HKSAR v. CHEROP CAROLINE

CACC 321/2018

[2020] HKCA 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 321 OF 2018

(ON APPEAL FROM HCCC 204 OF 2018)

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REASONS FOR JUDGMENT

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1.  The applicant pleaded guilty to a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 21 October 2017, at Hong Kong International Airport, the applicant unlawfully trafficked in 816 grammes of a solid containing 691 grammes of cocaine.

2.  Following her committal for sentence to the Court of First Instance, the applicant appeared before M Poon J (“the judge”) on 4 October 2018 and was sentenced to 14 years’ imprisonment.  On 6 November 2018, she applied for leave to appeal against her sentence out of time as on that day she was 5 days beyond the appeal period.

3.  At the hearing of the application on 9 June 2020 I granted her an extension of time in which to apply for leave to appeal.  At the hearing on 6 November 2020 I granted her leave to appeal her sentence.  I said I would hand down my reasons for doing so at a later time. This I now do.  

The background to the offence

4.  The Summary of Facts which the applicant admitted for the purpose of her sentencing revealed that on 21 October 2017, the applicant, a woman of Kenyan nationality, arrived at the Hong Kong International Airport on a flight from Addis Ababa, Ethiopia.  She was selected for customs clearance and as Customs officer suspected internal concealment she was sent to North Lantau Hospital for further examination.  Whilst she was waiting there, she admitted to Customs officers that there was something in her stomach which she knew was a drug and that she had swallowed 65 pellets in Addis Ababa. 

5.  Over 3 days, the applicant discharged a total of 64 pellets containing 691 grammes of cocaine. The estimated value of the cocaine at that time was HK$1,004,496.  She also had in her possession cash of US$2,570 and 678 Ethiopian birr (equivalent to around HK$190), and two mobile phones.  

6.  In a subsequent cautioned interview, the applicant stated that she was travelling to Addis Ababa from Kenya on 16 October 2017 on a promise of employment.  A few days after her arrival she was taken to a hotel and was told to swallow drug pellets and then was taken to the airport to board a flight to Hong Kong on 20 October 2017.  The US currency in her possession was given to her for the purpose of the trip.

The chambers hearing 

7.  Immediately prior to the commencement of the mitigation stage of the applicant’s sentencing hearing on 4 October 2018, the judge presided over a chambers hearing of the applicant’s case.  This chambers hearing was originally requested by the applicant’s counsel in order to advance matters in mitigation relating to information provided by the applicant that could not be ventilated in open court.  However, it is clear that prior to 4 October 2018 a misunderstanding developed between the defence counsel and the prosecutor over whether a Sivan hearing was necessary.  This misunderstanding arose because the prosecution was adopting the stance that the information provided by the applicant related only to matters outside of Hong Kong and, in any event, was assessed at that time to be of no practical value.  In order to clarify his position defence counsel wrote to the judge informing her that he still wished to have a Sivan hearing.

8.  Consequently, the chambers hearing was now taking place in order for the judge to determine whether a Sivan hearing was necessary.  That such a preliminary decision should also be made in a closed court is consistent with what the Court of Appeal said in HKSAR v Tse Ka Wah[1].  In all likelihood the judge expected that this preliminary hearing would be brief and that, given that which had passed in correspondence between the parties and the court, she was unlikely to be persuaded that a Sivan hearing was necessary.

9.  The chambers hearing took place in a courtroom in the absence of the applicant.  As is standard procedure, the judiciary’s DARTS recording system was turned off in order to preserve the confidentiality of the hearing. However, no alternative confidential recording was made of this hearing.  Nor does it appear that the judge made any notes of what transpired at this hearing. 

