THE SECRETARY FOR JUSTICE v. CHAN YIU TUNG, ANTHONY

HCMA 463/2016
[2018] HKCFI 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 463 OF 2016

(ON APPEAL FROM KCS 23208 OF 2014)

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J U D G M E N T

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1.  This is an appeal by way of Case Stated under section 105 of the Magistrates Ordinance, Cap 227.  The proceedings arose from the prosecution of a speeding offence by way of a summons.  The speed was detected by the police laser-gun.

2.  After three pre-trial reviews, the case was set down for trial on 13 May 2015 before a deputy special magistrate (“the magistrate”).  The original summons and summary of facts alleged that the respondent was travelling at 137 km/h when the speed limit was 70 km/h.

3.  Both parties were legally represented on the day of trial on 13 May 2015.  The respondent was represented by two barristers.  At the commencement of the trial, counsel for the appellant (not Mr Lui before me in the appeal hearing) informed the magistrate that there had been some discussion with the respondent and that there was a slight change of position.  Counsel for the appellant then applied to amend the summons and the summary of facts so that the actual speed alleged was deleted.

4.  The appellant also told the magistrate that after the conviction of the respondent on his own plea, the prosecution would adduce evidence to prove the speed the respondent was driving at the material time.  The hearing for determination of the actual speed would be “somewhere in the nature of a Newton Hearing”.  Counsel for the respondent had no objection to the amendments.

5.  The application for the amendment was granted, plea was then taken and the respondent was convicted on his own plea to the amended summary of facts, which alleged that he was driving in excess of a speed limit of 70 km/h without specifying the exact alleged speed.

6.  After the conviction of the respondent, the magistrate stood down the case.  When the hearing resumed, the appellant sought to adduce evidence to prove the actual speed.

7.  The magistrate then raised his concern as to the legal basis of such a hearing.  After some discussion, the magistrate adjourned the case for full argument.

8.  At the conclusion of the subsequent hearing of the argument on 21 May 2015, the magistrate found that none of the amended summary of facts was disputed by either party so as to trigger a Newton hearing.

9.  The magistrate rejected the appellant’s attempt to adduce evidence in a Newton hearing or Newton-like hearing or statutory hearing said to be under section 41(3) of the Road Traffic Ordinance (“RTO”) to prove the actual speed.  He then invited the respondent to put forward mitigation.

10.  The respondent did not advance any mitigation. The magistrate then sentenced the respondent on the basis that he exceeded the speed limit by 1 km/h.  The magistrate imposed a fine of $2,000.

11.  The appellant sought a review of the magistrate’s decision not to hold a hearing to receive evidence on the actual speed.  The review was held on 13 November 2015.

12.  The magistrate maintained his ruling on 10 December 2015.  He found, inter alia, that:

(1) A Newton hearing could only be conducted where there is a formal dispute as to the facts.

(2) After the conviction, with nothing advanced in mitigation, there was no formal dispute of facts that can be reflected in either the amended summons or the amended summary of facts that might warrant a Newton hearing.

(3) There is no provision under the RTO for a Newton-like or a statutory hearing.  The court had no jurisdiction to conduct a Newton-like hearing or a statutory hearing to ascertain the speed.

(4) The respondent would be substantially prejudiced if any hearing was allowed to be conducted without any formal allegation of an exact speed by the appellant as defence counsel would be unable to give informed advice to the respondent.

(5) Without a proper legal basis and a formal allegation of speed, the court was bound to sentence on the basis of the amended summons and amended summary of facts.

13.  The Secretary for Justice now appeals against the magistrate’s ruling.

14.  In the Case stated by the magistrate, the magistrate set out two questions for this court for determination:

“Did I err in law in:-

(1) refusing to hold a Newton Hearing or a Newton-like Hearing or a Statutory Hearing, for the purpose of sentencing the Respondent properly and on a true factual basis, to determine the actual speed of the Respondent’s vehicle at the time of the offence, before proceeding to sentence the Respondent, when the Appellant had sought to adduce evidence at such a hearing to prove the actual speed of the Respondent’s vehicle to be 137 km/h when there is no such formal allegation of an exact speed and formal dispute of facts after the amendments and conviction?

