Case Detail

CACC 321/2018

[2021] HKCA 1132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 321 OF 2018

(ON APPEAL FROM HCCC NO 204 OF 2018)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Cherop Caroline	Appellant

________________________

Before: Hon Macrae VP and Zervos JA in Court

Date of Hearing: 15 July 2021

Date of Judgment: 15 July 2021

Date of Reasons for Judgment: 2 August 2021

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R E A S O N S F O R J U D G M E N T

________________________________

Hon Macrae VP:

1. The appellant was charged with one count of trafficking in a dangerous drug, namely 816 grammes of a solid containing 691 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. Having pleaded guilty to the charge in the magistrate’s court, the appellant was committed to the High Court for plea and sentence before M Poon J (“the judge”) on 4 October 2018. On the same date, the appellant was sentenced to 14 years’ imprisonment. On 6 November 2018, she applied for leave to appeal against her sentence out of time.

3. At the hearing on 9 June 2020, the Single Judge[1] granted the appellant an extension of time for her application for leave to appeal against sentence. Further, at the hearing on 6 November 2020, the Single Judge granted her leave to appeal and an Appeal Aid Certificate^{^[2]}. The appellant was represented by counsel Mr John Hemmings, who appeared at the appeal but not the trial below.

4. At the hearing of the appeal, we dismissed the appeal and said we would hand down our reasons for so doing in due course. These are the reasons for our decision.

The facts

5. On 21 November 2017, the appellant, who is a Kenyan National, arrived at Hong Kong International Airport on a flight from Addis Ababa, Ethiopia. She was selected for Customs clearance. Notwithstanding that no contraband was found on her at that time, Customs officers suspected that she might have concealed dangerous drugs within her body. Accordingly, she was conveyed to North Lantau Hospital for medical examination. Whilst she was awaiting examination, the appellant admitted to the officers escorting her that she knew she had done something wrong and had drugs inside her stomach. She was immediately arrested and cautioned, whereupon she repeated that she had swallowed drugs but did not know what kind of drugs. She stated that she had swallowed 65 pellets of an unknown type of drugs whilst in Addis Ababa.

6. At the time of her arrest, the appellant was found in possession of US$2,570 and 678 Ethiopian birr (about HK$190) in cash, and two mobile telephones. Over the course of the next three days, the appellant discharged 64 pellets of cocaine, in the quantities particularised in the count in the indictment. The street value of the cocaine at the time was estimated to be HK$1,004,496.

7. In a subsequent cautioned interview, the appellant claimed that she had travelled from Kenya to Addis Ababa in Ethiopia on 16 October 2017, on the promise of employment. However, upon her arrival in Addis Ababa, she was brought to a hotel and instructed to swallow the pellets in question. On 20 October, she was taken to the airport to board a flight bound for Hong Kong. She said the US currency in her possession had been given to her so that she could demonstrate to anyone who might ask that she was visiting Hong Kong on business.

8. An examination of the appellant’s mobile telephone revealed WhatsApp conversations between herself and those with whom she had been dealing in Addis Ababa, and included messages sent by her concerning the proposed reward for the trip, as well as expressions of satisfaction towards the arrangements that had been made for her.

Father Wotherspoon’s letter (dated 19 September 2018)

9. For the purpose of the appellant’s mitigation, Father John Wotherspoon had written a letter on her behalf, which set out her participation in his purported “campaign” against drug-trafficking. Since it lies at the heart of this appeal, it is worth reciting the relevant parts of that letter. Addressed to the High Court judge, it read:

“I have known Caroline every (sic) since she was arrested and have encouraged her to pass on considerable information to the authorities in Hong Kong and in Kenya. As part of my anti‑drug campaign, Caroline’s information was put on East Africa’s number one blog, Jamii Forum - warning people about the danger of taking drugs to Hong Kong – here: www.jamiiforums.com/threads/kenyan-woman-nigerian-bf-in-addis-ababa-sending-women-drug-mules-to-hong-kong.1356647/”

The letter continued by detailing certain information the applicant had given, which Father Wotherspoon claimed had enabled him to “expand (his) profile” of two named individuals who were suspected to be drug traffickers.

10. He concluded the letter by making the following statements:

“Significantly, not one drug mule with drugs from Addis Ababa has been arrested at HK airport this year, after five such mules were arrested in Oct-Nov 2017. Intense publicity has been a factor in the stopping of this flow. In fact only five African drug mules from the whole of Africa have been arrested at HK airport this year. Caroline’s participation in my campaign has been a factor in this result.
For the assistance by Caroline to the authorities and to my campaign I hope Caroline can qualify for special consideration by the court.”

11. Notwithstanding the hearsay and assertive nature of the information contained in these passages letter, and the fact that the letter allegedly written by the appellant, and put onto the said website, was never produced at the leave hearing, leave was nevertheless granted on the basis that it was reasonably arguable that the applicant was deprived of a fair trial at her sentencing hearing[3].

The Chambers hearing

12. At the sentencing hearing on 4 October 2018, a 15-minute Chambers hearing was held immediately prior to mitigation being advanced, at the behest of defence counsel, Mr Carl Yuen, who was of the view that a Sivan hearing was necessary to protect the appellant who had given the authorities a non‑prejudicial statement^{^[4]}. Mr Gary Leung, for the prosecution, took a different view. He considered that a Sivan hearing was not necessary, since the information concerned matters outside Hong Kong and, in any event, there had been no positive outcome as a result^{^[5]}.

13. Accordingly, a Chambers hearing was held to determine if a Sivan hearing would be required. The hearing took place in closed court but in the absence of the appellant. In accordance with the usual practice, the judiciary recording system was turned off in order to preserve the confidentiality of the hearing. Regrettably, no other form of recording or note had been made by any party in respect of what took place at the Chambers hearing.

14. Considering that what transpired at this hearing might be relevant to the appellant’s ground of appeal, the Single Judge directed Mr Yuen^{^[6]}, Mr Leung^{^[7]} and the trial solicitor, Mr Samuel Ho^{^[8]}, to file affirmations with this Court setting out their recollections of what took place at or about the time of the Chambers hearing.

15. It is not necessary to set out the detail of what appears in these various affirmations. There was, however, a difference in recollection between Mr Yuen and Mr Ho on the one hand, and Mr Leung on the other, as to whether or not the mitigation letter of Father Wotherspoon had been produced to the judge at the Chambers hearing. Mr Yuen averred that the judge was reluctant to continue the hearing in Chambers and refused to accept that Father Wotherspoon’s letter amounted to any constructive assistance to the authorities. She had also commented that various mitigation letters had not been submitted in time, but she was prepared to allow Mr Yuen to summarise the gist of each letter during mitigation^{^[9]}.

16. For his part, Mr Leung confirmed that he had received a copy of Father Wotherspoon’s letter from Mr Yuen prior to the Chambers hearing. He recalled the judge querying the necessity of a Sivan hearing, but he could not remember Mr Yuen physically producing the letter from Father Wotherspoon at the Chambers hearing. Had there been a refusal by the judge to read or receive any particular documents, he would have made a record of that fact^{^[10]}.

