R. v. WILLIAM HUNG

1992, No. 177
(Criminal)

H E A D N O T E

Stay of prosecution on ground of delay - at common law - under Bill of Rights. Sentence where there has been undue delay.

IN THE COURT OF APPEAL

1992, No. 177
(Criminal)

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J U D G M E N T

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Bokhary JA (giving the judgment of the Court) :

Introduction

1. This is an application for leave to appeal against conviction and sentence.

2. On April 23, 1992, at his trial in the High Court, the applicant, a man in his early thirties, was convicted by the jury on one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, and sentenced by Duffy J to nine years' imprisonment.

3. Those drugs consisted of 4.7 kgs of methylamphetamine hydrochloride, commonly known as "ice."

4. The applicant wrapped them in brown paper with adhesive tape at home. Then, on September 26, 1990, he took those drugs thus wrapped to a post office, from where he posted them to the Philippines by air.

5. None of that was in dispute at the trial.

6. What the applicant denied was that he knew that what he had wrapped and posted were dangerous drugs.

7. As was his right, he chose not to go into the witness-box at his trial. Instead, he relied on his statement to the police. In that statement he said: that he had been told that the substance was "western" eye medicine which it was unlawful to import into the Philippines; that he believed what he had been told; and that, in such belief, he agreed to post the same to the Philippines, in return for $2,000.00, half of which had been paid before such posting and the remainder of which he expected to be paid afterwards.

8. The learned judge directed the jury not to convict the applicant unless they were satisfied so that they were sure that he knew that what he was wrapping and posting were dangerous drugs, and therefore to acquit him if in reasonable doubt as to whether he had known that all along.

9. By their verdict, the jury demonstrated that they were so satisfied and had no such doubt.

Conviction

10. At this stage, we are dealing with conviction.

11. In the court below, counsel for the applicant had urged the judge permanently to stay the prosecution on the ground of the delay in bringing it on for trial. The judge refused to do so.

The question for decision

12. The question for our decision is whether, upon a correct application of the relevant law to the material facts, the learned judge should have stayed the prosecution. If he should have, then the conviction must now be quashed. If, on the other hand, the learned judge's refusal to stay the prosecution is correct, then the conviction should not be disturbed.

Articles 5(3) and 11(2)(c)

13. Article 5(3) of the Bill of Rights provides, among other things, that: "Anyone arrested or detained on a criminal charge ... shall be entitled to trial within a reasonable time or to release." And by virtue of article 11(2)(c), "to be tried without undue delay" is one of the minimum guarantees which everyone is, in full equality, entitled to in the determination of any criminal charge against him.

The facts

14. Having noted those provisions, we turn to the facts.

15. The applicant was arrested at the post office just after he had posted the drugs from there on September 26, 1990. That was in the morning. His statement to the police was made in the afternoon on the same day.

16. Following his arrest and before he made his statement, the applicant's flat was searched. That search resulted in another three counts: two of possession of dangerous drugs and one of possession of apparatus fit and intended for the inhalation of dangerous drugs. The drugs the subject-matter of the "simple possession" counts consisted, however, of no more than mare traces. And the apparatus consisted of no more than a plastic bottle with a tube inserted, three glass tubes and a roll of silver foil. Moreover, on each of those three counts, the applicant was acquitted on direction.

17. As against the applicant himself, therefore, there does not appear to have been any complication in the case. We say "as against the applicant himself" because, as we recognize, drug trafficking on this scale would, by its nature, involve others whom the police would of course be duty-bound to investigate, whether they believed, disbelieved or had a completely open mind as to the applicant's denial of knowledge of the true nature of the 4.7 kgs of dangerous drugs which he had wrapped and posted.

Chronology

18. An examination of the court file pertaining to this case reveals that matters 'proceeded according to the following chronology:-

September 26, 1990: Arrest.

September 28, 1990: First appearance in the Magistrate's Court, when the matter was adjourned (for a Chemist's Certificate) to

October 25, 1990: Second appearance in the Magistrate's Court, when the matter was adjourned (for legal advice on the venue of trial) to

October 27, 1990: Third appearance in the Magistrate's Court when the matter was adjourned (for committal to the High Court) to

November 28, 1990: Fourth appearance in the Magistrate's Court when, the applicant having opted for a preliminary inquiry, the matter was adjourned (for such an inquiry) to

January 23, 1991: Fifth appearance in the Magistrate's Court when the applicant changed his mind about wanting a preliminary inquiry, and the case was committed to the High Court for trial.

