HKSAR v. CHONG CHEE-MENG

CACC 315/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 315 OF 2008

(ON APPEAL FROM HCCC N0.37 of 2007)

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reasons for judgment

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Hon Yeung JA (giving the reason for judgment of the Court):

Introduction

1.  On 10 October 2008, we granted leave to the applicant to appeal against sentence and we reduced his sentence by two months. We indicated that we would hand down our reasons in due course and this we now do.

The Facts

2.  On 28 October 2006, the applicant (Chong Chee-meng), carrying a Singaporean passport, arrived at the Hong Kong International Airport from the Philippines, and was stopped by Customs Officers.

3.  A customs officer found, in the applicant’s travelling bag, two tissue papers, one wrapping 33.73 grammes of a mixture containing 24.49 grammes of cocaine and the other wrapping 36.62 grammes of a mixture containing 26.96 grammes of cocaine (the total quantity being 70.35 grammes of a mixture containing 51.45 grammes of cocaine with a retail value of about HK$63,000) 

4.  When asked what the tissue papers contained, the applicant replied, “Medicine. I used it. Make me more energetic at work. Can it not be consumed in Hong Kong?’ and then, “Cocaine. I used it myself.” The applicant further claimed to have bought the cocaine in the Philippines.

5.  The customs officer also found from the same travelling bag; (a) 4 candles; (b) a glass test tube containing traces of cocaine; (c) a paper box containing 4 plastic straws with cocaine traces, (d) two plastic bottle caps with cocaine traces, and (e) two rolls of adhesive tape.

6.  On 20 August 2007, the applicant pleaded guilty to trafficking in 70.35 grammes of a power containing 51.45 grammes of cocaine before Deputy Judge Toh in the High Court. Having accepted the summary of facts presented by the prosecution in support of the charge, the applicant claimed that he intended to use all the cocaine for his own consumption.

7.  The judge held a Newton hearing to ascertain the applicant’s claim.

8.  The applicant gave evidence, saying that he was a director and shareholder of Plauski Foreign Exchange Corporation in Malaysia. The applicant admitted to be a cocaine user with a daily consumption of 10 to 12 grammes, which would made him feel more focused. The applicant further said that, at the time of his arrest, he was on his way to Shenzhen via Hong Kong, intending to stay there for five to six days. The applicant said he needed the cocaine to keep him awake even at night so that he could continue to watch the Forex market.

9.  The applicant produced documents relating to his employment and directorship of Plauski, and account statements purporting to show his income derived from Plauski between 1 January 2006 and 1 June 2007. He also produced medical certificates issued in the Philippines to show that he was a cocaine user.

10.  The prosecution called a Dr Lam to give expert evidence to refute the applicant’s suggestion. Dr Lam agreed in cross-examination that the cocaine could be consumed in between two to six days, but said that to ingest 30 grammes in a day would be an extreme case. Dr Lam also pointed out in his report that a patient in his clinic ingested 10 grammes of cocaine and that was far from typical. He also said such an addict would not be able to function normally.

11.  In her ruling, the judge pointed out the many errors in the accounts statement and said she could not fully rely on them. The judge said there was no information about the expenses that the applicant had to meet. The judge concluded that the medical evidence did not support the applicant’s case of a daily consumption of 10 to 12 grammes of cocaine.

12.  The judge took the view that the applicant had the evidential burden to prove that he intended to use all the cocaine in his possession for his own consumption. In the end, the judge rejected the applicant’s claim and made the following findings:

“I am therefore convinced that the defendant cannot afford the amount of drugs he claims to consume within a one-week period. Therefore, at the end of the day, the defendant has failed to raise an evidential case and the prosecution has proved beyond a reasonable doubt that only a small part of the drugs were for his own consumption.”

13.  The judge, relying on R v Lau Tak-ming [1990] 1 HKLR 370, which applies to cocaine trafficking (see AG v Pedro Nel Rojas CAAR 15/1993), adopted a starting point of 8 years’ imprisonment.

14.  Despite the applicant’s guilty plea, the judge took the view that he was not entitled to a full one-third discount, namely a sentence of 64 months’ imprisonment. The judge said the discounted sentence should only be 66 months’ imprisonment because there was a Newton hearing. Nevertheless the judge further reduced the 66 months’ sentence to 56 months because she was satisfied that part of the cocaine was for the applicant’s own consumption.

