HKSAR v. Ma Shu Keung

CACC 48/2019

[2020] HKCA 678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 48 OF 2019

(ON APPEAL FROM HCCC NO 85 OF 2017)

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Before: Hon McWalters and Zervos JJA in Court

Date of Hearing: 5 August 2020

Date of Judgment: 5 August 2020

Date of Reasons for Judgment: 21 September 2020

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

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

Introduction

1.The appellant was jointly charged with Chan Chi-yeung (Chan) with trafficking in dangerous drugs, namely, 24.42 grammes of a crystalline solid containing 23.98 grammes of methamphetamine hydrochloride (commonly known as Ice) and 18.31 grammes of a mixture containing 14.3 grammes of heroin hydrochloride (Count 1).  Chan was further charged with being the tenant of a flat, he permitted or suffered such place to be used as a divan or for unlawful trafficking of a dangerous drug (Count 2), which was an alternative to Count 1, and possession of a dangerous drug, namely 0.17 gramme of a crystalline solid containing 0.16 gramme of methamphetamine hydrochloride (Count 3). 

2.On 13 March 2017, in the Magistrate’s Court, the appellant pleaded guilty to Count 1, while Chan pleaded not guilty to Counts 1 to 3.  In consequence, the appellant was committed for sentence and Chan was committed for trial in the Court of First Instance.

3.The appellant appeared before Toh J (the Judge) for sentence but sentencing was adjourned as he was due to give evidence for the defence at Chan’s trial.  In the meantime, the trial of Chan proceeded before the Judge and a jury, but on an indictment in which Count 1 was amended to allege the offence against Chan only, without reference to the appellant as a co-offender.  On 24 January 2019, Chan was convicted after trial of Counts 1 and 3, with no verdict returned on Count 2 because it was an alternative to Count 1. 

4.On 25 January 2019, the Judge sentenced the appellant for his guilty plea on Count 1.  She considered that the only meaningful mitigation advanced on the appellant’s behalf was his guilty plea.  However, she refused to give him the usual one third discount because he gave evidence at Chan’s trial and was not believed by the jury as evidenced by their guilty verdicts.  Instead, she gave him a discount of 25% on a starting point of 9 years, resulting in a sentence of 6 years and 9 months’ imprisonment.   

5.Both the appellant and Chan sought leave to appeal against their sentences before a Single Judge in respect of the offence of trafficking in a dangerous drug on which they were convicted.  The leave application of Chan was refused, while the leave application of the appellant was granted on the basis that the Judge was wrong in principle not to have afforded him the full one third discount to reflect his guilty plea at the earliest opportunity. [1] This ground of appeal therefore raised for consideration whether a sentencing court can take into account, if at all, the fact that a defendant, who had pleaded guilty, has given evidence on behalf of a co-defendant, who has pleaded not guilty and proceeded to trial. 

6.Having heard submissions, we allowed the appeal and reduced the appellant’s sentence from 6 years and 9 months’ imprisonment to 6 years’ imprisonment, reflecting a full one third discount to the starting point of 9 years’ imprisonment.  We said we would give the reasons for our decision in due course.  These are our reasons.

The trial of Chan

7.The prosecution case at the trial of Chan was that the appellant was seen going to the door of Room A2, on the third floor, of the Wing Shun Building, at 14-16 Shui Wo Building (Room A2) on 22 August 2016.  Police officers were lying in wait and gained entry to Room A2 when the appellant opened the door.  Inside they found Chan and an array of drugs and other apparatus consistent with selling drugs inside the flat, such as weighing scales, packaging equipment and re-sealable plastic bags.  The keys to Room A2 were found on Chan.

8.The prosecution invited the jury to find that Chan was the tenant of Room A2 and paid the rent, and in light of what was found inside the premises there was no doubt that it was being used by him to traffic dangerous drugs.

9.The defence case was that Chan had sublet Room A2 to the appellant.  On the day in question, Chan had gone to Room A2 in order to tell the appellant he had to leave the flat because of a complaint he received from the landlady.  He denied he was involved in the drug activities inside the premises.