…and

(2) sentencing the Respondent without such a Newton Hearing or a Newton-like Hearing or a Statutory Hearing, on the basis of the amended summons and the amended summary of facts by way of a fine of $2,000, namely on the basis most favourable to the Respondent that the speed of his vehicle at the time of the offence was just in excess of the speed limit of 70 km/h, namely 71 km/h in the absence of any formal allegation of an exact speed and any formal dispute of facts after the amendments and conviction?”

15.  The magistrate provided the answer to both questions in the negative.

Preliminary issue

16.  Mr Grounds, counsel for the respondent, raises a preliminary issue.  He applies for the appeal to be argued before the Court of Appeal under section 118(1)(d) of the Magistrates Ordinance.

17.  Counsel submits that this appeal raises very important issues of law and procedure.  A possible conclusion this court could reach in this case would permit a “sea-change” in procedure for the taking of pleas and finding of facts in Hong Kong.  The appeal should therefore be reserved for the consideration of the Court of Appeal.

18.  It is the submission of the appellant that the appeal only concerns the correct application of the well-established principles of law on sentencing and does not involve invention of any novel principles of law.  The nature and seriousness of the issues in the present case do not warrant the determination of the Court of Appeal.

19.  I found that it would be appropriate to hear both the preliminary issue and the main application together and reserve my ruling on both issues in the judgment.  Both parties raised no objection to this course.

The main application

20.  Mr Lui for the appellant adopting the written submission dated 10 July 2017 submits that for the purpose of the present appeal, there are the following questions to be answered:

(1) Whether an appeal by way of case stated could be brought against a sentence imposed by a magistrate.

(2) If yes to (1), whether the exact speed of the respondent’s car would make a material difference in sentence.

(3) If yes to (2), whether the magistrate was entitled to conduct a Newtonhearing to determine the exact speed of the respondent’s car.

(4) If yes to (3), whether the magistrate should have conducted a Newtonhearing to determine the exact speed of the respondent’s car.

(5) If yes to (4), whether the case should be remitted back to the magistrate to conduct a Newton hearing.

21.  Mr Lui accepts that the prosecutor’s conduct of the case before the magistrate was out of the ordinary.  However the procedures taken were not legally impermissible or in any way unfair to the respondent. Though the exact speed may affect the sentence, it is not a necessary ingredient of the offence.  The amended summons without allegation of the actual speed was not a nullity.

22.  While there was no finding by the magistrate of a consensus of the parties that a Newton hearing would be held, Mr Lui submits that the prosecution had made it clear at the outset before the amendment and plea that the alleged exact speed would then be proved by evidence after the conviction.  The magistrate had been put on clear notice and the respondent could not have been misled or prejudiced.  The dispute on the actual speed materially affects the sentence.  As the material dispute on the actual speed still remained after the conviction, it should be proved by evidence.

23.  Relying on R v Telford JJ Ex p Darlington and subsequent English cases[1], Mr Lui submits that the principles of sentencing on a plea of guilty and the holding of a Newton hearing are well established.  The basis of plea must not be agreed on a misleading or untrue set of facts.  The ultimate responsibility remains that of the judge to assess in the public interest what is an appropriate sentence: AG v Ki Hon & Another.[2]

24.  It is submitted that the magistrate should not have sentenced the respondent on an artificial basis that he was travelling at 71 km/h, which was not the true fact.  The magistrate was under a duty to conduct a Newton hearing to determine the exact speed of the respondent’s car in order to pass a proper sentence.

25.  For the respondent, Mr Grounds agrees that the law relating to Newton hearing is well settled in Hong Kong.  He submits that a Newton hearing comes into play only in the following circumstances:

(1) a defendant disagrees with part or whole of the set of facts prepared by the prosecution in mitigation;

(2) a defendant puts forward in mitigation a different account of facts which is not accepted by the prosecution;

(3) a defendant puts forward in mitigation, contrary to the prosecution case, an account of facts in the reports called for the defendant, such as a probation officer’s report, which the defendant relies on and which he asks the court to treat as the basis of sentencing;

(4) a defendant puts forward in mitigation an extraneous account of facts which may mitigate towards a lesser sentence; or

(5) the court does not accept an account of the facts as agreed between the prosecution and the defendant.

