HKSAR v. TSANG YIK SANG

HCCC 225/2018

[2020] HKCFI 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 225 OF 2018

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REASONS FOR RULING ON
NEWTON HEARING AND SENTENCE

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INTRODUCTION

1.  The Accused, Tsang Yik Sang (hereafter “the Accused”) was committed for sentence before a Magistrate on 23 July 2018.  He was committed on the basis of a charge sheet alleging trafficking in dangerous drugs.[1] He came before this Court on 15 November 2018 before Deputy Judge Lee (as Lee J then was).  At that hearing, the Court was informed that there was a dispute over the weight of the methamphetamine hydrochloride and heroin hydrochloride, which are two of the dangerous drugs averred in the charge sheet upon which he was committed.  There was a subsequent hearing before Lee J on 24 June 2019, at which time a Newton[2] hearing was ordered.

2.  The basis for the dispute is that, whereas the charge sheet upon which the Accused was committed avers that the Accused unlawfully trafficked in 8.4 g of a crystalline solid containing 8.33 g of methamphetamine hydrochloride and 37.8 g of a mixture containing 31.1 g of heroin hydrochloride, these quantities are disputed.  The Accused says that the weights for the methamphetamine hydrochloride should be 6.8 g of a solid and in relation to the heroin hydrochloride the correct weight should be 25.68 g.  The basis for these assertions by the Accused comes from the witness statement dated 17 November 2017 of PC 18472, Mr Ho Man Chun, who acted as the Exhibits Officer in relation to the police activity which resulted in the seizure of the drugs from the Accused.  In brief, in that statement, the officer asserts that the weight of 6.8 g for the methamphetamine hydrochloride and the weight for the heroin hydrochloride of 25.68 g were the product of the weights (including packaging) measured when the Accused was taken before the Duty Officer at the Cheung Sha Wan Police Station shortly after his arrest.  

3.  The weights in the charge sheet to which the Accused pleaded guilty and the facts admitted by the Accused on his committal for sentence before Mr Cheng Lim Chi sitting as a Permanent Magistrate on 23 July 2018, are derived from the Government Chemist Certificate for the analysis of those drugs.  The weights of the other two dangerous drugs in the charge sheet in which the Accused admitted that he trafficked are not challenged.

4.  The Newton hearing was held to determine the correct weights for the methamphetamine hydrochloride and the heroin hydrochloride in which the Accused trafficked.  The narcotic content of these two drugs is the principal basis for sentence for trafficking in these kinds of drugs.  Plainly, if the gross weights are less than the narcotic in the drugs, the subject of dispute must inevitably be less and, accordingly, the sentence would be lower based on those weights.  The difference between the amounts averred in the charge sheet and that revealed in the statement of PC 18472 are, if true, sufficient to make a difference to the sentence of the Accused.  The case for the Accused is that he should be sentenced on the basis of the lower weights revealed in that statement.

5.  In order to fully understand the issues which arise and the basis for a proper determination of those issues requires an examination of the investigation, including the conduct of the Exhibits Officer and other officers at Cheung Sha Wan Police Station.  It also requires an examination of how the matter unfolded during the hearing before the Magistrate when the Accused was committed for sentence.

6.  In the course of the Newton hearing, PC 18472 and Station Sergeant Lee Chi Keung testified.  In addition, pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221, the Court read and received five witness statements of PC 18472 which were collectively designated P76, and three witness statements of Station Sergeant Lee designated as P77.  The statements of two other witnesses, Station Sergeant Chan Siu Man and Station Sergeant Leung Kwok Piu, were also read and received pursuant to section 65B.  Exhibit P80 is a document signed by counsel for both the prosecution and the Accused which describes the statements as “admitted”.  I have proceeded upon the assumption that the statements were tendered pursuant to section 65B and were intended to be read and received in accordance with the terms of that section.  There was also a set of Admitted Facts pursuant to section 65C of that Ordinance which is Exhibit 75. The principal effect of that set of Admitted Facts is to admit into evidence various documentary exhibits which are germane to the areas of enquiry undertaken in this hearing.

7.  The Accused did not testify in the Newton hearing.

POLICE INVESTIGATION

A warrant is executed

8.  On 14 November 2017, police officers executed a search warrant at 3^rd Floor, Sea Panorama Court, 561 – 563 Fuk Wa Street in Sham Shui Po.  At the time of entry pursuant to the search warrant, Tsang Yik Sang and another female were present in the premises.  The Accused was arrested in relation to the dangerous drugs found.  The female appears was also arrested.

9.  Inside one of the bedrooms, in a cabinet, the police found a bag which contained:

(1) 4 plastic bags containing a crystalline solid which contained methamphetamine hydrochloride;

(2) 3 plastic bags containing a mixture containing heroin hydrochloride;

(3) 3 foil packs containing a total of 30 tablets contained midazolam;

(4) 14 foil packs containing 136 tablets containing methadone;

(5) a quantity in 3 plastic bags of a substance which was not controlled;

(6) some empty transparent resealable plastic bags; and

(7) an electronic scale.

Next to the bag in the cabinet was a plastic bag containing cash amounting to $46,100.

10.  The Accused was arrested and following a caution asserted “The dangerous drugs are for my own consumption only.”

11.  The Accused submitted to a video recorded interview under caution and claimed that he was jobless and homeless and was surviving on payments under the CSSA scheme of $1600 per month.  He told police he was employed by a gentleman by the name of Ah Keung to deliver drugs,in exchange for which the Accused was provided with food and a place to stay. The arrangement was, according to the Accused, that the Accused was to go to the park near the junction of Fuk Wa Street and Cheung Wah Street in Sham Shui Po to identify potential drug buyers.  He was told by the potential buyers how much they wanted to buy and he would then go back to the address in which the drugs were found to obtain the relevant drugs and deliver the drugs to the buyers.  As to the payment for the drugs, the Accused asserted that the payment was not received by him but by Ah Keung.

