant had been pressed to take the substitute crutches with him to court on 8th April. Moreover, the Appellant's crutches should have been returned to him on 8th April, and he should not have been required to make do with substitute crutches for another month. But having considered the matter with care, I do not find that there has been any treatment of the Appellant by the authorities which would warrant a reduction in such sentence as would otherwise have been appropriate.

THE MAGISTRATE'S SENTENCING REMARKS

15. Mr. Lavac contended that when the magistrate decided that he had to impose sentences of imprisonment of immediate effect, he temporarily forgot the Appellant's disability. That was a bold submission. After all, it

was the Appellant's disability which had prompted the magistrate on 25th March to suspend the sentences of imprisonment he was imposing, and the whole tenor of Mr. Lavac's mitigation on 8th April concentrated on the Appellant's handicap. Mr. Lavac's argument was solely based on how the magistrate began his sentencing remarks on 8th April. The transcript shows that he said:

"Defendant, will you stand..sorry..yes..defendant, will you just listen".

16. To suggest that these words show that the magistrate had temporarily forgotten the Appellant's inability to stand up is, in my opinion, an unjustified slur on the magistrate. When a magistrate or a judge has to sentence a defendant, it is usual for the defendant to be asked to stand. All that the magistrate had done was to forget that the form of words he usually used was inappropriate on this occasion. The fact that the magistrate had not ignored the Appellant's disability is shown by the magistrate's next sentence:

"I am sure the 15 months' deterrent sentence was not meant to apply to a handicap like you."

THE PROSECUTION OF THE APPELLANT

17. During Mr. Lavac's submissions, I thought that I detected an unspoken theme underlying much of the Appellant's case. That was that he could count himself unlucky to have been prosecuted. It is well known that the majority of illegal immigrants from China are not prosecuted. They are simply repatriated back to China. It is different, for example, if they have entered Hong Kong illegally before, or if they are charged with some other offence at the same time. It was only because the Appellant was charged with the offences of arson and assaulting a police officer that he was also prosecuted for unlawfully remaining in Hong Kong. It might be said that arson was a wholly inappropriate charge for causing the set of police forms to be set alight. And although people in the front line like police officers are entitled to the full protection of the law and that assaults on them can never be condoned, it might be said that the Appellant's reaction to his arrest was borne out of frustration rather than malice . In those circumstances, it is possible that Mr. Lavac was correct when he submitted that the two non-immigration offences, had they stood alone, might have attracted modest fines only.

18. I have some sympathy with this approach. The charge of arson was, I think, heavy-handed, but I do not think that it can be said that it was inappropriate for the Appellant to be charged with the offence of assaulting a police officer. In any event, the fact that he would simply have been repatriated to China but for his behaviour following his arrest is not a matter which the courts are entitled to take into account. As Cons A.C.J. said in R. v. Chan Wun Sang [1993] 1 HKCLR 46 at p.50:

"Once the legislature has decided that particular conduct shall be criminal it is the duty of the courts to enforce that law by passing appropriate sentences upon those who plead or are found guilty of that particular conduct. In so doing the courts will apply normal and well established principles of sentencing to the particular facts of which they are seized. There is no justification to depart from those principles merely because, in a particular field, the Attorney General, in whom the discretion to prosecute exclusively lies, has adopted a selective policy."

THE APPLICATION OF THE TARIFF

19. The standard sentence for an illegal immigrant from China for the offence of unlawfully remaining in Hong Kong is 15 months' imprisonment: R. v. So Man King [1989] 1 HKLR 142. That allows for "the almost inevitable plea of guilty", but the court added that "strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending whatever prison sentence is otherwise thought appropriate".

20. The considerations of a humanitarian nature which warranted a departure from the tariff in the case of the Appellant were strong. I would characterise them as very strong. It is not simply his appalling disability which evokes sympathy. It is also the circumstances of his life. There is no reason to doubt his claim that he was abandoned by his parents as a child, and that he has lived by begging ever since. His life has been utterly wretched. In my opinion, the magistrate's initial view - that this was a case in which common humanity called for the imposition of sentences which would never be served if the Appellant did not come to Hong Kong again - could not be faulted. It could not be regarded as inconsistent with the laudable desire for consistency in this difficult area of sentencing. This was a case in which the Appellant's plight justified a departure from the tariff sentence to the extent that the magistrate initially envisaged.

21. I do not overlook the timely reminder given by Stock J. in R. v. Chu Chee Kai (MA 752/96) that magistrates are entitled to know what the sentencing policy of the courts is, and that they are not assisted if on appeals the High Court buckles to personal circumstances which are not truly exceptional. However, in this case I agree with what was implicit in the magistrate's initial view of the case, namely that the Appellant's circumstances were so exceptional that he should not be required to spend any more time in prison.

22. So what was it which persuaded the magistrate on the review hearing to change his mind? I think that he was probably influenced by those cases, outside the field of immigration control, which deal with the sentencing of ill or disabled defendants. I do not have a copy of the Crown's skeleton submissions which were used in the Magistracy, and I therefore do not know the cases which were cited to the magistrate. I merely note that it was only last August that the Court of Appeal said in R. v. Ho Mei Lin (CA 217/96) that except in the rarest of cases, a prisoner's medical condition is not something which the court can regard as mitigation for an otherwise proper sentence. It is a matter for the Executive only. However, I do not believe that that applies to cases of the kind to which the guidelines in So Man King relate, because the court is expressly enjoined to take strong humanitarian considerations into account in an appropriate case. Those considerations must include the offender's medical condition. That would not be surprising. Since the guidelines in So Man King were laid down as a matter of policy to deter would-be illegal immigrants from China, it would be wrong not to disapply the tariff to those offenders whose personal circumstances, including their medical condition, are such that it would be unjust to apply the tariff to them.

CONCLUSION

23. For these reasons, this appeal against sentence must be allowed. Now that the Appellant has spent 10 weeks in custody (and would have been released in about 7 weeks' time but for the order I propose to make today), I do not think that it would be right simply to restore the suspended sentences which the magistrate imposed. The course which I propose to take is to reduce the sentence of 6 months' imprisonment on the second charge - that of arson - to one month's imprisonment, and to reduce the sentence of six months' imprisonment on the third charge - that of unlawfully remaining in Hong Kong - to a term of sufficient length which enables the Appellant to be released immediately. Since those terms are still to be served concurrently with each other, the effect is that he can be repatriated to China now.