March 1, 1991: Appearance by the parties before the Listing Master in this case as one of eleven criminal cases for setting-down for trial in the High Court. At that time, the usual waiting time between setting-down and trial for such cases was nine months. Most of the eleven cases were set down for trial commencing in December that year. The present case was set down for trial in the High Court commencing on December 4, 1991.

November 21, 1991: Pre-trial review before Deputy Judge Chan, when the Crown learned for the first time that the applicant would seek a permanent stay.

December 4, 1991: Date fixed for trial. The then trial judge, Deputy Judge Sharwood being ill, the case was mentioned before Hooper J, who adjourned it to the following day, namely

December 5, 1991: Appearance before Deputy Judge Sharwood. The Crown sought an adjournment for more time to prepare to meet the stay application. An adjournment was granted on the basis that the case was to be re-listed so as to come on not before January 10, 1992, but as soon thereafter as possible. Bail was sought but refused.

March 5, 1992: Case came on before Duffy J. The Court's diary having been dislodged by an eight-day trial coming off on December 5, 1991, and having been put under the strain of having to yield up another eight days as soon as possible after January 10, 1992, it appears that March 5, 1992, was the best that could be done. Even then, the stay application did not then commence because counsel for the applicant sought an adjournment to

March 9, 1992: Stay application commenced before Duffy J.

March 10, 1992: Stay application continued Bail was refused by Duffy J.

March 13,1992: Stay application continued. Bail was granted by Duffy J.

March 16, 23, 24 and 27, 1992: Stay application continued.

April 14, 1992: Duffy J refused a stay. Counsel for applicant sought an adjournment to May 1992 because he, counsel, was not free until then. Fresh counsel was in a position to come into the case and continue without delay. Duffy J refused the adjournment.

April 16, 1992: Trial proper commenced before Duffy J and a jury.

April 21-22, 1992: Trial continued.

April 23, 1992: Summing-up. Jury convicted the applicant of trafficking in dangerous drugs. Duffy J sentenced him to nine years' imprisonment.

October 8, 1992: Appeal called on before another division of this Court. The applicant, then in person, sought and was granted an adjournment for the purpose of getting legal representation for him.

October 21, 1993: Appeal commenced before this division, with Mr Macrae, who did not appear below, appearing for the applicant (Mr Macrae informed us that there was good reason for the length of the period between the appearance before this Court last year and the present hearing. For example, he had asked for the present hearing to be held back pending a decision of the Privy Council in another case).

October 26, 1993: This judgment is delivered.

Inherent importance of trial without undue delay

19. Both counsel have concentrated - and rightly so - on article 11(2)(c) of the Bill of Rights rather than on article 5(3) thereof. Article 5(3) provides an alternative: "trial within a reasonable time or release" (our emphasis). Bail could provide a solution there. But bail was not granted in the present case until a very late stage. And in any event, even a person on bail is entitled to trial without undue delay. That is plain from the terms of article 11(2)(c) which entrenches the entitlement "to be tried without undue delay" as a minimum guarantee for everyone in full equality. And that provision apart, it is - and has always been - inherently important that someone who is to be tried be tried without undue delay. To varying degrees according to all the circumstances, awaiting trial, even on bail, is something which, by its nature, carries with it stress on the part of the accused and disruption of his life.

Test at common law

20. At common law "no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer prejudice to the extent that no fair trial can be held." That is the test formulated by Lord Lane CJ in delivering the judgment of the Court of Appeal (Criminal Division) in Attorney General's Reference No.1 of 1990 [1992] 3 WLR 9 at p.11. And that test was approved by the Privy Council in George Tan Soon Gin v. Judge Cameron [1992] 3 WLR 249 at p.263 subject to, as their Lordships' Board put it in the later case of AG v. Charles Cheung Wai-bun [1993] 1 HKLR 249 at p.253, the question of "whether it was appropriate in certain circumstances to presume that the delay has caused prejudice". As to that, this is what Lord Mustill said (at p.264) in delivering the Board's advice in the Tan case (supra) and Lord Woolf repeated (at p.253) in delivering the Board's advice in the Cheung case (supra) :-

21. Both the Tan case (supra) and the Cheung case (supra) were appeals from Hong Kong. In the former, a stay was sought at common law, on the ground of abuse of process. While in the latter, a stay was sought under the Bill of Rights, on the ground of a violation thereof. The foundation was the same in each case: delay.