The evidence given by the appellant on behalf of Chan

10.The evidence given by the appellant at Chan’s trial was as follows.  He had been renting Room A2 from Chan since August 2016.  He said he came across Chan in the street in Kwun Tong “by chance” and they struck up a conversation.  Chan asked him where he was going and he said he needed a place to live.  It was then that Chan mentioned he had a spare room. Chan then showed the appellant Room A2.  The appellant liked the room and so they agreed on a monthly rent of $8,500, which the appellant paid.^[2]  He was given the key the following day and moved in. 

11.Then, on about 20 August 2016, two days before the offence, Chan knocked on the door of Room A2 and asked to be let in.  The appellant refused him entry and they had an argument, with Chan explaining there had been complaints of undesirable people coming in and out of Room A2.  The appellant said he then shut the door and Chan kicked the door.[3] 

12.The following day, 21 August 2016, Chan returned and explained he would no longer be renting Room A2 to the appellant.  Chan said he knew the appellant had been doing something illegal in the premises and demanded that he move out.  The appellant said that he promised Chan he would move out by 27 August 2016.^[4]  

13.However, whilst they were having this conversation, the appellant said he was inhaling Ice and so asked Chan whether he would like to have some.  Chan accepted and had three or four mouthfuls.  About 5 to 10 minutes later, Chan fell asleep on the table.  The appellant said he then woke up Chan at about 7 am to ask him if he wanted to have breakfast, which he declined.  Therefore, the appellant went downstairs to have breakfast on his own.  After he had finished eating, he returned to Room A2 but realised he had forgotten his key, so he pressed the door bell and Chan opened the door.  It was then the police entered the room.^[5]  Prior to this night on 21 August, the appellant said Chan had never stayed the night at Room A2.^[6]  The appellant said that the batch of drugs found on the top of the fridge belonged to him, as did the scales, the straws, the lighters and the tin foil.^[7]  The appellant said he was the one who had installed the CCTV cameras, and Chan took no part in installing them.^[8]  In respect of the two small bags of dangerous drugs that the police found in the trouser pocket of Chan, the appellant said that they belonged to him.  He said the reason why these drugs were in Chan’s trousers was because when they were inhaling Ice together, he asked Chan if he wanted any, to which Chan did not answer and so the appellant threw out the two packets of dangerous drugs and Chan put them in his trouser pocket.^[9]  The police also found a Samsung mobile telephone in the trouser pocket of Chan.  The appellant said this telephone was his and that he had left it on the table when he went down to have breakfast, and he said did not know how it came to be in the trouser pocket of Chan.^[10] 

14.In cross-examination, the appellant was questioned about the inconsistencies between what he said to the police when first arrested and what he was now saying in evidence.  When he was first arrested, at the scene, he had said he was there simply to borrow money from a man called “Hak Chai”, and this was recorded in a post-recorded statement made by the arresting officer.^[11]  It was also put to the appellant that he had been arrested in the past for drug offences.^[12]  He was asked about the video record of interview, in which he participated on 22 August (the day of the offence), where he said the drugs in that room were not his but belonged to Chan.  It was put to him that after he and Chan were arrested he discussed the case with Chan and it was decided that he would change his story by taking the blame, which he denied.^[13] 

15.The appellant was asked about where the $8,500 came from which he used to rent the room, he said it came from working in a dai pai dong and selling cigarettes.^[14]  It was then put to him that at the time of arrest he had only $105 on him, and that he had earlier said he had come to Room A2 to borrow money.  He was asked why, if he had been renting Room A2 since the beginning of August, he would arrive at the front door with almost no money and no keys.^[15]  It was then suggested to him that this was all part of a “ludicrous story” which he had concocted.  He disagreed.^[16]   

16.In re-examination, the appellant was asked to clarify why he had changed his story from when he was arrested to now.  His reason was that, as he was using a forged identity card when first arrested, and as Chan had admitted in his first video record of interview, that Room A2 belonged to him, he had formed a view to tell a lie and say that he went up to the room to borrow money.  Then, only later, was his forged identity card exposed and he realised he had to tell the truth.^[17] 

The summary of facts for the appellant’s guilty plea

17.The summary of facts the appellant agreed when he pleaded guilty is relevant in so far as he contends it is significant that his evidence at trial was consistent with what was stated therein; the only difference being he was not believed by the jury. 

