HKSAR v. LEE SHU WING

CACC 223/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 223 OF 2002

(ON APPEAL FROM DCCC 1169 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 8 March 2001, the Applicant pleaded guilty in the District Court before Judge Day to four charges of trafficking in heroin. He was sentenced to a total of three years and three months' imprisonment. He now seeks leave out of time to appeal against the length of his sentence. This sadly arises from the diagnosis he has recently been given that he is terminally ill with cancer.

2. The Applicant, aged 41, has a long criminal record. The background which brought him before the District Court last year was that he was on bail for trafficking in dangerous drugs at the time of his arrest for the present offences. These were committed in aggravated circumstances because he was trafficking at a methadone centre for addicts trying to find a cure for their addition to heroin.

3. The facts of the present case are not, however, important so far as this application is concerned. It is accepted that the Applicant's sentence was not in any way open to criticism. It was, as Mr Francis Burkett has conceded, neither wrong in principle nor manifestly excessive. On the other hand, he submitted that we should, as an act of humanity, reduce the sentence to such length as to enable the Applicant to be released immediately.

4. In the normal way, the Applicant would be due for release in November 2003. This is because his present sentence was ordered to run consecutively to the sentence he was by then serving for the offence for which he had been on bail at the time of the commission of these offences.

Applicant's medical condition

5. In April 2002, the Applicant was found to be suffering from stomach cancer which, because of its advanced state, had become inoperable. Dr Peter So, a consultant in clinical oncology at Queen Elizabeth Hospital, in a letter dated 25 June 2002, expressed the opinion that the Applicant had between six months and a year to live. More recently, however, Dr Fu Yiu-tung, another consultant in the same department at Queen Elizabeth Hospital, estimated, in a letter dated 30 July 2002, that the Applicant's life expectancy was "about three to six months, probably even shorter if no effective surgical intervention is available to relieve (the) feeding problem".

The application

6. We at first approached the situation which had arisen in this case as having been one which was pre-eminently for the Executive to deal with (see, for example: R v Suen Shek and Ors [1988] 1 HKLR 524). However, following an adjournment, Mr Alex Lee, on behalf of the Respondent, was able, at our request, to produce further background information for us. Specifically, we had wanted to know why, considering that it was now accepted that the Applicant was dying, a recommendation had not been made to the Chief Executive for clemency.

7. The mechanism for such a reference is straightforward and is to be found in Rule 148(2) of the Prison Rules, Cap. 234A which provides that:

"The Medical Officer shall make his recommendations in writing to the Commissioner for transmission to the Chief Executive whenever he is of opinion that the life of any prisoner will be endangered by his continuance in prison, or that any sick prisoner will not survive his sentence, or is totally or permanently unfit for prison sentence."

8. Mr Lee informed us that it was first realised that the Applicant was dying in July. On 23 July 2002, the Correctional Services Department made a recommendation for the Applicant's early release. However, this was not forwarded, as would normally have occurred, to the Security Branch who, in turn, would pass it to the Department of Justice for a warrant to be prepared for onward transmission to the Chief Executive. This was because it was considered that the application for leave to appeal presently before us should be allowed to proceed first.

9. This might well have been an understandable course of action but for one fact. The decision to put the recommendation on hold was never communicated to the Applicant. As a result, something like 23 days have now been lost during which the recommendation to the Chief Executive could have been processed. We are informed, and we accept, that the usual process involved in such a recommendation where there is urgency takes a matter of about a fortnight. Accordingly, if the recommendation to the Chief Executive had been acted upon by the Chief Executive, as almost certainly we may perhaps take the liberty of assuming it would have been, the Applicant would at this stage already have regained his liberty to live his last days out in the company of his son with whom he is naturally much concerned to be reunited. Perhaps we should add that the Applicant is presently in Queen Elizabeth Hospital, although earlier in these proceedings he was able to be in court, albeit in a wheelchair. For all practical purposes, it may be that the Applicant will have to remain in hospital, but we are anxious, in the light of everything which has happened, to achieve a result which will give him unrestricted access to his son as quickly as possible.

Conclusion

10. In the wholly exceptional circumstances which have arisen, we propose to give leave and, treating the hearing as the appeal, we reduce the Applicant's sentence to one which will enable him to be released from his sentence of imprisonment immediately.

11. We would particularly like to express our gratitude to both counsel in this matter for the immense amount of help that they have been able to offer us.