HKSAR v. YEUNG HOI TING

CACC 154/2016

[2019] HKCA 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 154 OF 2016

(ON APPEAL FROM HCCC NO 185 OF 2015)

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J U D G M E N T

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

1.  The applicant was one of two defendants jointly charged with one count of trafficking in a dangerous drug, namely 4.96 kilogrammes of a crystalline solid containing 4.86 kilogrammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. In this judgment, the applicant will be referred to as D2 and the other defendant, Chung Yiu Lam, will be referred to as D1, which were their designations at trial.

2.  The case against the two defendants was presided over by Deputy High Court Judge Campbell-Moffat, as she was then (“the judge”). At the pre-trial proceedings, D2 indicated that she would plead guilty to the count, which she did on 5 April 2016.  D1 indicated that he would plead not guilty and his case went to trial, at the conclusion of which, on 18 May 2016, he was found guilty of the count. On 19 May 2016, the two defendants came before the judge for sentencing.  She sentenced D1 to 28 years and 3 months’ imprisonment, and D2 to 18 years and 10 months’ imprisonment.

3.  Both defendants filed a notice seeking leave to appeal, D1 against his conviction and sentence, and D2 against her sentence.  Whilst their respective applications came on together, they ended up being dealt with separately.  D2’s application was first brought on before a two-member division of this Court (McWalters JA and Zervos J) on 27 June 2018, which was re-fixed before a three-member division of this Court in order to specifically address the following two issues:

(1) Is mistaken belief in the quantity of drugs a relevant factor in sentencing?  If so, how should it be dealt with?

(2) How can the prosecution fulfil its duty to the court on the assessment of a defendant’s assistance rendered to the authorities and, regardless of the prosecution’s assessment, can the court make its own evaluation on the value of the assistance?

4.  In the meantime, D1’s application for appeal against conviction and sentence was heard by a three-member division of this Court (Lunn VP, McWalters JA and M Poon J) on 25 January 2018, which allowed his appeal, quashed his conviction and ordered a retrial.[1]

The admitted facts

5.  The facts outlined to the judge, and admitted on behalf of D2, show that at 09:17 hours on 18 September 2014, she entered Hong Kong from mainland China through the Lowu border crossing.  She was carrying a blue backpack strapped to the front of her body and a red, blue and yellow plastic carrier bag slung over her shoulder.

6.  After D2 passed through immigration at 09:25 hours, she boarded a train at Lowu and alighted at Sheung Shui Railway Station where she met a man who was standing there waiting.  D2 and the man had a brief conversation and walked together towards a taxi stand. 

7.  Throughout this time, police officers were observing D2’s movements.  They saw the man hand over a wad of banknotes to D2 before they got to the taxi stand.  D2 put the wad of banknotes in the outside pocket of her backpack.  They further observed them talking to each other, as they approached a taxi at the taxi stand.  The man opened the rear right door of the taxi and sat in the right hand rear seat.  D2 stood by the taxi talking to the man, and placed the red, blue and yellow plastic carrier bag on the floor of the taxi in front of the man’s feet.  D2 then turned, and started to walk away from the taxi.  At this point, the police officers took action and arrested D2 and the man, who was D1.  They seized the plastic carrier bag from the floor of the taxi which they examined.  They found inside it four transparent bags of a white crystalline substance which was later confirmed to consist of 4.86 kilogrammes of Ice narcotic.  The retail value of the drugs at the time of the offence was $1,993,920.

8.  After being cautioned for trafficking in a dangerous drug, D2 said that she did not know what the substance was inside the plastic carrier bag.  The police officers searched her backpack and, in the outside pocket, they found $20,000 in cash, in $500 and $1,000 notes.

9.  In a subsequent cautioned interview, D2 denied knowledge of the dangerous drugs found in the plastic carrier bag and the $20,000 cash found in her backpack.  However, she admitted that she knew D1, whom she had met at Sheung Shui Railway Station.

10.  The call records of D2’s mobile telephone and the mobile telephone found on D1 showed that the two had been in contact on 38 occasions during September 2014, including four contacts in the morning of 18 September 2014, with the last contact at 09:23 hours.

D2’s mitigation

11.  Counsel for D2, presented her mitigation to the judge.  She was 34 years of age at the time of sentence.  She was born in mainland China and eventually settled in Hong Kong in 2010.  She was married, but in 2013 she separated from her husband, who thereafter took care of their son. She moved to Shenzhen in 2014, where she lived alone, and was unemployed.  It was noted that she had previous convictions for drug offences with a conviction in 2011 for trafficking in a dangerous drug.

12.  Counsel submitted that D2 committed the present offence out of temptation, because she wanted to earn more money to provide a better living environment for her son and unwell father.

13.  At the conclusion of D2’s mitigation, the judge adjourned the sentencing of D2 until after the conclusion of D1’s trial.

D2’s provision of assistance

14.  Prior to her plea of guilty, on 16 March 2016, D2 provided a non-prejudicial statement to the police.  She stated that after her release from prison for a previous drug offence, she met up with a woman whom she had become acquainted with in prison.  She shared and obtained drugs from her, and it was through her that she met D1.  She explained that she had bought a small quantity of drugs from her, and when returning to her residence she was arrested for possession of the drugs and released on bail.  It was during this time that the woman asked D2 if she would work as a courier of drugs.  She agreed as long as the drugs were handed to one of the woman’s associates after she had brought them into Hong Kong from Shenzhen.  In return, she would receive $10,000 reward for every 1,000 grammes of Ice that she transported.

15.  In September 2014, D2 started to work as a courier for this woman and brought drugs into Hong Kong from Shenzhen for her on five or six occasions.  On two or three occasions, the drugs were given to D1.

16.  As for the events on 18 September 2014, D2 stated that she had been contacted by the woman to transport 2,000 grammes of Ice from mainland China to Hong Kong, and to hand them over to D1.  D1 contacted her on the telephone number of a mobile telephone that had been provided by the woman.  She in turn contacted another associate of the woman to obtain details as to where the drugs should be taken.  She then contacted D1, and confirmed the time and place for the delivery of the drugs.  She picked up the drugs as arranged and then took a train to Sheung Shui, keeping in contact with D1 by mobile telephone.  They arranged to meet at the 7-11 store on the 2^nd floor of Sheung Shui Railway Station.  When she met D1, he gave her $20,000, which she put into her backpack.  She then accompanied D1 to hail a taxi.  D1 got into the taxi first and she put the plastic carrier bag which contained the drugs on the floor of the taxi beside his feet.  She then closed the door of the taxi and left.  After she had taken a couple of steps, she and D1 were arrested by the police.  She believed the quantity of drugs was 2,000 grammes and it was only later that she was informed the quantity involved consisted of 5,000 grammes of Ice.

Ex parte hearing

17.  On 6 May 2016, shortly before D1’s trial, the judge held an ex parte hearing with the prosecution.  D2’s legal representatives were informed of the hearing but were not present.  During the hearing, the prosecution handed up to the judge a non-prejudicial statement given by another person, who has been described as Mr Wong.  He set out in his statement details of payments that were made or intended to be made to D2, for her to bear responsibility of the case in order to exonerate D1.  The non-prejudicial statement was dated 7 March 2016, just prior to the non-prejudicial statement made by D2 on 16 March 2016.