Mitigation

17. The appellant was a 38-year-old single mother with a clear record in Hong Kong, who was said to have been lured into committing the offence by her financial difficulties in Kenya. Her counsel submitted that during her remand in custody in Hong Kong, she had been active in talking about her faith amongst fellow inmates. It was further submitted that for the amount of cocaine involved, the starting point should be between 20 and 23 years’ imprisonment under the relevant guidelines, which, it was accepted, could be enhanced by 1 to 2 years for the international element of bringing the drugs across the border into Hong Kong.

18. In his concluding words in mitigation speech, Mr Yuen informed the court as follows[11]:

“My Lady, one last thing is that, as I submitted, our defendant is active in her church and in prison in spreading the Word, and Father John [Wotherspoon] is here, who they met, and he is here to show support”.

This was the only reference by counsel, according to the transcript of what took place in open court, to Father Wotherspoon.

Reasons for sentence

19. The judge adopted a starting point of 20 years’ imprisonment, which she further enhanced by 1 year for the international element. She gave a full one-third discount for plea, resulting in a final sentence of 14 years’ imprisonment.

The grounds of appeal

20. Mr Hemmings originally advanced two grounds of appeal but chose to focus on the second ground. His first complaint was directed at defence counsel’s alleged failure to file the letter of Father Wotherspoon before the sentencing of the appellant, on which matter there is an issue, as we have indicated, as to whether or not he actually produced the letter to the judge in the Chambers hearing. His second complaint is more concerned with the failure to refer to the contents of Father Wotherspoon’s letter, when he had been permitted to do so by the judge and allegedly instructed to do so by the appellant, thus depriving the appellant of potential mitigation which might have secured her a further, admittedly small, discount on the eventual sentence.

21. Mr Hemmings acknowledged that arithmetically the starting point for trafficking in the quantity of cocaine concerned could have been 20 years and 5 months’ imprisonment[12]; whilst for the international element, the sentence could have been enhanced by 1 year and 4 months’ imprisonment[13]. Instead, the appellant was given a starting point of 20 years’ imprisonment with an enhancement of 1 year’s imprisonment, thus resulting in a notional sentence after trial, which was in fact 9 months lower than it might have been; which in turn resulted in an ultimate sentence after plea that was 6 months lower than it might have been. Nevertheless, he submitted that those were the figures adopted by the judge and, if this Court was persuaded that the applicant should have been given a discount for her assistance to Father Wotherspoon’s campaign, then the sentence should still be reduced as a matter of principle, however slight that reduction might be.

The respondent’s submission

22. Mr Andy Lo, on behalf of the respondent at this appeal, submitted that, since the Customs and Excise Department, having assessed the information provided by the appellant and the response from the relevant overseas law enforcement agencies, had come to the view that the information provided was of “no practical use”, the appellant was not entitled to any further discount. With this conclusion, he noted, Mr Hemmings had rightly taken no issue. If that were so, then it was hardly a principled approach to sentence to allow a discount for Father Wotherspoon’s claimed “assistance by Caroline to the authorities and to my campaign” when that same assistance was of no practical use to those same authorities.

23. As to whether there was the possibility of some slight residual benefit for assistance to Father Wotherspoon’s campaign, Mr Lo wondered how one was to assess such benefit when it was based on hearsay and the assertions of Father Wotherspoon. Moreover, the judge had already adopted a notional sentence after trial which was some 9 months lower than it might have been. Given that all sentencing judges in Hong Kong could not fail to be aware of Father Wotherspoon’s campaign, it should not be assumed that that the judge had not borne this factor in mind. It should be remembered that whether a judge gave any discount at all, bearing in mind that it could only ever be a “token” one, was a matter within “the absolute discretion of the court, an exercise with which this Court will not lightly interfere”[14]. Accordingly, any such token discount that might have been given specifically for assistance in Father Wotherspoon’s campaign was more than offset by the appellant’s receipt of a significantly lower sentence than she might otherwise have received.

24. Finally, Mr Lo pointed out that it was within defence counsel’s professional judgment whether he chose to refer to, and rely upon, Father Wotherspoon’s letter during mitigation. It was Mr Yuen’s view, as defence counsel at trial, that the contents of the letter were “not specific enough to warrant any reduction of sentence, at least at this early stage, and I so advised Ms Cherop accordingly”^{^[15]}. Moreover, by her signed instructions, dated 21 September 2018, the appellant had unequivocally agreed to “leave it to my Defence Counsel Mr Carl Yuen to decide whether to submit any of these documents (including Father Wotherspoon’s letter) to the High Court Judge for mitigation”^{^[16]}. As such, the appellant was bound by the way in which Mr Yuen conducted the case on her behalf.

Discussion

25. In our judgment, there is no merit at all in this appeal. Quite apart from the question of whether the judge knew of the contents of Father Wotherspoon’s letter from the Chambers hearing or not, on which question there is a divergence of evidence, although this issue was ultimately of no relevance to the appeal argued by Mr Hemmings, the fact is that the appellant received a significantly lower sentence than she might otherwise have received on a strictly arithmetical application of guidelines to quantity. Ultimately, the overall sentence was 6 months lower than it could have been. The judge was clearly aware of Father Wotherspoon’s support for the appellant and his presence in court during mitigation because she was specifically told about these matters in open court. Whether the judge discounted the sentence for this factor or whether she did not, in the exercise of her absolute discretion, the fact is that the appellant received a sentence that was significantly lower than any discount for assisting Father Wotherspoon’s campaign would have produced. This Court is effectively now being asked to assume that the judge did not bear this matter in mind, and to tinker with a sentence which is acknowledged to have been lower than it should have been. A similar submission was made and rejected by this Court in HKSAR v Fundi Furaha Giles[17].

26. It is, with respect, time to engender some reality, perspective and common sense into the question of assistance to Father Wotherspoon’s anti-drug campaign. When Father Wotherspoon’s name first emerged during mitigation several years ago, the courts were given to understand that he was encouraging prisoners to write letters concerning their experiences of how they came to be recruited and involved in drug trafficking for publication on a website(s) on the Internet so as to discourage others in their part of the world from taking the same dangerous and disastrous path. The prisoners were, for the most part, from impoverished backgrounds in Africa and South America, although a few were from Russia and satellite countries in the region. Sentencing courts responded by applauding these efforts and granting further discounts for participation in Father Wotherspoon’s campaign, although this quickly led to an unsatisfactory disparity in the discounts that were being given by different courts.