18.The summary of facts can be summarised as follows:

(1)  On 22 August 2016, police officers raided Room A2, which was a residential flat of about 200 square feet, pursuant to a search warrant.

(2)  There were two CCTV cameras installed outside Room A2 that were connected to a monitor inside Room A2.  The CCTV had no recording function.

(3)  The police officers entered Room A2, as Chan was opening the door for the appellant to enter.  There were four other persons inside.

(4)  The police found the following items in Room A2:

“(a) On top of a fridge of around 3 feet tall:-

(i) One plastic bag containing 17.0 grammes of a crystalline solid containing 16.7 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’;

(ii) A lot of empty resealable plastic bags;

(iii) One packet of straws; and

(iv) One roll of tinfoil.

(b) On a table next to the fridge:-

(i) One ‘Ice bottle’ containing 9 ml of a liquid containing traces of methamphetamine;

(ii) One ‘Ice bottle’ containing 120 ml of a liquid containing 0.16 grammes of methamphetamine;

(iii) One electronic scale;

(iv) Three lighters; and

(v) One opened cash box.

(c) The said cash box contained:-

(i) One plastic bag containing 8.20 grammes of a mixture containing 6.47 grammes of heroin hydrochloride;

(ii) Five plastic bags containing a total of 7.42 grammes of a crystalline solid containing 7.28 grammes of methamphetamine hydrochloride;

(iii) Twenty packets (consisting of plastic wrappings) containing a total of 2.99 grammes of a mixture containing 2.36 grammes of heroin hydrochloride; and

(iv) Thirty packets (consisting of plastic wrappings) containing a total of 7.12 grammes of a mixture containing 5.60 grammes of heroin hydrochloride.”

(5)  Chan was the registered tenant of Room A2.

(6)  The appellant made the following statements in his video-recorded interviews:

“5. In the first video-recorded interview, under caution, the Defendant said inter alia:-

(a) He went to the flat to borrow money from a male nicknamed ‘Hak Chai’.

(b) He knew CHAN was the tenant of the flat.

(c) He knew the 5 bags of ‘Ice’; the two ‘Ice bottles’; the empty resealable plastic bags; the roll of tinfoil, belonged to CHAN.

(d) CHAN would supply him with dangerous drugs upon payment.

6. In the second video-recorded interview, under caution, the Defendant changed his version and said inter alia:-

(a) He admitted full responsibility of the dangerous drugs found in the flat.

(b) He rented the flat from CHAN at HKS8,500.

(c) He sold ‘Ice’ and heroin to drug addicts in the flat.

(d) All the dangerous drugs belonged to him and the two ‘Ice bottles’ were left there by his customers.”

(7)  The retail value of the drugs was about $24,000.

(8)  The appellant admitted he was trafficking in the drugs.[18]

The sentencing of the appellant

19.The Judge remarked that there was nothing remarkable about the appellant’s background, except that he had eleven previous convictions, four of which were for drug offences, including one for trafficking in a dangerous drug in 2002, for which he was sentenced to 4 years’ imprisonment.  She commented that the only meaningful mitigation was the appellant’s guilty plea.

20.The Judge discussed with counsel for the appellant in mitigation, that a defendant was entitled to a one third discount for an early plea of guilty because a court would recognise he had saved the court’s time and it was an indicator of remorse.  But that, as the majority of the jury had rejected his evidence that may indicate his remorse was not “absolute”.^[19]  

21.In her reasons for sentence, the Judge found the appellant lacked full remorse and had wasted the court’s time.^[20]  She also found he had made allegations against the police, which seems to be a reference to his evidence in the voir dire.[21] Therefore, he was not entitled to the full one third discount and she gave him a discount of 25% instead.  After adopting a starting point of 9 years’ imprisonment, she reduced his sentenced to 6 years and 9 months’ imprisonment.