18.  It is submitted by the respondent, that the prosecution were concerned about possible collusion between D1 and D2, and hence it was decided not to call D2 as a prosecution witness.  This decision was made notwithstanding that the prosecutor on 19 May 2016, when mitigation was being presented on behalf of D2, informed the court that her non-prejudicial statement was “potentially very useful”.[2]

D1’s trial and retrial

19.  D1 at his trial testified that D2 was his girlfriend and that it was she who brought the drugs into Hong Kong, without him knowing.  He said he did not give D2 the $20,000, but did provide her with spending money of at least $10,000 at a time.  He said that since D2 had been in custody, he helped her and her family financially.  He did this through a friend by the name of Cheung Kwai Wing.

20.  Although we do not have the transcript of all of the proceedings, it seems from the closing addresses that Cheung Kwai Wing gave evidence on behalf of D1 at his trial.  He was DW2 at D1’s trial, who testified that he visited D2 in prison at D1’s request on five occasions to help her financially.  He said he spent $16,000 supporting D2 while she was in prison, and gave a further $30,000 to pay for her father’s medical expenses.  He said the money was conveyed through third parties.

21.  As we have already noted, although D1 was found guilty of the count by a jury, his conviction was later overturned on appeal. At the retrial of D1, D2 was again not called as a witness.  On 16 August 2018, D1 was convicted of the count and sentenced to 28 years and 9 months’ imprisonment.

D2’s sentence

22.  After D1’s first conviction, the judge dealt with both D1 and D2 for sentence.  Counsel for D2 submitted that because she had pleaded guilty and provided a non-prejudicial statement to the police, she should receive a reduction to her sentence.

23.  The judge queried D2’s entitlement to a reduction for assistance to the authorities, pointing out that the prosecution had decided not to call her to give evidence at D1’s trial.  She referred to the non-prejudicial statement of Mr Wong and to the suggestion that D2 was open to giving evidence for D1 in return for payment.  She also referred to the evidence that had been given during D1’s trial from DW2 who said that he had given $46,000 to D2 whilst she was on remand.

24.  The judge enquired of counsel as to whether D2 had been financially assisted while she was remanded in prison.  After taking instructions from D2, counsel informed the judge that she denied the allegation and had not received any money.  He also submitted that she was only a courier, and that her decision to provide assistance to the authorities displayed remorse on her part.

25.  The judge noted that by her plea of guilty, D2 accepted that she was trafficking in the dangerous drugs and that the $20,000 was a reward for the role that she had played.  She listed D2’s criminal record, noting that in 2011, she was sentenced to 30 months’ imprisonment for trafficking in ketamine, and in 2014 she received a Drug Addiction Treatment Centre (“DATC”) order for possession of Ice.  She also noted that D2 had served the DATC order by 11 May 2015, and therefore the underlying offence must have predated the present offence.

26.  The judge considered that D2 had a problem with drugs and had not learnt from her past breaches of the law.  She went on to explain that if it was not for the fact that she would be imposing a severe sentence on D2, she would have been inclined to enhance her sentence for her past offending.  She considered that the sentence she was about to impose on D2 would be punishment enough.

27.  Applying the sentencing guidelines in HKSAR v Tam Yi Chun[3], the judge adopted a starting point of 26 years and 3 months’ imprisonment for trafficking in 4.86 kilogrammes of Ice, which she enhanced by 2 years for the international element, namely D2 importing this quantity of Ice into Hong Kong from mainland China.  She then reduced the starting point of 28 years and 3 months’ imprisonment by one third for D2’s guilty plea and sentenced her to 18 years and 10 months’ imprisonment.

28.  The judge, however, declined to discount D2’s sentence any further for the information that she provided and the assistance that she was prepared to render to the authorities.  In her reasons for sentence, the judge said:

“… I have not discounted it further to take account of your offer to give assistance, as I note that you did not give evidence at trial and other information available to the court, which is untested, suggests that you were open to giving evidence for the defence in return for payment.

Other than the evidence for Chung Wai-man who gave evidence on oath that he did give you $46,000 whilst you were on remand, I do not have any proof that this allegation was in fact true but it certainly militates against this court taking your offer into consideration at this stage without more.” [4] (It appears the name “Chung Wai-man” is a reference to Chung Yiu-lam (D1))

The grounds of appeal

29.  Mr Phillip Ross, counsel for D2, advances two grounds of appeal against sentence.[5]

30.  The first ground is that the judge erred in failing to discount D2’s sentence beyond the one third discount for her plea of guilty, even though she was willing to give evidence against D1 at his trial. It is submitted that the judge relied on information available to her together with evidence given in the absence of the applicant which the judge found suggested that the applicant was open to giving evidence for the defence in return for payment, even though such information was untested and denied by the applicant.

31.  The second ground is that the sentence imposed on D2 was wrong in principle, as it was based on the quantity of 4.96 kilogrammes of a mixture containing 4.86 kilogrammes of Ice when she believed that she was carrying only 2 kilogrammes of Ice.  It is submitted that the judge erred in not resolving this issue in light of the information that was before her in which this matter was raised.

The applicant’s submission

32.  In the first ground, Mr Ross complains that D2 had offered to give evidence for the prosecution, and yet the judge refused to give her credit for doing so by reducing her sentence.  He argues that the judge took into account matters that were adverse to D2 which were untested and denied by her.  The first matter was the non-prejudicial statement of Mr Wong, in which he stated that in discussions with D1 he was told by him that he would give “around $200,000” to D2 to bear all responsibility for the case. The second matter was the evidence of D1 and DW2 at D1’s trial, which was to the effect that D1 had given $46,000 to D2 while she was on remand.  D2 and her counsel were neither present at the ex parte hearing when Mr Wong’s non-prejudicial statement was submitted to the judge, nor at D1’s trial when evidence was presented alleging that payments were made to D2 by D1 and DW2.  He points out that the judge did not hear evidence from D2 on these allegations, although she was informed at the sentencing hearing that D2 denied receiving money from D1 when the matter was first brought to her attention.

33.  He argues that the judge in sentencing D2 should have ignored these allegations, or alternatively, she should have convened a Newton hearing for the prosecution to prove the allegations beyond reasonable doubt.  In the absence of any proof of the allegations, D2 should have received a discount on her sentence beyond the usual one third for her timely guilty plea.  He notes that an accused who pleads guilty and offers to give evidence (but without testifying) at trial against a co-accused can expect to receive a discount of around 40% from the notional starting point: HKSAR v Lo Sze Tung Stephanie[6].  On this basis, he submits that D2 is therefore entitled to such a discount, particularly when the prosecution described D2’s non-prejudicial statement as “potentially very useful”.

34.  In the second ground, Mr Ross complains that D2 should have been sentenced on the basis of her actual culpability, which was reflected by her belief that she was trafficking in 2,000 grammes of Ice.  He relies on the contents of D2’s non-prejudicial statement, in which she stated that on many occasions she had been asked to traffic 2,000 grammes of Ice, that she trafficked Ice on 5 or 6 occasions, that she was paid $20,000 in wages because she had been told that there would be generally 2,000 grammes involved, and that the “wages” would be $10,000 for every 1,000 grammes.  She also stated that in relation to the present offence she had been asked by the woman to take 2,000 grammes of Ice from mainland China to Hong Kong and had gone to a flat in Lo Wu from which she took several black plastic bags, containing the Ice and put them in her own reusable bag.  After that, she went alone to Sheung Shui by train and eventually met up with D1.

