SECRETARY FOR JUSTICE v. LEE YING TUNG

CAAR 12/2022, [2023] HKCA 787

On Review From [2022] HKCFI 3033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 12 OF 2022

(ON REVIEW FROM HCCC NO 219 OF 2020)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The respondent originally faced an indictment alleging two counts of trafficking in a dangerous drug together with her husband, Daniel Do (“Do”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Counts 1 and 3); to which indictment was subsequently added[1] an alternative count to Count 1 of doing an act tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Count 2). On 16 September 2022, the respondent was convicted on her own plea to Count 2 before Campbell-Moffat J (“the judge”). Counts 1 and 3 were then ordered to be left on the court file, marked not to be proceeded with without leave of the court[2]. The respondent was sentenced on the same day to a term equivalent to the time she had by then already served in custody, namely 84 days’ imprisonment, resulting in her immediate release from custody on the same day, as ordered by the judge. Meanwhile, Do had pleaded guilty before a magistrate to the original charges upon committal and was, in due course, sentenced to a total term of 14½ years’ imprisonment[3].

2.  On 12 October 2022, pursuant to section 81A of the Criminal Procedure Ordinance, the Secretary for Justice made an application to the Chief Judge of the High Court (“the Chief Judge”) for leave to review the sentence. On the following day, leave was duly granted by the Chief Judge, who also directed that the date for the filing of the substantive application should be extended for 7 working days. The substantive application was accordingly filed with the court on 18 October 2022.

3.  The application for review was originally fixed for hearing on 9 March 2023. However, the hearing had to be vacated because of the termination of the respondent’s unexpected pregnancy whilst her husband was in custody and she was on bail.

4.  On 1 June 2023, having heard arguments from the parties, we allowed the application and substituted on the respondent in respect of the sentence which had resulted in her immediate release, a sentence of 18 months’ imprisonment instead. We said we would hand down the reasons for our decision in due course. These are our reasons.

Facts admitted by the respondent

5.  The respondent resided at an apartment in Tsing Yi, New Territories with her husband and two children, who were both aged under 5 at the time. At about 9:58 pm on 24 December 2018, Do was intercepted by police officers in the corridor outside the apartment, as he was leaving the premises. When police officers revealed their identities and asked Do for his identification, he suddenly become agitated and shouted, “Wife, there is police, do not open the door!”.

6.  At about 10:07 pm (some 9 minutes later), police officers stationed on the podium floor of the building heard something land on the podium. It turned out to be a zipped up red bag. A security guard confirmed that the point at which the red bag landed on the podium was directly below the window of the master bedroom of the respondent’s apartment. The red bag was examined and found to contain, inter alia, a metal sieve adhering to which were 0.09 grammes of a solid containing cocaine; a paper bag containing a torn transparent re-sealable plastic bag containing traces of cocaine in powder form; some solid and two torn plastic bags containing a further solid, in which both solids weighed a total of 976 grammes containing 789 grammes of cocaine; a recycle bag with a transparent re-sealable plastic bag containing traces of cocaine powder; and two rolls of plastic sheets. On top of the drugs and paraphernalia in the red bag was a plastic bag of ordinary household refuse. The dangerous drugs in the red bag formed the subject-matter of Count 1.

7.  Shortly afterwards, the police used the keys found on Do and gained entry to the premises, despite finding the main door secured by a chain. During a search of the apartment, the police found, inside a wall cabinet of the master bedroom, two re-sealable transparent plastic bags containing a total of 638 grammes of powder containing 57.3 grammes of cocaine; and, from a bedside cabinet in the master bedroom, an electronic scale. Inside the kitchen were found some transparent re-sealable plastic bags and some plastic tape with suspected white powder attached; a torn re-sealable plastic bag containing traces of a powder containing cocaine; two electronic scales; and an induction cooker. The dangerous drugs from the wall cabinet of the master bedroom formed the subject-matter of Count 3.

8.  The respondent was arrested and cautioned at the scene but remained silent; as she also did during a subsequent video-recorded interview at the police station.

9.  On 8 October 2021, in circumstances we shall describe in greater detail in due course, Count 2 was added as an alternative to Count 1. By this alternative count, it was alleged that the respondent, on 24 December 2018, at the premises in Tsing Yi, with intent to pervert the course of public justice did an act which had a tendency to pervert the course of public justice. The facts which grounded this alternative count, and which were to be specifically admitted by the respondent, described how, when alerted by her husband to the presence of police officers outside the premises, and with the intention of perverting the course of public justice, she deliberately threw out of the window of the master bedroom onto the podium below a red bag, which contained nearly a kilogramme of cocaine and associated paraphernalia. She further admitted that when she did so, she knew that there was in progress a police investigation into Do, or that one was imminent, and that she assisted in the concealment from the police of the red bag, which was subsequently found to contain 976 grammes of a solid containing 789 grammes of cocaine, as well as a metal sieve and other related paraphernalia.

The applicant’s submissions

10.  In her extremely measured, concise and competently argued submissions, Ms Claudia Ko submitted that the judge was, from the outset of her involvement with the case, clearly and obviously sympathetic to the position of the respondent, given her role as the mother of two small children who were inside the apartment at the time. However, such sympathy unfortunately led the judge to descend into an unwarranted and improper interference in the conduct of the proceedings, which caused her to question the whole basis of the prosecution case, to secure an alternative count on the indictment and then to exert strong and persistent influence over both parties to agree a formulation of the Summary of Facts which would allow her to release the respondent from any further period of imprisonment. In the process, it was argued that the judge came to a view of the facts, which was incompatible with the particulars of the offence particularised in the indictment, inconsistent with the Summary of Facts and defiant of common sense.

11.  Ms Ko contended that in order to achieve her aim, the judge further purported to give the respondent a full one-third discount for plea, to which she was plainly not entitled, as the judge had herself initially pointed out. Accordingly, the judge’s sentence of the respondent to a term of imprisonment, namely 84 days’ imprisonment so as to permit her immediate release, was both wrong in principle and manifestly inadequate.

12.  Ms Ko submitted that, effectively, the sentence on the respondent following a full one-third discount for her plea, represented a notional starting point of about 4½ months’ imprisonment. Referring to the strictures of the Court of Appeal in Attorney General v Yeung Sau Shing[4] that strong measures were needed with such an offence to preserve public confidence of the judicial system, and that individual personal circumstances carried less weight in this offence than they would in relation to other crimes, Ms Ko submitted that the judge had placed undue weight on the personal circumstances of the respondent, and correspondingly insufficient weight on the need for punishment and deterrence. She argued that the starting point ought to have been in the region of 3 years’ imprisonment (see R v Tunney[5]).

The respondent's submissions

13.  Mr Richard Donald, with him Ms Nisha Mohamed, submitted that although the sentence passed on the respondent might be considered lenient, the judge was entitled to extend a measure of mercy to the respondent, as the English Court of Appeal had done in R v Gonsalves[6], and impose a sentence period which would allow for her immediate release. Not only was the respondent the mother of two young children, she had also been diagnosed as suffering from skin cancer on her right leg, for which she had already had an operation and was expecting another.