15.  Represented by Mr Jeremy Cheung, the applicant sought leave to appeal against sentence.

Grounds of Appeal

16.  Mr Cheung basically advanced only one ground of appeal, premised on the judge’s approach, which he says was erroneous, namely that “the defence have at least an evidential burdento raise…The real issue in this case is: has he discharged the evidential burden that all the cocaine that he was found in possession of was for his own consumption”

17.  Mr Cheung, relying on R v Gardiner (1982) 140 DLR (3d) 612, R v Anderson (1993) 177 CLR, R v Bryant (1980) 1 NZLR 264 and R v Cheng Ching Kwong [1986] HKC 109, suggested that the burden was on the prosecution to prove beyond a reasonable doubt that the cocaine was not intended for the applicant’s consumption. Mr Cheung suggested that the judge was wrong to have placed any evidential burden on the applicant.

18.  Mr Cheung submitted that the judge’s finding in relation to the applicant’s intended use of the cocaine should be quashed. Mr Cheung urged this Court to interpret the facts of the case most favourable to the applicant and to sentence him on the basis that he intended to use all the cocaine for his own consumption.

Discussion

19.  When there are disputes as to facts relevant to or closely bound up with the ingredients of an offence, a Newton hearing is required and the prosecution must establish their version of the facts (facts that the prosecution seek to rely on) to the requisite criminal standard of proof.

20.  In R v Kerrigan (1993) 14 Cr App R (S) 179, the appellant pleaded guilty to causing grievous bodily harm with intent. The prosecution alleged that the appellant made an unprovoked attack on the victim, punching him, knocking him down to the ground and then using a garden fork to stab him in the chest and stomach.

21.  The appellant, on the other hand, claimed that he had acted in defence of his friend, saying that the victim had threatened to stab the friend with a kitchen knife. The appellant further claimed that he had hit the victim on the legs with the fork and poked him in the chest with it to disarm him, and that there had then been a fist fight between them.

22.  The Court of Appeal, on the issue of the onus and standard of proof in a Newton hearing, said at p 181: “It is clear beyond any argument and well-established by authority, that in a Newton type hearing the judge has to approach the question of fact which he has to decide in accordance with the criminal onus and standard of proof”

23.  The Kerrigan approach has been consistently followed in common law jurisdictions, including Hong Kong. However, such an approach only applies to a situation where the prosecution seek to rely on, or is obliged to establish, the disputed facts.

24.  In R v Cheng Ching Kwong (supra), the prosecution, at the sentencing stage, introduced disputed facts extra to the evidence called at the trial. Silke JA observed: “We accept that where there is controversy, and a contested issue is tried at this stage of the trial, then the burden of proof is that of beyond a reasonable doubt in relation to matters which the Crown seeks to prove (Italic emphasis added).

25.  The other cases referred to by Mr Cheung all deal with situations whereby the prosecution sought to rely on alleged, but disputed facts at the sentencing stage. The burden, in such circumstances, was on the prosecution to establish the disputed facts beyond a reasonable doubt.

26.  Parts of the judgments relied on by Mr Cheung make this clear. In Gardiner (supra), Dickson J said at 648-649:

“It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied on by the Crown in aggravating must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.”

27.  In Anderson (supra), the joint judgment of Deane, Toohey and Gaudron JJ states at 536:

“If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstances as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance… Thus, in the present case where the Crown relied on commercial purpose as a circumstance of aggravation, it was for the Crown to satisfy the sentencing judge beyond reasonable doubt that the appellant had had such a purpose. If the Crown failed to discharge that onus, the appellant was entitled to be sentenced on the basis that his cultivation of cannabis had not been shown to have been for such a purpose.”

28.  In Bryant (supra), the prosecution alleged that Bryant used a 10 lb sledge- hammer to strike a constable on the head. Bryant denied the allegation, although he pleaded guilty to the charge of rendering two police constables incapable of resistance by violent means. The other defendant, Taylor, was prepared to admit that it was he who had hit the constable with the hammer. Neither was called to give evidence. The New Zealand Court of Appeal concluded that it was not open to the judge to reject Bryant’s denial of responsibility. Richmond J expressed the following sentiment at p 271:

“These authorities are, we think, more than adequate in themselves to support the view already expressed, that there was in the present case no proper basis on which the Court could treat Bryant as the person who had struck Constable Hughes with the hammer. The onus was on the prosecution to establish that allegation, as it was disputed, by proper proof.”

29.  When a defendant seeks to establish facts, disputed by the prosecution, for the purpose of mitigation, the approach is different.

30.  In The Queen v Chan Leong (unreported,HCMA 169/1995), the appellant was arrested at a construction site and admitted, under caution, that he had been working and sleeping there for four days. He subsequently pleaded guilty to the offence of illegal entry under s 38(1)(b) of the Immigration Ordinance, but claimed that he was only arrested “by the side of the construction site”. The appellant further claimed that he had only been sleeping at the construction site and had not been working there.

31.  There was then a government policy to the effect that if an illegal immigrant had not been found at a place of employment, he would not been prosecuted under s 38(1)(b) of the Immigration Ordinance.