Submissions of the appellant

22.Mr Francis Cheng, for the appellant, submitted the Judge was wrong to have not awarded the appellant a full one third discount. He relied primarily on the case of HKSAR v Chan Mau Chau,^[22] which also concerned two co-defendants jointly charged with the offence of drug trafficking.  One of the defendants pleaded guilty to the charge, and gave evidence for his co-defendant, who contested the charge against him.  The Judge decided not to give him the benefit of a full one third discount, as the jury had rejected his testimony.  The Court of Appeal found the judge was wrong to have done so, basing its reasons on R v Yu Hong-kit^[23] that no man should be discouraged from testifying in a court of law and the principle as stated in R v Lawless[24] which the Court reiterated in the following remarks:

“… Whether he gave evidence for his co-defendant should have no effect on the credit he would have been given. Even if he does give evidence which eventually is not believed and the trial of the co-defendant has thereby been unnecessarily prolonged, much to the dislike of the trial judge, still there is no justification to penalise him for giving evidence.”^[25]

23.Mr Cheng also relied on the following passage in HKSAR v Ngo Van Nam^[26] to emphasise that the one third discount is given for the utilitarian value of the plea of guilty, which subsumes the subjective factor of remorse. 

“200. In contrast to the approach in sentencing in Scotland and Australia, as evidenced in the judgments of the Courts of those jurisdictions, in Hong Kong to a considerable extent this Court has elided the difference between the utilitarian value of a plea of guilty and the subjective factor of remorse. So, other than in exceptional circumstances, the remorse of a defendant who pleads guilty is taken to be subsumed in the discount of one-third afforded for a plea of guilty. As noted earlier, this Court has used the phrase the ‘high water mark’ in a number of judgments in reference to the one-third discount to describe the fact that remorse is subsumed in that discount. Notwithstanding that the practice does not reflect a pure, principled approach to sentencing, we are satisfied that it is not only well established but also working in practice. Accordingly, we are satisfied that it is appropriate to continue sentencing on that basis.”

24.Mr Cheng submitted that the appellant should have been given a full one third discount to his sentence for his timely plea and further points out that nothing in the testimony of the appellant contradicted the summary of facts which he agreed to for the purposes of his plea. 

Submissions of the respondent

25.Mr Felix Tam, for the respondent, submitted the appellant raised new facts, other than those provided for in the summary of facts, which amounted to him, essentially disputing the summary of facts.  Furthermore, the Judge was correct in finding the appellant lacked full remorse and it was entirely appropriate that he was only awarded a discount of 25%, instead of the full one third. 

Discussion

26.As stated by this Court, in respect of cases to be tried in the Court of First Instance, a one third discount from the starting point for sentence usually occurs when the defendant has pleaded guilty in the magistracy, although this is subject to the overriding discretion of the judge in sentence.^[27] There would have to be good reason not to afford a defendant the full one third discount who has complied with the requirement of entering a plea of guilty at the earliest opportunity. 

27.As a general principle, the veracity of a defendant’s testimony in the trial of a co-defendant is not a relevant consideration in the sentencing of the defendant who has pleaded guilty.  However, it would be a relevant consideration where the defendant has used his testimony in an attempt to reduce his culpability prior to sentence.   

28.In R v Wilson,^[28] the Court of Appeal of England and Wales explained that whilst it was wrong not to afford a reduction to a defendant who testified on behalf of a co-defendant, even if his evidence was false or not believed, this would not be the case, if the opportunity to testify was used as a means to downplay the defendant’s own culpability.  The Court said:

“… there is a line of authority including R. v Lawless [1998] 2 Cr. App. R. (S.) 176; R. v Hickman [2000] 2 Cr. App. R. (S.) 171; R. v Gray [2004] EWCA Crim 2376; R. v Lindsay [2006] EWCA Crim 2831; R. v Abdul [2013] EWCA Crim 926; [2014] 1 Cr. App. R. (S.) 30 (p.176) and R. v Mohammed [2017] EWCA Crim 655, which establishes that: (i) as a matter of principle it is wrong to reduce or remove credit for plea solely because the defendant has given lying evidence in support of another in a trial; and (ii) that may be different if the evidence is relied upon by way of a dishonest pre-sentence attempt to reduce the defendant’s own culpability.”^[29]

