CRIMINAL CASE NO. 19 OF 2012
In that regard, I have been assisted by Mr Marray in his provision of a report from Dr Tse Man-li who, amongst other qualifications, is an expert toxicologist. The report confirms that the drug, 6-monoacetylmorphine, in terms of pharmacological activity and potency, has the same characteristics as heroin. The report is directed to the Commissioner of Customs & Excise but Mr Khosa accepts it as accurate.
I sentence, therefore, on the basis that the defendant trafficked in a total of 1,380 grammes of heroin.
The facts of the case are these. The defendant, on the charged date of 26 July 2011, arrived at Hong Kong International Airport on a flight from Hanoi in Vietnam. She brought with her a suitcase and other luggage. As she proceeded through the ‘nothing-to-declare’ Customs channel, she approached the Customs officer to inquire about transport to Guangzhou and revealed she had come from Hanoi. She was then selected for a search and, eventually, the drugs were found inside the lining of the suitcase and in the heels of shoes found in the suitcase.
I take a starting point of sentence of 23 years’ imprisonment. That is enhanced by 2 years to reflect the international element of the offence. That is a final starting point of sentence of 25 years’ imprisonment.
The only mitigation of substance available to the defendant is her mental illness. The defendant suffers from bipolar affective disorder, a serious mental illness. She, I accept, has suffered from it for many years and indeed, that illness and its effects form part of her defence as to her knowledge of dangerous drugs being contained in the suitcase.
Dr W K Choi, who is a very experienced psychiatrist, gave evidence on the defendant’s behalf during her trial. He described the symptoms of the disorder as, inter alia, provoking poor judgment and decision-making on the part of the person afflicted and that that person may be more easily led and be more gullible than other members of the community, and be subject to an enhancement of risk-taking urges and be prone to suggestion.
That is a dangerous combination of symptoms so far as the commission of criminal offences is concerned. Dr Choi, in his report dated 6 September 2012, says this concerning the characteristics of bipolar affective disorder:
“...omission of drugs can increase the risk of causing relapse, which may significantly affect the process of decision-making. Because of their impulsivity, grandiosity, shortened attention span and distractibility, manic patients have a tendency to jump into conclusion without carefully processing the information available to them. This would also make them more susceptible to suggestions made by others.”
He had examined the defendant at Siu Lam Psychiatric Centre after she suffered an episode of the illness following her arrest for the present offence and had then assessed her to be suffering from a severe form of the illness in its manic phase. He thought she may well have been undergoing a minor episode of the manic form of the illness at the time of and previous to the offence.
I have no doubt that the defendant was suffering, at least to some degree, from the earlier stages of a relapse at the time of the offence. I am sure the jury accepted that to be so. They obviously concluded that she nevertheless was aware that drugs were concealed in the suitcase which she brought into Hong Kong.
The person suffering from such an illness is entitled to have that fact taken into account as mitigation when being sentenced for a criminal offence committed by them. That is so when that illness may have provoked, at least in part, their commission of that offence (see, for example, HKSAR v Chiu Peng, Richard (2001) 1 HKC 401 and The Queen v Wright [2001] 3 NZLR 22 at 26).
I must say that there is some logic in the argument that Mr Khosa advanced to me during mitigation, that a mental illness may have relevance to sentence in terms of both deterrence and culpability and, for that reason, may be considered as a matter going to the question of the appropriate starting point of sentence and the potential reduction of that starting point.
However, a defendant’s mental illness has, in this jurisdiction and in others, been taken account of normally as mitigation of sentence after a starting point has been decided upon, and that is the course I have adopted in this sentence. I might add that, in the circumstances of this case, either approach would arrive at the same result.
A difficulty in sentencing a mentally ill defendant is that many such illnesses will change in their degree of severity over time so that, at the time of their examination, the symptoms of the defendant may have become more pronounced or may have lessened. Bipolar affective disorder is such an illness.
The defendant’s illness in this case when Dr Choi, who, as I say, is a very experienced consultant psychiatrist at Siu Lam Psychiatric Centre, examined her at a time less than three days after the commission of the offence was described by him as being severe. At that time, she was in the high manic phase of the illness.
Dr Choi was shown the video recording of the defendant’s interview with Customs officers which took place two days earlier, that is on the day following her arrest. In his view, there were at that time symptoms displayed by the defendant which could have indicated she was suffering from a lower level of the manic phase as she attempted to progress through the ‘green’ Customs channel at the airport. That, in my view, is certainly demonstrated by her decision to approach the Customs Officer, PW1 in the trial, responsible for selecting arriving passengers for a luggage search.
Her behaviour at that time and subsequently during her video-recorded interview and her display of more florid symptoms on 29 July confirm, in my opinion, her evidence that she had not taken medication for her illness for some months prior to the events leading up to her arrest on 26 July. There is no doubt that the jury accepted that the defendant did suffer from this illness and I have no doubt she was significantly affected by it in the days leading up to 26 July and on that date.
The weight of mitigation - and I mean by that the level of discount a defendant suffering from a mental illness receives in sentence - is extremely fact-sensitive. I have taken into account the serious nature of the offence she has committed and the community’s interest in having such offences punished. I take into account also the circumstances of the offence and the degree to which the defendant’s illness may have affected her culpability for her offence.
That requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence. I have set those symptoms out earlier and, in my view, they, in combination, significantly reduce the defendant’s responsibility for her offence in the circumstances of this case.
I propose to allow the defendant a one-third reduction of sentence. That results in a sentence of 16 years 8 months’ imprisonment.
Please refer to CACC394/2012 for the relevant appeal(s) to the Court of Appeal.