32.  The magistrate, after a Newton hearing, rejected the appellant’s contention and found that the facts were as stated by the police.

33.  Litton VP, in approving the magistrate’s approach, made the following comments at p 5 of the judgment:

“In conclusion, it may be helpful to add this observation. Here, the facts relevant to the exercise of the discretion to prosecute were so closely bound up with the ingredients of the offence under s 38(1)(b) that, quite rightly, the magistrate concluded that this was a strict Newton situation. However, it is worth bearing in mind that the burden of establishing facts in mitigation are generally upon the defence, since such extraneous matters would not normally be within the knowledge of prosecution witnesses...” (Emphasis added)

34.  The applicant was charged with trafficking in a dangerous drug and under the Dangerous Drugs Ordinance Cap 134, “trafficking, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possession the dangerous drug for the purpose of trafficking”.

35.  The applicant admitted that he had brought the cocaine in question into Hong Kong from the Philippines, which per se is trafficking in a dangerous drug. It was never part of the prosecution case whether the cocaine was for the applicant’s own consumption or not. What the applicant intended to do with the cocaine was not closely bound up with the ingredients of the offence as alleged by the prosecution in the present case.

36.  Indeed, the admitted summary facts made no reference to this other than the applicant’s assertion at the time of his arrest that he intended to use the cocaine himself.

37.  Indeed, personal consumption of drugs, which are being trafficked, may be a mitigating factor (see R v Chan Mung-lung [1992] 2 HKCLR 127, R v Chung Kam Fai [1993] 1 HKC 42).

38.  In R v Meah & Marlow (1991) 92 Cr App R 254, Jupp J, when dealing with sentence for importing drugs, said at p 256:

“Importing is a distinct offence from possessing. The penalties are different and in our view it is not right to say that this must be treated simply as a case of possession. Nevertheless there must be a considerable reduction in sentence to reflect the fact that the drugs were for the appellants’ own consumption”

39.  In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, Stuart-Moore VP said at p 79:

“Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue. In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include:

…

Usually, a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold: Criminal Pleading, Evidence and Practice 2002 para 5-20).

40.  The applicant wished to put forward in mitigation that all the cocaine in question was for his own consumption. The prosecution did not accept the applicant’s assertion. The dispute was about extraneous matters, as conceded by Mr Cheung, which did not form part of the prosecution case, and on which the prosecution witnesses were unlikely to have any knowledge. They were, however, within the peculiar knowledge of the applicant and, as such, the onus of satisfying the judge rested on the defence upon a balance of probability.

41.  The general principles as to proving mitigation were considered by the Divisional Court in Gross v O’Toole (1982) 74 Cr App R (S) 283.

42.  Ormrod LJ appears to be saying 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. Comyn J, in a supplementary judgment, slightly qualified Ormrod LJ’s remarks by stating that, if on a significant point on which there is room for some doubt, the magistrates do in fact doubt what the advocate is saying, they ought to tell him before he concludes his mitigation so he can try to remedy it.

43.  However, both their lordships clearly accepted the basic premise that it is for the defence to establish its own mitigation to the court’s satisfaction, and whether they do that by a speech or evidence or both is essentially a matter for them, not the court.

44.  Ormrod LJ said at p 285: “…if an advocate is going to put forward in mitigation something …it really is for the defending advocate to indicate that he wishes to make good the submission…”

45.  Such approach was followed in Chung Kam Fai (supra) where Power JA said at p 49, “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” (Emphasis added).

46.  In R v Guppy [1994] Crim LR 614, the Court of Appeal expressly held that, where the offender raised extraneous matters in mitigation, the burden of proof rested upon him to the civil standard. The Court (Rose LJ, Mantell and Bell JJ) said at p 615:

“The burden of proof where extraneous issues were put forward in mitigation was discussed in Archbold at paragraph 5-47; the Court agreed with the view expressed there, and considered that if a defendant’s mitigation was of doubtful value he should have to make it good, and that the prosecution should not be obliged to disprove it. The Court held that in relation to extraneous matters of mitigation raised by a defendant or an appellant, a civil burden of proof rested on the defendant or appellant, although in the general run of cases the sentencer would readily accept the accuracy of the defending counsel’s statements.”

47.  The judge said that the applicant had the evidential burden to raise that he intended to use all the cocaine for his own consumption and that he had failed to discharge such an evidential burden. The evidential burden is just the burden to adduce sufficient evidence to raise an issue for the determination of the tribunal of fact (See the judgment of Stock JA in Hung Chan Wa & Anor v HKSAR [2005] 3 HKLRD 297 at 318H).

48.  Lord Steyn commented in R v Lambert [2002] 2 AC 545 at p 572C:

“It is important to bear in mind that it is not for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter…”

49.  Lord Hope in the same case also commented at p 588H that:

“But an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support the defence.”