Difference between common law approach and Bill of Rights approach

22. As to whether there is a difference of approach at common law and under the Bill of Rights, the Privy Council recognised in the Cheung case (supra) at p.255 that it is "possible to argue" that there is such a difference, but immediately went on to say this:-

23. In the present case, Duffy J said that article 11(2)(c) "does not confer an absolute right". We would not agree if by that he meant to imply any qualification which the Bill of Rights itself does not express. It is, however, correct to say that the court's task in a stay application is not simply to decide whether or not there has been an infringement of the defendant's entitlement to be tried without undue delay and, if there has, automatically to stay the prosecution. The public interest requires more than that. And that requirement is catered for by section 6(1)(b) of the Bill of Rights Ordinance, Cap. 383, which provides that where a court is confronted with a violation of the Bill of Rights or a threat thereof, its duty is to grant such remedy within its power "as it considers appropriate and just in the circumstances".

Substance and not form

24. Mr Macrae questions the consistency of Duffy J's findings. It is true that, on the one hand, the learned judge, held that the applicant had not been brought to trial within a reasonable time while, on the other hand, he held that the delay in bringing the applicant to trial was not unreasonable.

25. It may be observed that while the learned judge was following the wording of article 5(3) when he considered the point thereunder by reference to the concept of "reasonable" time, he was departing from the wording of article 11(2)(c) when he considered the point thereunder by reference to the concept of "unreasonable" delay. Actually, article 11(2)(c) speaks of "undue" delay. That may explain the apparent inconsistency of expression. But even if that cannot be explained away, we are, in any event, of course concerned with substance and not form.

26. Duffy J's ruling refusing a stay is a lengthy one. By reading it as a whole, we have been able to get a reliable picture of what, at the end of the day, the approach which he followed really amounted to as a matter of substance.

27. By what we have said earlier on in this judgment, we have already given some indication of the correct approach.

The correct approach, stage by stage

28. What we propose to do now is to set out, stage by stage, that approach and its application in the circumstances of the present case, the salient facts of which we have already outlined.

First stage

29. When the stay of a prosecution is sought on the ground that the defendant has been denied his entitlement under article 11(2)(c) of the Bill of Rights to be tried without undue delay, the first question is, obviously, whether or not there has indeed been undue delay in bringing him to trial. In regard to the time which it takes to do that, the courts will of course be aware of their own difficulties. And they should be aware, or at least ready to be informed of, the difficulties confronting others. That said, the courts should, in setting standards for themselves and others alike, aim at a high degree of expedition.

30. In the present case, some of the delay was caused by the applicant himself. His earlier attitude to a committal and the adjournment from March 5 to 9, 1992, obtained by his counsel caused some delay. But such delay was relatively minor. It is true that the applicant's trial would have taken even longer than it did to come on if he had gotten his way. For, as we have seen, after the learned judge had refused a stay on April 14, the applicant sought an adjournment, which the learned judge refused, to the following month to suit his then counsel's availability, even though a suitable replacement was on hand and ready to proceed. That is a matter of some irony. And it may be a possible source of irritation to the Crown, whose sense of urgency is under criticism by the applicant. Nevertheless, all of that took place after the period relied upon by the applicant. So it is to be left to one side for present purposes.

31. The real problem was this. The usual waiting time of about nine months between setting-down and trial prevailing at the material time was already longer than one would have liked. To that fact was added, well over and above such delay as the applicant caused: the gentle pace at which the Crown moved from committal to setting-down; the over-estimate of eight days which it made for what turned out to be a three-day trial, which over-estimate lost the case any chance of an earlier slot in the court's diary which may have been available for a shorter case; and the overly-long adjournment which it required to prepare its submissions opposing a stay. We are not unaware that there are sometimes difficulties in practice which are not always easy adequately to portray in retrospect. Nevertheless, we are driven to the conclusion that the Crown's management of its role in the present case did, in the result, fall short of the standard of expedition which we trust will be maintained in future.

32. Overall, and bearing in mind the high standard of expedition called for, we feel constrained to consider this stay application on the footing that there has been undue delay in bringing the applicant to trial, so that he gets past the first stage.