14.  Mr Donald submitted that it was not unusual for trial judges to discuss evidence and possible defences with counsel at case management hearings; there was nothing peculiar about a judge trying to understand a party’s case and to ensure that a defendant has been properly advised about the evidence against them. He contended that prosecuting counsel had agreed to removing from the Summary of Facts any reference to the respondent’s knowledge of the contents of the red bag and that this application was now an unjust attempt to undo that concession. He said that the judge could not be criticised for ensuring that the respondent was pleading to facts which formed a proper factual basis for sentencing.

15.  Mr Donald accepted that while the sentencing court must consider the substantive offence of the perverting act, that did not mean that a harsher sentence commensurate with the substantive offence must be imposed. Furthermore, there was no evidence to suggest that the respondent knew the quantity of dangerous drugs in the red bag; accordingly, the sentence for perverting the course of public justice should not directly correspond to the amount of drugs seized, as it might do if the case had been one of trafficking; particularly when the evidence suggested that the respondent had thrown the red bag out of the window in panic on a single occasion.

16.  As for the discount for plea, Mr Donald contended that the judge had correctly given the respondent a one-third discount in the exercise of her discretion, since the parties were still finalising the basis for her plea at the 2^nd case management hearing. Accordingly, she should not be penalised for any delay.

An over-view of the submissions

17.  There were four hearings before the judge in the High Court: two case management hearings and two plea and sentence hearings. Since the judge made it very clear throughout all four proceedings what was in her mind on the record, it has been perfectly possible for this Court itself to understand precisely what took place over the course of some 52 pages of transcript.

18.  The respondent had originally been committed to the High Court for trial on 14 September 2020 on the two charges that were before the magistrate. These two charges subsequently became Counts 1 and 3 on the indictment. At the stage of committal, there was no charge of perverting the course of public justice. Thus, it is important in this application to understand what transpired at the proceedings before the judge and how the plea to an alternative count came about.

19.  As an overview of the four hearings before the judge, the 1^st case management hearing took place on 24 August 2021. A 2^nd case management hearing took place on 8 October 2021, at which the amended indictment was first introduced. Although listed as a Chambers hearing, the amended indictment was put to the respondent for her to plead to. She pleaded ‘not guilty’ to the newly added alternative, Count 2.

20.  On 7 December, defence counsel informed the court in writing that the respondent would be pleading guilty to Count 2. The 1^st plea and sentencing hearing, which was the third hearing before the judge, accordingly took place on 24 January 2022. However, for reasons we shall deal with in greater detail in due course, that hearing was adjourned to 4 March 2022. Unfortunately, for reasons we shall again come to, the case was only able to return to court on 16 September 2022. At the 2^nd plea and sentencing hearing on 16 September 2022, which was the fourth hearing before the judge, the respondent pleaded guilty to Count 2, a Summary of Facts was presented (and amended in court) and the respondent was sentenced to the term of imprisonment which has prompted this application for review.

21.  It will be noted from this brief summary of the history of the proceedings that following the committal of this case to the High Court on 14 September 2020, the matter was not finally resolved and sentence passed until 2 years later on 16 September 2022. Apart from the five weeks of the General Adjourned Period (“GAP”) occasioned by the Covid pandemic[7], the reasons for this unsatisfactory delay become clear as we explain in greater detail what took place at the four hearings.

24 August 2021 - the 1^st case management hearing

22.  The prosecution was represented at this hearing by Mr Fergus Chau of the Department of Justice, and the defence, throughout all of the hearings before the judge, by Mr Mak Kin Ming of counsel. What was no doubt expected to be a straightforward review of pre-trial issues for a contested trial was almost immediately pre-empted by the judge asking prosecuting counsel what the evidence was of the respondent’s knowledge that the red bag contained dangerous drugs. Mr Chau explained that the prosecution relied on the inevitable inference which flowed from the respondent’s act of throwing a large, heavy red bag of cocaine and associated paraphernalia out of the window of the apartment, having been alerted by her husband to the arrival of the police outside the premises and his instruction not to open the front door for them.

23.  After some discussion, the judge appeared to accept that such an inference could reasonably be drawn, but then queried whether the throwing of a bag in such circumstances would amount to trafficking, commenting[8]:

“…the fact that she simply gets rid of something is another offence but it isn’t trafficking in dangerous drugs, is it, Mr Chau?”

We pause here to note that there were other drugs and associated paraphernalia scattered throughout the apartment. Nevertheless, she went to tell prosecuting counsel[9]:

“So now you’ve got two points you’ve got problems with, right? In what way is she trafficking? And you would have to get her on possession first before you got to trafficking. In what way is she possessing, if it’s the husband who’s coming into the house and agreeing to hold it?”

(By this last sentence, the judge apparently had in mind a potential defence, which had so far not been articulated by defence counsel and was purely imaginary, in which it was postulated by the judge that the husband may have been holding the drugs for a friend and the respondent merely knew of this arrangement). The judge continued to address prosecuting counsel, suggesting[10]:

“I think you’ve got serious problems unless you’ve got more on possession, custody and control.

That’s my first thing that I think you’ve got serious problems with, Mr Chau. My second thing is that if you’ve got problems with that, you’ve got problems with trafficking, because throwing something out of a window is not trafficking. Dealing with it, I suppose. Maybe, just about, if you then can prove knowledge.”

24.  The judge then invited prosecuting counsel to reconsider his case against the respondent, suggesting that the case may not otherwise get off the ground, at least in her court[11]:

“I think this case needs – and it’s yours, Mr Chau – which is a surprise, because I rate you very highly. But, unless there’s something more to this that I don’t know about, this isn’t getting before a jury before me.”

She then went on to repeat that unless the prosecution could show, at the outset of the trial[12], that any likely defence inference was inherently improbable, thus preventing the prosecution inference from being drawn, then[13]:

“I’m not having a farce of a trial, I’m going to say, you can’t get off the ground.”

She then invited prosecuting counsel to “go away and think about it. You can come back, tell me what you think. I’m not putting any pressure on you. I’m just giving you a heads-up”[14].

25.  Turning then to defence counsel, the judge remarked[15]:

“You don’t say anything. You just hope your Christmases have come at once”.

We were rather puzzled during the hearing as to what the judge meant by this somewhat obscure remark and, indeed, what she was proposing the prosecution should do. Was she inviting the prosecution to drop the case against the respondent altogether; or was she asking them to consider an alternative offence to trafficking? Either way, the reference to “Christmases” suggested that the defence would be the direct beneficiary of whatever was to happen. She continued[16]:

“Mr Chau, and all of the young men who currently are in the DOJ, I have a huge amount of respect for …they’re good at their jobs and if they decide they’ve got a case, they’ve got a case, all right, and you’ll [Mr Mak] just have to make various applications at some stage, but …for now I’m not going to do anything with this.”