12.  In this video, the Accused said that the empty plastic bags and the electronic scales found in the address at which the drugs were found was used for packaging the drugs following the receipt of the orders, to which reference has earlier been made.  The Accused also told police that he was a drug addict and needed to consume between 1.5 g and 2 g of heroin per day and took ice on the basis of 0.3 g per day. The Accused admitted that he had already completed one round of transaction with respect to the drugs on the date of his arrest.  He stated that this was the second time working for Ah Keung to deliver drugs.

13.  The Accused also asserted in the video recorded interview that the cash seized in the premises where the drugs were found was owned by the female in the premises.

VALUE OF DRUGS SEIZED

14.  The Summary of Facts provides an admission that the street value of the dangerous drugs seized in the premises was valued at $37,167. Although not stated in the Summary of Facts, I infer that the value agreed was upon the basis of the quantities of drugs asserted in the Summary. Even if the weights of the two principal drugs accords with the case for the Accused, the value of the drugs would be less than $37,167 but well in excess of $30,000.

EVENTS AT THE CHEUNG SHA WAN POLICE STATION

15.  Following his arrest, the Accused, his then co-Accused and the police party, including the Exhibits Officer, went to Cheung Sha Wan Police Station.  Standard police procedure requires an arrested person to be taken to the nearest police station so that a report of the arrest may be made.  The Accused was taken by the police party before the Duty Officer at Cheung Sha Wan Police Station.  That officer was Station Sergeant Lee Chi Keung. A report was made to Station Sergeant Lee.  In drugs cases such as the present one, a further standard police procedure is for the drugs which are seized to be weighed.  The language of Police General Order 32-04 (which was exhibited as P64) does not actually mandate the weighing of the drugs following the report but, rather, assumes that will be done.  In any event, the evidence is that the exhibits were seized at the premises of the Accused were in fact weighed between 00:28 hours and 00:33 hours on 15 November 2017.  Both police officers who testified say that the Accused and the co-Accused were present at the time the drugs were weighed.

16.  The fact and time of the weighing together with what were said to be the results of that were recorded in the notebook of the Exhibit Officer,PC 18472.  However, he did not do so immediately.  He testified that he believes that before entering the weights which subsequently found their way into his notebook, he noted them down on a scrap piece of paper.  That scrap of paper was never produced in evidence. In the course of his testimony, PC 18472 said that there may also have been other figures noted on that piece of paper.  Although this officer cannot be sure as to what actually happened, he attributes the difference between the gross weights of the heroin and ice in his notebook and those in the Government Chemist Certificate to errors in either copying what was entered on the piece of paper or copying the wrong figures otherwise entered on the piece of paper. He frankly admits that this explanation is truly in the nature of a guess.

17.  The weights PC 18472 recorded in his notebook were transferred to his witness statement made on 17 November 2017.  That witness statement forms part of exhibit P76.  The effect of the weights recorded in his notebook and subsequently in the witness statement is that in relation to the methamphetamine hydrochloride, the weight that PC 18472 recorded was 6.8 g.  (It is common ground that what was recorded was the weight including packaging of the substance containing the methamphetamine hydrochloride.  The weight did not determine the narcotic content.  That is a matter to be determined on analysis by the Government Chemist.)  There were a number of packets of suspected methamphetamine hydrochloride and the weight noted by the constable in his statement was in respect of one large packet and three smaller packets and the net weight is 6.8 g.  The net weight noted by the constable of the bags of heroin hydrochloride seized from the premises of the Accused recorded in the statement of the constable is 25.68 g.  There were other dangerous drugs seized.  The weights of those as recorded by the constable broadly accord with the weights in the Government Chemist Certificate and the difference between the two weights is readily explained by the fact that these drugs were weighed with their packaging.  In other words, the evidence was that only the heroin hydrochloride and methamphetamine hydrochloride weights as recorded by the constable in his witness statement as the weights determined at the police station do not accord with the gross weights of the drugs as recorded in the Government Chemist Certificate.

18.  PC 18472 testified that he believes that he noted down on a scrap piece of paper the weights as recorded on the electronic scales at Cheung Sha Wan Police Station.  After extensive and careful cross- examination, the overall result of his testimony is that this officer cannot account for the differences which have been identified.  He testified that at 4:08 am on 15 November 2017, that is about 3 ½ hours after the drugs were weighed by the officer in the presence of the Station Sergeant Lee and the Accused and the co-Accused, the drugs were sealed up in what are known as Tamper Evident Property Envelopes or, as they are commonly known, TEPE.  Those envelopes were signed by the constable, Station Sergeant Lee and the Accused and the co-Accused.  The TEPEs were sealed and, on the testimony of Station Sergeant Lee, kept in proper custody thereafter.

19.  Station Sergeant Lee was cross-examined on the effect of Police General Orders chapter 32-04, which mandates that before the TEPEs are sealed, the drugs should be weighed again.  In this case, they were not. Station Sergeant Lee said that he considered that it was unnecessary to weigh them as the Police General Orders mandates.

20.  On the uncontested testimony of the other officers who handled the drugs after Station Sergeant Lee put the TEPEs containing the drugs into proper custody is that the drugs were conveyed to the Government Chemist. (That testimony was by way of statements tendered under section 65B of the Criminal Procedure Ordinance.)  The results of the analysis appear in the Government Chemist Certificate, which is exhibit P 67.