50.  The Court of Final Appeal made a similar observation in HKSAR v Ng Po On [2008] 4 HKLRD 176 at pp 186 and 198:

“An evidential burden stands in contrast to a reverse persuasive burden. It does not require the accused to establish anything as a matter of proof. An evidential burden arises where the defendant wishes to put in issue some matter that is potential exculpatory while the prosecution continues to bear the persuasive burden throughout. In such cases, there must be evidence supporting such exculpatory matter which is sufficiently substantial that it raises a reasonable doubt as to the defendant’s guilt. Unless such reasonable doubt is removed, the prosecution fails to prove its case. If, on the other hand, the accused fails to adduce or point to any evidence on the relevant issue or if the evidence adduced is rejected or is not sufficiently substantial to raise a reasonable doubt, the potentially exculpatory matter places no obstacle in the way of the prosecution proving its case beyond reasonable doubt…”

“It must be emphasised that an evidential burden is not something nominal or illusory. It requires the defendant to adduce or otherwise be able to rely on evidence which is sufficiently substantial to raise a reasonable doubt which the prosecution must negative if he is to be convicted.”

51.  The applicant sought to put in issue whether he intended to use all the cocaine for his own consumption. That, if established, would be a mitigating factor. The applicant clearly had the evidential burden to at least adduce sufficient evidence to raise the issue for the determination by the judge in the Newton hearing.

52.  Indeed, the applicant must have accepted that he had such an evidential burden, and that was why, at the Newton hearing, he raised the issue before giving evidence and producing documents to support his claim.

53.  In our view, the judge was right to proceed on the basis that the applicant had the evidential burden on the issue whether he intended to use all the cocaine for his own consumption. The applicant also had the legal burden to prove, to the civil standard, that he intended to use the cocaine for his own consumption, as that was an extraneous matter raised by him in mitigation.

54.  If the judge were to be faulted at all, it was in being generous to the applicant. She should have ruled that the applicant not only had the evidential burden to raise the issue, but also the legal burden of proof, on a balance of probability, that he intended to use all the cocaine for his own consumption. The judge instead required that she be satisfied beyond a reasonable doubt (which she was) that the applicant only intended to use a small part of the cocaine for his own consumption.

55.  The judge did not err in her approach and, on the evidence; she was entitled to reject the applicant’s case that he intended to use all the cocaine for his own consumption. Following from this, the applicant was correctly sentenced on the basis that only a small part of the cocaine was intended for his own consumption.

56.  The only ground of appeal raised by Mr Cheung failed.

57.  The judge refused to give a full one-third discount to the applicant despite his guilty plea because he raised issues of facts resulting in the need of a Newton hearing. Presumably the judge took the view that what the applicant did, by falsely claiming that all the cocaine was for his personal consumption, had unnecessarily lengthened the trial and disclosed a lack of genuine remorse.

58.  The judge’s reasoning would only have been sound if the Newton hearing was completely unnecessary and had not served any purpose. The issue was examined in R v Underwood [2005] 1 Cr App R 178 at 183 when Judge LJ said:

“The final matter for guidance is whether the defendant should lose the mitigation available to him for his guilty plea if, having contested facts alleged by the prosecution, the issues are resolved against him. The principles are clear. If the issues at the Newton hearing are wholly resolved in the defendant’s favour, the credit due to him should not be reduced. If for example, however, the defendant is disbelieved, or obliges the prosecution to call evidence from the victim, who is then subjected to a cross-examination, which, because it is entirely unfounded, causes unnecessary and inappropriate distress, or if the defendant conveys to the judge that he has no insight into the consequences of his offence and no genuine remorse for it, these are all matters which may lead the judge to reduce the discount which the defendant would otherwise have received for his guilty plea, particularly if that plea is tendered at a very late stage. Accordingly, there may even be exceptional cases in which the normal entitlement to credit for a plea of guilty is wholly dissipated by the Newton hearing. In such cases, again, the judge should explain his reasons.”

59.  The judge found, after the Newton hearing, that only part of the cocaine was for the applicant’s own consumption and on that basis reduced the applicant’s sentence by 10 months.

60.  The issues at the Newton hearing were at least partially resolved in the applicant’s favour. The Newton hearing could not be said to have been completely unnecessary or a waste of time. There was, therefore, no foundation for the judge to penalise the applicant by not giving him the full one-third discount for his guilty plea. The credit due to the applicant for a guilty plea should not have been reduced.

61.  In the circumstances, we were of the view that the sentence imposed on the applicant should be reduced by a further two months.

62.  We therefore granted leave to the applicant to appeal against sentence on a point of principle. Treating the application as the appeal proper, we allowed the appeal and reduced the applicant’s sentence from 56 months to 54 months.