Again, we were somewhat mystified by what applications the judge was inviting the defence to make, and on what basis and when. This was, after all, simply a case management hearing and the trial was several months away. Nevertheless, there the matter was left.

26.  Before we leave this hearing, we should say that there were three references by the judge to the fact that the respondent was the mother of two young children[17]. The reason for the repeated references to these facts was to be made clear at the 2^nd case management hearing, which took place on 8 October 2021.

8 October 2021 – the 2^nd case management hearing

27.  By this time, Mr Chau had been replaced by Mr Richard Turnbull, acting on fiat for the prosecution. Mr Mak appeared again for the respondent. Mr Turnbull began by producing an amended indictment, also dated 8 October 2021, adding Count 2 as an alternative to Count 1; with the other two counts remaining as before, but renumbered as Counts 1 and 3. After some initial queries from the court as to whether leave was required, the judge decided, notwithstanding that the hearing was in Chambers albeit open to the public, that the amended count should be put to the respondent for her to plead to. This was duly done and the respondent pleaded ‘not guilty’[18]. This drew an immediate response from the judge[19]:

“Well, that’s interesting, Mr Mak, because I’d like to think you’re going to struggle with that. Yes?”

before going on to ask defence counsel[20]:

“What’s your defence?”

28.  When the judge was informed by defence counsel that the respondent had pleaded not guilty to the amended count because there was no evidence to support such an alternative charge, which had taken the prosecution three years to prefer, the judge responded[21]:

“No, they did it because I pressurised … I suggested to Mr Chau that maybe there was another way of dealing with this, given that she’s (a) the wife and (b) a mother of young children. … It was because I said, ‘Isn’t there a way we can deal with this?’ I gave you a big opening which you haven’t taken.”

29.  When defence counsel tried to explain the reason the respondent had pleaded ‘not guilty’, the judge engaged in a lengthy discussion with Mr Mak, which it is relevant and necessary to set out in full[22]:

“COURT: Well, but you’re taking the view then on behalf of your client before a jury that you’re going to run -- there’s insufficient evidence on the basis on a perverting -- ‘Oy, don’t open the door to the police.’ What? A bag goes out. Where’s the insufficient evidence? Have you thought about this, Mr Mak?

MR MAK: Yes, actually, you know, when I received this alternative charge and I thought about it, I looked at the material, the trial papers, but there is no evidence strictly pointing to the mindset of the defendant that she knew her husband was being investigated.

COURT: So why did she throw the bag out of the window? Because you -- sorry, I’ve got to remind myself of this. Did you have an interview? Were you interviewed?

MR MAK: Yes.

COURT: Right. What did you say?

MR MAK: No answer given.

COURT: Well, that’s -- so basically no interview.

MR MAK: Mm.

COURT: Right. So nothing before the jury other than the prosecution’s evidence ‘Oh, don’t open the door, the police are here,’ and you throwing a bag out of the window, which subsequently has drugs in it.

So you’re at serious risk of the main charge, all right, and at even more serious risk of the new alternative of perverting, because we have ‘Oh my goodness, my husband’s outside with the police. Now, I just feel like throwing a bag out of the window.’ And no -- and an inference to be drawn by Mr Turnbull and no inference you can draw, because there will be no evidence, because I’m sure you’re not going to put her in the box, as is her right.

MR MAK: Right.

COURT: I’m not putting pressure on you. I’m just letting you know that – ‘gift horses’ and ‘mouth’ come to my mind right now. But if you want a trial, you have a trial If she -- between the two of you, there is what you understand on your instructions to be a wholly innocent explanation, even though it’s not given, but on your instructions, in your mind, advising your client.

MR MAK: Definitely, I will do that.

COURT: Because her risk, how much is it? 976 grammes ...

MR MAK: Yes, 789.

COURT: ... of cocaine. That’s a lifetime. She has small children.

MR MAK: Right, point taken.

COURT: Which is why I did what I did on the last occasion. We are not -- this isn’t somebody with a previous as long as their arm, who knows the risks they take. This is a mum.

MR MAK: Understood.

COURT: This isn’t a game before a jury.

MR MAK: Of course not.

COURT: This is somebody’s life here, and the discount gets smaller and smaller as we get closer to trial.

MR MAK: Understood.

COURT: And you still feel -- because I’m writing it down. You still feel you’re going to run ‘There’s no evidence on the perverting’, are you?

MR MAK: Just initial view. I will reserve it.

COURT: Mr Mak -- well, that’s a matter for you, but I’m the person who has to send a young mother with young children to prison if she goes down, and the chances of her going down on the alternative ...

MR MAK: I have a ...

COURT: ... are not that ...

MR MAK: Right, right.

COURT: I’m not putting pressure on you now, because you’ve already lost whatever credit you could get, which would have been all credit because this was the first occasion. You’ve just lost it. All right,

MR MAK: Your Ladyship, can ...

COURT: Think about it and, if you come to a different view, ask to come back. That’s all I can think of to do that’s fair.

MR MAK: Your Ladyship, I’m sorry…

COURT: I’m not putting pressure on you today. I’ll get it in the neck putting pressure on you.

MR MAK: Actually, I’m under excessive pressure and can I have just five minutes?

COURT: For what? I’m not giving her changing her plea in five minutes. That’s not right. She needs time to think about it. She’s on bail anyway, isn’t she?

MR MAK: Yes, she is.

COURT: Yes. So what I’m going to do is give you another opening. I am not putting pressure on you. This is a matter between you and your client.

MR MAK: Right.

COURT: I’m just giving you a huge indication of my view.

MR MAK: Understood.”

30.  There then followed a discussion about the length of the proposed trial and the likely areas of dispute in the event of a contested trial. The 2^nd case management hearing concluded with the judge saying to defence counsel[23]:

“If you wanted to come back and change your plea, if by some amazing chance you wanted to do that, you can come back and do that, and then we might have to go off again in order to fix a date to sort the whole matter out.”

The court’s letter to defence counsel dated 17 November 2021

31.  Just over a month after the 2^nd case management hearing, the judge’s clerk wrote a rather unusual letter to defence counsel, which was copied to the respondent’s solicitors and to prosecuting counsel. The letter, dated 17 November 2021, read as follows:

“Dear Mr Mak,

I refer to the 2^nd Case Management Hearing conducted on 8 October 2021 at which the Defendant was arraigned on the alternative count (Count 2) under the amended indictment, and in view of the plea entered, Her Ladyship has asked the defence to explain to the defendant, among other things, the charge, strength of evidence and the defence that is to (be) run, and to come back to the court if it were to come to a different view.

I write to inquire about (i) the defence’s latest position on the issues raised and (ii) whether a 3^rd Case Management Hearing is necessary. If so, I would be grateful if you could liaise with the Prosecution and provide the court with dates that are mutually convenient for both parties.