35.  Mr Ross points out that D2 further stated that it was not until she was taken to the police station that she knew that the Ice weighed 5,000 grammes which “was about the same as the one mentioned” by the woman.  It seems that this may have been a reference to what she had been told by the woman that she was to take 2,000 grammes from mainland China to Hong Kong.  He contends that it appeared that D2 had been deceived into delivering more Ice than she had agreed to. 

36.  In support of this submission, Mr Ross relies on HKSAR v Yip Wai Yin and Another[7], where the Court of Appeal, applying the English Court of Appeal decision of R v Bilinski[8], held that a defendant’s mistaken belief that the drugs concerned were a less potent type than they actually were, if proved, was a relevant matter in sentencing.  The Court also cited HKSAR v Li Chi Hung[9], as one of a number of cases where this reasoning had been applied. 

37.  Mr Ross extrapolates this principle to cases where it is proved that a defendant had a mistaken belief as to the quantity of the drugs concerned.  He also quite properly points out that the Court of Appeal in Li Chi Hung, whilst recognising the principle, also emphasised the significance in cases of drug trafficking of the actual quantity of the drug involved:

“47. … We consider the criminality of the mental state of an accused a very important aspect in sentencing, besides his act of supplying a dangerous drug. His culpability and therefore punishment would need fairly be related to both his mental state and his conduct. However, in a case of drug trafficking, the kind of drug actually involved in the trafficking should have a more weighty bearing than the mental element, just as the tariffs of sentence for drug related offences hinge more on the quantity of the drug involved.”

38.  On the basis that D2 believed she was carrying 2 kilogrammes of Ice in the plastic carrier bag, instead of the actual quantity of 4.86 kilogrammes, Mr Ross argues that she should have been sentenced for what she intended to traffic, not what she had actually trafficked.  He submits that according to the sentencing guidelines the starting point that should have been adopted by the judge was 23 years and 10 months’ imprisonment for 2 kilogrammes of Ice. 

39.  Mr Ross adds that if there was any doubt about the matter, the judge should have conducted a Newton hearing to determine the state of D2’s belief as to the quantity of Ice involved.

The respondent’s submission

40.  As for the first ground, Ms Anna YK Lai, SC, with Ms Claudia Ng[10], for the respondent, submits that when D2 provided the non-prejudicial statement as it related to D1, the prosecution had to make a qualitative assessment of it and determine what value, if any, it would add to the available evidence against D1 at his trial.  As a matter of prudence, this had to be weighed against the disadvantage, if any, of relying on such evidence in these circumstances.  In the end, the prosecution decided not to call D2 as a prosecution witness, out of concern that she would be unreliable, and therefore her non-prejudicial statement was not useful to the prosecution in the trial of D1.

41.  Ms Lai submits that the principles and procedure stated in R v X (No. 2)[11], and reinforced and elaborated upon in R v AXN[12], concerning the disputation by a defendant of the assessment of his assistance before a sentencing court, should be applied in Hong Kong.  She contends that the usefulness of the assistance rendered by D2 should be left to be assessed by the prosecution because, compared to a court, both at the stages of sentencing and appeal, it is in a better position to make such assessment.

42.  Ms Lai points out that at the relevant time counsel within the Department of Justice had assessed D2’s non-prejudicial statement, and concluded that D2’s account of matters was not believable; accordingly, she could not be relied upon as a prosecution witness at the trial of D1.  This stood in stark contradistinction to prosecuting counsel’s description of D2’s non-prejudicial statement during mitigation before the judge that it was “potentially very useful”.  Initially, it was submitted by the respondent that this description by prosecuting counsel could have been a reference to the information about the woman that D2 mentioned in her non-prejudicial statement, and therefore it was not necessarily a reference to D1.  On this matter, it was pointed out that the information provided by D2 about the woman had, in any event, not resulted in any arrest or discovery of dangerous drugs.  However, it was eventually acknowledged by Ms Lai that prosecuting counsel’s description, in the context in which it was stated, must have been a reference to the information provided by D2 about D1.

43.  In any event, Ms Lai seeks to argue that the present circumstances were different from the kind of cases contemplated of a defendant who falls within the 33.3% to 40% discount range mentioned in Lo SzeTung Stephanie.[13]  She points out that this discount range is normally available to a defendant who had made a genuine attempt to assist the authorities, where the assistance had been helpful but for one reason or another it was not assessed to be of particularly great value.  She submits that D2’s account was viewed as not believable and therefore she was not entitled to a discount for her assistance. 

44.  In our view, the fact remains that prosecuting counsel at trial considered the content of D2’s non-prejudicial statement to be “potentially very useful” and this will need to be assessed in order to determine whether a further discount should be given to her sentence.

45.  As to the second ground, Ms Lai notes that it is not in dispute that D2 had in fact brought a substantial quantity of dangerous drugs into Hong Kong, which were contained in a plastic carrier bag that was in her possession.  She submits that D2 must have realised that she was carrying a very large quantity of Ice and therefore there is no basis to sentence D2 on a lesser quantity. 

46.  Ms Lai acknowledges the principle in Yip Wai Yin, but notes that the availability of a defendant’s mistaken belief with respect to the nature of the drug as a factor in sentencing, depends on the court being provided with evidence supporting the defendant’s belief that he was dealing with a different type of drug, and that the court is required to consider all the circumstances of the case, including the degree of care exercised by the defendant when deciding the issue.  She also notes that even when this factor is established it will only go to a reduction of the otherwise appropriate sentence, and not entitle a defendant to a sentence on the basis of the drug he believed it to be.  

47.  As to a defendant’s mistaken belief with respect to the quantity of the drug, Ms Lai refers to the case of HKSAR v Kayani Hamid Iiyas[14] where the applicant was convicted of conspiracy to traffic in a dangerous drug, having brought a small quantity of heroin as a sample into Hong Kong.  The Court of Appeal was satisfied that the applicant was not aware that the quantity of the dangerous drug involved in the conspiracy was as much as 3 kilogrammes.  In the end, the applicant was sentenced on a lower band of the sentencing guidelines.  She distinguishes that case from the present one on the basis that there was no actual quantity of drugs involved, except for a sample quantity, and that there was no discussion by the court as to the application of the principle in Yip Wai Yin.  In any event, the applicant in that case was sentenced on a lower band of the guidelines on the basis that he was aware that a substantial quantity of drugs was involved. 

48.  In examining this principle and the extent of its application, Ms Lai examines various decisions both in Hong Kong[15] and other jurisdictions[16], and notes that a common feature amongst them is the importance of the defendant’s level of moral blameworthiness in determining his criminality as reflected in his sentence.  To this end, the fact that the defendant held a mistaken belief, be it about the nature or the potency or the quantity of the dangerous drugs, if proved, should be equally relevant in sentencing. 

49.  Ms Lai submits therefore that the principles and analysis as set out in Yip Wai Yin, apply to a case where the defendant holds a mistaken belief with respect to the quantity of the drugs.  However, she adds, following the approach as stated by the English Court of Appeal in R v Barry Jason Channer,[17] that even if the court is satisfied that the defendant held such a mistaken belief, ignorance of the nature of the drug, though relevant, “can only command a very limited reduction.”[18] 

50.  We observe that this view as to the effect mistaken belief can have on a sentence was followed in Yip Wai Yin, where the Court emphasised that the defendant’s mistaken belief as to the nature of the drug, if proved, would only go to a reduction in what otherwise would be the appropriate sentence based on the type of drug that they actually were.  In our view, the same approach should be taken where the defendant holds a mistaken belief with respect to the quantity of the drugs.

