HKSAR v. CASTILLO CAICEDO TERESA

CACC 212/2017

[2022] HKCA 82

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 212 OF 2017

(ON APPEAL FROM HCCC NO 124 OF 2017)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 10 April 2017, the appellant pleaded guilty in the Magistrate’s Court to one count of trafficking in a dangerous drug, namely 365 grammes of a liquid containing 252 grammes of cocaine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, and was committed to the Court of First Instance for sentence.  On 20 June 2017, the appellant appeared before D’Almada Remedios J (the judge), and was sentenced to 8 years and 10 months’ imprisonment.

2.  This was an appeal against sentence which we dismissed at the conclusion of the hearing and said that we would hand down our reasons for our decision in due course.  This we now do.

The initial ground of appeal

3.  On 13 July 2017, the appellant filed a notice of application for leave to appeal against her sentence. 

4.  On 20 March 2018, Mr Phillip Ross, counsel representing the appellant (who did not appear in the court below), filed the following sole ground of appeal against sentence:

“The [Appellant’s] sentence is manifestly excessive and should be reduced because of evidence of positive good character, namely that she had arranged for her letters dissuading others from trafficking drugs into Hong Kong from South America to be placed on an anti-drug trafficking website.”

The fresh evidence

5.  On 11 April 2018, the appellant filed a Notice of Motion, seeking leave under section 83V of the Criminal Procedure Ordinance, Cap 221, to file an affirmation which he had affirmed on 28 March 2018.  By her affirmation, she affirmed:

“3. I have been advised that my participation in an anti-drug campaign in managed by one Mr. John Wotherspoon in South America may constitute a ground of appeal. There are now produced and shown to me marked ‘CCT-1’ copies of my letters (and their translations)  to the said Mr. John Wotherspoon.

4. I understand that the said letters have only been produced to my lawyers by the said Mr. John Wotherspoon recently and thus they were not produced to Court at the sentencing stage.

5. The said Mr. John Wotherspoon has written a support letter. There is now produced and shown to me marked ‘CCT-2’ a copy of the said letter from Mr. John Wotherspoon.

6.   Apart from my participation in the aforesaid anti-drug campaign I have been cooperating all along and I also offered assistance to the custom and excise department of Hong Kong.”

6.  The attachment to her affirmation marked “CCT-1” consisted of a bundle of letters that were all from the appellant to Father John Wotherspoon, a prison chaplain, seeking his assistance as a result of her plight.[1] The attachment marked “CCT-2” was a letter written by Father Wotherspoon to the Court dated 15 June 2017 (the 15 June letter).  The letter read:

“To the Honourable Judge

My Lord, My Lady

I have known Teresa ever since she has been in detention. I have visited her at least once a month at Tai Lam Women’s Centre. From the beginning of her detention, Teresa has supported my anti-drug campaign, to warn people in South America – especially her native Venezuela – about the danger of drug trafficking to Hong Kong.

Some of Teresa’s messages over the past year have been put at a special website for South America, and can be found at these links:

http://southamericablog.org/inmates-letters/2016/index.htm (November 17)

http://southamericablog.org/inmates-letters/2017/index.htm (May 5, May 22, March 9, Feb 16)

These letters have been linked at South American Facebook sites – one sample of which is shown in attachments (Vz-TV-Fbook)

Teresa has also actively engaged her family and friends in Venezuela in spreading the message about the danger of drug trafficking to Hong Kong.

Inmates at Tai Lam tell me that our anti-drug campaign has a lot to do with the fact that this year there has been only one new Tai Lam woman arrested at HK airport from the whole of South America (..a mainland resident of Sao Paolo, on her way through HK to Guangzhou).

  I hope that Teresa’s support to my anti-drug campaign can be acknowledged as a constructive contribution to the good of Hong Kong society and be treated on a par with positive good character for the purpose of sentence.  (c.f. No. 26 of February 28, 2017 Summary of HCCC 447/2016).”

7.  A second Notice of Motion was filed on 9 October 2018 seeking leave to file an affidavit of Mr David Ravenscroft, the solicitor who represented the appellant at her sentence and leave application, of 8 October 2018.  The purpose of the affidavit as stated therein was to supplement the affirmation of the appellant, specifically in respect of paragraphs 3 and 4 of her affirmation, which concerned only the appellant’s letters to Father Wotherspoon. Mr Ravenscroft stated:

“3. Supplemental to paragraphs 3 and 4 of the Affirmation, I wish to say that the letters from the Applicant to Mr. John Wotherspoon were only produced to my office on the 21^st day of February 2018 and thus they were not produced to Court at the sentencing stage.”

8.  Mr Ravenscroft made no reference in his affidavit to paragraph 5 of the appellant’s affirmation which concerned the 15 June letter.

The hearing on 28 March 2019

9.  The leave application came on for hearing on 28 March 2019, with the Court constituted by McWalters JA and M Poon J.  At this hearing the appellant was represented by Mr Ross but Mr Ravenscroft was not present as he was out of Hong Kong.[2]

10.  The question arose whether the 15 June letter was before the judge at the time of her sentencing hearing on 20 June 2017.  The letter was addressed to the judge but had not been received by her. She was then represented by Mr Hanif Mughal, of counsel, who was instructed by Mr Ravenscroft.  McWalters JA noted from the transcript of the sentencing hearing that Mr Mughal appeared to have been fully prepared and advanced fairly detailed mitigation.  He assumed that Mr Mughal was not aware of the existence of the 15 June letter.[3] He also observed that Father Wotherspoon wrote “a fairly standard letter” and the appellant in her letters did not make positive statements discouraging people from becoming potential drug couriers.[4] 

11.  After taking instructions, Mr Ross explained that the 15 June letter had been emailed to Mr Ravenscroft on the day of the letter, who later discussed the matter with Mr Mughal.  He confirmed that Mr Mughal had seen the letter but decided not to produce it because the judge had not been favourably disposed to letters from Father Wotherspoon on previous occasions.[5]

12.  As a result of what had been said by Mr Ross, McWalters JA questioned whether the application by the appellant was in effect “forum shopping”.[6] Mr Ross responded that there were many other letters apart from Father Wotherspoon’s letter.  He was referring to the bundle of letters filed by the appellant that she had written to Father Wotherspoon, which she sought to rely on to show that she had actively dissuaded others from trafficking drugs into Hong Kong from South America.  However, Mr Ross was queried by the Court as to how the appellant could sustain her application if there had been an informed decision not to produce the letter from Father Wotherspoon.  The Court again expressed its concern that the application was effectively “forum shopping”.[7] 