21.  PC 18472 was cross examined extensively about his handling of the seized drug exhibits between the time of the weighing, which concluded at 00:33 hours and the time that the items were said by him to be sealed in the TEPEs.  There were suggestions he might have left the drugs unguarded while he attended the washroom and there were suggestions that other officers may have entered the room in which he and the drugs remained until the sealing process.  All of this was stoutly denied by that officer.  The Accused was not present during the course of that approximately 3 ½ hours between the end of the weighing process until he was brought into the presence of Station Sergeant Lee for the process of placing the drug exhibits in the TEPEs.  Accordingly, the sole basis of evidence as to the handling of the drugs in that interval of just over 3 ½ hours depends on the testimony of PC 18472.

22.  The Accused did not testify.

PROCEEDINGS BEFORE THE MAGISTRACY

Preliminary proceedings

23.  The Accused and the female in the premises, who had also been arrested, were taken before Mr So Wai Tak sitting as Permanent Magistrate at West Kowloon Magistrates’ Court on 16 November 2017.  They faced a joint charge of trafficking in a dangerous drug.  Neither the nature of the drug nor the weight of any particular drug was averred in the particulars of the charge presented to the Court on that date.  The Accused was remanded in custody and the female who was his co-Accused was granted bail.  (The charge against the female Accused was, in due course, discontinued.)  The matter was adjourned to various dates and then to 22 February 2018.  At that stage, an amended and substantially more particularised charge was preferred and the particulars of the charge as to weights and quantities reflect the analysis of the Government Chemist.

24.  On 22 February 2018, the Magistrate adjourned the matter.  A return day was appointed for 23 April 2018 and the matter was, accordingly, adjourned. Further return dates were reappointed and adjournments were granted, culminating in the proceedings being adjourned to 23 July 2018.

Committal for sentence

25.  On 23 July 2018, the matter came before Mr Cheng Lim Chi, sitting as a Permanent Magistrate.  On that day, the Accused was represented by Mr Samuel Yiu, Senior Legal Aid Counsel.  The prosecution was represented by Mr Lenny Cheng, Acting Senior Public Prosecutor.  At these proceedings, the record reveals that defence counsel indicated to the learned Magistrate that there would be a plea of guilty and they were ready to commit.

26.  The record of proceedings reveals that the charge and the elements of the offence were explained to the Accused.  The record then reveals that the charge was read to the Accused who pleaded guilty.  The charge alleges trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134.  The particulars of the charge are the date and place of the offence and, amongst other particulars, the weights of methamphetamine hydrochloride and heroin hydrochloride averred in the amended charge to which reference has already been made.  These quantities which reflect the Government Chemist Certificate.

27.  The record of the committal proceedings also reveals the treatment of the Statement of Facts.  The passage in the record following the entry of a plea of guilty by the Accused is as follows:

“ The prosecution submits a summary of the alleged facts upon which the charge is based to the Court; counsel for the Accused and the Accused himself confirm it has been read to him in full and understood; it is read in full to the Accused in court and is understood by him.

The Accused makes the following statement: I admit the facts.

Court: Is your plea made voluntarily?

Accused: Yes.

The plea of guilty is made voluntarily and with a proper understanding of the nature of the charge.  The facts supporting the plea is admitted.”

The order of the Court was that the Accused was committed to the Court of First Instance for sentence.

28.  One of the consequences of the Accused not giving evidence in the Newton proceedings is that the Court does not have any evidence to contradict the record of the committal proceedings.

PROCEDURAL ISSUES

Plea of guilty

29.  The analysis of this case must start with the plea of guilty before the Magistrate.  How that occurs is governed by Part III of the Magistrates Ordinance, Cap 227. A return day was appointed in accordance with the Ordinance.  Section 80C of the Magistrates Ordinance provides that where an accused was brought before a Magistrate on the return day if the prosecutor seeks his committal and the Accused does not elect for a preliminary enquiry then the presiding Magistrate is required to inform the Accused, amongst other things, that he may plead guilty to the charge and such a plea will result in his being committed for sentence on that charge.  In the event that the Accused indicates a plea of guilty, section 80C(4) requires the Magistrate to make an enquiry as to whether the Accused desires to plead guilty and if he indicates that is his desire, then section 81B of the Ordinance shall apply.

30.  Under section 81B, the Accused is required to be told that if he desires to plead guilty, he will be committed to the Court of First Instance for sentence.  However, before the Accused pleads guilty, the Magistrate is required to outline to the Accused to the satisfaction of the Magistrate the alleged facts upon which the charge is based; explain to the Accused the offence with which he is charged and the ingredients which in law constitute the offence; and record any statement made by the Accused in pleading guilty to the charge and that the offence and the ingredients which at law constitute the offence were explained to the Accused and if the Magistrate is satisfied that the plea is made voluntarily with an understanding of the nature of the charge, he shall commit the Accused for sentence.

31.  It is, perhaps, significant that section 80C(3) of the Ordinance provides that no objection shall be taken to any information or complaint to which the Accused has pleaded guilty, and the Accused shall not afterwards be allowed to withdraw his plea except with the leave of a Judge of the Court of First Instance.  If this procedure is observed, then the Accused is required to be brought as soon as practicable before the Court of First Instance for sentence and any Judge of that Court has the same powers of sentencing or otherwise dealing with the Accused and finally disposing of the charge and of all incidental matters that he would have had the Accused on arraignment at any criminal sittings of the Court of First Instance that pleaded guilty to the charge on an indictment duly presented: see section 80C(5).

32.  In the context of a committal for sentence hearing before a Magistrate, Part III of the Magistrates Ordinance requires the facts to be read and explained: section 81B. Neither that section nor anywhere in Part III is there any explicit provision as to the status of the Summary of Facts admitted by a person who pleads guilty and is committed for sentence to the Court of First Instance. This is of significance because the facts admitted are inconsistent with the stance now taken by the Accused.  I will return to this in a short while.