51.  Ms Lai submits that D2’s bare assertion that she held a mistaken belief that she was only importing 2,000 grammes of Ice into Hong Kong from mainland China, should not be accepted.  She points out that D2 claimed in her non-prejudicial statement that she had acted as a drug courier on five or six occasions and that on each occasion she was to collect 2,000 grammes of Ice.  In committing the present offence, which was the sixth or seventh time she acted as a drug courier, Ms Lai argues that D2 would have clearly been aware that the Ice in the present circumstances was significantly heavier than before, as the weight was more than double.  Furthermore, it would have also been clearly visible to D2 that there were more plastic bags of Ice or that the Ice was kept in a much larger plastic bag when she packed the drugs into her own bag.

52.  Ms Lai further submits that a relevant factor that a court needs to consider is the degree of care that was exercised by D2, if any, in trafficking this quantity of drugs.  She notes that D2 had numerous opportunities to inspect the Ice if she cared to do so, but according to her, she did not. 

53.  In the circumstances, Ms Lai submits that D2’s claim of mistaken belief should be rejected.

Discussion

54.  We now turn to consider the grounds of appeal. We will first address the issue of mistaken belief, and then address the issue of disputed assistance. 

Mistaken belief

55.  In Yip Wai Yin, Ma CJHC (as the Chief Justice then was), giving the judgment of the Court, endorsed the application of the principle in Bilinski that in sentencing for trafficking in dangerous drugs, the court could take into account as a factor to reduce what otherwise would be the right sentence, the fact that the defendant believed the drugs to be of a less potent type than they actually were.[19]  He went on to add:

“16. While this is admittedly a factor that is relevant to sentencing, it is in our view important to stress the following:

(1) The availability of this factor depends on the court being provided with evidence supporting the belief on the defendant’s part that he was dealing with a different type of drug. Except where this is accepted by the prosecution, it will be rare that a court will be satisfied by a bare assertion made in mitigation alone. The defendant will therefore have to demonstrate his belief on a balance of probabilities, unless this is already clear on the evidence before the court. The court will be required to look at all the circumstances of the case. For example, the court may well have to be satisfied of the degree of care exercised by the defendant — see Bilinski at 149. Overall, it is important to bear in mind the specific context in which this factor arises, namely, that the defendant is already admittedly a drug trafficker.

(2) Even where the court is satisfied, this would only be a factor that goes to a reduction in what otherwise would be the appropriate sentence. The defendant will not be entitled to be sentenced on the basis, using any appropriate tariff, that the drugs were in fact what he believed them to be — see HKSAR v Chan Yiu Hong (CACC 592/2002, 18 September 2003, CA, unreported); R v Gena Ngiam [2002] 1 Cr App R(S) 150 at 152. In other words, where, for example, a defendant establishes to the satisfaction of the court that he thought the drugs were Ecstasy when in fact they were Ice, he will not be entitled to be sentenced as though the drugs had been Ecstasy. He will be sentenced in accordance with the tariff for Ice but given a discount on account of his mistaken (but genuine) belief that the drugs were something else.”

56.  It is useful to refer back to Bilinski in understanding the nature and ambit of the principle that was originally stated in relation to mistaken belief.  In that case, the English Court of Appeal held that a person who believed he was importing cannabis was indeed less culpable than one who knew it was heroin, and to what extent the punishment should be mitigated depended upon all the circumstances, amongst which was the degree of care exercised by the defendant.  This is an important aspect of the principle because the Court was emphasising that even though a person had a mistaken belief as to the type of drug involved, the extent to which this should be reflected in his sentence, if at all, depended upon the circumstances of the case, particularly whether he had exercised any degree of care in knowing about the type of drug involved. 

57.  As to how the issue should be determined, the Court observed that in some cases it may be necessary for the sentencing court to hear evidence, although it was open to it to reject the defendant’s account out of hand without hearing evidence if it was manifestly false.  The Court added that it took the view that if it was shown that the exercise of only “a small degree of curiosity, enquiry or care” would have revealed the true nature of the drug, then the mitigating effect of the belief, if accepted, would be small.[20]

58.  There then followed the decision of R v Mohammed Afzal and Mohammed Arshad[21], in which the English Court of Appeal, applying Bilinski, explained that what a sentencing court is essentially required to do when addressing an issue of mistaken belief is to approach it by looking at what the defendant had in fact done, and also at what he thought he was doing, whilst emphasising that a court must take into account the actus reus, and its consequences, as well as the defendant’s mens rea.[22]

59.  We note that a similar approach has been taken in Canada in the appeal case of R v H.(C.N.),[23] although from a different perspective, as the offender in that case had taken steps to be satisfied that the substance in question was marijuana, when in fact it was cocaine. The Court held that the moral blameworthiness of the offender should be considered when sentenced and that there was a considerable difference in the moral blameworthiness of a person who believed he was importing marijuana and one who knew he was importing cocaine.  The Court concluded that the offender’s belief, especially given the steps he took to satisfy himself that the substance was marijuana, when in fact it was cocaine, was an important extenuating factor.[24]

60.  We entirely agree with the statement of principle that the moral blameworthiness of an offender is an important consideration in sentencing.  In the case of the importation of drugs, the defendant’s belief as to what it is he is importing will have a bearing on his moral blameworthiness.  It follows that if it is shown that the defendant has taken appropriate and satisfactory steps to form a genuine belief about the nature or state of the drugs involved, that is an extenuating circumstance which should clearly operate in favour of the defendant and be taken into account in sentencing.

61.  Applying the principles of mistaken belief as stated in Yip Wai Yin to the quantity of drugs involved, it needs to be stressed that the availability of this factor depends on the court being provided with evidence supporting the belief of the defendant and being persuaded, on the basis of that evidence, of the genuineness of it.  Accordingly, it would be rare for a defendant’s unsupported assertion of mistaken belief to be a reliable basis for mitigation.

62.  In our judgment, a defendant who holds a mistaken belief, be it about the nature or the potency or the quantity of the drugs, if proved, is a relevant matter in sentencing.  When sufficiently and properly raised, it would require the sentencing court to look at all the circumstances of the case, amongst which is the degree of care exercised or the steps taken by the defendant to satisfy himself of the true situation.  It would be highly significant to what extent, if at all, the defendant had exercised care or taken steps to determine the true situation.  Otherwise, if he was recklessly indifferent or wilfully blind to matters with respect to the drugs he was trafficking, this would seriously undermine, or militate against, a claim of mistaken belief and its mitigating effect. 

63.  As observed in Yip Wai Yin, it is important to bear in mind the context in which this factor arises, namely that the defendant has admitted to being a drug trafficker, and that is why it is important for the sentencing court to look at all the circumstances of the case.  We would add that the typical cases of drug trafficking that come before the courts, involve a defendant who is found in possession of the drugs for the purposes of trafficking, and upon a plea of guilty would have admitted that he was trafficking in the type and quantity of drugs as set out in the charge and the summary of facts. 