Yours faithfully, etc”

32.  To this letter, Mr Mak responded on the following day, 18 November 2021, to inform the court that the respondent would plead guilty to Count 2, “provided the Prosecution would offer no evidence against her on Count 1 and Count 3”. This was later followed up by a further letter to the court on 7 December 2021 from Mr Mak informing the judge that, pursuant to an agreement with the prosecution, the respondent would now plead guilty to Count 2, and “the Prosecution will invite the court to leave Count[s] 1 and 3 on the court file”.

33.  We shall return to the wisdom and propriety of the judge’s letter of 17 November 2021 to defence counsel in due course.

24 January 2022 – plea and sentence (the first hearing)

34.  After the 2^nd case management hearing, Mr Turnbull was replaced by Mr James Sherry, also acting on fiat for the prosecution. On 18 January 2022, the judge’s clerk wrote a letter to Mr Sherry, which was copied to the respondent’s solicitors and to Mr Mak, to remind the prosecution that “a summary of facts in relation to the perverting count which the Defendant is prepared to plead to, is to be prepared. The summary of facts, upon admission by the Defendant, will form the basis of sentencing.” It is not clear why such a letter should have been necessary, given that 24 January 2022 had already been fixed as the date for plea and sentence on 9 December 2021, and the parties would have necessarily prepared accordingly. In any event, on the same day, 18 January 2022, Mr Sherry wrote back to the judge’s clerk attaching the prosecution’s Summary of Facts, which was dated a day later (see [37] infra).

35.  On 21 January 2022, Mr Mak filed with the court a written submission in respect of his proposed mitigation, together with a case authority and other mitigation documents. The submission included the respondent’s explanation for her actions, which, given its importance, must have been obtained on instructions from the respondent. It included the following paragraphs[24]:

“11. After putting on the pyjamas, the Defendant was prepared to go to bed with her two children, suddenly she heard D1 was shouting at the corridor, fear and worry were all over the Defendant and she was totally at a loss.

12. The Defendant was totally confused and rushed to the kitchen and looking for the bag of dangerous drugs and she found that there was a Red Bag and she looked inside and she knew the drug was kept in the Red Bag, out of fear and protection for the two children, she threw the Red Bag out of the window of the Master Bedroom of the house.

13. She understood what she had done was doing an act tending and intended to pervert the course of public justice and she is now in complete remorse for she has made a blunder and committed a crime but at the time she had a tremendous worry over the safety of her two children.

……

16. Having said that, it is humbly to invite the court to take the overall background into consideration as it was not the Defendant who brought the dangerous drugs into the house and indeed she had pressed D1 to disclose to her about the contents of the bag and having known it, the Defendant had asked D1 to have the bag of dangerous drugs thrown out of the house albeit her requests and demand had been ignored.” (Emphasis supplied)

36.  It is thus clear from counsel’s written submission in mitigation that the respondent had conceded her knowledge of dangerous drugs inside the red bag at the time she threw it out of the master bedroom window, which conformed with the prosecution’s Summary of Facts, prepared by Mr Sherry and served on the court on 19 January 2022. One might think it also conformed with the particulars of Count 2 itself, which specified that the respondent had intentionally perverted the course of public justice by assisting in concealing a bag of dangerous drugs and a metal sieve from police officers, at a time when she knew they were investigating her husband.

37.  To make sense of what happened during the hearing on 24 January 2022, it is necessary to recite part of the Summary of Facts which had been prepared by Mr Sherry and served on the court, paragraph 10 of which stated[25]:

“D2 (the respondent) now admits that when she was alerted to the presence of Police by D1 shortly before they entered Flat A, and with intention to pervert the course of public justice, she quickly picked up the Red Bag which she knew contained the paraphernalia related to the dangerous drugs, such as the cocaine, the glass, the metal sieve, etc., and deliberately dropped it out of the Flat A master bedroom window where it landed on the podium below. D2 further admits that when she did so, she knew that there was in progress an investigation into D1 by the Police or that one was imminent and that she assisted in the concealment of the Red Bag which she knew contained 976 grammes of a solid containing 789 grammes of cocaine and a metal sieve and other related paraphernalia from the Police Officers responsible for investigating D1.” (Emphasis supplied)

38.  We have emphasised part of the above quotation for good reason. For it was this passage which prompted the judge, when proceedings opened on 24 January 2022, to tell the parties at the outset that “the Summary of Facts wasn’t quite what I was expecting”[26]. The reason was, as she explained to Mr Mak[27]:

“So now your client has basically pleaded to knowledge of what was inside the bag, or wants to plead to knowledge of what’s inside the bag, whereas my initial discussion with the court was on the basis that she may not know what was inside the bag, but it appears that now you’re accepting she knew what was inside the bag.”

To this, counsel replied “Yes”. When he suggested that he could further discuss the matter with prosecuting counsel, the judge responded[28]:

“No, no. Well, everybody has given it to me now and that’s looking like a period of imprisonment.”

39.  When defence counsel explained that he had been given to understand that the prosecution would only accept the plea on the basis that the respondent had knowledge of the contents of the red bag, the judge laid bare her concerns and the reasons for her interest in the plea. And it is these remarks which essentially provide the foundation for the Secretary for Justice’s application for review before us.

40.  In unambiguous and emphatic terms, the judge revealed her frustration with this turn of events, saying[29]:

“But it’s put me back into a difficult position, which I was hoping to avoid, and I’d hoped I’d indicated to everybody what I was hoping to be able to do, without finding myself yet again being looked up by the Court of Appeal.

And now she’s admitted knowledge of a significant amount of drugs, which… on a trial, as I said, was highly likely -- there was a high probability she wouldn’t be convicted. I’ve now got her with a perverting, admitting knowledge of trafficking. That -- how on earth do I dispose of that in a non-custodial way for the sake of two little kiddies?” (Emphasis supplied)

When defence counsel suggested the respondent might simply admit to the existence of dangerous drugs only, the judge continued[30]:

“Well, she was suspicious and she didn’t know what, but it’s still sufficient for trafficking, and I have to look first at the seriousness of the offence, haven’t I? And the seriousness of the offence is worth 20-something years. How on earth do I get past the Department of Justice? Come on. Let’s be pragmatic here, everybody.”

41.  Mr Sherry then entered the fray to outline the basis upon which the prosecution had accepted the plea, which prompted the judge to explain again[31]:

“I was merely motivated to try to be humane and, on the basis that I thought it was – there was every likelihood, but you never know, that D2 might have a not guilty (verdict) on trial. But to seek to dispose of it in a way that would allow these children to still have one parent, and now I’m not in that position.”

There was then discussion about the possibility of postponing the case until after the disposal of the respondent’s husband. The judge agreed with this course[32]:

“And then see what the proper disposal of this is, especially now, and I wouldn’t – thank goodness I’m not the trier of fact – especially now that we have a basis of plea that wasn’t the one in any event I was trying to avoid in order to dispose of it properly without the need for it to go to the Court of Appeal and for the Court of Appeal to put her inside. …

I’ve been perfectly honest on the record. I had in my mind two little children. … And the basis of throwing a bag out of – because she didn’t go and throw the rest out. So there’s a query there. But, in any event, I am minded to say that that’s not – no longer pertinent and I’ll take the flak for it elsewhere, if that’s the case. So we’ll wait and see how this gets disposed of, which is why I think it’s very important we have a very senior and well respected and competent counsel.”