13.  After taking instructions from the appellant, Mr Ross said that she had made a number of allegations against her counsel and solicitor at her sentencing hearing.  He informed the Court that the appellant alleged she was not aware the letter from Father Wotherspoon was not to be submitted to the judge.[8] McWalters JA queried whether Mr Ravenscroft had perjured himself in the affidavit he filed in support of the appellant’s appeal because he stated he had not received the 15 June letter from Father Wotherspoon prior to the sentencing hearing.  Mr Ross told the Court that in the circumstances the solicitor could not continue to act and that a new legal team should be appointed.[9] 

14.  It is regrettable that Mr Ravenscroft was not present in Court and no enquiry was made of him at the time about this matter. It is apparent from paragraph 3 of Mr Ravenscroft’s affidavit he was referring to the other letters produced by the appellant in her affirmation, namely the letters she wrote to Father Wotherspoon, and not the 15 June letter that Father Wotherspoon wrote to the judge as mentioned in paragraph 5 of her affirmation. However, Mr Ravenscroft did not mention in his affidavit that he had received the 15 June letter prior to the sentencing hearing and that it had been decided not to submit it to the judge.  In light of the ground of appeal this was a material factor. 

The police investigation

15.  It appears the Court was of the view that Mr Ravenscroft by his affidavit had given the impression that, like the rest of the letters, the 15 June letter was received by his office after the sentencing hearing on 21 February 2018.  The Court concluded that Mr Ravenscroft’s affidavit was plainly misleading and referred the matter to the Director of Public Prosecutions.[10]

16.  After a police investigation, the Department of Justice in a letter dated 20 January 2020 advised the Court that no further action would be taken against Mr Ravenscroft.  It was explained that Mr Ravenscroft had stated in a cautioned statement that he had received the letter from Father Wotherspoon before the appellant was sentenced.  He had discussed the matter with Mr Mughal before the sentencing hearing and decided that the letter should not be used in mitigation.  Mr Mughal informed the appellant of this matter at the dock before the hearing with Mr Ravenscroft next to him.  It was further explained that Mr Ross, after he was shown a series of email correspondence between himself and Mr Ravenscroft before Mr Ravenscroft’s affidavit was settled, acknowledged that he had overlooked what had happened about this matter during the leave hearing.  He also acknowledged that when settling the affidavit he wrongly assumed that the letter from Father Wotherspoon, which summarised the contents of the letters received by him from the appellant, was also received after the sentencing hearing.

The direction hearings

17.  After the hearing on 28 March 2019, a series of direction hearings were conducted by McWalters JA in respect of these proceedings on 27 September 2019, 23 January, 12 June and 8 September 2020.  In the course of these hearings, further sworn or affirmed evidence was filed by the parties involved under section 83V of the Criminal Procedure Ordinance.[11] 

18.  On 24 June 2019, the appellant filed a Notice of Motion seeking leave to file a second affirmation affirmed on 21 June 2019.  In this affirmation, she explained how she came to be involved in Father Wotherspoon’s campaign.  She also claimed she was not properly advised by her legal representatives of the benefit she could receive to her sentence in respect of her assistance to Father Wotherspoon’s campaign.  She affirmed as follows:

“7. However, at no stage either before or during the plea and sentence hearing on 20^th June 2017 did my solicitor or counsel advise me that the assistance I gave to Father as enumerated in my first affirmation or above might entitle me to a discount of sentence were that assistance brought to the attention of the sentencing judge. As to whether the fact of the assistance should or should not be related to the court was never discussed with me.

8.  After the sentence but before the appeal on 28^th March 2019, my Solicitor or Counsel did mention to me about the existence of the Wotherspoon’s Letter which my Solicitor or Counsel claimed to be not accepted by the judge. But at all material time I was not explained about the impact of the Wotherspoon’s Letter.”

19.  Subsequently, the appellant filed a third affirmation affirmed on 29 October 2019, in which she set out her meetings with her legal advisers and what she discussed with them. The following paragraphs of her affirmation relate to Father Wotherspoon’s letter:

“6. About a week before the plea and sentence hearing, I met Mr Ravenscroft and Mr Mughal at Tai Lam. That was the only time I met Mr Mughal. At this meeting I was asked about my family background for further details and was advised as to the possible sentence including the one third discount for a guilty plea.

7. During the meeting, I was neither aware of any letter from Father Wotherspoon, nor did I mention my meeting with the Father because I never knew and was not advised that my assistance to the Father’s campaign might be a mitigating factor. Neither Mr Ravenscroft or Mr Mughal asked my (sic)  any questions about Father Wotherspoon nor did they give me advice on that matter.

…

10. On the day of the plea and sentence hearing I did not meet Mr Ravenscroft or Mr Mughal.

11.  At no stage prior to sentencing did either Mr Ravenscroft or Mr Mughal tell me that a letter had been received from Father Wotherspoon. As at the date of sentencing I was not aware that Father Wotherspoon had sent a mitigation letter to Mr Ravenscroft.”

20.  As the appellant had waived legal professional privilege[12] McWalters JA directed, on 12 June 2020, that Mr Ravenscroft and Mr Mughal file sworn or affirmed evidence setting out in detail all pre-sentencing instructions given to them and the legal advice given to the applicant concerning the conduct of the appellant’s mitigation on 20 June 2017.

21.  In compliance with this direction, Mr Ravenscroft filed a second affidavit that was sworn on 31 July 2020 and Mr Mughal filed an affirmation affirmed on 3 August 2020.  In relation to Father Wotherspoon’s letter, Mr Ravenscroft stated as follows:

“8. On 15^th June 2017, I received an email from Father John Wotherspoon enclosing his support letter for the Applicant together with attachments. Copies of the said email, letter and attachments are now produced and shown to me marked ‘DR-4’ and exhibited hereto. These were the only papers I received from Father Wotherspoon before the hearing.

9. The said support letter and attachments from Father Wotherspoon were forwarded to Mr Mughal by email on 16^th June 2017. A copy of my and my firm’s email correspondence with Mr Mughal is now produced and shown to me marked ‘DR-5’ and exhibited hereto.