64.  The principal basis in sentencing a defendant for trafficking in drugs is the narcotic quantity of the drugs involved.  We affirm what was stressed in Yip Wai Yin, that where a genuine mistaken belief has been established, this will only be a factor that goes to a reduction in what otherwise would be the appropriate sentence, for the drugs in which he actually trafficked.  The amount of reduction for the mistaken belief will, inevitably, be fact sensitive and will depend very much upon the significance of the difference between what the defendant actually imported, in terms of both the nature and quantity of the drugs, and what the defendant believed he was importing.  The greater the difference, the greater will be the discount but, and this does need to be emphasised, there is a limit on the amount of the discount that can be awarded.  The amount of the discount must not be such that it diminishes the gravity of the offence or undermines the deterrent effect of the sentence. 

Mistaken belief in the present case

65.  We reject the claim by D2 that she believed she was carrying 2,000 grammes of Ice when in fact it was just under 5,000 grammes for the following reasons.  According to D2, she had a purely commercial arrangement with the woman under which she was to be paid $10,000 for every 1,000 grammes of Ice that she smuggled into Hong Kong.  She stated that in the past on some five or six occasions, she smuggled Ice into Hong Kong in quantities of 2,000 grammes.  The quantity on this occasion was nearly two and a half times what she claimed she usually smuggled into Hong Kong.  Given the duration and the manner of D2’s carriage of the bag, it would have been readily apparent to her by the size and weight of the parcel, that she was carrying a quantity of Ice far greater than what she had carried in the past, or at least it would have been readily available to her to inspect what was inside the bag to check the quantity of Ice she was carrying. 

66.  Furthermore, this was a matter of substantial financial benefit to D2.  She was a commercial drug courier; the more Ice she carried, the more she was paid as a reward.  The difference in the reward in the present circumstances was about $30,000, being the difference between $20,000 and $50,000.  It is inconceivable, in light of her commercial arrangement, and the risk and consequences to her if she was apprehended by the authorities, that she did not know, or at the very least check to find out the quantity of Ice she was carrying.

67.  This ground of appeal therefore fails.

Disputed assistance

68.  The common law has long recognised that an offender convicted of a crime will receive credit against his or her sentence for any assistance which has been rendered to a law enforcement authority, subject of course to an evaluation of the benefit or value of the assistance and a quantification of the credit to be given.  This was extensively addressed by the Court of Final Appeal in Z v HKSAR[25]which laid out the policy and principles governing this area of sentencing.

69.  It is a fundamental requirement that the prosecution ensures it discloses in the interests of justice any material which is relevant to sentence.  Although, in some cases, because of the nature of the material, issues of confidentiality and security may arise.  Such material may need to be considered by the sentencing court in a closed hearing, following the requirements and procedure laid out in R v Sivan[26] (referred to as the Sivan procedure).[27]  It is only when a sentencing court considers that it would not be in the public interest to address the assistance provided or to state that a discount has been given in open court, that a closed hearing is held, otherwise the principles of open justice should apply.

70.  When a defendant wishes to cooperate with a law enforcement authority by the provision of information or assistance, a usual first step in the process is for the authority to take a non-prejudicial statement from him to record the information or assistance that he can provide.  The statement is then assessed and evaluated by the authority to determine whether the information or assistance is of value, and if it is, to decide what use can be made of it and what further information or assistance the defendant can provide. In such circumstances, a defendant would seek to receive a reduction to his sentence for the information or assistance that he has provided.

71.  A sentencing court would usually employ the Sivan procedure when addressing this aspect of a defendant’s mitigation because of the need for confidentiality.  In R v Sivan, Lord Lane CJ observed that this was an area of law fraught with difficulties by reference to three issues, namely the difficulty in ascertaining the true facts, the desire of the offender for confidentiality, and the difficulty in determining exactly the extent to which credit should be given.  He then laid down the following procedure that should be adopted when addressing this issue.  The relevant authority should provide to the sentencing court a letter from a senior officer of the authority.  The senior officer must be unconnected with the case in which assistance has been given, and must have examined the facts of the case so as to certify what has been reported by the officer in charge of the investigation.  The officer in charge should set out the facts as certified and should be available to give evidence if necessary, either in court or in chambers.  A record should be taken of what transpires before the sentencing court.  He also observed that the procedure should be appropriately tailored to the particular circumstances of the case.[28]

72.  We follow a similar procedure in Hong Kong, but from our experience it does not appear to be always strictly adhered to.  It normally takes the form of a senior police officer, not involved in the investigation, providing a statement to the court that he has examined the facts as reported in a statement from the investigating officer and certifying that the facts are as reported by the investigating officer.  Sometimes the senior police officer would also state if the assistance was of value or not, although this is usually addressed in the statement from the investigating officer.  The statement of the investigating officer would in the vast majority of cases provide a brief background to the case and a description of the information or assistance the defendant had provided or can provide, as well as a copy of a non-prejudicial statement, if one has been made.  It would also set out the value, if any, of the information or assistance from the defendant, and this is usually addressed on the basis of whether it has led to a successful arrest or prosecution. 

73.  We will come back to the procedure adopted in Hong Kong because we consider it needs to be more clearly defined and structured.

74.  It seems that over the years in the United Kingdom the Sivan procedure has evolved into a procedure where information, if provided by the police, takes the form of a confidential letter known as a “text” signed by a senior police officer.  The “text” would set out : (i) the offender’s status and whether he is a registered informer under the Regulation of Investigatory Powers Act 2000; (ii) the details of the assistance provided, the information or intelligence provided and whether he is willing to be a witness; (iii) the effort to which the offender had gone to obtain the information; (iv) any risk to the offender or his family; (v) an assessment of the benefit derived by the police, including any arrests or convictions or any property recovered; (vi) any financial reward the offender has already received for the assistance provided; (vii) a statement as to whether the offender will be of future use to the police.[29]

75.  The “text” procedure was primarily based on the principles as stated in R v Sivan and elaborated upon in R v X (No. 2). In R v X (No. 2) the English Court of Appeal listed the principles to be applied and followed when there is a dispute between the offender and the police, as to the extent of the information provided and the value of it. In that case, the police had submitted a document in the form of a written confidential report to the sentencing court which the offender disputed did not fully reflect the assistance that he had given or its results.  We set out below the principles, stated by Hughes J (as he then was), which we have appropriately paraphrased. 

1. A document of this kind, although supplied by a police officer, is supplied at the request of the defendant.

2. Except to the extent that the defendant’s contention that he has given assistance is supported by the police, it would not generally be likely that the sentencing court would make any adjustment in sentence.  A defendant’s unsupported assertion would not normally be a reliable basis for mitigation.

3. It followed that a court must rely very heavily on the greatest possible care being taken in compiling such a document for the information of the court.  The court would have to rely upon it, without investigation, if police enquiries were not to be damaged or compromised and other suspects, guilty or innocent, were not to be affected.

Those who prepare such documents, and senior officers who verify them, must realise the importance of ensuring that they are complete and accurate.

4. Except in very unusual circumstances, it would not be necessary or desirable for a document of this kind to contain the kind of details which would attract a public interest immunity application.

5. In the exceptional circumstances that such a document did contain information which attracted public interest immunity consideration, the usual rules about the conduct of such an application would apply.  It would be a case in which the defence could and should be told of the public interest immunity application.