26.  It is submitted that the present case does not fall within these situations.

27.  Mr Grounds emphasises that it is the law and established procedure that specific material facts relied on by the prosecution should be stated clearly and completely in the charge and the summary of facts by the prosecution at the outset before the defendant is convicted on his own plea.  The prosecution is not entitled to present only “half a case” before the conviction.

28.  In the present case, the respondent submits, when the prosecution put the amended summary of facts to the respondent, it must be taken to have accepted it as the basis for sentencing.  Unlike in the High Court, the magistrate did not have the committal paper or witness statements, he did not have material for him to form the view that the summary of facts did not reflect the true facts of the case.  He was bound to sentence on the summary of facts as the true basis, unless a Newton hearing was triggered by the defendant.

29.  It is submitted that allowing the prosecution to adduce evidence of the exact speed after the conviction would be wrong in law, in principle and in procedure.

30.  Mr Grounds further contends that the appellant’s conduct was a tactic to have “two bites of a cherry”.  When the respondent pleaded guilty to the amended summons, the prosecution secured a conviction without running the risk of an acquittal.  On the other hand, the respondent will be prejudiced if a Newton hearing is to be held, as he would have risked losing credit for his plea.  However even if the entire prosecution case was successfully challenged as being wholly unreliable in the hearing, he might not be allowed to vacate his plea of guilty.

The Court’s view

31.  If the magistrate made an error in law in sentencing the respondent, an appeal by way of case stated could be brought against his decision.

32.  The exact speed of the respondent’s car, if proved to be 137 km/h (i.e., over 45 km/h) in excess of the speed limit, the magistrate would be obliged, subject to special reasons, to order a disqualification order under section 41(3) and (4) of the RTO.  The respondent would also incur 10 penalty points by virtue of the Road Traffic (Driving Offence Points) Ordinance.  When 15 or more points have been incurred by a person in respect of offences which were committed within a period of two years, he shall be liable to be disqualified from driving.  The exact speed would no doubt make a material difference in the sentence.

33.  In my view, there are two simple issues in the case: (1) Having convicted the respondent on his own plea to a speeding offence, does the magistrate have the power to receive evidence of the actual speed?  (2) If the magistrate has the power, whether he should do so?

Whether the magistrate has the power?

34.  The proper approach of the prosecution to basis of plea was considered in R v Tolera[3]. The approach was more recently summarised by the English Court of Appeal in R v Cairns[4].

35.  Without repeating all the established principles, I would state one essential rule: When there is a plea of guilty, both sides must ensure that the judge is aware of any discrepancy between the basis of plea and the prosecution case that could potentially have a significant effect on sentence, so that consideration can be given to holding a Newton hearing.

36.  Even where the basis of plea is agreed between the prosecution and the defence, the judge is not bound by such agreement.  The judge has a discretion.  The court may not hold a Newton hearing, where it considers that the difference between the two versions of the facts would be immaterial to the sentence.

37.  Therefore, when an accused is represented, both the prosecutor and the defence counsel have the duty to assist the court to identity the basis of the plea and the different versions between the parties, if any, for a proper sentence to correctly reflect the criminality of the offence.

38.  In the magistrates’ court in Hong Kong, when a defendant pleads guilty to the charge he is facing, the “Brief Facts” of the case is submitted to the magistrate and read out in open court for the defendant to admit.  The Brief Facts represents the prosecution case.  The defendant is not bound to accept the entirety of the facts presented by the prosecution.  If certain parts of the Brief Facts are not admitted by the defendant, the magistrate will have to decide whether the disputed facts would affect the sentence such that a Newton hearing must be conducted to resolve the dispute.  