10.   On 20^th June 2017, the date of the plea and the sentence before Hon D’ Almada Remedios J Mr Mughal and I spoke to the Applicant in court before the hearing whilst she was in the dock. We told her of the letter from Father Wotherspoon and said the matters referred to therein would be brought to the attention of the court but that the letter would not be produced. I estimate that we spoke to her for 5 minutes.”

22.  The email that Mr Ravenscroft received from Father Wotherspoon, attaching the 15 June letter, read:

“Attached please find support letter for Teresa, 15909-16, due to be sentenced on June 20.

Also attached: two items referred to in the letter, and a letter from Teresa about a month ago which refers to more information for the authorities … but I have not received any word about this from her family.

Sorry, I don’t have English translation of Teresa’s letters. I asked someone to help with this, but so far not forthcoming.

I will try to come to court on June 20 and bring an original copy of the support letter.

Thank you for helping Teresa.”

23.  The next day, on 16 June 2017, Mr Ravenscroft sent the following email to Mr Mughal in respect of the 15 June letter:

“Father Wotherspoon’s correspondence does present issues which can only be resolved by instruction from the client.

His letter of 15^th June states that she has been supporting his anti-drug campaign. She can’t have made any Facebook postings but may, at his prompting, have written to her family and friends, whether in Venezuela or Brazil. Whatever the Judge thinks of Father Wotherspoon I don’t see that this can do any harm. It may be an indication of remorse but does not amount to positive good character or assistance to the police. I don’t see that it will affect the sentence either way even if it does irritate the judge. I think we should explain the situation to the defendant, including the judge’s likely attitude and that we do not think it will affect sentence.

We can also take her instructions on her salary and the disposal of exhibits.”

24.  In his affirmation, Mr Mughal responded to the appellant’s assertions in respect of the legal visit at Tai Lam Center for Women on 12 June 2017 and the dockside conversation with her on 20 June 2017. He affirmed as follows:

“14. I do not recall the Applicant mentioning anything about her participation in Father Wotherspoon’s anti-drugs campaign at Tai Lam on 12^th June 2017. If the Applicant had mentioned her participation in Father Wotherspoon’s campaign, I would likely have advised her that the sentencing judge assigned to her case would not have considered this a mitigating factor, given previous sentencing decisions of the learned Judge. I explain this in more detail in paragraphs 20 and 21 below.

…

Father John Wotherspoon’s letter dated 15^th June 2017

19. It appears (from the documents sent to me by Mr Ravenscroft on 15^th July 2020)  that this letter was sent to me, along with other documents on pages 10 to 14 of exhibit HMM-1, on 15^th June 2017 by email to my Chambers (HMM-1 p.17).

20. Participation in Father Wotherspoon’s anti-drugs campaign was not at that time regarded as a mitigating factor by Hon D’Almada Remedios J in passing sentence for trafficking in dangerous drugs cases and carried no weight. As such, the letter would have no bearing on sentence and I would have considered, in my discretion, not submitting or putting it before the learned Judge. It was her prevailing and known practice at that time and in 2016 that participation in Father Wotherspoon’s anti-drug campaign was not relevant so as to entitle a defendant to any discount or reduction in sentencing. In case I am wrong in this perception, I have considered whether my understanding of the learned Judge’s practice at that time is accurate by researching drug trafficking sentences before the same learned Judge.

21. I refer to HCCC 188 of 2016 (sentenced on 15^th July 2016), HCCC 253 of 2016 (sentenced on 21^st July 2016), HCCC 290/2015 (sentenced on 3^rd August 2016 and leave to appeal refused (CACC 358/2018)), HCCC 417 of 2016 (sentenced on 7^th December 2016)  & HCCC 108 of 2017 (sentenced on 9^th June 2017). There is now produced and shown to me marked ‘HMM-3’ copies of the transcripts of these sentence hearings. These cases by the learned Judge support the perception and view that participation in Father Wotherspoon’s anti-drugs campaign was not a relevant matter to which a reduction of sentence would be given, at least by the Judge before whom we were listed to appear.

22. Further, the Court of Appeal in the cases of HKSAR v Masham Deborah James CACC 381/2015 and HKSAR v Akinyi Grace Syliva CACC 324/2015 did not, at that time, interfere with or give any provision for the sentencing approach for assistance to Father Wotherspoon’s campaign in the Court below.

23.  I note that I made reference to contact by the Applicant with her family and friends, telling them of her plight in Hong Kong as an indication of her further remorse to warn others (at page 6Q-S of the Transcript of Mitigation). This may be a reference to Father Wotherspoon’s campaign. I believe that I would not have said this without instructions. Although the anti-drugs campaign letter of Father Wotherspoon was not mentioned at the plea and sentence hearing (or produced to the Court)  its import was made known and brought to the attention of the sentencing Judge. Further, I note from paragraph 5 of the Amended Perfected Grounds of Appeal against Sentence dated 8^th April 2020 that ‘Unknown to the Applicant or her legal advisors was the fact that Father John had sent a letter to the sentencing court concerning the participation in his program of the Applicant independently of the Applicant or her legal advisors.”

25.  In his affidavit sworn on 14 October 2020, Father Wotherspoon explained he sent by email a copy of the 15 June letter to Mr Ravenscroft, who confirmed receipt of it.  As to the sentencing hearing, he said:

“7. On the date of the Sentencing Hearing, I took the original copy of the Support Letter to the court. Outside the court room just before the Sentencing Hearing, I met and spoke with Mr. Ravenscroft and gave him an original copy of the Support Letter. Only from the court lists published the night before did I realize that the sentencing Judge was the Honourable Madam Justice D’Almada Remedios. As I was aware from my previous experience that Madam Justice D’Almada Remedios was reluctant to consider any support letters in favour of any defendants who were in the similar situation as Teresa, I was also worried that my appearance inside the court room in the Sentencing Hearing would affect Teresa’s sentencing. I therefore suggested to Mr. Ravenscroft that I should stay outside of the court room to avoid any prejudice caused to Teresa, to which Mr. Ravenscroft agreed. Mr. Ravenscroft and a Counsel unknown to me appeared for Teresa in a brief chambers hearing which I did not attend. When Mr. Ravenscroft exited the court room after the chambers hearing, he told me that the sentencing Judge, Madam Justice D’Almada Remedios, was not interested in the Support Letter.