27. The campaign then seemed to take on a more proactive approach with Father Wotherspoon obtaining information and intelligence from prisoners himself and furnishing it to the authorities in Hong Kong and other foreign states. From time to time, we have been aware that he has himself gone to other countries in pursuit of leads which he did not feel were being properly followed up both here and in those countries. In one case, he travelled to Kuala Lumpur in Malaysia to see whether an alleged drug trafficker was still residing at a particular address, as alleged by two prisoners in his care[18]. More recently, he has attempted to put what he has been told onto various websites in order to “name and shame” alleged drug traffickers, so as to warn anybody who might look at these websites about involvement with certain identifiable individuals. Sometimes these have also involved placing photographs of alleged drug traffickers onto these websites. Indeed, Father Wotherspoon’s letter in the present case referred in terms to his own “name and shame anti-drug campaign” by purporting to identify two individuals who were allegedly trafficking in dangerous drugs, one of whose photographs was provided by the appellant. Moreover, he claimed that the appellant’s information had helped him to expand his profile of the alleged drug traffickers concerned.

28. It must, however, be remembered by all judges, both at trial and appellate level, that the criminal law deals with facts, evidence and proof: not with hearsay, assertion and innuendo. Because of the differing ways that judges were responding to Father Wotherspoon’s campaign efforts, this Court felt it necessary to forge a more consistent sentencing approach to them in HKSAR vKilima Abubakar Abbas[19]. One of the central problems faced by the Court was how to characterise this aspect of mitigation. It seemed artificial to describe the writing of letters to Father Wotherspoon for publication on a website as ‘positive good character’, or the product of ‘remorse’. In reality, the prisoner would understandably do whatever was necessary to get a reduction in sentence. Nevertheless, it was recognised that the encouragement of these efforts was still in the ‘public interest’.

29. One of the particular concerns voiced by the Court in Kilima Abubakar Abbas was how a court could sensibly assess the value of a particular individual’s contribution to Father Wotherspoon’s campaign. Lunn VP put the matter in this way[20]:

“However, determining what, if any weight, ought to have been afforded the applicant in sentencing for his participation in Father Wotherspoon’s programme is fraught with considerable difficulties. At most, the applicant contributed to the simple message that Father Wotherspoon’s programme promulgated to Tanzanians, namely that very heavy sentences of imprisonment were to be expected by those who unlawfully trafficked dangerous drugs into Hong Kong. He did not thereby expose himself to any danger. It is simply not known whether the decrease in the arrests in Hong Kong of Tanzanian drug traffickers, to which statistics reference is made in the judgment of McWalters JA, is to be attributed in any way to the programme, let alone to the contribution of the applicant. The courts are ill-equipped to make inquiries to make any such determination. To do so exposes the court to the dangers of indulging in speculation. As this Court said in its judgments in HKSAR v Odira Sharon Lensa[21] and HKSAR v Akinya Grace Sylvia[22], assessing the value, if any, to Hong Kong of an applicant’s participation in Father Wotherspoon’s programme is a matter that the Executive is better equipped to perform.”

30. On this issue, Macrae VP commented[23]:

“Furthermore, the beneficial effect from writing such letters is far too vague and amorphous to form one of these recognised categories of mitigation. One letter to the right person may stop a potential career from making a drug shipment although the sad reality is that there will always be others to take his/her place. A hundred letters may yield nothing. One can simply never know.”

Macrae VP went on to observe that the figures of arrests from different countries could also be misleading, since experience had shown that “syndicates do not rigidly recruit their couriers from one country but use nationals from different countries, even different continents, if only to throw the authorities in Hong Kong off the scent”[24].

31. There were other concerns discussed in the various judgments of the Court in Kilima Abubakar Abbas. It was noted, for example, that given the concentration of effort in respect of prisoners principally from Africa and South America, other prisoners from Europe or Asia were not being afforded the same advantage in reduction in sentence because there was no facility for them to assist Father Wotherspoon’s campaign. In particular, it was wondered why “mainland couriers who traffic drugs across the land or sea borders into Hong Kong should be deprived of that concession or advantage”[25].

32. In the present case, Father Wotherspoon’s letter on behalf of the appellant made a similar claim to that made by the applicant in Kilima Abubakar Abbas, when he suggested that the publicity generated by the appellant’s contribution to his campaign had been a factor which had led to a supposed reduction in the numbers of drug traffickers from Africa. With respect, this kind of speculative assertion, without more, has little utility in the sentencing exercise. Defence counsel in the court below was entirely correct to say that, in his view, the letter “was not specific enough to warrant any reduction of sentence”.

33. It is to be noted that nowhere in Father Wotherspoon’s letter was there any reference to, or copy of, any letter(s) the appellant had supposedly written for publication on the website concerned, which the Court had always understood was the original purpose of his campaign. Certainly, that was the Court’s understanding in Kilima Abubakar Abbas. Nor was any such letter produced at the hearing before the Single Judge, or before this Court. All that Father Wotherspoon’s letter appears to contain are assertions of information that the appellant had given to him about two alleged drug traffickers, which was the same information the Customs and Excise Department had been given but had judged to be of no practical use. We fail to see how a sentencing judge could conceivably have given the appellant any recognition for information which was of no practical use, and which is now accepted was of no practical use, simply because it was repeated to Father Wotherspoon and put by him on a website.

34. In the recent case of HKSAR v Herry Jane Yusuph[26], the question of how assistance to Father Wotherspoon’s campaign was to be treated was further discussed. The Court said this[27]:

“Once again, we are faced with a submission that an appellant has assisted Father Wotherspoon’s ‘campaign’ and, for that reason, coupled with information the appellant has given him, and which he has passed on to the authorities in the United States, she is “entitled” to a further discount on sentence. We can dispose very quickly of the claim that information has been given to Father Wotherspoon and passed on to the United States. This information was given more than 16 months after the appellant’s arrest and there is no basis for concluding that any of it was of any practical use. With respect to Father Wotherspoon, if he is in receipt of information, it should be passed to the authorities in Hong Kong to process if they consider it necessary. Only then will the courts of Hong Kong be in a position to assess its practical value.
As for the appellant’s purported assistance to Father Wotherspoon’s ‘campaign’, this comprises a single 2‑page letter written to Father Wotherspoon, which was subsequently published by him on an Internet forum. In the letter, the appellant described, inter alia, how she had in fact swallowed 88 packets of drugs, but discharged 82 of them en route to Hong Kong. As a result, she was only arrested for trafficking in six packets of cocaine. Notwithstanding her claims that she was going to present herself to the police with the six packets upon arrival, nothing was said to the Customs officers who intercepted her. We have difficulty seeing how such a letter advances Father Wotherspoon’s ‘campaign’ other than to show that yet another person has been caught trafficking drugs into Hong Kong.”

35. The Court went on to emphasise a point which we feel we must again reiterate[28]:

“This Court has already made it clear that no more than a “token” discount can be given for this factor, which judges should assess realistically and with common sense. Whether they give any discount at all, or how they quantify a token amount, is a matter entirely within their discretion, which will not be lightly interfered with by an appellate court. Having looked at the contents of the appellant’s letter, we would not have given any discount for her assistance to Father Wotherspoon’s ‘campaign’ … If defence counsel was in possession of this letter prior to mitigation, it is hardly surprising that she did not make use of it.”

