HKSAR v. CHENG TAK LAM

CACC 118/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 118 OF 2006

(ON APPEAL FROM HCCC NO. 202 OF 1992)

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.  The applicant has applied for leave to appeal against sentence out of time.  He had pleaded guilty to two counts of trafficking in salts of esters of morphine.  The offences took place as long ago as 1992.  The quantity involved were 166.99 grammes and 11,195.39 grammes respectively.  He was sentenced to imprisonment for 6 years and 8 months for the first offence, and 16 years for the other.  Both to run concurrently.

2.  The sentence of 16 years was arrived at from a starting point of 27 years.  He was given a one-third discount for his plea, notwithstanding that he had absconded while on bail in 1992.

3.  He only returned to Hong Kong in 2004 after he had suffered a serious stroke on the Mainland.

4.  The judge gave the applicant a further discount of 2 years on compassionate grounds for his medical condition.

5.  According to the latest medical report dated 27 July 2006, the applicant’s condition had not deteriorated since his sentence.  This is what the letter of 27 July 2006 said:

“The above-named was remanded in Lai Chi Kok Reception Centre on 15.07.2004 and was transferred to Stanley Prison on 07.03.2005.  Upon admission, he gave a history of cerebral vascular accident with left hemiparesis since 2001. He was also a known case of hypertension and diabetes mellitus (DM).  Since admission into Stanley Prison, he was admitted into centre for convalescent.  Now, he is under constant care from visiting Medical Specialist and visiting Eye Specialist.  He is still under DM dietary control with 1500 calories per day.  His last consultation of visiting Medical Specialist and visiting Eye Specialist were on 23.05.2006 and 27.04.2006 respectively.

Through his stay in Stanley Prison, apart from minor ailments that were treated accordingly, his general health condition was found to be satisfactory.”

6.  Having regard to the quantity of drugs involved, we are of the view that the adoption by the judge of 27 years as a starting point was appropriate.  The judge had followed the tariffs and principles set down by this court in R v Lau Tak-ming and Ors [1990] 2 HKLR 370 and R v Cheng Yeung [1989] 2 HKLR 258, so the applicant’s submission that the starting point of 27 years was too high when compared with the sentencing guideline in 1992 is not correct.

7.  Furthermore, he was given a maximum one-third discount for his plea.  Having regard to the fact that he had absconded previously, and that his return to Hong Kong was more for the reason of his health than out of remorse, no further discount could possibly be justified.

8.  As for his submission that he had had a miserable time after absconding, that was nobody’s fault but his own.  Indeed, as Ms Sin for the Secretary for Justice correctly pointed out, it was within the applicant’s power to cut short his misery by returning to Hong Kong earlier.  As I have said, the judge has reduced his sentence by 2 years on compassionate grounds.  Ms Sin had referred us to the determination by the Appeal Committee of the Court of Final Appeal in Yip Kai-foon v HKSAR [2000] 3 HKCFAR 31:

“… ill health or injuries were not normally a ground for reducing sentence.  This applied whether or not the defendant’s physical condition resulted from injuries received in the course of criminal acts.  For crimes of gravity, medical grounds would seldom, if ever, be a basis for reducing the sentence.”

9.  For the above reasons, the sentence of 16 years cannot be regarded as being manifestly excessive.  Since the intended appeal has no merit, we will not grant leave to appeal against sentence out of time, and the application is dismissed.