42.  The judge then suddenly turned to address the representative of the Director of Legal Aid, who happened to be in court, to voice her concern that “sometimes Legal Aid counsel in this court is not any of those things”[33]. We were not clear what prompted this somewhat odd and sudden exchange with someone not involved in this particular case, but we wish to make clear it had nothing to do with the respondent’s counsel at trial, Mr Mak: the remarks appear to have been generated by the judge’s experience in another case.

43.  After this interlude, the judge addressed both counsel again informing them that they would wait and see what happened in the husband’s case, before reassuring Mr Mak[34]:

“I do have the best interests of your client at heart.”

44.  Accordingly, no plea was taken that day and the matter was adjourned to 4 March 2022. Unfortunately, two events then intervened. Firstly, the respondent tested positive for Covid on 2 March 2022 and the hearing of 4 March was duly vacated to a date to be fixed; secondly, GAP was announced as from 7 March 2022. It was not until 16 September 2022 that the respondent was to find herself before the court again.

16 September 2022 – plea and sentence (the second hearing)

45.  The parties on this occasion were again represented by Mr Sherry for the prosecution and Mr Mak for the defence. On 15 September 2022, the day before the hearing, the prosecution had filed with the court an amended Summary of Facts, drafted by Mr Sherry on 13 September 2022. In view of the controversy at the previous hearing concerning paragraph 10, the proposed new version of the same paragraph now read as follows:

“D2 now admits that when she was alerted to the presence of police by D1 shortly before they entered Flat A and with an intention to pervert the course of public justice, she quickly picked up the Red Bag which contained the paraphernalia related to the Dangerous Drugs, such as the cocaine, the glass, the metal sieve, etc., and deliberately dropped it out of the Flat A master bedroom window where it landed on the podium below. D2 further admits that when she did so, she knew that there was in progress an investigation into D1 by the Police or that one was imminent and that she assisted in the concealment of the Red Bag which contained 976 grammes of a solid containing 789 grammes of cocaine and a metal sieve and other related paraphernalia from the Police Officers responsible for investigating D1.” (Emphasis supplied)

It will be seen that paragraph 10 remained essentially the same as the earlier January version, save that the words “she knew” had been removed from the last sentence.

46.  However, proceedings began on 16 September 2022, with the judge again voicing her dissatisfaction with the latest version of the Summary of Facts, in particular, paragraph 10. She said[35]:

“…I’m not very happy about it, Mr Sherry. Did you – I understand you did. Did you do that on the instructions of the Department of Justice?”

Mr Sherry responded that he did not, but “in relation to paragraph 10, it seems to me that that is what really reflects the offending, because if I put it any higher…”[36]. At that, the judge interrupted Mr Sherry to comment[37]:

“I think you’ve put it pretty high as it is, without any evidence.”

Mr Sherry replied that he had nevertheless “tried to find the right level”[38].

47.  There then followed this exchange, which resulted in Mr Sherry making a further apparent concession to assuage the judge[39]:

“COURT: But your Summary of Facts gives her knowledge ...

MR SHERRY: Well ...

COURT: ...doesn’t it, and that is not -- that was not the basis …

MR SHERRY: My Lady, I’m not sure it does go that high. I’m …

COURT: Well, that’s what I want to make clear.

MR SHERRY: ... very alive to that issue because if I did put it as knowledge, why isn’t it trafficking?

COURT: Well, you wouldn’t have got home on the trafficking in any event, because she remained silent throughout and she would have got off at half-time. So …

MR SHERRY: Well, my Lady ...

COURT: And that’s what I indicated on the last occasion, didn’t I, that I was thinking that I did her an injustice by suggesting that the prosecution think again, because she should just have had a trial. Now I’ve still got Mr Sherry and I understand why, but reading this, if this were to go to another court, reading this, she is admitting to knowing that she's throwing out of the window the particular type of drugs and the quantity of drugs, which puts me in a difficult position.

MR SHERRY: My Lady, you were ...

COURT: She can know there’s drugs, but she doesn’t necessarily have to know what or how much, and you haven’t got any evidence to show that, have you?

MR SHERRY: No, my Lady, I don’t have any evidence to show knowledge.

COURT: No, at all.

MR SHERRY: At all.

COURT But that’s what this -- this is how this reads.

MR SHERRY: But this bag says -- what she did is she picked up a red bag which contained the paraphernalia, etc.

COURT: Yes.

MR SHERRY: That’s …

COURT: Which contained the paraphernalia.

MR SHERRY: Which contained, and that’s a fact. It did contain these items, and that is the bag she threw out, but it does not say that she knew it contained those things.

COURT: Yes, but you’ve also got ‘and that she assisted in the concealment of the red bag which contained’. So if you are content to place within that or content that Mr Mak submits and does not amend his mitigation, then I don’t have a difficulty. But, somehow or ever (?), I do not want anybody to think that I am accepting that, as a result of these negotiations, this woman is admitting something she doesn’t have to admit, because that, to me, is not acceptable.

MR SHERRY: Yes.

COURT: I don’t mind how we do it, but, as far as I’m concerned, and obviously I got and read Mr Mak’s mitigation, which presumably was on instructions, that she did not know what it was in specifics that she was throwing out the window. And remember that the drugs are right at the bottom of that bag, when you look at the photographs, and it makes a huge difference to sentence.

MR SHERRY: My Lady, to resolve the matter, would you be happy if I added the words on the third line ‘picked up the red bag which was subsequently found to contain’? Does that dilute it sufficiently to get where we ...

COURT: Yes, that would assist me, yes. She obviously did know there was an investigation in progress because that’s why she threw ...

MR SHERRY: And threw out the ...

COURT: ... the bag out of the window, and she’d consisted (?) in the concealment of the bag, which subsequently was found to contain the 976 and the 789 as well. So two loads of which subsequently ...

MR SHERRY: Yes.

COURT: …would serve my purpose and then Mr Mak can rely on the whole of his mitigation.

MR SHERRY: Yes.

COURT: And I would appreciate that, Mr Sherry.

MR SHERRY: I think that’s where -- I understand where we’re trying to get to here. It’s just getting the wording right.

COURT: Yes. Just in case, because, as I’ve said a few times now, I seem to have an office in the DOJ with my name on it and everything goes up to the Court of Appeal, and I need to cover.

MR SHERRY: Right.

COURT  Why I’m trying to do this, I want the person who’s really guilty to be dealt with, but this is a mother of two little children.”

