R. v. CHUNG KAM-FAI

IN THE COURT OF APPEAL

1992 No. 29
(Criminal)

HEADNOTE

Matters raised in mitigation. Where mitigation is advanced which is on its face incredible, the court is not required to indicate that it has doubt as to its correctness. Where, however, the mitigation is not on its face incredible, the court should before rejecting it, indicate that it is not prepared to accept it from the Bar and should give the opportunity to the defence to call evidence.

IN THE COURT OF APPEAL

1992 No. 29
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced one count of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The particulars of the offence stated that he, on 31st July 1991, in the baggage hall, Hong Kong International Airport, Kowloon, unlawfully trafficked in a dangerous drug, namely 349.76 grammes of a mixture containing 306.67 grammes of salts of esters of morphine. On 20th December 1991 the applicant pleaded guilty to that charge in the High Court before Deputy Judge Jones and was sentenced to imprisonment for 9 years. He now seeks leave to appeal against that sentence.

3. The facts, which were agreed by Mr. Roderick Murray who appeared for the applicant at the original hearing, were that at 6.35 p.m. on 31st July 1991, the applicant, who had arrived in Hong Kong on flight CI 642 from Bangkok, approached Customs Baggage Examination counter No.18, which was being manned by Senior Customs Officer Wong Lin-wah. While there, he was spoken to by a second customs officer, Inspector Chui Ka-leung, and, on being requested to produce his passport and boarding pass, he complied. Following the production of his travel documents, a hand carry travel bag which he was holding was searched. Nothing was found. His waist bag was then searched with a similar result. The inspector then, having decided upon a physical search, took the applicant into Room A62B where he and Customs Officer Lui Wan-fung searched him. When his shoes were removed, a white powdery substance was located secreted under the inner soles. When asked what it was, he replied "white powder". He was then arrested and cautioned. This powder on analysis was found to be salts of esters of morphine. Under caution the applicant stated he paid $30,000 for the drugs in Bangkok and that he had gone to Thailand specifically to purchase the drugs.

4. The above facts having been agreed the matter was adjourned until 23rd December 1991 to allow Mr. Murray to obtain further information from the Investigation Branch of the Customs and Excise Department. This information was not forthcoming when the court resumed on the 24th and the matter was again adjourned until 2nd January 1992 when Mr. Murray mitigated in the following terms:

".... the best mitigation I can urge upon your Lordship on behalf of Mr. Chung is his frank and responsible behaviour post the discovery of the heroin in his moccasins at Kai Tak.

My Lord, he was immediately cooperative with Customs officers and shortly after his arrest he gave them full statements under caution which amounted to a full admission on his part to having been on a trip to Thailand to buy heroin.

And, my Lord, it is stated in these statements taken shortly after his arrest that the purpose behind his purchasing and possessing the heroin was self-consumption and hence, my Lord, in no way should he be

"My Lord, having dealt with those matters, may I finally make perhaps the two best points in mitigation, namely his plea of guilty and notwithstanding that perhaps his options were limited, given the circumstances of his arrest, my Lord will no doubt give him some credit for his plea as a demonstration of his remorse, and, of course, it has saved valuable time.

And finally, my Lord, as your Lordship agreed on the last occasion, I was allowed to prepare - and your Lordship has been good enough to give me two opportunities to do so - I am now in a position to submit to your Lordship some written mitigation and my Lord may be assisted by first reading the memo that is annexed to my written mitigation."

This memo from Mr. C.W. Lee of the Customs and Excise Department Investigation Branch stated:

"On 2.12.1991 he (the applicant) provided us with information on a d.d. distributor and her lieutenant who were actively distributing heroin at a Chinese Restaurant at Diamond Hill.

2. On 10.12.1991 he was interviewed again during which he assisted us in investigating the information provided on 2.12.1991.

3. He was co-operative during the interviews. The information provided is reliable. Investigation is still in progress and no case is made so far."