6. In the absence of any consideration of public interest immunity, a document of this kind should be shown to counsel for the defence, who would discuss the contents with the defendant.  This is not done in order to debate its contents but to allay any concerns that the sentencing court has been provided with something potentially adverse to the defendant without him knowing about it. On general principles, a defendant is entitled to see documents put before the sentencing court on which he would be sentenced.  Expeditions to the judge’s chambers should not be necessary.  There should not normally be any question of evidence being given, or of an issue being tried, on the question of the extent of the information provided. 

7. If the defendant wished to disagree with the contents of such a document, it was not appropriate for there to be cross-examination of the police officer, whether in court or in chambers. The police officer was not a prosecution witness, he had simply supplied material for the court, at the request of the defendant. It would be possible, in an appropriate case, for a defendant to ask for an adjournment to allow any opportunity for further consideration to be given to the preparation of the document. Otherwise, the defendant’s remedy is not to rely on the document.

Cross-examination on the usefulness of the information would most likely be contrary to the public interest. It would likely damage current inquiries, forthcoming trials, suspects guilty or innocent, and possibly the defendant. In a limited number of cases, such a request for cross-examination might be deliberately done for such purpose.

8. The court would normally disregard such a document if asked by the defendant to do so.  In such a case the court would not be minded to entertain any submission that the defendant had given valuable assistance to the police.

9. If the court did take the document into consideration he would say no more than is in accordance with the present practice, namely that he has taken into consideration all the information about the defendant, with which he has been provided.[30]

76.  There are three important aspects to these principles.  First, the provision of information to the sentencing court by the police about the assistance the offender has rendered to them is done at his request and on his behalf.  It is the offender who submits such information in support of his mitigation and to that extent he is bound by it.[31]  Secondly, the police have an important responsibility in ensuring that the information they provide to a sentencing court is complete and accurate.  Thirdly, a sentencing court is not normally the forum for any dispute about the extent of the assistance supplied to the police and the police’s assessment of the value of that assistance.  If the defendant does not agree with what is said in this document then he can choose not to rely on it, but he will not normally be able to challenge its contents before the sentencing court.  If he chooses not to rely on it, then the sentencing court is unlikely to accept his bare assertion as to the assistance he has provided and that this assistance warrants a sentencing discount.

77.  The principles in R v X (No. 2) were endorsed in R v AXN, when considering the practice under the common law system of the role of the police in providing confirmation of assistance by an offender at his sentencing hearing in the form of a “text”, and the approach the court should take in the event that there is a dispute between the police and the offender about the refusal by the police to provide such confirmation, or about the information supplied by the police.  This issue arose notwithstanding that a statutory scheme had been enacted in the United Kingdom under sections 73 to 75 of the Serious Organised Crime and Police Act 2005 to govern arrangements for a reduction in sentence to a defendant who had provided assistance in certain circumstances.[32] It was the case that the common law system remained in place, and it appears that it is used more frequently than the statutory scheme.  It is important to note that the “text” system is somewhat different to the Sivan procedure that was initially followed in the United Kingdom and which is still followed in Hong Kong.

78.  It was submitted in R v AXN that the police were not under any duty to engage with the offender, and if they did, they were not obliged to enter in discussions with him as to the assistance he claimed he had provided or offered to provide.  In giving the judgment of the Court of Appeal, Lord Thomas of Cwmgiedd CJ, in the following paragraphs highlighted the observations of the police in dealing with offenders who have offered assistance to them. 

“14. We were told that there were many situations where the police would wish to decline to engage—for example, where the offender is a person whose information has in the past proved to be false or a fantasy or has been of no value, or where there is a risk to the offender or where the information is related to his own criminality.

15. There were occasions where the police, after engagement with the offender, would wish to decline to go further on the basis of an evaluation of what they were told by the offender.  The police may conclude that the information offered is of insufficient interest to make it worthwhile pursuing the matter, or that they already know of what is offered, or the information may be incapable of belief, or taking the matter further might create unacceptable risks to the offender, his family, other informants or police operations in progress.”

79.  These are very much common sense observations and, although we have not received evidence on this issue, we do not doubt that they would be equally true of the experiences of the law enforcement agencies here in Hong Kong. 

80.  Lord Thomas, in acknowledging the sentencing premise that a discount is given to encourage assistance from offenders who are prepared to act as informants or to give evidence for the prosecution, went on to conclude that:

“16. … it must always be borne in mind that the justification for the discount is the interest of the state in obtaining such assistance as part of the investigation, deterrence and punishment of crime. The interests of the state will also include risks to others and to ongoing investigations that can be prejudiced by the provision of information to an offender about his claim of assistance or its value.”

81.  It is primarily for this reason that a law enforcement authority is in a better position to assess the information and the source, and why in R v AXN it was considered that the obligation of the police to confirm or deny the assertions of assistance made by the offender is “a very limited one”[33]. As Lord Thomas explained:

“18. … The assertion of assistance by an offender and the decision as to how to respond are matters relating to intelligence. By its very nature intelligence is a matter that in the public interest must remain confidential and within the judgment of the police as to the extent to which they are willing to provide information.”

82.  We agree.  In resolving this difficult issue there is no doubt that regard must be had to the context, namely that the field of criminal intelligence and investigation is highly sensitive and complicated and there may be occasions where the interests of the defendant before the court must yield to the broader public interest as reflected by the operational needs of the law enforcement agencies.  There may be occasions when a law enforcement agency may not want to engage the offender for operational or other reasons, or reveal information in the course of a dispute about assistance because of the serious and deleterious consequences it may have on current investigations, or on others, but this would be rare.

83.  Ultimately, it will be a matter for the law enforcement agencies, as to how they deal with an offender in relation to the provision of information or assistance, and what, if anything, they are able to disclose to the court.  However, it needs to be stressed that law enforcement agencies have a very important role to play in this aspect of the sentencing process and must properly discharge their professional duties and obligations in strict adherence to the relevant principles and procedure.  The court has a duty to impose on the defendant a just and fair sentence, and it is therefore in the interests of justice that any material which is relevant to sentence is disclosed to it.  This necessarily means that law enforcement agencies should endeavour to assist a court in this regard by providing an assessment of the provision of information or assistance, if and when this issue arises in the sentencing process. 

84.  Lord Thomas in R v AXN also addressed how a refusal by a law enforcement agency to provide a “text” should be handled: 

“20. … the court will always expect the police to inform the court of the fact that the police have made a decision not to provide a text as matter of case management, it is sufficient if the police merely state that they will not provide any information to the court in relation to the offender’s assertions of assistance. The police are not required to give any explanation of their reasons for the decision (for example they decline to engage or have engaged and wish to take the matter no further), or the stage at which they decided not to provide any information. The police need do no more than say that the police will not provide any information to the court. Such a statement to the court can generally be provided by letter and not by text. There may unusually be circumstances where the police would have to reveal in the reply the assertions of the offender that he had provided assistance; in such a case it might therefore be necessary to provide the response in the form of a text. Whether it is provided by letter or text, it must be signed by a senior officer of police (normally a superintendent) or an equivalent senior official in other law enforcement agencies.”