36. In Fundi Furaha Giles, the same presently constituted Court again noted that all the trial judge had been told in mitigation was that the applicant had written “a couple of letters” which had been posted on an East African Internet blog by Father Wotherspoon, and which were said to have attracted considerable correspondence and comment. We remarked then that we did not think the judge should have “considered anything more than a very token discount at most for this factor in this case”[29]. On reflection, without even a sight of these purported letters, we consider our assessment to have been generous.

37. In the course of the discussion before us, we questioned the wisdom of a so-called “name and shame” campaign where there was an ongoing criminal investigation or operation by a domestic or foreign law enforcement agency. To have alleged drug traffickers publically named, and their purported photographs publicised, when the authorities are undertaking the delicate, sensitive and sometimes dangerous task of obtaining covert evidence in a wider criminal investigation into drug trafficking or other offences could well be extremely deleterious to law enforcement operations, whether in Hong Kong or any other country. It seems to us a matter of particular public concern if sensitive information is being placed in the public domain by the unskilled amateur, however well-intentioned, rather than the professional law enforcement agent. We do not in any way wish to undermine the giving of pastoral care and spiritual comfort to those in prison who may be far away from their homes and families. However, we question whether the collection and proliferation of information in order to propagate a “name and shame” campaign on an international forum is either a wise or prudent course; or, indeed, whether it properly comes within the terms of reference of a prison chaplain.

38. In the recent decision of HKSAR v Omogo Stephen Okuta[30], Zervos JA voiced a different but related concern about the obtaining and misuse of information, and the difficulty which Father Wotherspoon’s wider ‘campaign’ may sometimes place law enforcement agencies and the courts:

“Another aspect of this case is that Father Wotherspoon, no doubt with good intentions, is evidently acting as a conduit between prisoners and the authorities and providing information that he has collected from a number and variety of sources that is largely historical or anecdotal. In doing so, he may have inadvertently provided the means by which information is reproduced or embellished by defendants in an effort to receive a discount to their sentence. It needs to be stressed that the provision of information in respect of criminal activities must be dealt with properly and very carefully, acknowledging the sensitive and dangerous nature of what is involved and the need for the information to be accurate and reliable.”

39. For these reasons, it is vitally important that judges, at both trial and appellate level, treat submissions that a defendant/appellant has contributed to Father Wotherspoon’s campaign with realism, perspective and common sense and with a firm grasp of sentencing practice, procedure and principle. In the context of appeals, that means that any attempt to introduce such material should meet the requirements of section 83V of the Criminal Procedure Ordinance, Cap 221 and is properly adduced as evidence, not assertion, innuendo and anecdote. For their part, prosecutors are reminded that they have a duty to see that material which does not in their view meet these requirements is properly addressed, rather than admitted informally in letter form without demur; unless, of course, they are prepared to admit such evidence.

40. Defence counsel also have a duty to ensure that what they are putting forward by way of mitigation is properly adduced. Mr Yuen took a certain view of the material contained in Father Wotherspoon’s letter and, it seems to us, he was entirely correct in his assessment and cannot be criticised for it. Judges too have a duty to ensure that material is properly produced before them before they can act upon it.

41. Affirmations were prepared and placed before this Court by Mr Yuen and Mr Ho (and Mr Lai), who were all also ordered to attend before this Court. In the event, given the entirely sensible approach of Mr Hemmings, this proved unnecessary. However, since Mr Yuen and Mr Ho have each been required to prepare affirmations to explain the situation at trial and their actions, we wish to make clear that there can be no criticism whatsoever made of their conduct. It can readily be seen that both acted with commendable care and concern for the lay client and her family. Indeed, for some three weeks after the hearing, the appellant was continuing to write to Mr Yuen, all of which communications were dutifully forwarded to the appellant’s family.

42. In Herry Jane Yusuph, which was the comprehensive attempt of senior judges of both the Chinese and English divisions of this Court to unify the approach to sentencing in drug trafficking cases, we concluded our judgment, in respect of appeals concerning discount for assistance to Father Wotherspoon’s campaign, with this statement[31]:

“Given the wide and absolute discretion afforded to sentencing judges on this matter, which can only attract a “token discount” at most, we hope not to see this sort of ground of appeal being put before us again”.

As any perusal of reported and unreported judgments of this Court over the last few years will amply demonstrate, there have been a great many appeals against sentence involving international couriers complaining in one way or another about the discount that was or was not given for their assistance in Father Wotherspoon’s campaign. It is time that this issue was brought under control, mindful that numerous different judges of this Court, including the Court in Kilima Abubakar Abbas, have already repeatedly said that these are matters, because of their ongoing nature, which are best left to the Executive[32]. Unfortunately, the Court’s judgment in Herry Jane Yusuph was not delivered until some two weeks after leave had been granted in this case. Nevertheless, we repeat that we hope this will be the last time that we entertain appeals on the question of discount for assistance in Father Wotherspoon’s campaign.

43. That is not to say that a token discount cannot still be given for assistance to Father Wotherspoon’s campaign as was envisaged by the Court in Kilima Abubakar Abbas. However, we wish to emphasise that judges should not rely on hearsay, anecdote and mere assertions of usefulness but must look at the letter(s) (properly adduced) that have been written by a defendant or applicant pursuant to this campaign, and consider the substance of what is said, as well as when and how the letters have been written, if they are properly to act on them in the exercise of their discretion. Otherwise, the complaints of inconsistency of approach at first instance will continue to bedevil the appellate courts.

44. We also wish to stress that a discount of up to three months is neither automatic, nor is it an entitlement: indeed, three months represents the limit of what might be given for this factor and is to be regarded as exceptional. Judges are perfectly entitled in the exercise of their discretion to give no discount for this factor at all; just as this Court said it would not have given any such discount in Herry Jane Yusuph. Where the assistance is rendered to Father Wotherspoon’s campaign after sentence has been passed, then it is a matter more properly to be addressed by the Executive.

45. Accordingly, it was for these reasons that we dismissed the appellant’s appeal against sentence. We nevertheless wish to record our thanks to both counsel at this appeal for their helpful and realistic submissions in this matter.

Hon Zervos JA:

46. I have read the judgment of Macrae VP and agree with it. I wish to add these comments. In the course of the hearing of the present appeal, I made the observation as to whether the discount given to the sentence of a convicted drug trafficker for his or her participation in Father Wotherspoon’s anti-drug campaign, has to some extent developed in order to compensate for the high sentencing guidelines imposed on low-level participants in the trafficking of drugs, such as couriers.

47. It has been said that the sentencing tariffs for low-level participants in the trafficking of drugs are too severe and are already at such high levels that practically no meaningful distinction can be achieved when sentencing a minor offender and a major offender involved in trafficking a large quantity of drugs. See HKSAR v Kilima Abubakar Abbas[33], at [148].