10.  In these circumstances the words of Stock JA, as Stock NPJ then was, in giving the judgment of the Court of Appeal in HKSAR v Chan Chi Sang[2] bear repeating:

“This is an appropriate point at which to say that it appears from the transcript that, before plea, the judge had seen counsel in chambers. The court file confirmed that that had happened. This court was therefore anxious to learn what might have been said in chambers which might impinge on the view we take of the discount given in this case. We understand that what was said was not recorded, either on tape or by shorthand. We have therefore caused inquiries to be made of the judge and, through counsel for the respondent on this appeal, from counsel who appeared at trial. Apparently, counsel for the prosecution and defence have no particular recollection of the subject matter, but the judge recalls that counsel for the defence merely used the opportunity to inform him that the applicant intended to plead guilty, and asked that the applicant be re-arraigned. There was then a discussion about the timetable for preparation of the summary of facts, and the mitigation.

We would like to stress that the circumstances in which it is appropriate for counsel to see the judge in chambers are rare, and that this circumstance was not one of them. Counsel could as easily have informed the judge in court, in the absence of the jury, what was proposed. Secondly, even in those rare circumstances in which there is an absolute need to see the judge in chambers about any aspect of the case, a record must always be kept of what transpires. That should be a taped record, failing which a record by a stenographer. Here there was neither. We are satisfied, however, from the information we have, that nothing was said that affects our view as to the correct discount which ought in this case to have been given.”

11.  Because I had no information on what transpired at this closed court hearing, I directed that the prosecutor and the defence counsel file with the court affirmations setting out their recollection of what took place at the chambers hearing.

The mitigation

12.  The applicant was of a clear record.  Her counsel, Mr Carl Yuen, informed the judge that the applicant was a 38 year old single mother who was lured by her financial difficulties in Kenya into committing this offence.  During her remand in Hong Kong, she had been spreading the gospel amongst inmates and had successfully helped 3 or 4 of them to quit smoking. 

13.  Mr Yuen further submitted that for the amount of cocaine involved, the starting point should be between 20 and 23 years, and this would then be subject to enhancement by 1 to 2 years for the international element.

14.  Before he ended his mitigation speech, Mr Yuen stated:

“My Lady, one last thing is that, as I submitted, our defendant is active in her church and in prison in spreading the word, and Father John [Wotherspoon] is here, who they met, and he is here to show support. That’s it for my submission in mitigation.”

15.  Other than this brief reference to Father Wotherspoon, Mr Yuen advanced no submission in respect of the applicant’s participation in Father Wotherspoon’s anti-drug campaign.  

The judge’s Reasons for Sentence

16.  Having considered the facts of the case, the background of the applicant and the mitigation advanced by her counsel, the judge adopted a starting point of 20 years’ imprisonment which she enhanced by 1 year for the presence of the international element.  The judge then awarded the applicant a full one-third discount for her guilty plea which resulted in a final sentence of 14 years’ imprisonment.

The grounds of appeal

17.  The applicant was unrepresented at the leave hearing.  In her Form XI she complained that the judge did not give her any discount for her participation in Father Wotherspoon’s campaign and for the information she had given to the Customs and Excise Department.  She also said that her sentence, when compared with the sentences in other cases, was too long.

The affirmation evidence

18.  In his affirmation Mr Yuen explained what took place on 4 October 2018 and, in doing so, referred to what he described as mitigation letters.  These were a letter from Father Wotherspoon, a letter from the applicant’s daughter and also a letter from her parents:

“The Hearing on 04.10.2018

27. On the morning of the 04.10.2018, I brought the originals of the mitigation letters from Ms Cherop, as many of them had only reached me after the filing deadline.

28. As the Court opened, her H.H. M Poon J asked to see the Prosecution and Defence lawyers in Chambers in the absence of Ms Cherop.

29. H.H. M Poon J asked me why the Defence insisted on an in-Chambers hearing, to which I replied in accordance with my instructions.

30. I also produced the mitigation letters to H.H. M Poon J in the course of this in-Chambers hearing.

31. H.H. M Poon J was most reluctant to accept my request that the Hearing should continue in Chambers, and also refused to accept that Father John’s letter amounted to any constructive assistance to the authorities. H.H. M Poon J further commented that the mitigation letters from Ms Cherop’s family were not submitted in time for the Mitigation file.

32. However, H.H. M Poon J was gracious enough to allow me to read the letters out in Court, to offer her a gist of each letter.