85.  Lord Thomas emphasised that, even in the circumstances where the police have decided that the information is of no value, it is a matter for the judgment of the police as to the nature and extent of the information they wish to provide to the court:

“22. … It must be for the judgment of the police as to the extent of the response they are able to give. In some cases, they may only be able to say that they will not provide a text. In other cases they may say that information has been provided to them, but it is of no value. Their judgment is a judgment to be exercised in the public interest and the interests of justice; it is not for a court to inquire further.”[34]

86.  He went on to qualify the observation of Lord Lane CJ in R v Sivan, that an officer should be available to give evidence, in his following remarks:

“30. Furthermore the observations made by Lord Lane CJ in R v Sivan as to the desirability of an officer being present to give evidence were made at an early stage of the development of the process in respect of texts. In our view the need for an officer to give an explanation to the judge will be highly unusual, as the court will not go behind or question the content of a text. The need is likely only to arise in the rare case where the text is unclear or there is a matter established independently of the offender which is not covered in the content of the text. In such rare circumstances, the issue can be raised with the police as a request for further information as distinct from questioning the accuracy of the text. As we have explained, a court is not best placed to examine issues of accuracy.”

87.  Accordingly, where the offender disputes the information supplied by a law enforcement authority as to his assistance to them, there should normally be no question of evidence being given or an issue tried.  As stated by Lord Thomas, it is difficult to conceive of any circumstances where permitting the cross-examination of the relevant officer would be in the interests of justice or in the public interest, for it is not the function of the sentencing court to question the information supplied, and if there is an issue, it could be addressed more appropriately by the complaints body of the law enforcement agency in question.[35]

88.  We agree with the principles as stated in  R v AXN, which have been similarly expressed by Macrae VP in Kilima[36]:

“83. In my judgment, one must have a measure of faith and trust in the relevant authority in Hong Kong – absent an allegation of mala fides – that the information is or is not of any actual or potential assistance, if that is what the authority says, whatever the defendant may think or have hoped for. Otherwise, the courts will be drawn into endless debates with the authority concerned, and futile wrangling between defence and prosecution, as to whether information was or was not of any actual or potential assistance, how it was treated or how it should have been treated. Far from that being a normal line of enquiry for judges to make, it should not be one for the courts at all because it is fraught with problems if the courts step out from their role in trying cases to managing the way the police or the Customs & Excise department do their job.

84. … Police or Customs & Excise operations are invariably covert, and their intelligence necessarily classified and sensitive. It cannot be right for the courts to allow a free-for-all in accessing the reasons for the authority doing what it did or did not do, or examining why information was regarded or not regarded by the authority in a particular way.

85. In my judgment, if the authority concerned forms the view that the information was of no actual or potential assistance, then, unless the papers clearly suggest otherwise, that should normally be the end of the matter.  A defendant is of course always entitled to take the matter up with the Department of Justice but, again, once the view is expressed that the information or assistance was of no actual or potential assistance, then it is not for the courts to embark on an enquiry as to the cogency and validity of that decision.”

89.  It is of significance that Lord Thomas acknowledged in his judgment that the Court would not have been prepared to allow the police the measure of judgment in their assessment of the public interest and the interests of justice, unless they were satisfied that there were proper safeguards to protect offenders from error or malpractice.[37] He took into account the extent to which law enforcement agencies had responsibly addressed such matters in the past, and the availability of a facility to an offender to complain about, and have investigated, any failure by the law enforcement agency.  The latter matter was of particular importance in endorsing the approach that the court directed should be taken.

90.  There are bodies in Hong Kong that investigate the conduct of law enforcement agencies, and to which an offender can complain about any dispute he has in relation to the assistance he has provided and the assessment of it.  Such bodies are in a much more appropriate position, than a sentencing court, to carry out the type of confidential investigation of the matters raised by an offender’s complaint.

91.  We feel that such a safeguard, while important and effective, may not be enough, and should be appropriately strengthened and equipped with further checks that would reduce the risk of any error or malpractice.

92.  Whilst we agree with the principles as stated in R v X (No. 2) and R v AXN, we need to make some additional remarks in light of the circumstances and conditions in Hong Kong.

93.  As we have already mentioned, a defendant’s assistance to a law enforcement agency will usually start with an interview which will generally result in the defendant signing a non-prejudicial statement.  This may, or may not, lead to further interviews and non-prejudicial statements or to the defendant actively assisting the law enforcement agency.  It is common practice that when a sentencing discount is sought for assistance to the authorities, these non-prejudicial statements are placed before the court.  So, generally, there should be little difficulty in identifying the actual assistance rendered by a defendant to a law enforcement agency.

94.  However, difficulties may arise when it comes to assessing the value of that assistance.  This may be because the defendant giving the statement lacks credibility, or because what he says in the statement lacks credibility, or because what he says is of no practical use.  It would seem that generally, a law enforcement agency should be able to explain why they are unable to make an assessment and why that assessment is either unfavourable or adverse to a defendant. 

95.  Before setting out the procedure that should be employed when a defendant makes a claim of having assisted the authorities there are two matters that need to be mentioned.  The first is how to evaluate the assistance and in this respect we wish to take the opportunity to clarify that the assessment of the information or assistance rendered by a defendant should be evaluated on the basis of whether it was “of practical use”.  It should not be limited to whether it leads to “a tangible result”, such as a successful arrest or prosecution, for as acknowledged by both Macrae VP[38] and McWalters JA[39], in their respective judgments in Kilima, this test is far too restrictive in the context of criminal intelligence or investigation.  As explained by Macrae VP, whether a discount in sentence should be awarded for information or assistance given by defendant to the authorities depended on whether the assistance was “of practical use” and that such term clearly encompassed the type of information which “could potentially assist or had actually assisted the authorities”, as described by the Court of Final Appeal in Z v HKSAR[40].

96.  In future, we expect that law enforcement agencies will assess any information or assistance rendered by a defendant on the basis of whether it is “of practical use”, and not restrict such assessment to whether it led to “a tangible result”.

97.  The second matter is to emphasise the importance of the role of the prosecutor.  In Kilima, McWalters JA noted two matters that he considered should significantly reduce the risk of a dispute by a defendant of the assessment by the authority of the assistance he had provided.  The first is the fact that an essential element of the Sivan procedure is that the assessment of the investigation officer is separately examined by a more senior officer independent of the investigation.  He considered that the involvement of the senior officer is “a significant factor which lends credibility to the assessment of the law enforcement agency of the value of the assistance provided by the defendant.”[41]  The second is that prosecuting counsel assumes responsibility for the view taken by the law enforcement agency and therefore would ensure that the information submitted can be appropriately relied upon by the court.[42]

98.  As the defendant will not be able to ask the court to adjudicate on any dispute in relation to the law enforcement agency’s assessment of the assistance provided, it will fall to the prosecutor to satisfy himself prior to the court hearing that any concern, objection or disagreement of a defendant in respect of the law enforcement agency’s documentation has been appropriately addressed.  This is consistent with his special status as a minister of justice.  On this particular aspect of the sentencing process he must ensure that whatever documentation is prepared is complete and accurate, and can be relied on by the court.

99.  We feel that these two measures would add to ensure that the procedure effectively serves the interests of justice and the public interest.

The procedure for assistance to the authorities

100.  We have in the preceding discussion, set out the relevant principles as well as identified aspects of the procedure in Hong Kong that are different from the approach taken in the United Kingdom.  We feel it would be beneficial to set out the relevant principles and steps that should be taken when dealing in mitigation with the assistance rendered by a defendant to a law enforcement authority.