48. We often see convicted drug couriers participate in Father Wotherspoon’s campaign in an effort to obtain some further reduction in their sentences. It has been held that a defendant’s remorse or contrition for having committed a crime is normally subsumed in the discount given for his or her plea of guilty. See Secretary for Justice v Lee Chun Ho Jeef[34], at [37]. For a defendant to receive any further discount on his or her sentence, something additional needs to be shown that falls within one of the accepted categories of mitigation, such as rendering assistance of practical use to the authorities. In some cases, participants in Father Wotherspoon’s campaign go further by providing information to the authorities but it would appear that the information mainly consists of identifying persons in other countries who either got them involved in smuggling the drugs or are generally known to be involved in the drugs trade. Whether the information is of practical use very much depends on the assessment of it by the relevant authorities. This is a sensitive and complex process in respect of which the courts rely on the relevant authorities to make the assessment of the assistance given. We have addressed the issue of disputed assistance rendered to the authorities in HKSAR v Yeung Hoi Ting[35].

49. As a result of the generalised nature of Father Wotherspoon’s campaign and its broad objective of promoting awareness of the serious deleterious consequences to persons involved in the smuggling of drugs into Hong Kong, it is difficult to discern the actual role or contribution, if any, of a participant in the campaign. This is so for two main reasons.

50. First, it is increasingly hard to accept that persons from third world countries in Africa and South America do not already appreciate, to a greater or lesser degree, the dangers of being involved in the drugs trade, given it is obviously a global problem that is constantly publicised and tackled in most domestic jurisdictions. This is particularly so because of modern forms of communication that are now available and the flow of information that occurs, even in impoverished countries. In fact, Father Wotherspoon operates his campaign through various websites on the Internet in order to convey his message to people abroad. In the cases that have come before the courts in Hong Kong, the role of the international courier is extensive, generally involving the swallowing of a large number of pellets containing the drugs and embarking on a series of flights through several countries before arriving into Hong Kong. In those circumstances, a courier would not fail to appreciate the gravity of his or her conduct and the serious consequences that would follow upon their apprehension by the authorities.

51. Secondly, the letters submitted to a court in mitigation on behalf of a defendant as to his or her participation and assistance in Father Wotherspoon’s campaign are often expressed in broad and general terms. Sometimes information is provided but in such a way that is unclear as to the provenance and accuracy of it. It is fundamental that any matter advanced in mitigation should be properly placed before the court and based on credible and reliable information.

52. The subject of sentencing is very complex and it needs to be appreciated that even if a mitigating factor has been shown to be present, it does not automatically entitle a defendant to receive an allowance for it. In his seminal text, Principles of Sentencing (2^nd Ed), Professor D A Thomas states, at p 194:

“As has been shown, allowance for mitigation is not considered to be an entitlement of the offender. The sentencer may withhold a reduction which might normally be expected if some recognised penal objective, such as general deterrence or the preventive confinement of a dangerous offender, requires the imposition of the whole of the permissible sentence. Apart from this, the value of a particular factor varies considerably from one category of offence to another; a factor which has a critical impact on the sentence in one kind of case will often have no more than a marginal effect in another.”

53. As held by this Court, it is within the discretion of a sentencing court to afford a defendant a small additional sentencing discount for his or her participation in Father Wotherspoon’s campaign. It is a discretionary matter that will depend upon an appropriate assessment being made by the sentencing court as to whether or not it should be given. If it is given, it will be, as was described by this Court, a token discount. See Kilima Abubakar Abbas, at [65]-[67] and [91].

54. This ultimately raises for consideration whether the real issue is the scale and scope of the sentencing guidelines for low-level participants in drug trafficking cases. This has been partly addressed by this Court in HKSAR v Herry Jane Yusuph[36], in which emphasis was placed on the need to take into account the role and culpability of the offender in drug trafficking cases when applying the sentencing guidelines.

55. It has been argued in the past that the sentencing guidelines for couriers are manifestly disproportionate for the criminality involved, and as a result are exceedingly high and severe. While attempts have been made to address this issue, the challenges have so far failed to present sound legal argument and reliable empirical data to support the submissions advanced against the current sentencing guidelines for couriers and storekeepers involved in drug trafficking. See Kilima Abubakar Abbas, at [54], [73]-[76] and [147]- [148]; and HKSAR v Godson Ugochukwu Okoro[37], at [51]. In this regard, it is imperative not to lose sight of the overriding objective of a sentencing regime, which is to ensure that the sentence must not be more severe than is justified by the gravity of the offence and the culpability and circumstances of the offender.

(Andrew Macrae)	(Kevin Zervos)
Vice President	Justice of Appeal

Mr Andy Lo SPP, of the Department of Justice, for the Respondent

Mr John Hemmings, instructed by Massie & Clement, assigned by the Director of Legal Aid, for the Appellant

[1] McWalters JA.

[2] HKSAR v Cherop Caroline[2020] HKCA 918 (Reasons for judgment: 11 November 2020), per McWalters JA.

[3] Ibid., at [36].

[4] Mr Yuen’s affirmation, at [23], [24].

[5] Mr Leung’s affirmation, LYH-3. At that stage, the Customs and Excise Department had already contacted the foreign agencies with the information provided by the applicant; see, for example, the affirmation of SIP Lam Miu-chu Philme, at "LMC-1" to "LMC-3". The understanding at that time was that no positive result was forthcoming.

[6] By the direction of McWalters JA dated 9 June 2020.

[7] By the direction of McWalters JA dated 1 September 2020.

[8] By the direction of McWalters JA dated 6 November 2020.

[9] Mr Yuen’s affirmation, at [31].

[10] Mr Leung’s affirmation, at [12(3)].

[11] AB, p 10I-K.

[12] On a strictly arithmetical calculation, the starting point should have been 20 years and 5.46 months’ imprisonment.

[13] On a strictly arithmetical calculation, the enhancement should have been 1 year and 4.58 months’ imprisonment.

[14] HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, at [91].

[15] Mr Yuen’s affirmation, at [22].

[16] “YHC – 4” at p 1, as attached to Mr Yuen’s affirmation.

[17] HKSAR v Fundi Furaha Giles (Unrep., CACC 82/2017, 1 February 2019), at [24]-[25].

[18] HKSAR v Ilmayanti (Dewi) [2019] 4 HKLRD 1.

[19] HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.

[20] Ibid., at [66].

[21] HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249, at [50]-[51].

[22] HKSAR v Akinyi Grace Sylvia (Unrep., CACC 324/2015, 5 May 2016), at [39].

[23] Kilima Abubakar Abbas, at [89].

[24] Ibid., at [90].

[25] Ibid., at [90].

[26] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[27] Ibid, at [124]-[125].

[28] Ibid., at [126].

[29] Fundi Furaha Giles, at [23].