33. The Mitigation Hearing was then continued in Open Court, with Ms Cherop and Father John being allowed in.

34. I continued to mitigate and the proceedings were as recorded in the transcript, concluding with the sentencing of Ms Cherop.”

19.  The prosecutor, Mr Gary Leung, filed an affirmation to which he exhibited his official Note for File in respect of this prosecution.  In his Note for File, marked as exhibit “LYH-1” to his affirmation, he recorded what happened at the sentencing hearing as follows:

“6. Outside the court, Fr John Wotherspoon was there and D’s counsel indicated for the first time that mitigation on D’s participation in the campaign is contemplated. I was provided with a copy of Fr John Wotherspoon’s letter (dated 19.9.2018 which was not filed with the court).

7. I mentioned to D’s counsel that according to the recent decision of HKSAR v Kilima Abubakar Abbas CACC143/2016, the discount from that, if any, would be at most 3 months. D’s counsel responded as if he appreciated that situation.

8. In an ‘not open to public’ condition, the Judge came out and queried D’s counsel why a Sivan hearing is still required given the situation conveyed in prosecution’s letter. D’s counsel eventually conceded that a Sivan hearing is not necessary and the Judge could sentence in open court. D’s counsel never mentioned anything about D’s alleged participation in Fr Wotherspoon’s campaign. This part of exchange between counsel and the Judge appeared to be NOT recorded.

9. In open court, D’s counsel advanced mitigation and made reference to Fr Wotherspoon by saying that D met him due to church activity during incarceration and that Fr was in court to ‘show support’. D’s counsel never mentioned anything about NPS, giving assistance, providing information or D’s alleged participation in Fr Wotherspoon’s campaign. Fr Wotherspoon’s letter was NOT submitted to the court.

10. Noting that D’s counsel in fact in his mitigation made reference to Fr Wotherspoon’s presence in the court, it is apparent that he did not omit anything about Fr Wotherspoon and thus I considered it not our obligation to on our own initiative raise with the Judge the matter concerning Fr Wotherspoon’s letter. The course taken by D’s counsel could have been according to D’s instructions which could have changed unbeknown to the prosecution.”

20.  In his affirmation Mr Leung affirmed:

“11. Regarding the events before the sentence hearing was conducted in open court i.e. the proceedings transcribed at [AB/11 to 16], I adopt the account of events as recorded in paragraphs 6 to 8 of LYH-1. Regarding the events in the open court proceedings starting rom about 10:05 that day onwards, I adopt the account of events as recorded in paragraphs 9-11 of LYH-11.

12. With the benefit of the transcripts [AB/6 to 16], I wish to clarify / add that:

(1) In paragraph 6 of LYH-1, I stated that I was provided with a copy of Father Wotherspoon’s letter which was not filed with the court. It meant that the letter was neither included in the Agreed Paginated Plea and Sentence Bundle, nor provided to the court by other means prior to the hearing on 4 October 2018.

(2) The events as appeared on transcript at [AB/11 to 12] (with English translation at [AB/13 to 16]) were events prior to what was recorded in paragraph 8 of LYH-1.

(3) Paragraph 8 of LYH-1 refers to the events between about 09:52 and about 10:05 that day. The exchange between the Judge and counsel took place in the same court room. With reference to paragraph 8 of LYH-1, I believe the exchange was for the purpose of ascertaining whether an in-chambers hearing was really required. I do not recall any refusal from the Judge to read documents or letters. I also do not recall the Judge giving any indication that there may be adverse impact on the Applicant’s mitigation should certain documents or letters be submitted. If I had, I would have made a record of it.

(4); Paragraph 9 of LYH-1 refers to the proceedings as appeared on the transcripts at [AB/6 to 10].  After the Hearing, I marked on the copy of Father Wotherspoon’s letter ‘Note: D did not submit this ltr to court and did not advantage this mitigation’. Copy of the said letter is now shown and produced by me marked Exhibit ‘LYH-4’.  The word ‘ltr’ meant ‘letter’ while the word ‘advantage’ was a mistake for the word ‘advance’.”