8.  Though it was acknowledged that the Support Letter was received by Mr. Ravenscroft, I do not recall whether or not we had discussed the context of the Support Letter outside the court room on the date of sentencing.  I stayed outside of the court room during the entire Sentencing Hearing.  I cannot recall whether I had spoken with other legal representatives of Teresa besides Mr. Ravenscroft on the date of the Sentencing Hearing.”

The grant of leave to appeal

26.  The hearing on 8 September 2020 was presided over by McWalters JA as a Single Judge, at the conclusion of which he granted the appellant leave to appeal against her sentence.  He handed down his reasons for judgment on 30 September 2020.  He found on the appellant’s account of the instructions that she gave to her legal team about her participation in Father Wotherspoon’s campaign that it was reasonably arguable she did not receive a fair trial at her sentencing hearing. 

27.  McWalters JA further noted that even if the Court of Appeal were to accept the appellant’s claims, the outcome of the appeal may still not result in a reduction of her sentence.

The ground of appeal

28.  On 8 April 2020, the appellant filed an amended perfected ground of appeal signed by Mr Andrew Bruce, SC and Mr John McNamara, representing the appellant.

29.  The ground of appeal consisted of two limbs, which read:

“(1)  The Applicant’s sentence is manifestly excessive and should be reduced because of evidence of positive good character, namely that she had arranged for her letters dissuading others from trafficking drugs into Hong Kong from South America to be placed on an anti-drug trafficking website.

(2)  Despite the failure to draw the material referred to in paragraph 5 (above)  to the attention of D’Almada Remedios J in the sentencing process at first instance (which was manifestly the correct procedure for inviting consideration of such material)  the case for the Applicant is that despite whatever decisions were made by those representing the Applicant at the time of the proceedings before D’Almada Remedios J and whatever the reasons for those decisions, it is just and expedient for the Court of Appeal to consider that material and determine whether the sentence of the Applicant should be reduced thereby.”

30.  The first limb of this ground asserted that the appellant was denied a reduction in her sentence for her participation in Father Wotherspoon’s campaign. 

31.  The second limb of this ground assumed a failure by counsel representing the appellant to advance in mitigation the assistance that she provided to Father Wotherspoon’s campaign.  It was argued that, despite the failure of the appellant’s legal team to draw to the judge’s attention the appellant’s participation in Father Wotherspoon’s campaign, it was just and expedient for the Court of Appeal to consider this material and determine whether the sentence of the appellant should be consequently reduced. There was a suggestion in the preamble to the ground of appeal that Father Wotherspoon had independently sent a letter to the sentencing court delineating the appellant’s participation in his campaign, but this was ultimately proven to be incorrect.

The sentencing of the appellant

The admitted facts

32.  The facts outlined to the judge and agreed to by the appellant were that she was a Venezuelan national who was living in Brazil when she arrived in Hong Kong by air on 19 September 2016.  Upon her arrival at Hong Kong International Airport, she was intercepted by a Customs officer for inspection at the arrival hall.  She was suspected to have internal concealment of dangerous drugs and was sent to North Lantau Hospital for further examination. An X-ray revealed that she had foreign objects inside her body.  She was arrested and transferred to the custodial ward of another hospital for discharging of the foreign objects.  She remained there until 23 September 2016 and during her stay egested a total of 14 packets of liquid cocaine, consisting of a total of 365 grammes of a liquid containing 252 grammes of cocaine narcotic.  The estimated street value of the cocaine was $400,000. 

33.  On 20 September 2016, Customs officers obtained a written cautioned statement from the appellant with the assistance of a Spanish interpreter, in which she stated, amongst other things:

“(a)  A Colombian, whom she had met only twice offered her a job to bring ‘liquid’ to Hong Kong for a reward of USD5,000.

(b)  She had financial problems so she accepted the offer.

(c)  She then swallowed packets of ‘liquid’ given to her by the Colombian.

(d)  She was supposed to go to a certain hotel in Hong Kong and then someone was supposed to pick up the packets of ‘liquid’.

(e)  Amongst the USD1,200 in her possession, USD800 was given to her by the Colombian whilst the remaining USD400 was her own money.”[13]

The appellant’s mitigation

34.  At the appellant’s sentencing hearing, Mr Mughal informed the judge that she was 39 years of age and had a clear record.  He explained she came from a poor family and had three children, aged 15, 9 and 3 years, from two former relationships.  She was the sole financial provider for her children, who were living with relatives.  Her business as a hawker brought her an income of up to US$200 in a good month.  However, this amount was not enough to support herself and the children and so she resorted to borrowing money.  At the time of the offence, she had accumulated a debt of US$3,000 and was being hounded for repayment.  This led to an introduction to a Columbian male who offered her US$5,000 to bring the cocaine to Hong Kong.  

35.  Mr Mughal asked the judge to accept that the appellant was only acting as a courier and was not a “mastermind or the organizer or a very major player in this.”[14]

36.  After completing his description of the appellant’s personal circumstances and the background to her involvement in this offence, Mr Mughal went on to make a compassionate plea on her behalf:

“So, my Lady, it was really a combination of temptation, desperation and vulnerability to what she thought was easy money that she succumbed to the offence, and she put both her life and her liberty at risk in committing the offence. She says, my Lady, all the arrangements, the travel arrangements, the hotel, how to ingest the drugs, all these matters were directed and instructed by this Colombian male. So her role, my Lady, essentially, she says, is that of a courier, a foot soldier. So she says, my Lady, she’s not a mastermind or the organiser or a very major player in this, but we still accept, my Lady, that the role of a courier is an essential cog in the drug trade, and without that role, the drug trade would not flourish.

My Lady, the absence of a criminal record suggests that she is not a career criminal and she committed this offence for the reasons above.

My Lady, upon her arrest, she cooperated fully with Customs & Excise. She was extremely forthcoming about her role and that of course is reflected in her plea of guilty.

So, my Lady, in terms of mitigation, the only real mitigation is the plea of guilty before you. She accepts of course that she’ll be punished for her wrongdoing. Her plea, my Lady, indicates her regret and remorse.”[15]

37.  Mr Mughal then referred the judge to the relevant sentencing tariff for the quantity of cocaine narcotic in which the appellant trafficked and submitted that she was entitled to a full discount from the starting point adopted by the judge for her timely plea of guilty.  He concluded his mitigation by saying:

“And also, my Lady, one other matter. She says that of course in prison she has been reflecting upon her misdeeds and how easy it is for persons in financial problems to succumb to this. So what she has done, my Lady, is this: she says she has been in touch with her family and her friends, telling of her plight in Hong Kong, and of course that, she says, is indicative of her further remorse to warn others.”[16] (Emphasis added)

38.  We point out at this stage that Mr Mughal by the italicised remarks was indirectly referring to the appellant’s purported participation in Father Wotherspoon’s campaign.