48.  It was then agreed that paragraph 10 would be further amended by prosecuting counsel in handwriting to read as follows:

“D2 now admits that when she was alerted to the presence of Police by D1 shortly before they entered Flat A, and with an intention to pervert the course of public justice, she quickly picked up the Red Bag which was subsequently found to contain the paraphernalia related to the Dangerous Drugs, such as the cocaine, the glass, the metal sieve, etc., and deliberately dropped it out of the Flat A master bedroom window where it landed on the podium below. D2 further admits that when she did so, she knew that there was in progress an investigation into D1 by the Police or that one was imminent and that she assisted in the concealment of the Red Bag which was subsequently found to contain 976 grammes of a solid containing 789 grammes of cocaine and a metal sieve and other related paraphernalia from the Police Officers responsible for investigating D1.” (Emphasis supplied)

49.  Following a short adjournment to deal with the amendment and for defence counsel to explain the latest development, Count 2 was put again to the respondent, who this time pleaded ‘guilty’[40]. She then duly agreed the re-amended Summary of Facts[41]. As a matter of record, the plea of guilty had finally been entered 2 years after the respondent had been committed to the High Court by a magistrate, over 11 months after the indictment was amended to add Count 2, to which the respondent initially pleaded not guilty, and over 9 months after the court had been informed by letter that the defence had been in discussion with the prosecution and would be pleading guilty to the offence.

50.  After a very short oral plea in mitigation, the judge then proceeded to sentence the respondent. In the course of a lengthy, and obviously prepared, set of reasons for sentence, the judge said[42]:

“I accept for the purposes of sentencing that you did not know the exact contents of the bag or the quantity of dangerous drugs within the bag. I rely for that on the written mitigation provided to me from Mr Mak on your behalf dated 21 January 2022. And I note that there is no other evidence available to the prosecution to suggest that you did know and Mr Sherry rightly accepts that position.”

A little later, she held[43]:

“There is no evidence on the facts of this case to suggest that you had any idea of the quantity of the drugs within the bag you threw out of the window. This was clearly a one-off spur-of-the moment act in panic when you heard your husband shout out.

There is no course of conduct here as there is in other cases. The act was a split-second reaction to the warning given by your husband and that act had no effect whatsoever upon the administration of justice as the bag was seen to fly out of the window and was recovered immediately.”

51.  With respect to the judge, although this may have been the result she had wanted to secure, it was contrary to a plain reading of the particulars of Count 2 and the Summary of Facts, whichever version of the latter one relies upon. It was in defiance of what defence counsel had put forward in his written submission in mitigation[44]. And it flew in the face of the most obvious inference to be drawn from the fact that the husband had made no mention of any drugs when he shouted his warning to her about the police presence; that the respondent took some nine minutes from hearing her husband’s warning to the time she jettisoned the red bag weighing about 1 kilogramme out of the window of the master bedroom; and that 976 grammes of cocaine were found to be concealed under some household refuse within the red bag. This relatively small apartment was subsequently found to house cocaine in a wall cabinet of the master bedroom as well as in the kitchen, where there were electronic scales, re-sealable plastic bags with traces of cocaine and an induction cooker. The respondent could not, as a matter of obvious common sense, have been ignorant of the presence of cocaine in the apartment or the red bag.

52.  Yet it is clear that the judge was throughout motivated by her concern for the presence of two small children in the apartment, for that is exactly what was revealed on the record as her motive. Moreover, during the four hearings before her, she had emphasised the plight of the two small children on no less than 15 occasions. But, however tragic the situation, the fact is that the two small children were being brought up by parents, one of whom is a convicted drug trafficker, while the other was content to bring up her children in such toxic circumstances, with cocaine even strewn around the kitchen. It is not the function of a judge to be prosecuting counsel, defence counsel or a social worker: a judge must apply the law in the public interest. And we consider that these circumstances rendered the judge’s apparent motive a wholly misguided and injudicious one.

53.  As for the lateness of the plea, not only was the judge wrong in her recollection of what had happened during the earlier proceedings, she appeared to have come to the decided view that the respondent was somehow justified in delaying her plea until the last minute. She summarised the matter as follows[45]:

“The evidence against you was not strong and after the first case management hearing on 24 August 2021, the prosecution reconsidered its position and sought to add a count of perverting the course of justice as an alternative to Count 1 on the indictment. That amended indictment was placed before the court on 8 October 2021 and at the court’s direction you did not enter a plea at that time.

Your first opportunity to enter a plea to an offence having been appropriately advised, which more accurately reflects the part you played in these events, has been today and consequently you will be given full credit for that plea.”

54.  With respect, it was the judge who asked that Count 2 be put to the respondent for her to plead to, at a Chambers hearing on 8 October 2021. However, the respondent pleaded ‘not guilty’, prompting the judge to inquire, “What’s your defence?”[46]; to point out that the respondent had now lost whatever credit she could have received by not pleading guilty at the first opportunity; and subsequently to send what we have described as the “rather unusual” letter to defence counsel concerning the respondent’s plea at the 2^nd case management hearing. The indictment was not put to the respondent at the next hearing on 24 January 2022, which was designated for plea and sentence, because the judge was evidently not happy with the Summary of Facts on the question of the respondent’s knowledge of drugs in the red bag. The respondent finally pleaded guilty to Count 2 on 16 September 2022.

55.  The judge nevertheless concluded[47]:

“The time that it has taken to have this matter dealt with cannot be said to be any fault of yours. You should never have been proceeded with for trafficking in dangerous drugs in the intervening social unrest and Covid-19 have exacerbated matters and led to more delay.”

Later, she continued in the same vein[48]:

“The lateness of your plea cannot be laid at your door. There was necessarily much negotiation between the bench and the prosecution and then father negotiation between the defence and the prosecution. I am not at all surprised that you entered a plea of not guilty initially.

However, you have wisely accepted you sought to assist your husband by throwing the evidence away and in so doing you entered the plea at the earliest opportunity.”

56.  Firstly, we must say that we do not accept that the prosecution should not have proceeded against the respondent for the offence of trafficking in dangerous drugs. Whether she was guilty or not, or whether she had committed some other offence, was a matter for the jury, not the judge. The earlier intimations from the judge that “unless there’s something more to this that I don’t know about, this isn’t getting before a jury before me”[49]; that “I’m not having a farce of a trial, I’m going to say, you can’t get off the ground”[50]; and that the defence should “make various applications”[51] if the prosecution decided to proceed, were ill-advised, imprudent and inappropriate. Secondly, the judge described her own rather conspicuous interventions as a “negotiation between the bench and the prosecution”, but, with respect, such bartering is no part of the judge’s function. It is the prosecution which brings the case, not the judge, and it is for the defence to discuss with the prosecution what might be an acceptable plea in the proper disposal and determination of the case. Thirdly, the judge was in fact surprised by the respondent’s plea of ‘not guilty’ to Count 2 on 8 October 2021 and correctly told the respondent through her counsel after the arraignment that “you’ve already lost whatever credit you could get, which would have been all credit because this was the first occasion”[52].