39.  In the present case, the prosecutor sought to amend the summons and the summary of facts by deleting the actual speed alleged. At the same time he informed the magistrate that after the conviction, the actual speed would be proved by conducting a hearing “somewhere in the nature of a Newton hearing”.

40.  The appellant accepts that the prosecutor’s conduct of the case was out of the ordinary.  What is normally done in the magistrates’ court is to let the defendant plead to the original summons with the alleged speed.  If the defendant pleads guilty to the speeding offence but denies the actual speed in the summons, there will be a trial of the issue on the exact excess over the limit.  It would not be necessary to amend the summons by deleting the exact speed.  This has been considered as the proper course to be adopted: R v Yiu Yuk Lun[5], per Leonard J.

41.  The amended summons without alleging the actual speed was however not a nullity, as Leonard J observed in the same judgment, as the amended summons still included all the essential elements of the speeding offence.  The respondent takes no issue with the validity of the amended summons.

42.  The issue is whether the prosecution was barred from adducing evidence to prove the actual speed after the conviction of the respondent on the amended summary of facts.

43.  In my view, the important question to be asked in this case is: Was the amended summary of facts submitted to the magistrate as the agreed basis of the plea for the purpose of sentencing?  And the answer to the question must be “NO”.

44.  When the summons was amended, the prosecutor told the magistrate there would be a hearing to receive the evidence of the actual speed.  Defence counsel indicated that he had no objection to the amendments and the subsequent procedure to be conducted “as long as the standard of proof of the alleged speed must be one of beyond reasonable doubt”[6].

45.  Defence counsel did not proceed to mitigation after the conviction.  As observed by the magistrate in para 5 of the Case, the respondent changed his stance only when the court queried the legal basis of the hearing as to the actual speed after the short adjournment.

46.  In my judgment, the original positions of both parties were clear: the respondent admitted speeding but denied the actual speed alleged by the prosecution, and the prosecution insisted to prove it.  There was a significant difference between their versions.

47.  There cannot be any doubt that the amended summary of facts was not submitted as agreed basis of the plea for sentencing.  It was submitted to the court to reflect the extent of the prosecution case that could be admitted by the respondent.

48.  It matters not, in my view, whether the prosecutor said the hearing he asked for was a Newton hearing, a “Newton-like” hearing or a statutory hearing.  The prosecutor was misconceived that there could be a statutory hearing under section 41(3) of the RTO.  This is conceded by Mr Lui. However, what the prosecutor asked for was no doubt a hearing to receive the evidence of the actual speed of the respondent’s car which was in dispute. Such a hearing had been indicated clearly before the summons was amended and plea taken.

49.  Mr Grounds argues that the prosecution, putting the summary of facts to the defendant, must be taken to have accepted it as the basis for sentencing and the prosecution is now bound by it.  With respect to counsel, the contention cannot be right as it has ignored the fact that the prosecution had expressly indicated that it would adduce evidence to prove the actual speed.

50.  In the present case, the prosecution case was clear at the outset and throughout the proceedings – the respondent was travelling at 137 km/h.  When the summons and the summary of facts were amended, the prosecution case remained the same.  There cannot be any issue that the prosecution only stated “half a case”.

51.  With respect to the magistrate, I cannot agree with his ruling at para 21 of the Case that “it is trite law” that a Newton hearing could only be conducted where there is a “formal dispute” as to facts between the prosecution and the defendant after a guilty plea.  I do not think there is such a limitation.  Nor do I agree with Mr Grounds that the holding of a Newton hearing is confined to the five situations he identified.

52.  So long as there is a material discrepancy between the prosecution and the defence on the facts for sentencing which could have a significant effect on the sentence, the court has to decide whether to hold a Newton hearing.

53.  When an accused has been convicted on his own plea and admission of the summary of facts prepared by the prosecution, there might still be matters outside the summary of facts which could affect the sentence, requiring resolution before the court can proceed to sentence.  Without seeking to be exhaustive, such examples include the progress of recovery and prognosis of the victim of a serious attack, and the psychological impact on a victim after the crime.  A community impact statement may also be produced by the prosecution to make the court aware of the trend of a particular crime in the local area and the extent of harm caused to the community in support of an application for enhancement of the sentence under the Organised and Serious Crimes Ordinance.  These matters, if disputed, will have to be proved by the prosecution.  If the sentencer finds these matters will materially affect the sentence, a Newton hearing might be conducted to resolve the dispute of facts.