The judge’s reasons for sentence

39.  After setting out the appellant’s personal background and the circumstances surrounding her involvement in this offence, the judge stated:

“Mr Mughal has correctly reflected the fact that your only real and strongest mitigating factor is your early plea of guilty at the committal stage.”[17]

40.  By reference to the sentencing guidelines set out in R v Lau Tak Ming,[18] the judge adopted a starting point of 12 years and 9 months’ imprisonment, which she enhanced by 6 months for the international element of bringing drugs into Hong Kong from abroad.  From this enhanced starting point of 13 years 3 months, the judge gave the appellant a full one-third discount for her timely guilty plea and passed on her a sentence of 8 years and 10 months’ imprisonment.

The appeal against sentence

41.  As this appeal was solely concerned with the lack of any specific reference to the appellant’s participation in Father Wotherspoon’s campaign in her mitigation before the judge, it was necessary that we considered the issue in the context of the applicable sentencing principles in respect of Father Wotherspoon’s campaign at the time of the appellant’s sentence, and the viability of such participation as a mitigating factor in the circumstances of the case. 

The relevant sentencing principles

42.  The sentencing of the appellant occurred on 20 June 2017.  At that time, Father Wotherspoon’s anti-drug campaign was at its formative stages and was being advanced before the courts as a possible mitigating factor, deserving of a reduction in an offender’s sentence.  It was mainly argued that it reflected “positive good character” on the part of the offender.  There was a difference of view by the courts, with some judges accepting that it was a mitigating factor, while others considered it was not or that it was a matter that should be left for the executive to decide.  It was not until the Court of Appeal handed down its judgment in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, on 18 September 2018, that guidance was given as to how a sentencing court should address a defendant’s purported participation in Father Wotherspoon’s campaign.  The Court rejected the notion that a defendant’s participation in the campaign reflected “positive good character” but nevertheless left it at the discretion of a sentencing court as to whether or not to give a “token discount”.

43.  It was not uncommon for a defendant’s participation in Father Wotherspoon’s campaign to be left for the executive to assess because of the nature of the campaign and the degree of involvement by the defendant: HKSAR v Kisamo Diana Semali [2019] 1 HKLRD 256.  We noted that leaving the matter for the executive to assess was an option available to the appellant in the circumstances of the case. 

44.  As the sentencing principles now stand, it is not automatic that a defendant’s participation in Father Wotherspoon’s campaign will result in the “token discount” of up to 3 months as provided in Kilima Abubakar Abbas.  As stated by this Court in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, it needs to be assessed “realistically and with common sense” as to whether the defendant has made a “meaningful contribution” to the campaign.  However, this needs to be further assessed by the recent observations of this Court in HKSAR v Cherop Caroline, unrep., CACC 321/2018, 2 August 2021.

The appellant’s participation in Father Wotherspoon’s campaign

45.  We considered the background and circumstances of the appellant and the events that followed after her arrest.  She had arrived in Hong Kong on an international flight from Brazil on 19 September 2016.  She was suspected to have dangerous drugs concealed inside her body and she was conveyed to a hospital for examination.  An X-ray revealed that she had 14 packets concealed in her body, which was later confirmed to contain liquid cocaine.  She was kept in hospital until 23 September 2016, during which she discharged the foreign objects.  Given these circumstances, there was no possibility of a controlled delivery, despite her subsequent claim that she was willing to participate in one but had not been asked. 

46.  The appellant made a cautioned statement the day after she had been arrested on 20 September 2016.  Although it was not included in the appeal bundle, we requested to see a copy of it.  She stated that she was living in Brazil and had planned to come to Hong Kong to buy clothes.  A “Colombian guy” who knew she was coming to Hong Kong offered her US$5,000 to bring a liquid to Hong Kong.  She said she did not know the Colombian guy and had only met him on two occasions.  She did not have his telephone number.  As a result of her financial problems, she accepted his offer and that was why she brought the liquid to Hong Kong.  She said the Colombian guy brought the liquid to her home which she swallowed.  When asked what was her plan when she arrived in Hong Kong she said: “Once I arrive in Hong Kong I will go to a Hotel organized by the Colombian guy and wait for somebody that I don’t know who will be to come pick up the goods ‘the liquid’.  I do not know anybody in Hong Kong.”  She said she swallowed 20 packs of “liquid” but did not know what was inside them.

47.  We have mentioned what the appellant stated in her cautioned statement because it was at variance with what she subsequently stated when offering information to the authorities about her involvement in this case. 

48.  About two months after her arrest, the appellant wrote a series of letters to Father Wotherspoon seeking his help.  She wrote the letters on 17 and 18 November 2016, 16 February 2017, early May 2017, 5 and 22 May and 13 June 2017, asking for Father Wotherspoon’s help to obtain clemency for her from the judges and the authorities.  In her letters of 16 February and 9 March 2017, she stated that she was a Venezuelan and asked Father Wotherspoon to help her to be transferred to Venezuela to serve her sentence. 

49.  In her letters of 22 and 26 May 2017, she stated that she used to live in Brazil and asked Father Wotherspoon to bring the photographs of the drug traffickers of Brazil so she could identify some of them.  She also stated that she had asked her family to carry out an investigation and to send the relevant information to his email address. 

50.  As a result of the appellant’s expressed willingness to co-operate with the authorities, on 6 June 2017, Mr Ravenscroft wrote to the Prosecution Division of the Department of Justice and informed them that the appellant would like to offer assistance to the investigation of her case and requested if they would arrange the taking of a non-prejudicial statement from her.  On 12 June 2017, statement was taken from her but the information she provided was assessed by Customs officers to be of no practical use.[19]

51.  On 12 June 2017, Mr Ravenscroft together with Mr Mughal attended Tai Lam Centre for a consultation with the appellant.  It is quite apparent from materials that were produced to this Court that they had prepared a mitigation statement and took extensive notes from her about her background and the circumstances which led her into committing this offence. 

