Case Detail

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.647
(Criminal)

HEADNOTE

Criminal procedure - plea of guilty - mitigation involving sensitive material where a hearing in open court is not in the public interest - hearing in chambers for sensitive material only - advance notice to be given to the court for hearing in chambers - R. v. Sivan (1988) 10 Cr.App.R. (S) 282 considered and adopted -

Criminal procedure - sentence - no direct reference to be made by judge to sensitive material heard in chambers.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.647
(Criminal)

BETWEEN
	HKSAR

	AND

	TSE KA-WAH

-------------------------------

Coram: Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 28 May 1998

Date of Judgment: 28 May 1998

Date of Handing Down Reasons for Judgment: 11 June 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the reasons for judgment of the Court):

1. This Applicant pleaded guilty in the Magistrates' Court to trafficking in a mixture containing 115.61 grammes of heroin hydrochloride. He confirmed his plea when he appeared in the High Court on 18th September 1997 before Deputy Judge Beeson (as she then was). On 29th September 1997, having heard all the facts, the judge took a starting point of eight years' imprisonment and reduced this by half to four years' imprisonment in the light of substantial mitigating factors that had been put before the court while sitting in chambers on the grounds of public policy.

2. The Applicant has sought leave to appeal against the sentence imposed upon him despite what may seem at first sight to have been a most generous discount.

3. The facts were that the Applicant was stopped at the wheel of his motor car. A bag containing 12 resealable plastic bags with heroin worth nearly $116,000 at street prices was found inside the car. The Applicant originally tried to make out that the drugs were for his own consumption. He stated that he had paid $15,000 for the large quantity.

4. If matters had proceeded along proper lines, there could be no criticism of the sentence imposed. This is recognised by Mr. Buchanan who now represents the Applicant. Unfortunately, however, they did not do so. It is therefore necessary, before looking at the grounds of appeal, to consider in a little detail what happened when the matter came before the court for sentence.

5. After the facts and antecedents had been opened in the normal way by prosecuting counsel, and these had been accepted and agreed by the defence, defending counsel made it known to the judge that he wished to read out a letter which had been sent to the Legal Aid Department by the prosecution indicating "matters of importance".

6. The learned judge immediately recognised that this was likely to be a confidential document containing information which it was not in the public interest should be disclosed in open court. She informed counsel that she believed the procedure laid down in R. v. Sivan and others (1988) 10 Cr.App.R.(S) 282 was appropriate and that she intended to consider the matter in chambers.

7. Pausing there for a moment, the judge was entirely correct in taking this step. It should not, however, have been left to the judge to make this decision in open court. The whole purpose of the Sivan procedure, whether in a court of first instance or at the appeal stage, is to preserve confidentiality in situations where offenders have provided valuable information which they hope will be rewarded by an additional discount to their sentence. This cannot be considered in an open courtroom.

8. From a public point of view there is a threefold benefit from this procedure.

(1) Information which will have led to the detection of other criminals or the recovery of the proceeds of crime, or both, may well not have been forthcoming if the defendant believed that his role as an informer might be made public when he attempted to receive some benefit by way of a reduction of sentence in return for the information provided.

(2) The offender will be able to receive the credit he deserves to be given on sentence without the risk to him or his family of being subjected to physical harm.

(3) Other persons who are minded to come forward with valuable information will not be discouraged from doing so by the spectacle of another informer's public exposure where the shield of confidentiality has been breached.

9. Obviously, the Sivan procedure is not appropriate where an informer intends, for example, to give evidence at the trial of other accomplices, (see R. v. Wood (1987) 9 Cr.App.R. (S) 238), as it will be widely known that the defendant has provided the information.

10. The request in this case for a hearing in chambers before the judge in the court below should have been made in advance on a joint front by prosecution and defence, bearing in mind that each side had much to lose and nothing to gain by public disclosure being made of an informer, as this Applicant was, who had provided useful information to the Authorities.

11. It seems that at the stage when a decision to go into chambers was made, there may not have been any members of the press in court. If so, this was pure good fortune. At any rate, no harm seems to have been done by this most unfortunate and potentially serious oversight by both prosecuting and defending counsel.