[30] HKSAR v Omogo Stephen Okuta (Unrep., CACC 66/2019, 9 April 2021), at [66].

[31] Herry Jane Yusuph, at [127].

[32] HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249, at [50]-[51] per McWalters JA; HKSAR v Akinyi Grace Sylvia (Unrep., CACC 324/2015, 5 May 2016), at [36] per McWalters JA; and KilimaAbubakar Abbas, at [66] per Lunn VP; at [91] per Macrae VP; HKSAR v KisamoDiana Semali [2019] 1 HKLRD 256, at [13] per Pang JA; HKSAR v Camara Aboubacar (Unrep., CACC 353/2017, 20 March 2019), at [20] per Zervos JA.

[33] HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.

[34] Secretary for Justice v Lee Chun Jeef [2010] 1 HKLRD 84.

[35] HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516.

[36] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[37] HKSAR v Godson Ugochukwu Okoro [2019] 2 HKLRD 451.

CACC 321/2018

[2020] HKCA 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 321 OF 2018

(ON APPEAL FROM HCCC 204 OF 2018)

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

BETWEEN
	HKSAR	Respondent
and
	CHEROP CAROLINE	Applicant

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

Before: Hon McWalters JA in Court

Dates of Hearing: 9 June, 1 September and 6 November 2020

Date of Judgment: 6 November 2020

Date of Reasons for Judgment: 11 November 2020

__________________________

REASONS FOR JUDGMENT

__________________________

1. The applicant pleaded guilty to a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 21 October 2017, at Hong Kong International Airport, the applicant unlawfully trafficked in 816 grammes of a solid containing 691 grammes of cocaine.

2. Following her committal for sentence to the Court of First Instance, the applicant appeared before M Poon J (“the judge”) on 4 October 2018 and was sentenced to 14 years’ imprisonment. On 6 November 2018, she applied for leave to appeal against her sentence out of time as on that day she was 5 days beyond the appeal period.

3. At the hearing of the application on 9 June 2020 I granted her an extension of time in which to apply for leave to appeal. At the hearing on 6 November 2020 I granted her leave to appeal her sentence. I said I would hand down my reasons for doing so at a later time. This I now do.

The background to the offence

4. The Summary of Facts which the applicant admitted for the purpose of her sentencing revealed that on 21 October 2017, the applicant, a woman of Kenyan nationality, arrived at the Hong Kong International Airport on a flight from Addis Ababa, Ethiopia. She was selected for customs clearance and as Customs officer suspected internal concealment she was sent to North Lantau Hospital for further examination. Whilst she was waiting there, she admitted to Customs officers that there was something in her stomach which she knew was a drug and that she had swallowed 65 pellets in Addis Ababa.

5. Over 3 days, the applicant discharged a total of 64 pellets containing 691 grammes of cocaine. The estimated value of the cocaine at that time was HK$1,004,496. She also had in her possession cash of US$2,570 and 678 Ethiopian birr (equivalent to around HK$190), and two mobile phones.

6. In a subsequent cautioned interview, the applicant stated that she was travelling to Addis Ababa from Kenya on 16 October 2017 on a promise of employment. A few days after her arrival she was taken to a hotel and was told to swallow drug pellets and then was taken to the airport to board a flight to Hong Kong on 20 October 2017. The US currency in her possession was given to her for the purpose of the trip.

The chambers hearing

7. Immediately prior to the commencement of the mitigation stage of the applicant’s sentencing hearing on 4 October 2018, the judge presided over a chambers hearing of the applicant’s case. This chambers hearing was originally requested by the applicant’s counsel in order to advance matters in mitigation relating to information provided by the applicant that could not be ventilated in open court. However, it is clear that prior to 4 October 2018 a misunderstanding developed between the defence counsel and the prosecutor over whether a Sivan hearing was necessary. This misunderstanding arose because the prosecution was adopting the stance that the information provided by the applicant related only to matters outside of Hong Kong and, in any event, was assessed at that time to be of no practical value. In order to clarify his position defence counsel wrote to the judge informing her that he still wished to have a Sivan hearing.

8. Consequently, the chambers hearing was now taking place in order for the judge to determine whether a Sivan hearing was necessary. That such a preliminary decision should also be made in a closed court is consistent with what the Court of Appeal said in HKSAR v Tse Ka Wah[1]. In all likelihood the judge expected that this preliminary hearing would be brief and that, given that which had passed in correspondence between the parties and the court, she was unlikely to be persuaded that a Sivan hearing was necessary.

9. The chambers hearing took place in a courtroom in the absence of the applicant. As is standard procedure, the judiciary’s DARTS recording system was turned off in order to preserve the confidentiality of the hearing. However, no alternative confidential recording was made of this hearing. Nor does it appear that the judge made any notes of what transpired at this hearing.

10. In these circumstances the words of Stock JA, as Stock NPJ then was, in giving the judgment of the Court of Appeal in HKSAR v Chan Chi Sang[2] bear repeating:

“This is an appropriate point at which to say that it appears from the transcript that, before plea, the judge had seen counsel in chambers. The court file confirmed that that had happened. This court was therefore anxious to learn what might have been said in chambers which might impinge on the view we take of the discount given in this case. We understand that what was said was not recorded, either on tape or by shorthand. We have therefore caused inquiries to be made of the judge and, through counsel for the respondent on this appeal, from counsel who appeared at trial. Apparently, counsel for the prosecution and defence have no particular recollection of the subject matter, but the judge recalls that counsel for the defence merely used the opportunity to inform him that the applicant intended to plead guilty, and asked that the applicant be re-arraigned. There was then a discussion about the timetable for preparation of the summary of facts, and the mitigation.
We would like to stress that the circumstances in which it is appropriate for counsel to see the judge in chambers are rare, and that this circumstance was not one of them. Counsel could as easily have informed the judge in court, in the absence of the jury, what was proposed. Secondly, even in those rare circumstances in which there is an absolute need to see the judge in chambers about any aspect of the case, a record must always be kept of what transpires. That should be a taped record, failing which a record by a stenographer. Here there was neither. We are satisfied, however, from the information we have, that nothing was said that affects our view as to the correct discount which ought in this case to have been given.”

11. Because I had no information on what transpired at this closed court hearing, I directed that the prosecutor and the defence counsel file with the court affirmations setting out their recollection of what took place at the chambers hearing.

The mitigation

12. The applicant was of a clear record. Her counsel, Mr Carl Yuen, informed the judge that the applicant was a 38 year old single mother who was lured by her financial difficulties in Kenya into committing this offence. During her remand in Hong Kong, she had been spreading the gospel amongst inmates and had successfully helped 3 or 4 of them to quit smoking.

13. Mr Yuen further submitted that for the amount of cocaine involved, the starting point should be between 20 and 23 years, and this would then be subject to enhancement by 1 to 2 years for the international element.