5. Mr. Murray appears to have been approaching the matter upon the basis that the motive of the applicant was properly regarded as one of the circumstances of the offence and was not, therefore, strictly speaking a mitigating circumstance. It must be remembered in this matter that, given the definition of "trafficking" in the Dangerous drugs Ordinance, the applicant, as he admitted that he was bringing the drugs into Hong Kong from Bangkok, had no option but to plead guilty to trafficking, even though it was his contention that he was bringing the drugs into Hong Kong for his own consumption.

6. The judge when sentencing said:

"The Court of Appeal guidelines place this case in the range of twelve to fifteen years and in terms of quantity, the starting point should be more or less exactly half way between those extremes.

I do, however, regard the importation of the drugs into Hong Kong as an aspect of considerable aggravation. Whether or not the Accused is an addict, and I accept that he is, he made a journey to Thailand specifically to bring drugs into this community.

I find it naive to assume that he would have consumed all these drugs. Some would inevitably have been sold to finance the exercise. For this reason, I take the starting point before considering mitigation at sixteen years' imprisonment.

His plea of guilty on its own deserves a small discount in so far as he was caught red-handed. I allow approximately 15% for this factor or 2 and a half years.

The strongest mitigation in his favour is the assistance he has given the authorities which is described as 'reliable' in the written mitigation handed in. This is greatly to be encouraged and for this I will allow a further discount of 4 and a half years. The total sentence is therefore 9 years' imprisonment." (Emphasis supplied)

7. The judge appears to have followed the same approach as that adopted by Mr. Murray. Firstly, he assessed the gravity of the offence by looking at the circumstances of its commission, which included the motive of the applicant, and then went on to consider the mitigating circumstances, namely the plea of guilty and the assistance given to the authorities.

8. With respect, we do not agree with that approach. The applicant had clearly committed the offence of trafficking. His motive was a mitigating circumstance which, if accepted, must have affected the sentence to be imposed. Although the words used by the judge are not altogether clear, we are satisfied that they should be taken as meaning that he was rejecting the submission that the applicant had purchased the drugs intending that they be used solely for his own consumption.

9. Mr. Mullick, who appeared for the applicant before us, submitted that the starting point of 16 years was too high and that the trial judge gave insufficient discount for the plea of guilty and the assistance to the investigating authorities. The thrust of this appeal, however, was that the trial judge erred in not indicating to counsel before sentencing that he did not accept the applicant's plea that he purchased the drugs for his own consumption. It was submitted that it was incumbent upon the trial judge to give such an indication and, if the applicant wished to call evidence to establish the mitigation, to conduct a "Newton" style hearing. (R. v. Newton (1983) 77 Cr.App.R. 13) Mr. McWalters, who appeared for the Crown, submitted that there was no obligation on the trial judge to say that he did not accept the mitigation. He submitted that when sentencing in a case such as this he was entitled to accept what he was satisfied was correct. He submitted that in this matter, there being a factual dispute in which the Crown was not involved, no "Newton" hearing was necessary. It was his submission that in such circumstances the trial judge may, at his discretion, indicate to counsel that he is not accepting in full the mitigating circumstances but is not required to do so and is entitled in the outcome to accept what facts he is satisfied are correct. Mr. McWalters referred to Archbold Criminal Pleading Evidence and Practice 1992 Vol. I, at 5-44, adopting the commentary therein that:

"The cases establish three situations where although there is a dispute as to the facts of the case, the court is not obliged to hear evidence under the principles laid down in Newton. The first is where the difference in the two versions of the facts is immaterial to the sentence, and the same sentence would be passed however the question was determined."

While in respectful agreement with that observation, we are satisfied that it has no application in the present case as, if the applicant was not "a true sense drug trafficker", i.e. carrying drugs for dissemination to others, it was clearly a mitigating circumstance of weight.