Second stage

33. The next and second stage is, in conformity with section 6(1)(b) of the Bill of Rights Ordinance, to consider whether or not a stay is, in the circumstances, the appropriate and just remedy for the violation which has taken place of the applicant's entitlement to be brought to trial without undue delay.

34. On the binding authority of the Privy Council's decision in the Cheung case (supra), that question, save in the very small minority of cases in which the difference between the approach to be adopted under the Bill of Rights and the one to be adopted under the common law could have practical consequences, is to be answered by applying the test formulated by the Lord Chief Justice in Attorney General's Reference No.1 of 1990 (supra) for determining applications at common law for stays on the ground of undue delay. And, as we have seen, that test, shortly stated, is whether the delay had precluded a fair trial.

35. In all the circumstances of the present case - not least of all the simplicity of the crucial issue at the trial itself, which was whether or not the applicant knew that what he had wrapped and posted were dangerous drugs - the present stay application does not begin to satisfy that test.

Third stage

36. That brings us to the third and final stage, namely, the one at which this question arises: is the present case an exceptional one in the sense of being a case in which a stay can be obtained in reliance upon the Bill of Rights even though the stay application cannot pass the test formulated at common law? It is on this question that both counsel have concentrated. In our view, the answer to the question is "No". Such exceptions would be rare. That is, of course, not because of any low human rights content in the Bill of Rights. Rather, it is because the human rights content of criminal justice at common law in this day and age is already high. That is clear once it is appreciated that these things, whether they are considered at common law or under the Bill of Rights, necessarily involve the interests not only of individuals on their own but also of society as a whole.

37. We in the present case, like the Privy Council in the Cheung case (supra), refrain from determining the extent of the difference between the approach to be adopted to stay applications under the Bill of Rights and the one to be adopted to such applications under the common law. That task should be reserved to some future case which provides an appropriate factual context in which to perform it. We have weighed the circumstances of the present case. There is nothing in them capable of carrying this application beyond the general run of stay applications and thus into the rare category of such applications which are capable of succeeding upon a test different from the one generally applied in such applications.

Result

38. In the result, the stay was rightly refused in the court below. And the application for leave to appeal against conviction must, with an expression of our indebtedness to counsel on both sides for their assistance, be dismissed.

39. There remains the application for leave to appeal against sentence.

40. We turn now to the application for leave to appeal against sentence. There is no need to repeat the facts which we recited when dealing with the application for leave to appeal against conviction, which we dismissed this morning. The learned judge in passing sentence observed - and rightly so - that, since the guidelines laid down by this Court in the AG v. Ching Kwok-hung [1991] 2. HKLR 125, the appropriate starting point upon conviction after trial of trafficking in this quantity of "ice" would be eighteen years and upwards.

41. The learned judge rightly recognized that, having regard to when this offence was committed, September 1990, and when the Ching Kwok-hungguidelines were laid down, May 1991, he ought to look at the position before the laying down of those guidelines. Looking at it in that way, he arrived at a starting point of twelve years.

42. From that starting point, he made a deduction of three years to arrive at a sentence of nine years' imprisonment. That deduction was made on the basis that, even though time spent awaiting trial in custody is automatically taken into account in the computation of the time a defendant serves pursuant to his sentence, nevertheless it was necessary in cases of undue delay appropriately to recognize the effect upon a man of a prolonged wait before his trial on a criminal charge, particularly one of great severity.

43. So the learned judge was right to make a deduction; and he was entitled to make the one which he made. We say no more by way of guidance in regard to how deductions of this kind are to be approached, because if there is one thing of importance in the sentencing process it is a proper preservation of the discretion of sentencing judges to tailor the sentences which they pass to fit the many and varying circumstances of offenders and offences.

44. The argument advanced on behalf of this applicant by Mr Macrae has boiled down to this. Looking at the circumstances of this case and such guidance as one can gather in regard to the position before the Ching Kwok-hung guidelines, the starting point of twelve years taken by the learned judge was too high. Quite simply, we agree. It is Mr Macrae's submission that the starting point should have been something ranting between eight and ten years. In our judgment, the appropriate starting point was ten years.

45. Making the deduction of three years to which we have already made reference, the appropriate sentence was therefore seven years' imprisonment.

46. Treating the application for leave to appeal against sentence as the appeal itself, we allow the appeal to the extent of reducing the sentence of nine years' imprisonment to one of seven years' imprisonment.