Effect of a plea of guilty

33.  When an Accused person pleads guilty to an offence, he is taken to have admitted the essential elements of the offence: R v Riley [1896] 1 QB 309; R v O’Neill [1979] 2 NSWLR 582, 588; R v Meissner (1995) 184 CLR 132, 80 A Crim R 308.  A plea of guilty is not an admission of any matter of aggravation outside the elements of the offence.  A plea of guilty does not involve an admission of all the facts alleged by the prosecution but only the essential elements of the offence: R v Maitland [1963] SASR 332, 334.  Matters of aggravation of the offence as pleaded in the indictment must be proved if not admitted.  The elements of the offence are defined by the statute or, in the case of Meissner, the common law which defines the elements of the offence.  The essential elements of the offence created by section 4 of the Ordinance undoubtedly include the act of trafficking, the state of mind of the accused and that the act of trafficking was in a dangerous drug.  The elements of the offence do not include the specific nature of the drug, the subject of the charge (other than that it is a dangerous drug within the meaning of the Ordinance), and the quantity of that drug and this would have to be proved by evidence or admission.

Admission of matters of aggravation

34.  The relevant matters of aggravation were admitted at the committal proceedings.  The record of proceedings on the hearing which culminated in the committal of the Accused for sentence reveals that the Accused explicitly admitted the Summary of Facts.  Indeed, aspects of that Summary of Facts are the focus of the issues to be determined before this Court.  The record of the committal proceedings reveals that the summary was read in open court to the Accused.  The record reveals that the Accused admitted the facts.

35.  There could be no argument that the facts admitted by the Accused before the learned Magistrate include not only the elements of the offence but the relevant acts of aggravation including the nature of the drug and the quantity of not only (where relevant) the mixture but also the narcotic content.  There is no basis whatever to impugn the record of the learned Magistrate.  In any event, the DARTS recording system of the committal proceedings confirms the position.

Status of admissions made in the committal proceedings

36.  Given that there is nothing in Part III of the Magistrates Ordinance as to the status of the facts admitted before the Magistrate, it is necessary to examine the issue of whether or not the Accused is bound by those admissions.  If the Accused is somehow bound, the issue arises as to the principles which might permit the Accused to resile from some or all of the admissions.  The options appear to me to be:

     (1)     the admission is made under section 65C of the Criminal Procedure Ordinance, Cap 221;

     (2)     an admission against interest; and

     (3)     no status of any kind.

Section 65C of the Criminal Procedure Ordinance

37.  Section 65C of the Criminal Procedure Ordinance provides a means by which admissions may be made both in court and outside court.  Such an admission is conclusive evidence in those proceedings of the fact admitted: section 65C(1). Section 65C(1) provides:

“ Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.”

The weights referred to in the Summary of Facts were evidence of which oral evidence could be given.  The proceedings before a Magistrate were criminal proceedings.  A possible problem is that committal for sentence proceedings are criminal proceedings but do not really contemplate the giving of evidence and thus, it might be argued the facts admitted are not those of which oral evidence may be given.  However, it does speak of “given in any proceedings”.  Even if it is objected that the proceedings before the Court of First Instance are not “those proceedings” within the meaning of section 65C(1), there could be no doubt that these are subsequent proceedings within the meaning of section 65C(3).

38.  The mode of making an admission is governed by section 65C(2) and is as follows:

“ (2) An admission under this section—

(a) may be made before or during the proceedings;

(b) if made otherwise than in court, shall be in writing;

(c) if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;

(d) if made on behalf of a defendant who is an individual,shall be made by his counsel or solicitor;

(e) if made at any stage before the trial by a defendant who is an individual, must be approved by his counsel or solicitor (whether at the time it was made or subsequently) before or during the proceedings in question;

(f) may be made in either official language.”

39.  If this is a section 65C admission, the admission was made before the Magistrate and therefore does not need to be in writing.  There is a record of the proceedings and there is no dispute that what was read to the Accused and orally admitted by him was the Summary of Facts which appear in the record.  Only an admission made outside the court must be in writing.  There is no requirement for a written or oral declaration that the admission is made pursuant to section 65C.  That might be desirable but it forms no part of the conditions which must be complied with in order for the agreement to be conclusive evidence.

40.  A possible objection may be that the admission in Court was not “made” by “his counsel or solicitor”: section 65C(2)(d). The construction of section 65C(2)(d) was considered in Lam Man Woo v R [1974] HKLR 331, where the issue was raised on an appeal against conviction before a Magistrate.  Huggins J not only rejected the proposition that an unrepresented accused who was an individual could not make an admission as a result of the provisions of section 65C(2)(d), but also that in cases where the Accused was represented it was not a precondition for the reception of the admission that it be made on behalf of the Accused by a solicitor or his counsel.

41.  If section 65C does govern the admissions made before the Magistrate, they are binding unless withdrawn with the leave of the Court under section 65C(4).  In the course of submissions of counsel for the Accused, Mr Joseph Lee, Barrister at Law, accepted the correctness of this position.  On that assumption, the issue of whether the Accused should be sentenced upon the basis of the drug weights for the methamphetamine hydrochloride or the heroin hydrochloride appearing in the Summary of Facts or the lesser quantities referred to in the initial statement of the Exhibits Officer should be resolved by reference as to whether or not it is appropriate to grant leave to withdraw the admission.  Accordingly, the issue of principle is the factors which inform the grant of leave to withdraw an admission made under the section.  

42.  Unsurprisingly, there are no authorities which articulate principles which inform the discretion to permit withdrawal of an admission in the circumstances.