52.  On 15 June 2017, Father Wotherspoon sent an email to Mr Ravenscroft, in which he attached a copy of the 15 June letter.  He also attached a letter from the appellant that he said he received about a month previously (early May 2017), which “refers to more information for the authorities.”  Moreover, he added “… but I have not received any word about this from her family.”  He also said he did not have the English translation of the appellant’s letters but had asked someone to help, who had not been forthcoming in this regard. 

53.  In the 15 June letter, Father Wotherspoon stated the appellant had over the past year written messages on 17 November 2016, 16 February, 9 March, 5 May and 22 May 2017, which he had put on a special website for South America. He added she had also actively engaged her family and friends in Venezuela in spreading the message about the danger of drug trafficking to Hong Kong.  He concluded his letter with the hope that the appellant’s support of his anti-drug campaign would be “acknowledged as a constructive contribution to the good of Hong Kong society and be treated on a par with positive good character for the purpose of sentence.”[20]

54.  Mr Ravenscroft confirmed he had received the 15 June letter with attachments by email on 15 June 2017, which he forwarded to Mr Mughal on 16 June 2017.  In his email to Mr Mughal, he stated that Father Wotherspoon’s correspondence presented issues “which can only be resolved by instruction from the client.” It is manifestly apparent from the contemporaneous records that the appellant’s legal representatives were concerned to address the issues raised by Father Wotherspoon’s letter and to discuss it with the appellant.

55.  Mr Ravenscroft recalled that at the plea and sentence on 20 June 2017, before the judge, Mr Mughal and he spoke to the appellant and they told her that the matters referred to in Father Wothespoon’s letter would be brought to the attention of the judge but they would not produce the letter.[21]

56.  Mr Mughal recalled he received the letter but believed he would have advised the appellant that the judge assigned to her case would not consider participation in Father Wotherspoon’s campaign as a mitigating factor, given her previous sentencing decisions.[22] He explained that the prevailing attitude of the appellate courts at the time was that assessing the value to Hong Kong of a defendant’s actions within the framework of Father Wotherspoon’s campaign was a task which the executive would generally be better equipped than the Court of Appeal to perform: HKSAR v Akinyi Grace Sylvia, unrep., CACC 324/2015, 5 May 2016, at [33]-[39]; HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249, at [50].[23]

57.  The decision not to produce the 15 June letter was apparently also shared by Father Wotherspoon himself, who attended the sentence but stayed outside the courtroom to avoid “any prejudice” to the appellant.[24] In any event, Mr Mughal further explained that the import of the letter had been brought to the attention of the judge.

58.  After the sentencing hearing on 20 June 2017, Father Wotherspoon wrote a letter to the appellant (the 20 June letter).  This letter had been produced for the first time at the hearing of this appeal, having been found in a bundle of documents forwarded to the Court by the appellant on 13 January 2020.  This was an important contemporaneous record from Father Wotherspoon that added support to the account given by the appellant’s legal representatives.  It was the appellant’s case that she was not aware of the existence of the 15 June letter prior to or at her sentencing, nor had she been advised about the potential mitigating value of her participation in Father Wotherspoon’s campaign.  Unfortunately, throughout these protracted proceedings no one had been aware of the letter and therefore it had not been considered.  The letter read:

“This morning I hope your lawyers told you

① I went to the High Court for your case

② They felt it best not to use my letter because Judge R. does not like my letters

③ They felt it best I do not attend court because when Judge R. sees me she gets angry

④ That I hope you will appeal – because other judges all give discounts for my letters

I hope to visit L.W. on July 4 and will try to see you then.”

Father Wotherspoon included the following a postscript to the letter:

“Reasons for appeal

① New information for authorities

② Help for Father John’s campaign”

59.  Obviously encouraged by Father Wotherspoon’s letter, the appellant filed a notice to apply for leave to appeal against her sentence.  In the meantime, the appellant continued to write letters to Father Wotherspoon in which she informed him that she was appealing her sentence because of the failure to take into account her “collaboration” in his campaign.  In her letter of 17 August 2017, she sent Father Wotherspoon copies of the photographs of the individual to whom she was to hand over the drugs.  In her second non-prejudicial statement dated 11 October 2017, she produced photographs of an African male, without providing any other personal particulars, who she said was the boss of the drug syndicate in Hong Kong.  She said the photographs were given to her from a friend in Brazil, although she had no first-hand knowledge of this person.  As we have already noted, the appellant requested Father Wotherspoon to provide photographs he had of known drug traffickers in Brazil so she could identify them. 

Discussion

60.  In sentencing drug trafficking cases, a defendant’s participation in Father Wotherspoon’s campaign is discretionary as to whether or not to accord any reduction to a sentence.  The granting of a reduction and the extent of it will be dependent on an assessment of the nature and scope of the participation by the defendant.  Even then only a “token” reduction may be given.

61.  Mr Bruce argued that the failure to produce Father Wotherspoon’s letter at the appellant’s sentencing meant that a potential source of mitigation was not put before the judge, and had it been, it would have provided an argument on appeal if the judge had exercised her discretion by according it little or no weight in terms of mitigation.  He accepted, however, that this would depend on a range of circumstances and therefore this factor alone did not provide a basis to justify an appeal against sentence.

62.  Having made the decision not to raise the appellant’s involvement in Father Wotherspoon’s campaign at the sentencing hearing, concern was expressed in the earlier proceedings of this appeal that the appellant, by resurrecting the matter on appeal, was engaging in forum shopping.  Mr Bruce confirmed this was not the case.  However, he sought to put before the Court post-crime materials, in the form of letters from the appellant to Father Wotherspoon, which he accepted did not come within the terms of the sole ground of appeal.  He argued that it would be in the interests of justice for the Court to assess this material and re-sentence the appellant as provided by section 81I(3)  of the Criminal Procedure Ordinance.

63.  In our judgment, there was nothing in the materials that warranted a reconsideration of the appellant’s sentence, nor did we consider it appropriate in the circumstances of this appeal to do so.  The contents of the letters from the appellant to Father Wotherspoon were generally self-serving, in which she sought assistance because of her incarceration, having been caught trafficking in drugs, and claimed to have information about drug traffickers.  The appellant had made two non-prejudicial statements to the authorities, which had been assessed to be of no practical use.  No information or material had been put before us to indicate that that assessment was wrong or in doubt.