14. Before he ended his mitigation speech, Mr Yuen stated:

“My Lady, one last thing is that, as I submitted, our defendant is active in her church and in prison in spreading the word, and Father John [Wotherspoon] is here, who they met, and he is here to show support. That’s it for my submission in mitigation.”

15. Other than this brief reference to Father Wotherspoon, Mr Yuen advanced no submission in respect of the applicant’s participation in Father Wotherspoon’s anti-drug campaign.

The judge’s Reasons for Sentence

16. Having considered the facts of the case, the background of the applicant and the mitigation advanced by her counsel, the judge adopted a starting point of 20 years’ imprisonment which she enhanced by 1 year for the presence of the international element. The judge then awarded the applicant a full one-third discount for her guilty plea which resulted in a final sentence of 14 years’ imprisonment.

The grounds of appeal

17. The applicant was unrepresented at the leave hearing. In her Form XI she complained that the judge did not give her any discount for her participation in Father Wotherspoon’s campaign and for the information she had given to the Customs and Excise Department. She also said that her sentence, when compared with the sentences in other cases, was too long.

The affirmation evidence

18. In his affirmation Mr Yuen explained what took place on 4 October 2018 and, in doing so, referred to what he described as mitigation letters. These were a letter from Father Wotherspoon, a letter from the applicant’s daughter and also a letter from her parents:

“The Hearing on 04.10.2018
27. On the morning of the 04.10.2018, I brought the originals of the mitigation letters from Ms Cherop, as many of them had only reached me after the filing deadline.
28. As the Court opened, her H.H. M Poon J asked to see the Prosecution and Defence lawyers in Chambers in the absence of Ms Cherop.
29. H.H. M Poon J asked me why the Defence insisted on an in-Chambers hearing, to which I replied in accordance with my instructions.
30. I also produced the mitigation letters to H.H. M Poon J in the course of this in-Chambers hearing.
31. H.H. M Poon J was most reluctant to accept my request that the Hearing should continue in Chambers, and also refused to accept that Father John’s letter amounted to any constructive assistance to the authorities. H.H. M Poon J further commented that the mitigation letters from Ms Cherop’s family were not submitted in time for the Mitigation file.
32. However, H.H. M Poon J was gracious enough to allow me to read the letters out in Court, to offer her a gist of each letter.
33. The Mitigation Hearing was then continued in Open Court, with Ms Cherop and Father John being allowed in.
34. I continued to mitigate and the proceedings were as recorded in the transcript, concluding with the sentencing of Ms Cherop.”

19. The prosecutor, Mr Gary Leung, filed an affirmation to which he exhibited his official Note for File in respect of this prosecution. In his Note for File, marked as exhibit “LYH-1” to his affirmation, he recorded what happened at the sentencing hearing as follows:

“6. Outside the court, Fr John Wotherspoon was there and D’s counsel indicated for the first time that mitigation on D’s participation in the campaign is contemplated. I was provided with a copy of Fr John Wotherspoon’s letter (dated 19.9.2018 which was not filed with the court).
7. I mentioned to D’s counsel that according to the recent decision of HKSAR v Kilima Abubakar Abbas CACC143/2016, the discount from that, if any, would be at most 3 months. D’s counsel responded as if he appreciated that situation.
8. In an ‘not open to public’ condition, the Judge came out and queried D’s counsel why a Sivan hearing is still required given the situation conveyed in prosecution’s letter. D’s counsel eventually conceded that a Sivan hearing is not necessary and the Judge could sentence in open court. D’s counsel never mentioned anything about D’s alleged participation in Fr Wotherspoon’s campaign. This part of exchange between counsel and the Judge appeared to be NOT recorded.
9. In open court, D’s counsel advanced mitigation and made reference to Fr Wotherspoon by saying that D met him due to church activity during incarceration and that Fr was in court to ‘show support’. D’s counsel never mentioned anything about NPS, giving assistance, providing information or D’s alleged participation in Fr Wotherspoon’s campaign. Fr Wotherspoon’s letter was NOT submitted to the court.
10. Noting that D’s counsel in fact in his mitigation made reference to Fr Wotherspoon’s presence in the court, it is apparent that he did not omit anything about Fr Wotherspoon and thus I considered it not our obligation to on our own initiative raise with the Judge the matter concerning Fr Wotherspoon’s letter. The course taken by D’s counsel could have been according to D’s instructions which could have changed unbeknown to the prosecution.”

20. In his affirmation Mr Leung affirmed:

“11. Regarding the events before the sentence hearing was conducted in open court i.e. the proceedings transcribed at [AB/11 to 16], I adopt the account of events as recorded in paragraphs 6 to 8 of LYH-1. Regarding the events in the open court proceedings starting rom about 10:05 that day onwards, I adopt the account of events as recorded in paragraphs 9-11 of LYH-11.
12. With the benefit of the transcripts [AB/6 to 16], I wish to clarify / add that:
(1) In paragraph 6 of LYH-1, I stated that I was provided with a copy of Father Wotherspoon’s letter which was not filed with the court. It meant that the letter was neither included in the Agreed Paginated Plea and Sentence Bundle, nor provided to the court by other means prior to the hearing on 4 October 2018.
(2) The events as appeared on transcript at [AB/11 to 12] (with English translation at [AB/13 to 16]) were events prior to what was recorded in paragraph 8 of LYH-1.
(3) Paragraph 8 of LYH-1 refers to the events between about 09:52 and about 10:05 that day. The exchange between the Judge and counsel took place in the same court room. With reference to paragraph 8 of LYH-1, I believe the exchange was for the purpose of ascertaining whether an in-chambers hearing was really required. I do not recall any refusal from the Judge to read documents or letters. I also do not recall the Judge giving any indication that there may be adverse impact on the Applicant’s mitigation should certain documents or letters be submitted. If I had, I would have made a record of it.
(4); Paragraph 9 of LYH-1 refers to the proceedings as appeared on the transcripts at [AB/6 to 10]. After the Hearing, I marked on the copy of Father Wotherspoon’s letter ‘Note: D did not submit this ltr to court and did not advantage this mitigation’. Copy of the said letter is now shown and produced by me marked Exhibit ‘LYH-4’. The word ‘ltr’ meant ‘letter’ while the word ‘advantage’ was a mistake for the word ‘advance’.”

Discussion

21. As the applicant was only 5 days out of time in filing her Form XI, and as I did not consider this was a substantial delay, I granted her the extension of time she needed in which to file her application for leave to appeal.

22. The starting point adopted by the judge, namely 20 years’ imprisonment, and the 1 year enhancement for the international element are both in line with the applicable sentencing guidelines and I see no reasonably arguable ground of appeal in respect of them.

23. The applicant’s assistance to Customs and Excise Department consisted of a single non-prejudicial statement, which I have seen. It deals only with persons, and their drug trafficking activities, outside of Hong Kong. It does not contain sufficient identifying particulars for two of the three persons she has mentioned. Mr Andy Lo for the respondent has filed with the court an affirmation from a Senior Inspector of the Customs and Excise Department which sets out how his Department shared the applicant’s information with relevant overseas law enforcement agencies and the feedback his Department received from them in respect of the utility of that information. Unsurprisingly, the applicant’s information was assessed as being not useful.