Discussion

21.  As the applicant was only 5 days out of time in filing her Form XI, and as I did not consider this was a substantial delay, I granted her the extension of time she needed in which to file her application for leave to appeal.  

22.  The starting point adopted by the judge, namely 20 years’ imprisonment, and the 1 year enhancement for the international element are both in line with the applicable sentencing guidelines and I see no reasonably arguable ground of appeal in respect of them. 

23.  The applicant’s assistance to Customs and Excise Department consisted of a single non-prejudicial statement, which I have seen.  It deals only with persons, and their drug trafficking activities, outside of Hong Kong.  It does not contain sufficient identifying particulars for two of the three persons she has mentioned.  Mr Andy Lo for the respondent has filed with the court an affirmation from a Senior Inspector of the Customs and Excise Department which sets out how his Department shared the applicant’s information with relevant overseas law enforcement agencies and the feedback his Department received from them in respect of the utility of that information.  Unsurprisingly, the applicant’s information was assessed as being not useful. 

24.  The key concern of the applicant, is that no regard appeared to have been had to the assistance she provided to Father Wotherspoon’s campaign, notwithstanding that she had a letter of support from Father Wotherspoon in respect of her assistance.  It is apparent from the record that the only reference to Father Wotherspoon was at the end of the counsel’s mitigation address and what Mr Yuen said is quoted at [14] of this judgment.

25.  As the applicant’s counsel did not press the issue of a sentencing discount for the applicant’s participation in Father Wotherspoon’s campaign there was simply no basis for the judge to extend to her any further discount in addition to the one-third discount for her timely plea.

26.  The information contained in the affirmations that have been filed with the court raises two possible scenarios. 

27.  The first is as Mr Yuen asserts, namely that he referred to a non-confidential aspect of the applicant’s mitigation in the absence of the applicant and, as a consequence of what was said to him by the judge, exercised his professional judgment not to advance mitigation that was important to his client.

28.  The second scenario is that for reasons which are not apparent, Mr Yuen failed to advance mitigation in accordance with his instructions.  

29.  I must now examine the consequences of what occurred at the applicant’s sentencing.  On the first scenario the applicant was prejudiced by not being present at the chambers hearing and therefore being kept unaware of what took place in respect of Father Wotherspoon’s letter.  There are two matters of concern arising from this scenario.  The first matter of concern is that, if this is what happened, then it was quite wrong of defence counsel to make any reference to other non-confidential mitigating matters at this specially convened chambers hearing.  In doing so he effectively conducted an important part of the applicant’s sentencing hearing in the absence of the applicant and, unknown to him, without a record being made of what was said.  In Tse Ka Wah a similar situation took place and Stuart-Moore JA, as Stuart‑Moore VP then was, in giving the judgment of the Court of Appeal, said:

“However, the matter did not end there. When the hearing was resumed on 29 September 1997, the court sat in chambers to hear mitigation. The procedure in Sivan (above) is designed to enable the sensitive material, which it is intended should not be broadcast to the outside world, to be heard in private with a record kept by a court reporter of what has been said in case of an appeal. This procedure is not meant to cover other aspects of the mitigation which should always be dealt with in open court in the normal way. Nevertheless, the whole of the mitigation was heard in chambers and, having examined the transcript, it is apparent to us that much of the mitigation should have been expressed in open court.”[3]

30.  The second matter of concern is that there was a breach of her right to be present at her trial as encapsulated in Article 11(2)(d) of the Hong Kong Bill of Rights Ordinance, Cap 383.  This right was recently discussed by the Court of Final Appeal in HKSAR v Chow Ho Yin[4]. In giving the judgment of the court McLachlin NPJ said:

“14.  Article 11(2)(d), section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, provides that in the determination of any criminal charge against him, a person shall be entitled to be present at his trial:

‘Article 11 Right of persons charged with or convicted of criminal offence

… (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality—

… (d) to be tried in his presence …’