10. The second situation, with which we also respectfully agree, is the situation where the version put forward by the defence can be described as "manifestly false" or "wholly implausible". Mr. McWalters suggested that the version in the present case fell within this second situation. We do not agree. Mr. Murray framed his submission so as to make it plain that the defence was seriously contending, upon the basis of facts which he put forward, that the applicant had purchased the drugs for his own consumption. We appreciate that the amount was so large as to raise suspicion that this might not be so. However, there was nothing in the matters placed before the judge that could have allowed him to take the view that this contention was wholly implausible. Indeed he appears to have accepted that a substantial quantity of the drugs would have been used by the applicant for his own consumption.

11. The third situation set out in Archbold is where

"the matters put forward by the defendant do not amount to a contradiction of the prosecution case, but rather to extraneous mitigation explaining the background of the offence or other circumstances which may lessen the sentence."

12. Archbold states that these matters are likely to be outside the knowledge of prosecution and that the Newton principles do not apply. It was this last exception upon which Mr. McWalters principally relied. It is true that in the present case the mitigation did not contradict any of the facts which the Crown would have had to prove to establish the commission of the offence. It must, however, also be stated, as Mr. McWalters conceded, that, had the applicant given evidence to establish that the drugs were for his own consumption, the prosecution would have taken issue with this evidence by cross-examination and, if so advised, by calling evidence. This was not a case where the prosecution would have stood by had the applicant sought to establish his mitigating circumstance. Mr. McWalters relied upon the proposition in Archbold that, where the facts put forward by the defendant do not contradict the evidence advanced by the prosecution,

"(a) The defendant may seek to establish his mitigation through counsel or by calling evidence. The decision whether to call evidence to establish his mitigation is his responsibility, and he is not entitled to an indication from the bench that his mitigation is not accepted. (Gross v. O'Toole (1982) 4 Cr.App.R. (S) 283)"

The above quotation appears to rely upon the "Editor's note" to Gross in the Criminal Appeal Reports which reads:

"Where an advocate intends to put material before a court in mitigation of sentence, it is for him to decide whether he will call evidence to substantiate it. It is not the duty of the court, if he elects not to call evidence, to indicate to the advocate that it does not accept the material on the basis of his submission."

We are not satisfied that the editor's note correctly reflects the reasoning in the judgments of Ormrod L.J. and

Comyn J. in Gross. The prosecution involved an appellant who was convicted under a by-law which prohibited persons from offering their services at an airport. It was contended in mitigation that the by-law applied only to offers of services for gain and that the appellant had been offering his services at Heathrow gratuitously and not for gain. The appellant's previous convictions which were before the magistrates indicated that he had multiple convictions for offering services and loitering at Heathrow. The magistrates having considered the matter simply stated that they did not accept the mitigation and fined the defendant ￡ 100 and ordered him to pay ￡ 25 costs.

13. The headnote states:

"Held: if an advocate is going to put forward in mitigation something which is quite inconsistent with other information before the court, such as the defendant's previous convictions, it is for the advocate to indicate that he wishes to make good the submission; he takes the chance if he does not offer to call evidence to the fact in question. The magistrates were not obliged to tell the defending advocate that they did not accept his mitigation. (Appeal allowed on other grounds)."

14. In his judgment Ormrod L.J. indicated the "main point" involved was "the question as to what should magistrates do when they do not accept statements made by defending advocates in mitigation which are essentially statements of fact". He said:

"I think, for my part, that if an advocate is going to put forward in mitigation something which is, on the face of it, quite inconsistent with the other information that the Magistrates have so far as sentence is concerned, e.g. the list of previous convictions, it really is for the defending advocate to indicate that he wishes to make good the submission, as in this case, that there was no intention to charge any fare or to seek any gain. I think he takes the chance himself if he does not offer to call evidence to that fact. Quite obviously this would, or could be, a totally misleading situation.

I do not think they were obliged to tell the defending advocate that they did not accept his mitigation, because I do not think anyone in court, least of all the defending advocate, could have supposed for a moment that they would accept his mitigation." (Emphasis supplied.)