(1)  Where a defendant has provided assistance to a law enforcement authority, it is a matter for the authority as to whether it submits to a sentencing court information in relation to such assistance.  The authority should be mindful of the relevant principles and procedure and ensure that they are properly and fully complied with. 

(2)  The information supplied by the authority is at the request of the defendant and he or she is bound by what has been submitted on his or her behalf.

(3)  The information so far as material should include: (i) the defendant’s status and whether he or she is a registered informer; (ii) the details of the information or assistance provided, and whether he or she is willing to be a witness or to provide some other form of assistance; (iii) the effort the defendant has made to furnish the information or provide the assistance rendered; (iv) any risk to the defendant, or his or her family; (v) an assessment as to whether the information or assistance is “of practical use”, including any arrest, conviction, or recovery of property, or any other outcome or benefit; (vi) any financial reward or other benefit the defendant had already received for the information or assistance provided; (vii) a statement as to whether the defendant will be of future use to the authority; and (viii) any other relevant matter that the authority thinks fit.

(4)  The information supplied should be complete and accurate, and of sufficient particularity to enable a sentencing court to assess the claim and determine how the information or assistance should be reflected in the sentence to be imposed. 

(5)  The information should be set out in a signed formal statement from the investigating officer by way of a report.  The contents of the report should be examined and certified by a senior officer of the authority, unconnected with the case in which information or assistance has been provided.  Both the report and the certification should address with sufficient particularity whether the information or assistance is “of practical use”.  The investigating officer and the senior officer should at all times ensure that they have properly and fully considered and applied the relevant principles and procedure to the particular facts and circumstances of the case in question.

(6)  Prosecuting counsel should ensure that there has been proper and strict adherence to the relevant principles and procedure and that the information submitted is complete and accurate, and can be appropriately relied upon by the sentencing court. 

(7)  Absent any issue of public interest immunity, the information should be shown to counsel for the defence who can discuss it with the defendant.

(8)  There should normally be no question of evidence being given or an issue tried, if the defendant disagrees with what has been stated in the information.  It is not the function of the sentencing court to question the relevant officer as to the accuracy of the information supplied.  If there is an issue of this type, that is a matter that can be investigated by the relevant body or bodies which are in the best position to conduct a confidential investigation of matters raised by a complaint of this nature.  Depending on the outcome of such an investigation, the issue of assistance to the authority can be pursued with the Executive by the defendant.

(9)  In exceptional circumstances, it is open to a sentencing court to address any issue of bad faith on the part of the authority or to come to a different view of the assistance by the authority if the evidence suggests otherwise.

(10)  Only when issues of confidentiality and security arise, will it be necessary for the sentencing court to consider the information or assistance rendered by the defendant to the authority in a closed hearing, which will be appropriately recorded and kept confidential.  Otherwise the principles of open justice should apply.

The disputed assistance in the present case

101.  As we have already noted, the prosecuting counsel at trial obviously considered that the contents of the applicant’s non-prejudicial statement contained information that was “potentially very useful”, and in this regard her assistance was deserving of a reduction to her sentence.  We have examined the contents of the non-prejudicial statement and we are satisfied that there was background information that may have been of use at the trial of D1.  We stress that we have undertaken this exercise because of the unusual circumstances of this case, but in future the principles and steps of the procedure that we have set out should be followed.

102.  We have also borne in mind that the prosecution had legitimate concerns about D2 as a witness at the trial of D1 and therefore she was of limited assistance. 

103.  Taking into consideration all the circumstances, we consider that the starting point of 28 years and 3 months’ imprisonment should be reduced by 37.5%, which includes the one third discount for the applicant’s plea of guilty.  This will result in a sentence of 17 years and 7 months’ imprisonment. 

Conclusion

104.  It follows from what we have said that the appeal against sentence is allowed on the basis that no reduction was given to the applicant’s sentence for the assistance she rendered to the authorities.  We therefore set aside the sentence of 18 years and 10 months’ imprisonment and substitute it with a sentence of 17 years and 7 months’ imprisonment.

[1] See HKSAR v Chung Yiu Lam [2018] 4 HKLRD 704.

[2] Appeal Bundle (AB), 58T.

[3] [2014] 3 HKLRD 691.

[4] AB, 52C-G.

[5] Re-Amended Perfected Grounds of Appeal Against Sentence dated 4 January 2018.  See also the Applicant’s Submission Against Sentence dated 28 December 2017, and the Applicant’s Further Submission Against Sentence dated 3 September 2018 both signed by Mr Phillip Ross.

[6] [2019] 1 HKC 309.

[7] [2004] 3 HKC 367.

[8] (1988) 86 Cr App R 146.

[9] CACC 18/2002, 15 January 2003, unreported.

[10] The Respondent’s Skeleton Submissions dated 15 January 2018 signed by Mr Andrew Li, SPP, and the Respondent’s Supplemental Skeleton Submissions dated 28 September 2018 signed by Ms Anna YK Lai, SC, and Ms Claudia Ng, SPP.

[11] [1999] 2 Cr App R(S) 294.

[12] [2016] 1 WLR 4006.

[13] At paragraphs 48 to 52.

[14] CACC 521/2004, 13 June 2005, unreported.

[15] HKSAR v Yip Wai Yin [2004] 3 HKC 367 and HKSAR v Ko Mah Yin, CACC 65/2005, 19 October 2005, unreported.

[16] R v Bilinski (1988) 80 Cr App R 146; R v Barry Jason Channer [2011] EWCA Crim 377; R v Mohammed Afzal and Mohammed Arshad (1992) 13 Cr App R (S) 145.  Also R v H. (C.N.) (2002) 62 O.R. (3d) 564 (Ont. C.A.); 170 C.C.C. (3d) 253, and R v Vu, 2015 ONSC 5834.

[17] [2011] EWCA Crim 377, at paragraphs 11 to 13.

[18] Ibid., at paragraph 12.

[19] At paragraph 15.

[20] (1988) 86 Cr App R 146, 149.

[21] (1992) 13 Cr App R (S) 145.

[22] Ibid., 149.

[23] (2002), 62 O.R. (3d) 564 (Ont. C.A.); 170 C.C.C. (3d) 253.

[24] (2002) 170 C.C.C. (3d) 253, 271 to 273.

[25] (2007) 10 HKCFAR 183.

[26] (1988) 10 Cr App R(S) 282.

[27] See also HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, paragraphs 199-209.

[28] (1988) 10 Cr App R(S) 282, 287.  See also R v AXN, at paragraph 5.

[29] R v AXN, at paragraph 7.

[30] R v X (No. 2), 297 to 298.

[31] R v AXN, at paragraph 6.

[32] See R v P [2008] 2 Cr App R(S) 5.

[33] R v AXN, at paragraph 18.

[34] Ibid., see also paragraph 21.

[35] Ibid., at paragraph 29.

[36] [2018] 5 HKLRD 88.

[37] R v AXN, at paragraph 24.

[38] HKSAR v Kilima, at paragraphs 77 to 82.

[39] Ibid., at paragraphs 179 to 198.

[40] At paragraph 77.

[41] HKSAR v Kilima, at paragraph 204.

[42] Ibid., at paragraphs 205 to 208.