R. v. CHENG WING TAI

IN THE COURT OF APPEAL

1993, No. 304
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted after trial of possession of a dangerous drug and sentenced to nine months' imprisonment. He now seeks leave to appeal against sentence on medical grounds.

2. Briefly, the facts were that on 25 July 1992 the applicant was intercepted by police officers inside Flat 7, 2nd Floor, Nos 57-75 Hau Tei Square, Cheuk Ming Building, Tsuen Wan. The officers conducted a search of the apartment and found two bags containing 24.39 grammes of a mixture containing 11.40 grammes of salts of esters of morphine. The applicant was then arrested.

3. In his Reasons for Sentence, the trial judge observed that, in an ordinary case, a sentence of two years' imprisonment would not be inappropriate. However, as the applicant was seriously ill, and his prognosis was poor, the judge was anxious to ensure that he should continue to receive medical treatment. He therefore passed the sentence he did on humanitarian grounds. In so doing, the judge also noted that the applicant had been referred to the Queen Elizabeth Hospital for treatment in July 1990, but had refused investigation and treatment. However, when his condition deteriorated he went back for radiation treatment. In the same year, i.e. in April 1991, he committed a drug offence.

4. Two grounds of appeal are advanced. The first is that the judge had failed to take sufficient account of mitigating factors or humanitarian grounds put forward on behalf of the applicant, namely: -

(a) that he was 54 years of age and suffering from nasopharyngeal cancer;

(b) that he had metastasised in March 1993, and metastatic cancer was and is an incurable disease;

(c) that he required follow-up medical treatment; and (d) with the appearance of distant metastasis, his prognosis was poor.

The second ground is that the applicant was deprived of the opportunity to attend follow-up treatment as recommended.

5. We have before us a medical certificate dated 30 July this year, which said he was suffering from nasopharyngeal carcinoma and carcinoma of the lungs and required regular follow-up radiotherapy in the Queen Elizabeth Hospital at monthly intervals. His general physical health was stated to remain satisfactory.

6. The applicant has been in custody since 23 April 1993 and in the normal course of events will be due for release in about two months' time. It seems to us that the main reason for the applicant's application for a reduction of sentence is that, though his life expectancy cannot be ascertained, this Court should, as an act of mercy, reduce the period of imprisonment so as to enable him to be released as soon as possible. We note that the Crown raises no objection to the medical grounds advanced on the applicant's behalf. Whilst in an ordinary case, the Court can safely leave it to the Executive to decide on the early release of a prisoner should it be necessary for health reasons. In this case, however, because the applicant has only about two more months to serve, we think that any further delay in considering his case would be most undesirable and that therefore we would be justified in reducing the sentence. We therefore allow the application, treat the hearing of the application as the hearing of the appeal and allow the appeal. As an act of mercy we reduce the sentence to enable him to be released immediately.