What Ormrod L.J. appears to be saying is that where mitigation is put forward which is palpably incredible the court is not called upon, before rejecting it, to indicate to the advocate that it does not accept it. Perhaps more pertinent to the facts of the present case is the judgment of Comyn J. who stated at p.285:

"Everybody concerned with pleading mitigation has an important duty to perform. The person making it must make certain decisions, many of which are irreversible. He must decide, in particular, whether he is going to call evidence, how much evidence, and on what points; also, at what stage he seeks to call the evidence - before he begins, or in the middle of his mitigation or at the end. He cannot, having made a deliberate choice, easily be permitted to go back on it. The responsibility of the Bench, on the other hand, is this: that if, on a slightly important point on which there is room for some doubt, they have doubt about what the advocate is saying, they ought to tell him that before he concludes his mitigation, or shortly afterwards, so he can try to remedy it.

The result here is that the submission was made on behalf of the defence which was startling on the face of it, and which I am not surprised the justices rejected out of hand. It might have been better if the justices had said that they did not accept it, but it was not for them, in the circumstances, to express any view about it, because the defence had taken the course they did." (Emphasis supplied.)

15. We are satisfied that the submission in the present case was not such that no one in court could have supposed it would be accepted, nor was it one which was startling on the face of it. The submission was seriously urged, it was of a nature which could have been supported by evidence and it was, moreover, an important mitigating factor. We are satisfied that before rejecting it the judge should have indicated to counsel that he was not prepared to accept it from the Bar. It would then have been for counsel to make his determination as to whether or not he would call evidence.

16. We are satisfied that Gross v. O'Toole does no more than indicate that, where counsel is putting forward mitigation which is, on its face, incredible, the court is not required to indicate that it has some doubt as to its correctness. Where, however, the mitigation is not, on its face, incredible the court should, before rejecting it, indicate that it is not prepared to accept it from the Bar. In circumstances such as obtained here, if nothing is said, defence counsel could be unwittingly misled into thinking that the mitigation which he has urged would be acted upon.

17. We appreciate that this does not come strictly with the principles set out in Newton as there is no clash between the mitigation and the facts upon which the Crown relied to establish the offence. We do, however, consider that a distinction can properly be drawn between the situation where the Crown is wholly neutral as regards the mitigation and is prepared to leave the matter for the decision of the court and where it is, although it may not have evidence to call upon the matter, contesting the correctness of the mitigation. We think it desirable, although we would not postulate it as a duty, that crown counsel makes it clear if the latter position is being taken.

18. A decision very much in point is that in R. v. Lester (1976) 63 Cr.App.R. 144. In that matter the defendant was convicted of an offence of strict liability under the Trade Descriptions Act 1968. The defendant was convicted, inter alia, of a number of offences of selling second hand motor cars with a false figure on the mileometers. Through his counsel, he insisted that, although he had never had any knowledge of any falsity of the mileometers, he had, as the offences were ones of strict liability, pleaded guilty thereto. His counsel in mitigation said (p.145) :

"The difficulty often arises when the prosecution proceed as they have done in this case on the basis of strict liability. I think it is fair to say that nowhere in the papers is there any evidence pointing to knowledge by Mr. Lester of the falsification".

Bridge L.J., giving the judgment of the court, said, of this submission and of an earlier one also concerning knowledge:

"The learned judge gave no indication, when Mr. Shand made those submissions to him, that he in any way dissented from them. Nevertheless, when he came to pass sentence, addressing both Lester and the co-accused Slater, he said: 'I am perfectly satisfied that you both knew very well what had been done even if it was not necessarily your own hand that altered the odometer. That is a serious fraud ....' A little later he said '...many of the things that you did might have been caught under the old law as false presences. It is time that those who sell motorcars in this city should realize that the court takes a serious view of offences of this kind, and in this case the only appropriate sentence is one of imprisonment."