43.  On the premise that section 65C governs the position, Counsel for the Accused, submitted that the test must be the interests of justice.  In accepting that proposition, the concept of the interests of justice in the context of permitting a party to withdraw an admission made under section 65C, it is not, in my judgement, an open-textured concept of the interests of justice. When an admission is made it must be taken to be made deliberately and consciously with an appreciation of precisely what was admitted and the implications of that.  Plainly, an important motivation for making an admission under section 65C is the saving of time and costs.  There are, in many cases, advantages for both the prosecution and the defence because cases proceed on the basis that a fact admitted is then settled and the matter is not therefore to be revisited.  There is the tactical advantage in cases which go to trial in showing to the Court that the parties (including and, perhaps particularly including the Accused) are not there to waste time but to get on with the real issues of the case.  Little things like that really do matter in the context of a trial.  Once a fact is admitted under this section it may mean that witnesses can be sent away or, sometimes, never sent for and one party or the other may (and in many cases will) adjust the conduct of the case accordingly.  Counsel for the prosecution, Ms Grace Chan, suggested that the correct approach to dealing with the facts admitted before the Magistrate is to treat them in accordance with the principles which govern withdrawal of a plea of guilty.

44.  Of course, in the context of sentencing, many if not all of these advantages, albeit modified to suit the context are relevant.

45.  It is also relevant that an admission was made in the context of a party being represented by counsel.

46.  Nevertheless, if despite the unequivocal admission of facts before the Magistrate, the Court considered that it was clearly established that the Accused ought to be sentenced on facts, the basis of which was lesser weights of two of the dangerous drugs, then permission should be granted to withdraw the admission.  The exercise of such a discretion is very fact- specific.

47.  Counsel for the prosecution submits that the approach of the Court should be informed by the principles which govern the grant of permission by a Court to withdraw a plea of guilty.  The starting point for this analysis is that there is no suggestion in this case that the plea of guilty is to be withdrawn.  What the Accused seeks to withdraw is the admissions of certain quantities of dangerous drugs.

48.  The principles governing withdrawal of a plea of guilty have been extensively reviewed by the Court of Final Appeal in HKSAR v Shum Wan Foon (2014) 17 HKCFAR 303 and HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588.  The starting point for analysis is that both the plea of guilty and the admission of facts in this case was unequivocal.  In HKSAR v Chan Chi Ho Lincoln, Cheung PJ, giving the judgment of the Court of Final Appeal, observed that the discretion to allow the reversal of an unequivocal plea is an unfettered one.[3]  This was said in the context of dealing with the withdrawal of a plea of guilty after conviction but before sentence.  However, as Cheung PJ observed, “A plea of guilty is, as it should be so regarded by all defendants, a serious plea.  It must not be lightly made without full consideration.  The policy of certainty and finality dictates against allowing a reversal of an unequivocal plea without good reason.”  In this regard, he cited the observations of McCowan LJ in R v Croydon Youth Court [1997] 2 Cr App R 411, where it was held that the interests of justice also include the interests of the Courts and the public that people who have pleaded guilty with the advice of counsel should continue to be regarded as guilty and that there should be certainty and an end to litigation.  Cheung PJ referred also to the observations of Lord Phillips CJ (as Lord Phillips NPJ then was) in Revitt v Director of Public Prosecutions [2006] EWHC 2266 (Admin), [2006] 1 WLR 3172, [2007] 1 Cr App R 19, where he observed that the oft-cited notion that the discretion should only be exercised in clear cases and very sparingly, was not as helpful as the statement of principle that it is the duty of a Court to clear the innocent and this duty is of greater importance than the duty to convict and punish the guilty.

49.  Cheung PJ concluded his review of the principles which informed such a discretion when he said that the overriding consideration in the exercise of the discretion must be the interests of justice.  In the case under consideration in HKSAR v Chan Chi Ho Lincoln, there was material available to the Courts which suggested that the Accused in that case might not be guilty and as Cheung PJ observed, that would weigh heavily in favour of allowing a reversal plea.

50.  The analogy between what might inform the permission to allow the Court to permit a withdrawal of an unequivocal plea and which might inform the Newton hearing in the present case and to consider whether or not to sentence on lesser facts despite the unequivocal admission of more serious facts is, therefore, based on a discretion informed by the interests of justice.

51.  For my part, on the assumption that the admission before the Magistrate was governed by section 65C of the Criminal Procedure Ordinance, I see no practical difference between the factors which might inform the discretion to permit a withdrawal of Admitted Facts pursuant to section 65C(4) and the principles which inform the discretion to permit a withdrawal of an unequivocal guilty plea.  Indeed, making appropriate adjustments for circumstances, it seems to me that the best approach to deal with this as an application to withdraw facts unequivocally admitted pursuant to section 65C(4) and approach it upon the basis that discretion is broadly equivalent to that which operates in cases where it is sought to withdraw an unequivocal plea of guilty.  However, even if the provisions of section 65C do not apply, the interests of justice compel a reconsideration of the facts and circumstances of the weighing of two of the drug is the subject of these proceedings.

52.  Accordingly, it is necessary to examine the facts and circumstances of the present case.

The admissions are an admission against interest

53.  Another view of the status of the admissions before the Magistrate is that they are simply a species of admissions against interest and are evidence against the Accused in the same way that a voluntary statement made to a person such as a police officer, would be such an admission.  It is trite to say that an admission against interest does not have to be made to a policeman or other law enforcement officer to have an evidentiary impact.  There could be no issue of admissibility in the present case because the admission was made before a Magistrate.  The nature of the admission and circumstances in which was made support the conclusion that unless there were clear countervailing circumstances, it would be readily open to a Court to assume that the content of admissions are true.  In the present case, the admissions were solemnly made with counsel for the person making the admission being present and the admissions were taken before a Magistrate.

54.  Where an admission against interest is received by the Court, the issue is, of course, whether that admission is true.  The determination of that issue in the present case requires an evaluation of the evidence to contradict the strong prima facie position.