15.  This well-established right allows the accused to see and hear the case against him, confront his accusers, and give prompt and continuous instructions to his legal representatives. The presence of the accused may also place psychological pressure on witnesses to tell the truth, enhancing public confidence that justice has been done. See R v David Jeremy Taylor, Tina Kaisa Paivarinta-Taylor [2008] EWCA Crim 680 at [16]:

‘...The right to be present at court is vital. It is not only a right so that the defendant can participate by giving instructions and following the trial, but also so that he can see and hear the witnesses who are giving evidence against him. This is not only part of the process by which a defendant participates at trial, but is also a sanction by which the public can be confident that there are pressures on those witnesses who give adverse evidence against a defendant to tell the truth. To give an account of events in a witness statement or within the seclusion of a police station is one thing. It is quite another to have to stand up in public, face-to-face with a defendant, and repeat those assertions. …’

16.  The right to be present at one’s trial is part of the broader right of everyone charged with a criminal offence to a fair trial. It is not an absolute right. The trial judge has a discretion to allow the trial to proceed in the accused’s absence in appropriate circumstances. As Lord Bingham said in R v Jones (Anthony), [2003] 1 AC 1 (‘Jones’), at [6]:

‘... The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant … . In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial … . The existence of such a discretion is well established … . But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.’”

31.  Here, the breach of the applicant’s right was inadvertently committed by her own counsel in respect of a hearing, at which the applicant was absent, that he requested.  Without downplaying the importance of the Article 11(2)(d) right the breach here was very much a technical one which caused limited, but curable, prejudice to the applicant.  The prejudice was curable because the applicant was represented by counsel who could inform her of what took place at the hearing. Furthermore, nothing took place in respect of Father Wotherspoon’s letter that was not within the professional discretion of counsel.  The defence counsel received a judicial indication of the weight that the judge was, at that time, minded to give the letter, and it was then a matter for defence counsel to decide whether to press the matter at the open court sentencing hearing.  In the exercise of his professional judgment he decided not to do so.

32.  After having carefully considered the contents of Father Wotherspoon’s letter I am of the view that if what took place was as Mr Yuen affirmed, then it is not reasonably arguable that it was not open to the judge to form the view that she did of the mitigating value of that letter.  Nor is it reasonably arguable that the decision of the defence counsel not to press the matter in open court was incompetent.

33.  Consequently, I do not see that, on the first scenario, what took place before the open court sentencing hearing on 4 October 2018 would afford the applicant a reasonably arguable ground of appeal that she was deprived of a fair trial.

34.  On the second scenario, namely that Mr Yuen failed to advance mitigation in accordance with his instructions, the prejudice to the applicant is that she was denied a fair trial in that she was deprived of a mitigating matter being advanced on her behalf which, potentially, but only potentially, could have led to a sentencing benefit for her.

35.  I have given anxious consideration as to whether to grant the applicant leave to appeal.  I am of the view that, on the papers, it is reasonably arguable that the second scenario is what truly happened.  That being so I do not feel it is appropriate for me to receive oral evidence from Mr Yuen and Mr Leung at this stage.  Which of the two scenarios represents what truly happened is now a matter for the Court of Appeal to resolve.  However, there is one remaining concern that I have which I feel I should mention.  It is that on a strict arithmetic calculation, the initial starting point for the applicant would, in fact, have been 5 months longer than that adopted by the judge, so the applicant has already received from the judge a benefit greater than the maximum discount the Court of Appeal could allow for her participation in Father Wotherspoon’s campaign. 

36.  However, having concluded that it is reasonably arguable that, on the basis of scenario two, the applicant was deprived of a fair trial at her sentencing hearing I am of the view that it is for the applicant to decide, in consultation with her legal advisers, whether she wishes to pursue an appeal in these circumstances.

Disposition

37.  For these reasons I granted the applicant an extension of time in which to file her application for leave to appeal and granted her leave to appeal her sentence and an Appeal Aid Certificate so that she could have legal representation at the hearing of her appeal. 

[1] [1998] 1 HKLRD 925 at 926J-927H.

[2] CACC 512/2000, unreported, 12 July 2001.

[3] [1998] 1 HKLRD 925, 927H-J.

[4] [2019] HKCFA 52