29.One of the cases referred to in this quoted passage is R v Abdul.^[30]  In that case, one of the applicants gave evidence for his co-defendant, which was seemingly rejected by the jury.  The judge in sentencing, and having been referred to the case of Lawless,^[31]nonetheless concluded he could see no reason why the applicant should be treated differently from where there has been a trial and a defendant has given untruthful evidence which may in turn be taken into account come sentence.  The sentencing judge therefore did not give the applicant the benefit of a full one third discount.  The Court of Appeal held he was wrong to have not done so:

“We have concluded that the learned judge did err in reducing the guilty plea discount in this instance. The applicant’s sentence was factually based on the Crown case and when the applicant had pleaded guilty he had not tendered to the court any basis of plea, nor later mitigation, with an intention mendaciously to reduce his culpability and to avoid being sentenced on the full facts basis advanced by the prosecution. He was therefore, in our judgment, wholly independently of any remorse, entitled, following the Sentencing Guidelines Council’s guideline, to a one-third discount, and, consistent with precedent cited in the lower court, he should not have been deprived of that because of later evidence that he gave, designed not, in terms, to reduce his sentence but to assist his co-defendants then on trial.”^[32]

30.The rationale in Wilson was applied in Hong Kong in the case of HKSAR v Ng Chi Wong and others.^[33]  There, the appellant, who was the 1^st defendant at trial and had pleaded guilty, gave evidence for his co-defendants.  However, in doing so he attempted to downplay his role in matters that went to his culpability.^[34]  The Court of Appeal held that the judge, in such circumstances, was entitled, and so properly exercising his discretion, in not giving him a full discount. 

31.In the present case, the appellant did not seek to downplay his own culpability.  The appellant said the batch of drugs on top of the fridge, which constituted 16.7 grammes of Ice narcotic,^[35] and the scales, straws, lighters and tin foil belonged to him.  He also said he installed the CCTV cameras that monitored the premises.  He tried to explain how the drugs found on Chan were in fact his, but that Chan had somehow secreted them into his own trousers.  It seems he sought to shoulder all the blame, and it may have been because of this and other evidence he was not viewed as credible by the jury. 

32.The summary of facts recorded both of his video records of interview.  In the first interview, he detailed how he went to Room A2 to borrow money; he knew Chan was the tenant of Room A2; the five bags of Ice belonged to Chan; and Chan was the one who supplied him with dangerous drugs.  In the second interview, he admitted the drugs and the drug paraphernalia belonged to him; and he was the one who rented Room A2. 

33.The appellant was asked, in re-examination why he had resiled from his account in his first interview, to which he said:

“… because at first Chan Chi-yeung admitted the fact the unit belong to him, so in the first video recorded interview since I was using a forged identity card I thought I would be able to get free. That’s why I told a lie and said that I went up there to borrow money”.^[36]

34.In respect of the second interview, the appellant said:

“… the police already knew that I was Ma Shu Keung and the unit was rented by me for the purpose of trafficking in dangerous drugs. And in fact, for this unit this was not the first time I got caught red handed.”^[37]

35.Both of these explanations may well be considered to be consistent with the summary of facts in so far as he was explaining why he had changed his story. 

36.Mr Tam submitted that “the appellant had raised new facts other than those admitted by him, which effectively can be considered a dispute of those facts”.^[38] One example he gave was that neither the appellant nor Chan complained to the duty officer after they had allegedly been mistreated.  The Judge, in sentencing found the appellant had made “false allegations”^[39] of violence against the police, explaining:

“… but he went further in his evidence, on oath, before the jury. He not only claimed the drugs were his, he gave evidence about police brutality, that the police upon entering the flat had used a truncheon to hit Chan Chi-yeung, and that was never substantiated by any other evidence.”^[40]

37.The appellant’s evidence on this matter arose in the voir dire and was not before the jury.  Wherein, the appellant said that Chan had been hit by police officers a “few times” with a collapsible baton, in the course of entering of Room A2 and arrest.^[41]  

38.It often occurs during the course of an examination of a witness that additional matters or issues arise, but the question in the context of a defendant’s sentence is whether he has used the opportunity in testifying as a means to diminish his culpability, or as in Abdul to “mendaciously reduce his culpability and to avoid being sentenced on the full facts basis advanced by the prosecution.”^[42]

39.The allegations made against the police were made with a view to advancing the defence case of Chan by providing evidence as to Chan’s state of mind when he was arrested.  Regardless of whether or not what he said about the police officers beating Chan was true, it cannot be that this evidence was deployed as a device by the appellant to lessen his own culpability. 