57.  In the circumstances we have detailed, the respondent was not entitled to a full discount for plea, notwithstanding that much of the delay was brought about by GAP and the judge’s own machinations on the issue of knowledge so as to ensure a sentence that allowed for the respondent’s immediate release. We would assess the respondent’s discount entitlement at 25%.

58.  What is quite clear from this survey of the four hearings before the judge is that the ultimate result, which has now prompted this application for review, was orchestrated from beginning to end by the judge herself. Whilst she appears to have been motivated by the perceived plight of the respondent’s two small children, she seems to have thought that the only way she could justify not passing a further sentence of imprisonment was by neutralising any suggestion that the respondent knew about the cocaine in the red bag. In so doing, she procured a set of findings which were at odds with the particulars of the count and the Summary of Facts, inconsistent with the written mitigation advanced on instruction but, above all, contrary to common sense. As we have said, having been alerted to the presence of police outside the apartment by her husband, the respondent took no less than nine minutes to throw a red bag containing cocaine and associated paraphernalia hidden below some household refuse out of the window. The torn bags of cocaine were never explained. The inference of knowledge was obvious and irresistible.

59.  Unfortunately, the judge appears to have thought that if there was any concession to knowledge of drugs in the red bag, then the respondent ran the risk of being seen as trafficking in dangerous drugs, for which she would face a sentence after trial of more than 20 years’ imprisonment. With respect that cannot be correct. First, it was for the jury to determine whether the respondent was trafficking in dangerous drugs in any of the senses described in the Dangerous Drugs Ordinance, or whether she was simply acting out of panic to get rid of evidence in order to help her husband.

60.  Secondly, even if a jury did convict her of trafficking, we cannot conceive of any judge who would have sentenced her to 20 years’ imprisonment. One of the purposes of this Court’s judgment in HKSAR v Herry Jane Yusuph[53] was to discourage judges from slavishly applying arithmetically arrived at sentences and, instead, encouraging them to concentrate on role and culpability. Whatever the respondent did, she was no trafficker in the conventional sense of being a drug dealer, and she was no courier in any sense of the word. Thirdly, the fact that the prosecution added an alternative count of perverting the course of public justice did not require that the respondent should be unaware of the cocaine in the red bag: indeed, it would confound common sense to suggest otherwise. But more worryingly, the judge, by her interference and interventions, managed to engineer a set of findings which were at odds with reality and the actual truth of the matter.

61.  With respect, had the judge left the matter to experienced counsel, as she should have done, rather than procuring and then managing a result, by alternately “pressurising” (her own word) the prosecution and then the defence into a different offence and a truncated version of the facts in support of that offence, all apparently motivated by irrelevant considerations, this application would and should never have arisen.

62.  In Chow v DPP[54], the Court of Appeal of New South Wales discussed the principles governing a sentencing judge where the parties have agreed on the plea to be tendered to an indictment. Kirby P (who was later to become a distinguished jurist of the High Court of Australia) said of the first principle[55]:

“It is the function of prosecutors, not of judges, to determine whether a person will be prosecuted for a criminal offence and, if so, upon what offence. The judge is, at least ordinarily, bound by the charge which the prosecutor elects to bring: see Brown (1989) 17 NSWLR 472 at 477f; 44 A Crim R 385 at 392f. Under our criminal justice system, the judge has no right to require the prosecutor to proceed on a ‘higher’ rather than ‘lesser’ charge. Necessarily, the prosecutor will often have a great deal of material (some of it inadmissible) which will be weighed in electing whether or not to prosecute and if so for what offence. The judiciary is not well-placed to supervise such decisions. They belong, in any case, by statute, tradition and the principled demarcation of the prosecutorial and judicial functions, not to the judiciary but to the prosecution...”

This passage was referred to with approval by Gaudron and Gummow JJ (now Gummow NPJ) in the High Court of Australia decision in Maxwell v R[56], and subsequently acknowledged by Lord Bingham of Cornhill on behalf of the Privy Council in Mohit v DPP[57]. We would add that the converse of the principle that a judge has no right to require the prosecution to proceed on a more serious charge would also apply to a judge requiring the prosecution to proceed on a less serious, or alternative, charge.

63.  In our jurisdiction, of course, Article 63 of the Basic Law specifically provides:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”

(See the discussion on Article 63 in Kwok Tak Ying v HKSAR & Secretary for Justice (Interested Party)[58], at [18]-[20]).

64.  Reverting to the case before us, whether the prosecution sought to proceed against the respondent for trafficking in dangerous drugs or for perverting the course of public justice was a matter for the prosecuting authority, not for the judge. She would certainly have been entitled to canvass with prosecuting counsel in court whether the prosecution was contemplating an alternative count, should the jury come to a particular view of the facts. But there the matter should have been left. As it happened, the judge did suggest an alternative and the prosecution did add Count 2 as an alternative to Count 1. Unfortunately, when the respondent pleaded ‘not guilty’ to the alternative, to the evident dismay of the judge, she then rounded on the defence to ask why. And although the judge told defence counsel no less than four times[59], “I’m not putting pressure on you”, we think that was the unmistakeable message of her ensuing remarks. Her final invitation that if by “some amazing chance” the respondent wished to change her plea, she could come back any time and do so was then followed a month later by what we have described as the “rather unusual” letter to defence counsel, which we have set out supra at [31].

65.  In respect of this matter, we have to say we think it very unwise for judges to engage in correspondence, even in the guise of a letter from the judge’s clerk, directly with defence counsel. We accept that it was copied to the respondent’s solicitors and prosecuting counsel but the letter’s unmistakeable meaning was to ask defence counsel to reconsider the plea with his client. We say this was unwise because where the stakes are high, pleas can sometimes be somewhat volatile, particularly in the High Court. It may be noted that there was an attempt by Do to change his plea, which was ultimately not pursued. Had the respondent made an application to reverse her plea, she would no doubt have relied on a letter such as this to suggest that pressure had been put on her by the court to plead guilty. Moreover, we think that if a judge finds it necessary to correspond with the defence on any matter, he or she should normally do so through the defendant’s solicitors, with a copy being made to the other party (as was correctly done in this case). As it was, defence counsel’s response drew the judge into the ongoing negotiations between the defence and the prosecution, which should not have been the business of the judge.