Conclusion on status of admissions

55.  I do not think that I can confidently state a definitive view. I suspect the most likely position is that this is an admission under section 65C of the Criminal Procedure Ordinance. However, I see little practical substantive difference between the circumstances which would compel the grant of leave to withdraw the relevant admissions under that section and the circumstances which would compel admissions made in the circumstances that these were made in consider whether those admissions were true.  Whichever is the true basis for the admissions made before the Magistrate, as will shortly appear, I believe there are good grounds which would compel a more favourable view of the facts to be taken and that the interests of justice clearly mandate that conclusion.

EVALUATION OF TESTIMONY

56.  The effect of the testimony of the Exhibits Officer is that he did in fact record the weights in his witness statement and notebook which were substantially lower than the gross weights revealed in the Government Chemist Certificate.  The officer tried valiantly to explain how this happened but the suggestions that he made as to how it might have happened were,in essence, guesswork on his part.  For my part, I thought that this officer was transparently honest in his testimony.  Although somewhat laconic in presentation, he gave me the impression of being a person who was trying to understand and explain what he believed to be a clerical error on his part.  I must also say that I believe him and Station Sergeant Lee when they say that the drugs were sealed in the TEPEs when those two officers say they were sealed.  I also believe the Exhibits Officer when he testified that he guarded the drugs between the time of the weighing and the time of the sealing process in the TEPE envelopes.  The bottom line of his testimony is that he cannot account the differences between the gross weights that he recorded in his notebook in his statement and the gross weights recorded in the Government Chemist Certificate.

57.  I am also sure that once the drugs were sealed in the TEPEs they were handled appropriately and that no tampering or interference with those exhibits occurred from the moment they were sealed until the Government Chemist examined the contents in the ordinary way. By section 25 of the Evidence Ordinance, Cap 8 the results of the examination by the Government Chemist are presumed to be accurate.  This is in any event covered by admissions and it was common ground at the hearing before me.

58.  The Accused did not give evidence.  He was entitled to do so and the fact that he has not given evidence proves nothing one way or another. However, consistent and approximately analogous with Specimen Direction 44, the absence of testimony from the Accused does nothing to contradict or explain the testimony of other witnesses (including those who gave evidence via a statement tendered under section 65B of the Criminal Procedure Ordinance) and other materials placed before the Court.  In particular, and pertinently for this case, the statement of the Exhibits Officer on 17 November 2017 was a statement which was included in the bundle of statements which the Accused and his lawyers had prior to the committal for sentence proceedings.  In that sense, both he and his lawyers had notice of that statement and the facts contained in it which contradicted the unequivocal admission that he made.  There was no evidence from the Accused as to how it was that he came to make the admission that he made.  I suspect that he probably could not have added a great deal to the events which occurred at Cheung Sha Wan Police Station.

59.  In my view, it is highly improbable that anyone at Cheung Sha Wan Police Station in the early hours of 15 November 2017 added material to the methamphetamine hydrochloride or the heroin hydrochloride so as to increase the gross weights to approximate those found by the Government Chemist.  I cannot say that it is impossible but the relationship between improbability and impossibility is, in my judgement, a very, very close one in this case.  I am sure that the most likely explanation is a clerical error or something akin to a clerical error on the part of the Exhibits Officer.

CONCLUSION ON THE NEWTON HEARING

60.  I cannot avoid the fact that the Accused acted deliberately and with legal advice, when he made his unequivocal admission of the truth of the Summary of Facts during the committal hearing before the Magistrate.  There is a respectable view that admissions of fact before a Magistrate in committal proceedings cannot be allowed be treated as merely a first draft of the facts upon which a person is to be sentenced.  Nevertheless, adapting to the circumstances the approach articulated by Cheung PJ in HKSAR v Chan Chi Ho Lincoln (above), the critical deciding factor as to whether to sentence on facts which are more favourable to the accused than those which appear in the admissions made before the Magistrate is the interests of justice and those interests must include dealing with circumstances where there is a substantial issue as to the facts upon which a person is sentenced.  Although there is a discretion in the settled sentencing approaches of the Courts of Hong Kong in relation to trafficking in various forms of dangerous drugs, there is a very, very close relationship between narcotic content and the level of sentence to be imposed.  Thus, where there is a substantial issue concerning the quantity of dangerous drugs which are the subject or subjects of an indictment where an Accused is committed for sentence then the interests of justice demand an evaluation of that issue.  Consistent with the adoption by Cheung PJ of the approach adopted by Lord Phillips NPJ, when speaking of the dangers of, in effect, insisting on a plea of guilty being maintained where there are proper bases for concluding that there is material which points to a person who has unequivocally pleaded guilty being actually not guilty, there is an equivalent danger in insisting on a higher quantity of narcotic content where there is a real basis for believing that the level might be significantly lower.  Lord Phillips NPJ makes the point to clear the innocent being greater than the duty to convict guilty and that moral equivalence in the context of sentencing is, in my judgement, self-evident.  

61.  I also cannot avoid the fact that although I found the police officers to be honest, there was a real element of incompetence in basic police procedure about recording the weights of drugs when the Accused is presented to the Duty Officer following an arrest.  It has long been my experience that many police procedures are mind-numbing in their nature but on some occasions (and this is one of them), one sees the reason for them in cases where the procedures are not observed.  I do not propose to speculate about what went wrong.  Nevertheless, it is abundantly clear that something did.  Perhaps the most disturbing feature of what went wrong is the fact that two of the weights noted by the Exhibits Officer were correct and two were not.  One of the theories propounded by that officer in the course of his testimony was that the weights copied into his notebook and thus into his witness statement were from another case and he has simply mixed up either one piece of paper for another or that the weights recorded of this case were actually entered on the same piece of paper are the results for another case.  As I say, I think that this officer was palpably honest and part of the reason I think this is true is that he desperately (and I think, sincerely) tried to reconstruct what happened.  However, the theory that this was the results from another case requires to accept that in another case there was the same combination of drugs and that in another case the exact weight of those drugs was correct for two of the kinds of drugs seized and those were exactly the same as the present case.  There are unanswered questions and although I deeply suspect that drugs seized by the police at the premises of the Accused are properly and truly reflected in the Government Chemist Certificate, I simply cannot rule out the possibility that something has gone wrong here and, accordingly, I am driven to the conclusion that the Accused must be sentenced on the lower weights.  The fact that there are unanswered questions is not very satisfactory.