64.  Mr Ira Lui, for the respondent, submitted that it was clear from the 15 June letter that the only participation of the appellant in Father Wotherspoon’s campaign was the provision and publication of various pre-sentence letters, dated from 17 November 2016 to 26 May 2017,  that were said by Father Wotherspoon to be warning “people in South America - especially her native Venezuela - about the danger of drug trafficking to Hong Kong”. 

65.  Mr Lui pointed out that an examination of the contents of these letters did not seek to dissuade others from trafficking drugs into Hong Kong from South America as claimed.  They mainly contained an explanation from the appellant for her offending, expressing her remorse, and asking for Father Wotherspoon’s help to obtain clemency from the courts and arrange her transfer to Venezuela to serve her sentence.  In some of the later letters, she indicated her own and her family’s willingness to provide information. 

66.  There were also two other letters from the appellant, written in early May 2017 and on 13 June 2017, that had not been referred to in Father Wotherspoon’s letter.  In these letters, the appellant only asked Father Wotherspoon to contact her family for information, and did not contain any warning or message of dissuasion to potential drug traffickers. 

67.  Mr Lui argued that these pre-sentence letters did not meet the threshold test of “meaningful contribution”laid down by the Court of Appeal in Kilima Abubakar Abbas,[25] at [65]-[67] per Lunn VP, at [87]-[92] per Macrae VP and at [213]-[230] per McWalters JA.  See Herry Jane Yusuph, at [124]-[127], in which this Court, in similar circumstances to the present case, refused to admit fresh evidence in respect of purported assistance to Father Wotherspoon’s campaign.

68.  It was with these decisions in mind that Mr Lui submitted that even if the judge had been apprised of Father Wotherspoon’s letter and the underlying materials, no sentencing discount would have been granted to the appellant.  Accordingly, the appellant did not have any valid complaint that she was deprived of a reduction in sentence attributable to her purported participation in or assistance to Father Wotherspoon’s campaign. 

69.  We agree with Mr Lui that the 15 June letter did not support the claim that the appellant had made a meaningful contribution to Father Wotherspoon’s campaign.  The general tenor of the appellant’s letters did not seek to dissuade others from trafficking drugs into Hong Kong. 

70.  Mr Lui also pointed out, without demur from Mr Bruce, that Father Wotherspoon’s website had operated for 6 to 7 years by the date of the appeal hearing and over that period had a “hit rate” of about ten thousand.  The website not only posted letters from convicted drug traffickers but also contained religious and other messages from Father Wotherspoon.

71.  Of the failure to submit the 15 June letter to the judge in mitigation, Mr Lui argued that the appellant’s legal team made a professional assessment that it was not capable of reducing the appellant’s sentence at that stage.  Their professional assessment was soundly based on their understanding of the sentencing practice and policy then prevailing, which was well before the decision of Kilima Abubakar Abbas, and this judge’s practice of not granting a reduction to a defendant’s sentence for their participation in Father Wotherspoon’s campaign. Furthermore, it was available to the appellant to later raise the matter with the executive if and when it was appropriate to do so.  

72.  Macrae VP in Kilima Abubakar Abbas, at paragraph 91, stated the contributions to Father Wotherspoon’s campaign “do not amount to either positive good character, nor are they readily born of remorse”.  He acknowledged that it may still be in the public interest to encourage a prisoner’s efforts in this regard, but emphasised that assessment must be in the absolute discretion of the sentencing court, which would not be lightly interfered with by this Court.

73.  It was therefore rather surprising that the ground of appeal had been framed on the basis that a convicted person’s contribution to Father Wotherspoon’s campaign is evidence of “positive good character.”  It has been said that “positive good character” is “something more than mere absence of a criminal record, being particular behaviour, usually unrelated to the crime itself, which has been of benefit to the community”: Attorney General v Yeung Kwong-chi [1989] 1 HKLR 266, 269E-F; HKSAR v Leung Ping Nam [2008] 2 HKLRD 178, at [49]-[52].  But it needs to be service to the community “in a quite exceptional way”: Secretary for Justice v Liu Min Ying and Another [2002] 2 HKLR 823, at [10].

74.  The courts have to scrutinise carefully post-crime conduct that is used as mitigation, which should be discarded if there is no substance to it and it is merely designed to achieve a reduction in sentence.

75.  Neither Mr Bruce nor Mr McNamara had seen, nor were they aware of, the 20 June letter.  It would appear that had the letter been considered by them, this appeal may have taken a different course and possibly may not have been pursued at all.  Mr Bruce stated that as a result of the clear implications of the letter the less he said in advancing his submissions the better.  He seemed to accept that the letter revealed the appellant was more knowledgeable about matters than she claimed.  However, he still maintained that the appellant’s trial counsel should have put the 15 June letter before the judge.[26]

76.  The appellant in her second affirmation stated that about one month after she had been arrested, Father Wotherspoon visited her and told her that if she helped him in his anti-drug campaign she would be offered a discount on sentence.  She agreed to assist him in his campaign.  She also stated that at no stage, either before or during her sentencing hearing, did her solicitor or counsel advise her that the assistance she gave Father Wotherspoon might entitle her to a discount of sentence.  She further stated that whether the fact of the assistance should or should not be related to the court was never discussed with her.[27]

77.  In her third affirmation, the appellant stated that during one of her meetings with Father Wotherspoon he told her he would attend court for her sentence hearing and write a mitigation letter.  She stated she did not mention this to her solicitor or counsel as they had never raised the issue of Father Wotherspoon with her.  She also stated that neither her solicitor or counsel told her that they had received a letter from Father Wotherspoon and she was not aware that he had sent a mitigation letter to her solicitor. She claimed she did not mention her meeting with Father Wotherspoon to her lawyers when they went to see her to take instructions because she never knew and was not advised that her assistance to his campaign might be a mitigating factor.  This statement was inconsistent with what she had said in her second affirmation, namely that she had been advised by Father Wotherspoon that by participating in his campaign she would be entitled to a discount on sentence.[28] 

78.  Not only had the appellant contradicted herself in her affirmations about knowing of the possible entitlement of a reduction to her sentence by participating in Father Wotherspoon’s campaign and discussing it with her lawyers, but the contemporaneous notes of her consultations with her legal team made reference to the involvement of Father Wotherspoon.[29]  There was also Mr Ravenscroft’s email to Mr Mughal on 16 June 2017, in which he discussed the 15 June letter and the need to take instructions from the appellant in respect of it.  Furthermore, Mr Ravenscroft in his affidavit stated that at the sentencing hearing he and counsel spoke to the appellant and told her of the letter from Father Wotherspoon and informed her that the matters referred to in the letter would be brought to the attention of the court but the letter would not be produced.  The 20 June letter largely confirmed the account given by the appellant’s lawyers as to what took place at the sentencing hearing and indicated that the appellant was considerably more knowledgeable about what had happened than she claimed in her affirmations.