54.  In this case there was clearly a serious dispute on a significant fact of the prosecution case – whether the respondent was travelling at 137 km/h when the speed limit was 70 km/h.

55.  In my judgment, despite that the respondent was convicted on his own plea and admission of the amended summary of facts, the magistrate had the power to hold a Newton hearing to decide the actual speed of the respondent’s car.

Whether the magistrate should hold the Newton hearing?

56.  It is within the magistrate’s discretion to order a Newton hearing.  However, a judicial discretion must be exercised judiciously.

57.  I agree with the respondent that a defendant must be sentenced on the “true basis” of the case.  The Court of Appeal in HKSAR v Cheung Cho Fat[7] said, referring to R v Beswick[8],that “It is axiomatic that whenever a court is to sentence an offender it should do so on a basis, which so far as it is relevant, is true.”

58.  It is the duty of both the prosecutor and the defence counsel to assist, not to mislead, the magistrate in the case what the true basis of the plea of guilty tendered by the respondent was.  The magistrate had a duty to sentence the respondent on the real facts of the case.

59.  There was the suggestion that the prosecution had taken unfair tactical advantage by amending the summons and obtaining the plea of guilty from the respondent.  Hence the appellant was having “two bites of the cherry”.  Such a suggestion in my judgment is wholly without basis and totally unarguable.  The prosecution’s intention to adduce evidence on the speed had been unequivocally stated before the summons was amended and the plea taken.

60.  Even if there were a misunderstanding of the position of the prosecution, the plea could have been considered as an involuntary plea and set aside.  The magistrate stated in para 13(15) of the Case that the appellant had suggested to re-amend the summons to the original position and to set aside the conviction.  That was in my view a fair proposal. However, it was objected to by the respondent.

61.  The respondent cannot complain that he might lose the credit for his guilty plea after the Newton hearing when he disputed a material fact of the prosecution case and the issue on the exact speed is resolved against him after evidence is called in a hearing.

62.  In my judgment, the respondent could not have been prejudiced by a hearing on the actual speed.

63.  There was a stark difference between the prosecution and the defence on the actual speed of the respondent’s car.  The speed alleged by the prosecution would carry a much severe sentence, including a mandatory disqualification order.

64.  In my judgment the magistrate, duty bound to sentence the respondent on true facts of the case, should not have refused to receive the evidence of the prosecution in a hearing to prove the exact speed of the respondent’s car.

Whether the case should be referred to the Court of Appeal?

65.  Having heard submission of both parties, it is my view that the sentencing procedures and principles in relation to a guilty plea and Newton hearing are well established.  The conduct of a Newton hearing in the circumstances of the present case only concerns the application of the established sentencing principles to the particular facts of this case.  It is entirely unnecessary to refer this appeal to the Court of Appeal for the determination of the issues in the case.  I therefore refuse the respondent’s application to refer the case to the Court of Appeal.

Answers to the Questions posed

66.  For the reasons given, the two questions of law posed by the magistrate in the signed case must be answered in the positive. The magistrate erred in refusing to hold a hearing to determine the actual speed of the respondent’s car.  He also erred in sentencing the respondent on an artificial basis that he was travelling at the speed of 71 km/h. 

The Result

67.  The appeal by the Secretary for Justice must be allowed.

68.  The last question is whether the case should be remitted back for continuation of the proceedings.

69.  In my judgment, what has happened in this case is unfortunate.  Having considered all the circumstances of the case, it is my view that in the interest of justice the case should be remitted back to the magistrate for him to conduct a Newton hearing to determine the actual speed of the respondent’s car, and to pass a proper sentence in accordance with the findings in the Newton hearing.

70.  I make the orders accordingly.