62.  Accordingly, all I have from the figures recorded in the notebook of the Exhibit Officer are the gross weights.  What I propose to do is use the proportions between the gross weight and the narcotic content in the Government Chemist Certificate for the methamphetamine hydrochloride and the heroin hydrochloride and apply those to the gross weights in the statement of the Exhibit Officer’s statement.  That ratio provides a basis for determining the narcotic content upon which to sentence the Accused.  This is imperfect but it is a pragmatism which carries the support of counsel for the Accused.  It follows that I grant leave to withdraw the Admitted Facts under section 65C of the Criminal Procedure Ordinance to the extent of removing the reference to the mixture and narcotic content in relation to the methamphetamine hydrochloride and the heroin hydrochloride and substitute a reference to a solid weighing 6.8 g containing 6.73 g of methamphetamine hydrochloride and, in relation to the heroin hydrochloride, 25.68 g of a mixture containing 21.1 g of heroin hydrochloride.

63.  All other aspects of the Statement of Facts will remain the same. Accordingly, the Accused will be sentenced upon the basis, so far as the drugs seized in his premises are concerned as follows:

(1) a solid weighing 6.8 g containing 6.73 g of methamphetamine hydrochloride;

(2) a mixture weighing 25.68 g containing 21.1 g of heroin hydrochloride;

(3) 3 foil packs containing a total of 30 tablets containing 0.45 g of midazolam;

(4) 14 foil packs containing a total of 136 tablets containing 0.57 g of methadone.

SENTENCING PRINCIPLES

Trafficking in dangerous drugs

64.  The Accused was trafficking in four different drugs.  For manyyears, the community of Hong Kong taken a severe view of drug trafficking — particularly in relation to drugs such as the four forms of dangerous drugs found in this case.  It is easy to see why.  Heroin and ice have terrible consequences for the individual.  They are both addictive.  Ice, in particular,is savagely addictive.  Midazolam is also a highly dangerous drug, the ingestion of which poses a serious risk of health and other consequences for the user.  Methadone is treated as a substitute for heroin and is a synthetic opioid but which has a slower-acting nature when compared to that of heroin. It is an addictive substance.  Ridding oneself of an addiction, particularly to either heroin or ice is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ice and heroin are fraught with instances of disappointment.  However, there are also serious consequences for the community.  One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs.  There are consequences—sometimes serious ones — for the families of those who become addicted to heroin or ice.

65.  The view of the community is reflected in the maximum sentence provided by section 4 of the Ordinance.  That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million.  The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking.  The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence.  To this end, the Courts have provided sentencing guidelines for various forms of dangerous drugs including the drugs the subject of the charge in this case.

66.  In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  The guideline suggested for the quantities involved in the present case in relation to ‘Ice’ for up to 10 g would attract a sentence in the range of 3 to 7 years’ imprisonment ([2014] 3 HKLRD 691, para 34).  The range in question is upon the basis of a conviction after trial.  That is the basis upon which the starting point sentence is calculated.

67.  The source of guidelines in relation to the trafficking of heroin starts with the decision of the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370.  The correctness of guidelines in relation to heroin was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

68.  The applicable sentencing guidelines provide for a sentence for quantities between 10 g and 50 g of heroin attract a sentence if an Accused had been convicted after trial of between 5 and 8 years’ imprisonment.

Sentencing where there is more than one drug involved

69.  A further dimension to the sentencing exercise which is required in the present case is to consider the issue arising from the fact that here there is a collection of different dangerous drugs to which the Accused has pleaded guilty.  The authorities identify different approaches.  The approaches identified in the authorities recognise that an approach where a sentence for each component of the collection of drugs in which the accused was trafficking might, if they were simply added together produce a result which was unjust.  This is, in the final result, a reflection of the basic principle that sentence is an art not a mathematical exercise and the art of sentencing is devoted to producing a just result given the circumstances of the defendant.  A just result in this context is against the background that the imperative which arises from the community and, thus the courts taking a very strong view in relation to the trafficking of dangerous drugs.  The different approaches were articulated in HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Ko Ka Hing [2009] 4 HKLRD 856; HKSAR v Wong Kin Kau [2010] 4 HKC 443 and HKSAR v Chan Yuk Leong CACC 318/2013.

70.  The concern to avoid absurdity and to do justice in the circumstances of the case was underlined by the decision of HKSAR v Chan Yuk Leong (above).

71.  In HKSAR v Wong Kin Kau (above), the Court of Appeal indicated that whichever approach is adopted, the paramount consideration was the totality of the overall starting point.  In that regard, in that case Tang VP (as he then was) indicated that often the combined approach was more likely to lead to that result.[4]  That approach, so it seems to me is the appropriate approach in the instant case.

72.  Step one requires the determination of the relevant starting points for each drug.  Starting point is fixed by what would be the appropriate sentence had the case gone to trial.  On the basis of the sentencing bands that have already been identified, the appropriate starting points in pure mathematical terms are as follows:

(1) ice: 6.73 g: starting point 5 years and 8 months

(2) heroin: 21.1 g: starting point 5 years and 10 months

Individual approach

73.  To sentence the Accused on the basis of treating each drug separately and adding up the sentence for each drug would produce a sentence in the vicinity of 11 ½ years. That would be a totality which does not properly reflect the justice of the case.