Bridge L.J. went on to say at p.146:

"If the trial judge, in the face of what had been said on this appellant's behalf by Mr. Shand in mitigation, was minded to draw such an inference adverse to the appellant, then at the least, in the judgment of this court, the appropriate course for the learned judge to have taken would have been to indicate to counsel for the appellant what was provisionally in his mind, to point out the basis of the suggested inference, and most important of all, to offer counsel the opportunity, if he was so minded, to call his client to give evidence about this matter, as to which of course he would have been open to cross-examination by the Crown."

19. This, we are satisfied, would have been the correct course to take in the present case.

20. We refer finally to Meah v. Marlow (1991) 92 Cr.App.R. 254. In that case the appellants pleaded guilty to importing substantial quantities of morphine on the basis that they intended to use the drugs for their own consumption. The trial judge was suspicious that he had not been told the truth about the destination of the drugs but he did not hold a Newton inquiry so that the circumstances of the offences could be investigated. The Court of Appeal held that in the circumstances a Newton inquiry should have been held and that failing to do so the trial judge should have sentenced the appellants on the basis that their story was true. The headnote states:

"Per curiam: If a judge thinks it right to sentence on the basis that drugs have been brought in for a defendant's personal consumption, it will still be a serious offence and, if the quantity is substantial, the result may well be imprisonment for a substantial period."

21. In delivering the judgment of the court Jupp J. said at p.256:

"When he passed sentences of six and four years respectively we think that the learned judge made a proper distinction between the two appellants, but we are told that certainly in the case of Meah, and it may be so in the case of Marlow, counsel for Meah had come to court prepared to face a Newton trial (see (1983) 77 Cr.App.R. 13). When one looks at the whole of the facts, the Court does not find it surprising that the judge declared himself suspicious that he was not being told the truth about the destination of the drugs. This Court would have been equally suspicious or more if a defendant saying through counsel that an importation of drugs in amounts like this concealed in this way at considerable risk to health was for his own consumption. When a suggestion of this sort is made, the judge should hold a Newton inquiry unless the suggestion is so absurd that it can be rejected out of hand. Having declined to hold a Newton trial, the learned judge in our view, had to sentence on the basis that he accepted that these large amounts of drugs were in fact required and intended for use by the two appellants for their own consumption. That must make a considerable difference to the kind of sentence that he had to pass."

22. This statement has direct application to the present case. As we have already indicated, the judge should, if he was not prepared to accept the mitigation, have so indicated and have given counsel the opportunity to call evidence in support thereof.

23. As this was not done we consider that we must, following the course adopted in R v. Chan Mung-lung (unreported) C.A. No. 394 of 1991, treat the hearing of the application as the hearing of the appeal, allow the appeal, quash the sentence and impose a sentence upon the basis of the factual version most favourable to the applicant.

24. When so doing we bear in mind what Bridge L.J. said in Ribas (1976) 63 Cr.App.R. 147 at 150:

"... But if a large quantity, and a quantity certainly capable of providing a substantial commercial supply is brought into this country in contravention of the statutory prohibition on the importation then, irrespective of any specific intent to put that quantity into circulation, Parliament has provided for it to be treated as a grave offence. Importation, whatever the specific intent of the importer, as was pointed out by Lord Justice Shaw in the course of the argument, involves at the very least the risk that the quantity imported will find its way on to the home market and the object of prohibition on the importation is to protect the home market, and to secure that supplies of these virulent drugs will not be made available there...."

25. We are satisfied that 16 years was the correct starting point given the quantity involved and the fact that the offence involved the importation of drugs into Hong Kong.

26. We are satisfied that the discounts of two and a half years for plea and four and a half years for assistance to the authorities were proper. We consider that a further discount of 2 years should have been allowed on the basis that the drugs were for personal consumption. The sentence of 9 years is, therefore, varied to one of 7 years.