79.  It is highly significant that when the appellant’s case came on for sentencing the practice of the courts in respect of a defendant’s participation in Father Wotherspoon’s anti-drug campaign as a mitigating factor was varied.  Mr Bruce accepted that the sentencing practice was unclear, with some judges accepting this matter as a mitigating factor, while others did not.  It was not until Kilima Abubakar Abbas, which was handed down on 18 September 2018, that clear guidance was given by the Court of Appeal on how to approach this matter when sentencing.  In fact, Mr Bruce, who was counsel for the applicant in that case, is quoted as saying that participation in Father Wotherspoon’s campaign should be treated as a mitigating factor and not approached on an ad hoc basis.[30]  It must not be overlooked that whatever the attitude of the sentencing court on this matter, there was also the avenue of raising a defendant’s participation in Father Wotherspoon’s campaign with the executive at a later date. 

80.  It is well established as a general rule, that a party is bound by the conduct of his or her counsel, and counsel has a wide discretion as to the manner in which proceedings are conducted, particularly what lines of argument to pursue and what points to abandon.[31]  While instructions from a party to counsel play an important role in the conduct of proceedings, they are nevertheless subject to the professional assessment of counsel as to their value and use in respect of the purpose for which they are sought to be employed.

81.  In the present case, the appellant’s legal team made a professional assessment not to submit the letter from Father Wotherspoon to the judge because they took the view the judge would accord it little if any weight as a mitigating factor.  However, it did leave open the possibility of raising it with the executive at some future date. 

82.  Given the state of the law at the time of the appellant’s sentencing and the circumstances of this case, we can understand why the appellant’s lawyers thought this was a matter best left for the executive if and when appropriate.

83.  According to the appellant, she had been told by Father Wotherspoon that she might be entitled to a discount of sentence if she participated in his campaign and she was keen to receive whatever benefit she could in order to return to Venezuela as soon as possible.  Any discount for the appellant’s participation in Father Wotherspoon’s campaign was a matter that would have been in the forefront of her mind.  We feel that the approach to be taken before the judge in respect of Father Wotherspoon’s letter was made clear to the appellant and that was largely confirmed by the 20 June letter.

The allegations against the legal representatives

84.  It was regrettable that the 20 June letter was not mentioned, nor appropriately considered at an earlier stage of these proceedings.  Had it been considered, we daresay that in all likelihood it would have avoided a criminal investigation against the appellant’s solicitor, the prolonged and intense series of hearings, and the filing of voluminous sworn and affirmed evidence that has occupied these appeal proceedings.

85.  We wish to conclude by saying that it was extremely unfortunate that these proceedings intensified into allegations against the appellant’s legal representatives at trial as to their competence and integrity.  There was no justification or substance in the allegations that have been made.  When allegations of incompetency are made against defence counsel, the incompetence must be flagrant and falling well short of what would be expected of defence counsel. 

86.  In Chong Ching Yuen v HKSAR (2004)  7 HKCFAR 126, Bokhary PJ (as he then was)  quoted with approval the comments of Gleeson CJ (as Gleeson NPJ then was)  in R v Birks (1990)  48 A Crim R 385 that:

“As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgement or even negligence.

However, there may arise cases where something has occurred in the running of the trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellant intervention.”

87.  In a separate concurring judgment, Sir Thomas Eichelbaum NPJ stated:

“48. It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground of appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error or judgment.

  49.   Nevertheless, the courts have recognised that in some exceptional circumstances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice.”

88.  It has long been recognised that assertions of flagrant incompetence by counsel can be open to abuse.  Stock NPJ in HKSAR v Li Xiaoxiang (2018)  21 HKCFAR 272 expressed the Court’s concern about the inappropriate use of this ground, and went on to state:

“31. … If these principles and realities were sufficiently understood, the unnecessary exertions and anxieties imposed upon counsel against whom unwarranted allegations are made would be avoided. Any allegation of this kind inevitably requires trial counsel to forage for his or her contemporaneous notes and advice, to write letters and to swear affidavits or make affirmations and then, often, to subject himself or herself to cross-examination. Where there is substantial cause for asserting flagrant incompetence, this type of pressure and anxiety cannot be avoided for the assurance of a fair trial is paramount. But the Court of Appeal has had occasion to remark that a culture has developed in this jurisdiction ‘whereby allegations against other counsel are too easily made with insufficient regard, unless one has been at the receiving end, to the burden that is placed on counsel (or solicitor, as the case may be)  against whom the attack is launched, and to the heavy anxiety suffered by a person whose competence and integrity is thereby placed under scrutiny.’ We would endorse the advice of that Court that: ‘It is incumbent on appellate counsel never to advance such allegations unless there is a palpably sound basis to do so …’.”[32]

89.  Mr Ravenscroft was the subject of an unwarranted criminal investigation that was clearly avoidable by full and proper disclosure of the relevant materials and appropriate dialogue between the parties before embarking on these proceedings. 

90.  Mr Mughal is a highly respected and experienced criminal lawyer whose advocacy is always of the highest quality whenever he appears before this Court.  As far as we are concerned, this case was no exception.  He presented mitigation on behalf of the appellant with his customary thoroughness and eloquence.  It was most unfortunate that he was subjected to unmeritorious assertions of incompetence which had no substance to them whatsoever.  It has been firmly stated by this Court it is not enough to advance such a ground, even impliedly, on the basis that something should have or could have been done differently.[33] It was argued before us that the 15 June letter was obviously capable of mitigation that should have been put before the judge.  This was submitted without any assessment as to whether there was actually any substance to what was asserted in the letter.  According to Mr Lui’s submissions, the assertions made of the appellant’s involvement in the campaign, and of the campaign itself, could be viewed as misleading.  As rightly argued by him there was no meaningful contribution by the appellant to Father Wotherspoon’s campaign.

91.  This appeal was devoid of merit and should not have been brought in light of what has emerged in the appeal hearing.  For the reasons we have given, we dismissed this appeal.