12. However, the matter did not end there. When the hearing was resumed on 29th September 1997, the court sat in chambers to hear mitigation. The procedure in Sivan (above) is designed to enable the sensitive material, which it is intended should not be broadcast to the outside world, to be heard in private with a record kept by a court reporter of what has been said in case of an appeal. This procedure is not meant to cover other aspects of the mitigation which should always be dealt with in open court in the normal way. Nevertheless, the whole of the mitigation was heard in chambers and, having examined the transcript, it is apparent to us that much of the mitigation should have been expressed in open court.

13. The process of passing sentence should invariably be done in an open courtroom whatever the mitigation may have been. It is clear from the judge's notes that she caused the doors of the court to be opened at the moment when the mitigation speech was concluded. In causing this to be done, she acted in the only way open to her. It is clear also that at this stage members of the press came into court.

14. The judge set out the background to the case and this 38 year old Applicant's involvement in it. She then, instead of simply passing sentence without making direct reference to the sensitive material, said:

"In mitigation it was urged on me that this man has assisted the police and details of that have been given. Further, the defendant pleaded guilty at an early stage of these proceedings. The defendant's cooperation resulted in the conviction of another drug trafficker."

15. All that the judge needed to say and to make plain was that there were special circumstances on the papers which justified a lenient view to be taken of the facts. The course taken, unfortunately, had the effect that the whole purpose of the earlier hearing in chambers was defeated because all confidentiality was at this moment breached. The Applicant had been promised confidentiality and he was entitled to expect it. Instead, he was publicly branded as an informer. In the event, although it was clearly contrary to public interest to publicise such material, no less than three newspapers decided to report the case on the basis of what they had heard the judge say about the Applicant's status as a police informer.

16. As an immediate consequence of those reports, the Applicant was subjected to a far stricter regime in custody designed for his own protection, than he would have had to endure as a normal prisoner who was not known to his fellow inmates to be an informer.

17. The Applicant, not unnaturally, complained in his self-made original grounds of appeal that he had been the victim of a serious failure in the way he had been led to believe the procedure was supposed to work. His application for Legal Aid was refused so that when he first came before this court he was unrepresented. We recommended at that time that he should have counsel to represent him on Legal Aid in presenting his appeal. Mr. Buchanan was then instructed for the first time and he has advanced the following ground:

"When the appellant appeared for sentencing in the Court of 1st Instance it had been ordered that the matter would be held in chambers but as a result of reporters being allowed into court the case was extensively publicised leading to the identification of the appellant and to reports of his assistance in the detection and conviction of a drug trafficker. Thereafter the aforesaid extensive publicity in the Chinese press has resulted in the potentiality of grave risk to the appellant and his family and he is suffering severe and intolerable physical and mental hardship including solitary confinement.
In the circumstances the status of the accused ought to have been categorised in the large scale or 'supergrass' category. Alternatively, in the light of subsequent events and his current predicament, such status is appropriate hence meriting a greater discount upon sentencing either from this court or the sentencing court."

18. As Mr. Buchanan now recognises, this ground as drafted is itself in error because sentencing, as we have already pointed out, should never in any circumstances, take place behind closed doors. The judge was right to have deliberately caused the doors of the courtroom to be opened for this purpose. We are, however, satisfied from the material before us on the more general aspects of this ground, that this Applicant has suffered considerably as the unfortunate result of the confidential information which was needlessly revealed in open court at the time when he was sentenced.

19. The problem which has arisen in the matter presently before us is only rarely encountered but, as the trials which involve "defendant - informers" are likely to be of relative importance, it is worth repeating part of Lord Lane C.J.'s judgment in Sivan (above) where, at page 286, he said:

"...... it is now a well established feature of sentencing practice that credit should be given to a defendant in certain circumstances for assistance or information which he has given to the authorities. There is no need to cite cases in respect of that. The cases are legion. It is an area which is fraught with difficulties, as anybody who has practised in this field at the Bar or who has had to decide this type of case, either at trial or on appeal, will know all too well.
          First of all it is by no means easy to discover the true facts. Secondly, the defendant himself will not be anxious for his mitigating activities to be aired in public. Indeed, if he thinks there is any danger of publicity attending his efforts he is unlikely to provide the information which he may have available to be provided. That also means that any information which he does impart often has to be conveyed to the court in writing, and sometimes in the privacy of the judge's room. That means, regrettably but unavoidably, there is likely to be a lack of the openness which ought to characterise all aspects of the criminal trial.
          Thirdly, it is not easy for the judge to determine exactly to what extent credit should be given for the information provided. Amongst matters to which he will pay regard are the following: the nature and effect of the information imparted - did it relate to trivial or serious offences? Was the information successful, bringing to justice persons who would not otherwise have been brought to justice, because that is one of the ways, as was pointed out in argument, of testing the veracity and accuracy of the information which has been given? Next, the degree of assistance which has been provided: was the defendant, for example, prepared, as Greenfield was prepared in this case, to give evidence if necessary in order to bring home the information which he had provided and to assist in the conviction of an offender? Also, again as illustrated in this case, the judge must take into account the degree of risk to which the defendant has, by his actions, exposed himself and his family.
          Within those limits, necessarily very broadly, the judge must bring himself to tailor the sentence so as to punish the defendant, but at the same time reward him as far as possible for the help he has given and - this is as important as anything else - in order to demonstrate to offenders that it is worth their while to disclose the criminal activities of others for the benefit of law-abiding public in general.
          We have been asked by (counsel for the Crown) whether it would be possible to make some suggestions for the benefit of the Bar and perhaps for judges as to the way in which this very difficult situation is best handled. We hesitate to provide advice, but simply cast out these suggestions, which we are told are based upon the practice which exists in Manchester and on the Northern circuit at the moment.
          Of course cases will vary enormously in importance. In the important and serious cases, but we imagine not in others, it may be that the Manchester technique is appropriate. That, we think, can be described as follows. First of all it is, for obvious reasons, advisable that there should be before the Court a letter from a senior officer - may be a senior officer of police or a senior officer from the Customs and Excise Investigation Department - unconnected with the case, who has examined all the facts and is able to certify that the facts are as reported by the officers conducting the investigation - that is of course the facts relating to the assistance given by the defendant in question. Secondly, as an obvious corollary to that, there must be a statement in writing from the officer in charge of the investigation setting out those facts which will be certified by the senior unconnected officer. Thirdly, we think it advisable in the more important cases that the officer in charge of the investigation should be available to give evidence if necessary, whether in court or in the judge's chambers as the situation may demand. Finally, and again this scarcely needs stating one imagines, the shorthand writer should be present taking a note of what transpires in the judge's private room.
          Apart from that we think that it would be unwise to set out in any detail a method which should be adopted by the judge in any particular case. It will have to be tailored to the particular circumstances which will vary almost infinitely according to the case which is being handled."

20. It goes without saying that in Hong Kong, a further Authority which may on occasion need to resort to this procedure will be the I.C.A.C.

21. All sensible tailoring of the procedures to suit the circumstances of a particular case should be done in the realisation that the consequences of carelessness or non-compliance are potentially far-reaching and grave. Not only, as we have already indicated, are defendants and their families put at serious risk but there is also a strong likelihood that others may be deterred from providing confidential information if the Authorities and the courts are demonstrated to have been unable to maintain a strict level of confidentiality. Indeed, for this reason it may be wiser for counsel to see the judge in an unlisted chambers meeting (i.e. in the judge's room) in advance of the courtroom hearing.

22. It is the duty of counsel on both sides to be acquainted fully with these procedures so as to protect the identity of informers who require anonymity.

23. In the view of this court, the prime responsibility for ensuring that the sensitive material to be advanced in mitigation reaches the judge in circumstances of strict security lies with the prosecution. It is they who prepare and produce the letter for the court and it must be their duty, bearing in mind the resources at their disposal, to ensure that the judge is provided with it in circumstances of the strictest confidence.

24. We do not need to say more than that we have been provided with ample material to satisfy ourselves that the Applicant has been subjected to additional hardship, through no fault of his own, whilst he has been in custody. Putting it bluntly, he has until recently been treated in a similar way to someone who is subject to punishment for misbehaviour while in custody. This was done as a means of providing adequate protection for him. We take the view that this was a highly inappropriate form of treatment for an informer if others in a similar position are to be encouraged to come forward in the future.

25. Accordingly, it was for the reasons we have now given, that we granted leave to appeal on 28th May 1998. Treating the hearing as the appeal, we also allowed the appeal and reduced the Applicant's sentence to one of three years' imprisonment.

(N.P. Power)	(Simon Mayo)	(M. Stuart-Moore)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Miss Polly Wan for D.P.P./Respondent

Mr. Robert Buchanan instructed by D.L.A. for Applicant.

HKSAR v. TSE KA WAH

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