66.  However, what concerns us most is the “negotiation between the bench and the prosecution” (to use the judge’s own words) insofar as it concerned the Summary of Facts and the basis of the respondent’s plea. It is quite clear that prosecuting counsel was being manoeuvred by the judge into accepting that the respondent had no knowledge of the cocaine when, on the evidence as we have outlined it, it was quite obvious that she knew. Whilst we are not advocating complete judicial silence from the bench, which may in fact pose its own problems in certain instances, a judge must be vigilant to preserve neutrality and the appearance of neutrality. As Kirby P put the matter in Chow v DPP, “…our judicial tradition, particularly in criminal proceedings, is one of manifest neutrality, restraint and impartiality”[60]. He went on to explain[61]:

“There is a fine line between excessive and unjudicial intervention (on the one hand) and candid disclosure of matters of concern to invite response (on the other). But the line exists. It is recognized by members of the judiciary and of the legal profession. Where it is crossed, relief will be afforded to those who are adversely affected by excessive or inappropriate interventions…”

67.  At one point we were concerned that the judge, by her interventions with both parties, as well as her remarks, for example, that she had “the best interests of (the respondent) at heart” and her apparent exasperation when asking, “how on earth do I dispose of (the case) in a non-custodial way for the sake of two little kiddies?” that the judge may have given the appearance of judicial bias. Although Ms Ko agreed that that is what it was, this aspect of the law was not developed before us. However, we desire to stress that any sentencing discretion is to be exercised in the public interest, which requires that it be exercised fairly, judicially and in a balanced manner, without the judge leaning blinkered in a particular direction. The public interest was manifestly lacking from this sentencing exercise in a case where the respondent had tried to dispose of almost a kilogramme of cocaine when she knew the police were looking for it.

68.  In the recent case of HKSAR v Quintero Bernal (Diego-Jhovanny)[62], a judgment incidentally emanating from the same judge, Zervos JA held:

“38. A criminal trial is conducted on the basis that the parties determine the evidence to be placed before the jury and identify the issues that the jury needs to consider. The jury is to decide facts and issues arising from the evidence and ultimately determine whether the defendant is guilty or not guilty of the crime or crimes charged. The verdict must be based on the evidence produced by the parties and in accordance with the law as explained by the judge. A judge ensures that the case is conducted fairly in accordance with relevant law and practice, and that all parties involved are given the opportunity for their case to be presented and considered. The judge may be required to make decisions on questions of law throughout the trial including whether evidence sought to be led by a party is relevant and admissible. The judge does not determine any facts, resolve any issues raised by the evidence or decide the verdict. The ultimate objective of the judge is to ensure that a defendant has a fair trial.

39. This case highlights the different roles and functions of those involved in a criminal trial. The role and responsibilities of a judge and counsel are clearly defined and, while a particular result may seem just and appropriate, it should be arrived at according to the relevant law and procedure under our criminal justice system...”

69.  Judges must be scrupulous to ensure that they do not infect proceedings with their own personal opinions and views without regard or recourse to proper legal procedures and established legal principles. This is not, with respect, the first time the judge has sought to orchestrate a particular result and, in doing so, shown a worrying indifference to the principled role and responsibility of a judge and the cardinal tenets of our criminal justice system.

70.  We wish to add, finally, that it is very unbecoming and unseemly for judges of the High Court, or indeed of any court, to refer in engagement with the parties to “get(ting) past the Department of Justice”[63], or suggesting that there is “an office in the DOJ with my name on it and everything goes up to the Court of Appeal”[64], which they therefore “need to cover”[65], so that they do not get reviewed[66] or “get it in the neck”[67] or “yet again (get) looked up by the Court of Appeal”[68]. It is very unwise and undignified to articulate such inappropriate comments so openly and repeatedly in court.

The appropriate sentence for the offence

71.  The Court of Appeal of England and Wales in R v Coslett[69]has recently provided some helpful guidance on the sentencing principles applicable to the offence of perverting the course of public justice. Hallett VP, giving the judgment of the court held[70]:

“18. Our attention was invited to the judgment of Stanley Burnton LJ in Tunney [2007] 1 Cr App R(S) 91, in which the court provided some guidance on sentencing for this kind of offence. He observed at paragraph 10:

‘The particular factors which the court must have regard to are, first, the seriousness of the substantive offence to which the perverting of the course of justice relates. Here the offence in question, murder/manslaughter, was at the most serious end of the spectrum. The second matter which the court must have regard to is the degree of persistence in the conduct in question by the offender. [...] Thirdly, one must consider the effect of the attempt to pervert the course of justice on the course of justice itself. Here it was unsuccessful. Nonetheless, the substantive offence of murder or manslaughter could scarcely have been more serious.’

19. Other decisions were put before us in which the court has adopted a similar approach. They were said to establish the following principles:

20. A sentence of immediate custody is required in all but the most exceptional circumstances (Attorney General's Reference No 35 of 2009 [2010] 1 Cr App R(S) 61 at paragraph 11).

21. Where the offender’s conduct involves interference with witnesses, this will result in a lengthy custodial sentence, especially where violence is used or threatened to intimidate (for which see Miller [1995] 16 Cr App R(S) 191 and Hall [2007] 2 Cr App R(S) 42).

22. Where the offender provides a false account to the police investigating a serious offence:

“The general area of starting point for offences in the particular circumstances of this kind is bound to be measured in years rather than months, something probably between two and three years.”

23. (Attorney General’s Reference No 109 of 2010 [2010] EWCA Crim 2382).

24 Where the offender’s conduct involves concealment of evidence, this has similarly led to sentences of immediate imprisonment in the two to three-year bracket (Mercer [2010] 1 Crim App R (S) 104, a case of which the facts were very similar to the present and in which the Court of Appeal upheld a sentence of three years for a woman who had helped her son to conceal a bicycle that connected him to participation in a murder).”

72.  To these principles, we might add the particular need to deter conduct which seeks to subvert the rule of law, a point made by the Court in R v Younis[71]. We respectfully agree with these principles.

73.  Applying these principles to the case before us, an offence of drug trafficking is taken extremely seriously in this jurisdiction, as the sentence passed on Do, the respondent’s husband, exemplifies. It strikes at the heart of the family, the workplace and the community and has always been visited with condign severity by the courts in this territory. It is true that the respondent’s offence involved the single act of trying to conceal almost a kilogramme of cocaine, but in doing as she did, she threw into a public thoroughfare leading to the entrance of the building a bag of toxic dangerous drugs which could have been picked up by anyone, including a child. As it happened, the red bag was fortuitously picked up by a police officer and the course of justice was not ultimately impeded or frustrated.

74.  We considered that the starting point for an offence such as this must be visited with a substantial term of imprisonment in order to emphasise the innate seriousness of the offence itself, but also to deter others who are minded to try and conceal or destroy vital evidence of serious crimes. We assessed the starting point after trial at 3 years’ imprisonment. As we have earlier indicated, we would have given a 25% discount for the respondent’s eventual plea of guilty, thus reducing the sentence to 27 months’ imprisonment.

75.  We further recognised that this is an application for review of sentence, in which the respondent has had to suffer the additional anxiety of wondering if her sentence would be increased. Further, there was considerable delay in dealing with her, partly caused by GAP and partly generated by the judge herself, resulting in her waiting 2 years from the date of committal, and 3 years and 9 months from the original offence, until her eventual sentence. We would give the respondent a further discount of 9 months for all of these factors taken together.

76.  Accordingly, for these reasons the sentence we passed in substitution for the original sentence of 84 days’ imprisonment was one of 18 months’ imprisonment.