40.Finally, it is necessary to consider why it is wrong in principle to not have afforded the full discount.  In Lawless,^[43] the appellant pleaded guilty to affray, his co-defendant pleaded not guilty and the appellant gave evidence in his defence.  He was not believed by the jury.  The recorder refused to grant him any discount for his guilty plea.  Thomas LJ, giving the judgment of the Court of Appeal, explained why, in principle, the recorder was wrong not to have done so:

“In our judgment in passing sentence in the way she did, the recorder fell into error and the way in which she passed sentence was wrong in principle. It is of course well recognized that unless there are special reasons to the contrary which sometimes there are, a person who pleads guilty is entitled to credit for his plea of guilty and for his expression of remorse. The appellant did not get that credit. The reason that he did not get it was the fact that he gave evidence on behalf of the co-accused and that evidence was rejected by the jury. As I have said that approach was wrong in principle. Unwittingly the recorder was in truth sentencing this appellant for something in respect of which he had not been convicted, namely telling lies in the witness box. Needless to say a codefendant is not to be encouraged to go into the witness box and tell a pack of lies. However, it is also important that a co-defendant should not be inhibited from giving evidence on the basis that if that evidence should be disbelieved he will lose the credit which otherwise he would get for his plea”.^[44]

41.Whilst in the appellant’s case the Judge did award him a discount of 25%, it should be readily appreciated that any departure from the full one third discount serves, in many instances, as a discouragement for would be witnesses to testify.  This is something to be deprecated.  Here the Judge considered the appellant was not deserving of the full discount because he lacked full remorse, had wasted the court’s time and was “making false allegations” about police officers. 

42.The consideration of a lack of remorse by the appellant confuses the utilitarian function of an early plea, which was stressed in HKSAR v Ngo Van Nam[45] and HKSAR v Lo Kam Fai,^[46] both citing with approval the judgment of Kirby J in the High Court of Australia in Cameron v R,^[47] who noted that the main features of the public interest, relevant to the discount for a plea of guilty, are “purely utilitarian”, resulting in considerable amounts of public time and expense being saved as well as sparing witnesses the inconvenience and, on occasion, distress of attending court in giving evidence.  See also HKSAR v Lam Kai Man,[48] in which Macrae VP discusses the utilitarian value of a guilty plea.[49]

43.The consideration of the appellant giving evidence that was false or disbelieved was in effect punishing him for something for which he was neither charged nor convicted.  Instead of receiving the full one third discount and sentenced to 6 years’ imprisonment, he was in effect punished with an additional 9 months’ imprisonment, by the imposition of a sentence of 6 years and 9 months’ imprisonment. 

44.This statement of principle was reinforced by this Court in HKSAR v Chan Man Chau and Another, unrep., CACC 503/1999, 7 November 2000, in the following terms:

“In our view, the purpose of discount for plea was to give the defendant credit for showing remorse and saving court time in proceedings against him. Whether he gave evidence for his co-defendant should have no effect on the credit he would have been given. Even if he does give evidence which eventually is not believed and the trial of the co-defendant has been thereby unnecessarily prolonged, much to the dislike of the trial judge, still there is no justification to penalise him for giving evidence. If the 2^nd applicant had pleaded not guilty, but he did not give evidence in his own defence, instead he had chosen to give evidence for the 1^st applicant and his evidence was rejected, could a longer sentence be imposed on him because of him giving evidence for the 1^st applicant? The answer must be ‘No’. If it were the opposite, a defendant who pleaded guilty and gave evidence for his co-defendant but was not believed, would be in a worse position than if he had pleaded not guilty. As Liu JA said in R v Yu Hong-kit CACC 323/1995, the fundamental concept is that ‘no man should be discouraged from testifying in a court of law.’ ”[50]

Conclusion

45.The result is that we allowed the appeal and reduced the appellant’s sentence from 6 years and 9 months’ imprisonment to 6 years’ imprisonment. 