Absurdity test

74.  It is appropriate to test the position against the consequence of ice being the most serious and applying the absurdity test.  If all of the drugs seized were ice which produces a combined weight of 27.83 g, the mathematical starting point would be of the order of 98 months.  If heroin, it would be 76 months.

Conversion test

75.  On the premise that heroin is to be regarded as the most serious drug, then be taken as the base for sentence.  On that premise, the calculation is as follows:

(1) ice to heroin

Ratio test

76.  The ratio test appears to produce a result of about 91 months or 7 years and 7 months’ imprisonment. 

Combined approach

77.  The absurdity test, the conversion test and the ratio test are simply a means to the ultimate object of providing a cross check as to where the appropriate sentence lies.  Notwithstanding the appearance of precision in each of these tests, they conceal the imperatives behind the combined approach.  The ultimate result has to still meet the objects of the sentencing policy of the courts of Hong Kong which is deterrence plain and simple. There is also to be considered that there is an element of greater seriousness in trafficking in more than one drug time.  It seems to me that a starting point of 7 years and 8 months produces a just result.

Portion for self-consumption

78.  The Accused submitted that a proportion of the drugs were for self-consumption.  In this regard, the Accused pointed to his previous conviction for possession of dangerous drugs and his assertion on arrest that the dangerous drugs were for his own consumption.  The authorities clearly recognise that on a trafficking in dangerous drug charge that possession of some of the drugs subject of the charge for self-consumption can be a mitigating factor.  That may be seen in R v Chan Mung Lung [1992] 2 HKCLR 127; HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.  However, as the Court of Appeal in HKSAR v Wong Suet Hau and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 make plain, possession of dangerous drugs is in itself a serious offence and there is also the issue of “latent risk” to consider.

79.  There are a number of factors outlined in HKSAR v Wong Suet Hau (above) which assist in the evaluation of the assertion that part of the drugs in question were for personal consumption so far as that affects sentence.  The factors outlined in that case are:[5]

(1) Generally speaking, if it is accepted that a portion of the drugs concern were for self-consumption, the downward adjustment ofsentence to reflect this fact should be a broad-based evaluation.

(2) The evaluation should be informed by the fact that possession of dangerous drugs is itself an offence and carries with it a possible term of imprisonment.

(3) The part of the drugs the subject of charge which are accepted to be for the self-consumption of the Accused should also take into account what is often characterised as the ‘latent risk’ factor (see: HKSAR v Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

(4) The court in evaluating whether some part of the drugs the subject of the charge are for self-consumption and, if so, the proportion of such drugs must act judicially and in accordance with the laws governing the burden and standard of proof in relation to matters advanced in mitigation.

In addition, the Court of Appeal identified a number of practical indicia to determine whether there was force in the assertion that a portion of the drugs might be for self-consumption.  Perhaps the critical point made by the Court of Appeal is that the proportion for self-consumption had to be a significant proportion.

80.  The Court of Appeal in HKSAR v Wong Suet Hau clearly implied that what was a significant proportion was not simply a proportion greater than a trivial amount of drugs.  Anything less than a significant proportion being retained for self-consumption would make no or practically very little difference to sentence.  See: Stuart-Moore VP in HKSAR v Wong Suet Hau(above) §34(1).  That point was made in HKSAR v Chow Chun Sang (above) where Yeung VP held:[6]

“ We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances,fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug-trafficking was for financial gain, whether the trafficking was organised and premeditated in the background and criminal record of the defendant.”

Plainly, when one factors the sentence for possession and the enhancement that would be justified by reason of latent risk in virtually all cases, it would clearly take a significant proportion of the drugs to be for self-consumption to justify a discount in the range of 10% to 25%.  In HKSAR v Tam Ling Yuen[2016] 2 HKLRD 572, the point was reinforced because the Court of Appeal there specifically restated that such a discount would be available only for cases where a significant proportion of the dangerous drugs in which the defendant trafficked was for self-consumption.  Finally, in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, after an extensive review of the authorities,concluded that proportions for self-consumption of up to 10% would not qualify for the kind of discount in HKSAR v Chow Chun Sang (above). (See: [2017] 1 HKLRD 297, §28).  The factual context of this case is very important to understand the point being made by the Court of Appeal. The complaint on appeal was that the sentencing court had given a discount of below the 10% – 25% range in HKSAR v Chow Chun Sang.  The quantity of drugs accepted to be for self-consumption in that case was “up to 10%”. Accordingly, it is hardly surprising that such a proportion was unlikely to attract discounts of the magnitude suggested in HKSAR v Chow Chun Sang. The Court in HKSAR v Liu Ming Sze refused the Applicant in that case leave to appeal, it left undisturbed the notion of some discount being given for that proportion of drugs.

81.  In my judgement, there is clear evidence that the Accused was a long-term addict.  It would defy common sense for an addict in the position of the accused not to take part of the stock which he had for his own consumption.  Nevertheless, the clear and overwhelming inference from his conduct is that he was in the business of selling on a retail basis.  That is how (social security payment aside) he supported his living.  Doing the best I can with the facts and circumstances of this case I am of the view that the proportion of drugs in the possession of the accused which were for self-consumption was significant but making allowance for the fact that even possession of such a quantity would attract a sentence and that sentence wouldbe significantly enhanced for latent risk, the reduction in the starting point for the quantity in possession of the accused which was for self-consumption would justify a reduction of no more than 10%.

Discount for guilty plea

82.  The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33%. There is no reason to change this in the present circumstances.

APPLICATION OF SENTENCING PRINCIPLES

83.  Applying the reductions for a plea of guilty and the reduction for self-consumption, results in a sentence of just over 52 months’ imprisonment.  The order of this court is that the Accused to be sentenced to 4 years and 4 months’ imprisonment.