24. The key concern of the applicant, is that no regard appeared to have been had to the assistance she provided to Father Wotherspoon’s campaign, notwithstanding that she had a letter of support from Father Wotherspoon in respect of her assistance. It is apparent from the record that the only reference to Father Wotherspoon was at the end of the counsel’s mitigation address and what Mr Yuen said is quoted at [14] of this judgment.

25. As the applicant’s counsel did not press the issue of a sentencing discount for the applicant’s participation in Father Wotherspoon’s campaign there was simply no basis for the judge to extend to her any further discount in addition to the one-third discount for her timely plea.

26. The information contained in the affirmations that have been filed with the court raises two possible scenarios.

27. The first is as Mr Yuen asserts, namely that he referred to a non-confidential aspect of the applicant’s mitigation in the absence of the applicant and, as a consequence of what was said to him by the judge, exercised his professional judgment not to advance mitigation that was important to his client.

28. The second scenario is that for reasons which are not apparent, Mr Yuen failed to advance mitigation in accordance with his instructions.

29. I must now examine the consequences of what occurred at the applicant’s sentencing. On the first scenario the applicant was prejudiced by not being present at the chambers hearing and therefore being kept unaware of what took place in respect of Father Wotherspoon’s letter. There are two matters of concern arising from this scenario. The first matter of concern is that, if this is what happened, then it was quite wrong of defence counsel to make any reference to other non-confidential mitigating matters at this specially convened chambers hearing. In doing so he effectively conducted an important part of the applicant’s sentencing hearing in the absence of the applicant and, unknown to him, without a record being made of what was said. In Tse Ka Wah a similar situation took place and Stuart-Moore JA, as Stuart‑Moore VP then was, in giving the judgment of the Court of Appeal, said:

“However, the matter did not end there. When the hearing was resumed on 29 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.”[3]

30. The second matter of concern is that there was a breach of her right to be present at her trial as encapsulated in Article 11(2)(d) of the Hong Kong Bill of Rights Ordinance, Cap 383. This right was recently discussed by the Court of Final Appeal in HKSAR v Chow Ho Yin[4]. In giving the judgment of the court McLachlin NPJ said:

“14. Article 11(2)(d), section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, provides that in the determination of any criminal charge against him, a person shall be entitled to be present at his trial:
‘Article 11 Right of persons charged with or convicted of criminal offence
… (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality—
… (d) to be tried in his presence …’
15. This well-established right allows the accused to see and hear the case against him, confront his accusers, and give prompt and continuous instructions to his legal representatives. The presence of the accused may also place psychological pressure on witnesses to tell the truth, enhancing public confidence that justice has been done. See R v David Jeremy Taylor, Tina Kaisa Paivarinta-Taylor [2008] EWCA Crim 680 at [16]:
‘...The right to be present at court is vital. It is not only a right so that the defendant can participate by giving instructions and following the trial, but also so that he can see and hear the witnesses who are giving evidence against him. This is not only part of the process by which a defendant participates at trial, but is also a sanction by which the public can be confident that there are pressures on those witnesses who give adverse evidence against a defendant to tell the truth. To give an account of events in a witness statement or within the seclusion of a police station is one thing. It is quite another to have to stand up in public, face-to-face with a defendant, and repeat those assertions. …’
16. The right to be present at one’s trial is part of the broader right of everyone charged with a criminal offence to a fair trial. It is not an absolute right. The trial judge has a discretion to allow the trial to proceed in the accused’s absence in appropriate circumstances. As Lord Bingham said in R v Jones (Anthony), [2003] 1 AC 1 (‘Jones’), at [6]:
‘... The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant … . In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial … . The existence of such a discretion is well established … . But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.’”

31. Here, the breach of the applicant’s right was inadvertently committed by her own counsel in respect of a hearing, at which the applicant was absent, that he requested. Without downplaying the importance of the Article 11(2)(d) right the breach here was very much a technical one which caused limited, but curable, prejudice to the applicant. The prejudice was curable because the applicant was represented by counsel who could inform her of what took place at the hearing. Furthermore, nothing took place in respect of Father Wotherspoon’s letter that was not within the professional discretion of counsel. The defence counsel received a judicial indication of the weight that the judge was, at that time, minded to give the letter, and it was then a matter for defence counsel to decide whether to press the matter at the open court sentencing hearing. In the exercise of his professional judgment he decided not to do so.

32. After having carefully considered the contents of Father Wotherspoon’s letter I am of the view that if what took place was as Mr Yuen affirmed, then it is not reasonably arguable that it was not open to the judge to form the view that she did of the mitigating value of that letter. Nor is it reasonably arguable that the decision of the defence counsel not to press the matter in open court was incompetent.

33. Consequently, I do not see that, on the first scenario, what took place before the open court sentencing hearing on 4 October 2018 would afford the applicant a reasonably arguable ground of appeal that she was deprived of a fair trial.

34. On the second scenario, namely that Mr Yuen failed to advance mitigation in accordance with his instructions, the prejudice to the applicant is that she was denied a fair trial in that she was deprived of a mitigating matter being advanced on her behalf which, potentially, but only potentially, could have led to a sentencing benefit for her.

35. I have given anxious consideration as to whether to grant the applicant leave to appeal. I am of the view that, on the papers, it is reasonably arguable that the second scenario is what truly happened. That being so I do not feel it is appropriate for me to receive oral evidence from Mr Yuen and Mr Leung at this stage. Which of the two scenarios represents what truly happened is now a matter for the Court of Appeal to resolve. However, there is one remaining concern that I have which I feel I should mention. It is that on a strict arithmetic calculation, the initial starting point for the applicant would, in fact, have been 5 months longer than that adopted by the judge, so the applicant has already received from the judge a benefit greater than the maximum discount the Court of Appeal could allow for her participation in Father Wotherspoon’s campaign.

36. However, having concluded that it is reasonably arguable that, on the basis of scenario two, the applicant was deprived of a fair trial at her sentencing hearing I am of the view that it is for the applicant to decide, in consultation with her legal advisers, whether she wishes to pursue an appeal in these circumstances.

Disposition

37. For these reasons I granted the applicant an extension of time in which to file her application for leave to appeal and granted her leave to appeal her sentence and an Appeal Aid Certificate so that she could have legal representation at the hearing of her appeal.

	(Ian McWalters)
	Justice of Appeal

Mr Andy Lo SPP of the Department of Justice, for the respondent

The applicant appeared in person

[1] [1998] 1 HKLRD 925 at 926J-927H.

[2] CACC 512/2000, unreported, 12 July 2001.

[3] [1998] 1 HKLRD 925, 927H-J.

[4][2019] HKCFA 52

HKSAR v. CHEROP CAROLINE

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