Drafting a summary of facts

46.There is also another aspect to this case that warrants comment.  When parties settle on a summary of facts, it needs to be fully appreciated that it plays a very important role in the acceptance of a person’s guilt for a crime committed and in the passing of the sentence against the person for the criminality involved.  It should represent a full and accurate synopsis of the case that correctly reflects the criminality involved and the culpability of the offender. 

47.In the present case, the prosecution put itself in an invidious position where it set out in the summary of facts the appellant’s two diametrically opposed accounts of his involvement in the case: one in which he said the drugs did not belong to him; and the other in which he said they did.  The appellant pleaded guilty to a charge which alleged that he and Chan trafficked in the drugs, although it would seem that the plea was accepted on the basis that the drugs belonged to him.  In the case against Chan, the count on the indictment alleged that Chan trafficked in the drugs without reference to the appellant as a joint offender.  It may be that the prosecution have set out in the summary of facts that the appellant had changed his story but if that was the reason for it being included then that should have been made apparent by stating the factual basis on which the plea had been accepted.

48.It cannot be overstated, as this case illustrates, how important it is that a summary of facts should set out fully and accurately the factual foundation of the criminality for the offence and the basis on which the offender’s guilty plea has been accepted. Exculpatory statements by an offender, which are no longer relied on by him, are frequently included in a summary of facts.  Consideration should always be given to whether such statements are necessary, because if they are not, they may confuse the reader as to whether they remain the position of the offender and whether that position is accepted by the prosecution.

Mr Felix Tam, SPP of the Department of Justice, for the respondent

Mr Francis Cheng, instructed by Ernest Tang Solicitors, for the appellant

[1] HKSAR v Ma Shu-keung, CACC 48/2019, 20 March 2020; and HKSAR v Chan Chi-yeung, CACC 49/2019, [2020] HKCA 170.

[2] Appeal Bundle, 73F-V. 

[3] Appeal Bundle, 74H-75A.

[4] Appeal Bundle, 75B-E.

[5] Appeal Bundle, 75A-O. 

[6] Appeal Bundle, 77 I-J. 

[7] Appeal Bundle, 77M-N and 78A-D. 

[8] Appeal Bundle,78F-H. 

[9] Appeal Bundle, 78I-79B. 

[10] Appeal Bundle, 79E-I. 

[11] Appeal Bundle, 80I-M. 

[12] Appeal Bundle, 80M-P. 

[13] Appeal Bundle, 81D-F. 

[14] Appeal Bundle, 81M-U. 

[15] Appeal Bundle, 82O-P. 

[16] Appeal Bundle, 83S-84E. 

[17] Appeal Bundle, 86A-U. 

[18] Appeal Bundle, 6 and 7.

[19] Appeal Bundle, 13Q. 

[20] Appeal Bundle, 9S-U. 

[21] Appeal Bundle, 30A-K. 

[22] Unrep., CACC 503/1999, 7 November 2000.

[23] Unrep., CACC 323/1995, 11 March 1997.

[24] [1998] 2 Cr App R (S) 17, at 177.

[25] Yu Hong-kit, at 3. 

[26] [2016] 5 HKLRD 1.

[27] Ngo Van Nam, at [211].

[28] [2018] 2 Cr App R (S) 7.

[29] Ibid., at 58. 

[30] [2013] EWCA 926.

[31] [1998] 2 Cr App R (S) 176. 

[32] Ibid., at 184, line 47. 

[33] Unrep., CACC 386/2002, 6 May and 6 June 2003, at [52].

[34] Ibid., at [57]. 

[35] Appeal Bundle, 5.

[36] Appeal Bundle, 86O-S. 

[37] Appeal Bundle, 86S-V. 

[38] See the Respondent’s submissions, at [8]. 

[39] Appeal Bundle, 10A-B. 

[40] Appeal Bundle, 9L-N. 

[41] Appeal Bundle, 26D-F. 

[42] See Abdul, 184, line 47.

[43] [1998] 2 Cr App R (S) 176.

[44] Ibid., at 177. 

[45] Ngo Van Nam, at [47].

[46] [2016] 2 HKLRD 308, at [1].

[47] (2002) 187 ALR 65, at [66]-[67].

[48] Unrep., CACC 246/2019, 27 July 2000.

[49] Ibid., at [34]-[37].

[50] At 3 and 4.