Attorney General v. Jim Chong Shing

CAAR000002/1988

Criminal law - practice - observations on the role of prosecuting Counsel at the sentencing stage of a trial.

BETWEEN

Coram: Fuad, V.-P., Macdougall, J.A. & Jones, J.

Date of hearing: 26 July 1989

Judgment handed down: 19 September 1989

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J U D G M E N T

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Fuad, V,-P. (giving the judgment of the Court):

1. This is an application by the Attorney General for review of sentence under s. 81A of the Criminal Procedure Ordinance, Cap. 221, leave having been granted by the Chief Justice on 22nd January 1988. At the conclusion of the hearing on 26th July 1989 we granted the application and now give our reasons.

2. The respondent appeared in the High Court before Bewley, J. and a jury upon an indictment charging him with three offences: attempting to use arms and ammunition with intent to resist arrest, contrary to s.17(1) of the Firearms and Ammunition Ordinance, Cap. 238 ("the Ordinance") (Count 1); carrying arms and ammunition with criminal intent, contrary to s.18 of the Ordinance (Count 2); possession of arms and ammunition without a licence, contrary to s.13(1) of the Ordinance (Count 3). He also faced a charge which was expressed to be alternative to Count 1: resisting police officers in the execution of their duty while in possession of arms and ammunition, contrary to s. 17(2) of the Ordinance.

3. After a trial lasting 7 days, the jury deliberated their verdicts for about 4 hours. They returned an unanimous verdict of guilty on Count 3 and were in effect discharged from giving verdicts on the other Counts upon which they were unable to agree. On the following day, 3rd February 1988, the judge sentenced the respondent to 5 years' imprisonment.

4. The respondent applied for leave to appeal against his conviction. His applications refused on 28th April 1989 (Cr. Appeal No. 79 of 1988): Penlington, J.A. delivered the judgment of the Court.

5. In the light of the jury's verdict, the relevant facts can briefly be stated. The prosecution case was that: the respondent had been wanted by the police for some time on suspicion of having committed other serious offences. Information was received during June 1987 that the respondent was likely to use a public car park in Causeway Bay and might be armed. And so an, observation team was set up which operated on 4 days a week. Acting on further information, in the evening of 11th August 1987, a team of police officers kept watch at various strategic points in the car park. The respondent, who was with his wife, parked his car on the 1st floor of the car park at about 9:30 p.m. that evening. He was confronted by police officers and arrested in one of the car park's lifts. He was found to be in possession of a copy of a .38 calibre Smith and Wesson revolver, loaded with 5 rounds of ammunition which fell out of the "man's handbag" he bad been carrying.

6. The respondent was about 30 years and 6 months old when he was convicted. He is married, with a 4 year old son. He had been before the courts on 6 previous occasions. He was fined for theft in 1974. In 1976 he was fined and placed on probation for taking a car without authority, and for driving without a licence and whilst uninsured. His probation period was extended later in 1976 after he was convicted of resisting arrest. Also in 1976 he was fined and disqualified from driving for dangerous driving and resisting arrest. In 1981 he was sent to prison for 31 weeks for dangerous driving. In 1984, he was convicted of theft, possession of an imitation firearm and possessing an offensive weapon, and sentenced to concurrent sentences totalling 18 months.

7. The respondent told the notice officer who prepared the antecedent statement that he left school at the age of 14 and that he had since worked in garages and later as a dealer in second-hand cars.

8. Mr. Corrigan, then appearing for him, made a short speech in mitigation, submitting in substance that worse cases could easily be imagined, for example where greater quantities of arms and ammunition were involved.

9. The judge then asked the respondent to stand up. Mr. Cagney, who was representing the Crown, intervened and said:

"Does your Lordship wish to hear from me? There are two authorities which your Lordship may or may not have which are possibly relevant. My Lord, these are The Queen v. Cheng Muk-ching, Criminal Appeal No. 29 of 1986, and AG's Application for Review No. 12 of 1985, Lai Shu-piu and another, and my learned friend has got these and I do tender a copy to your Lordship."

10. The learned judge did not respond in words to this invitation but, we are told, allowed copies of the judgments in those cases to be handed up to him. A matter of a few moments later (the transcript records "pause") he turned to address the respondent, as follows:

"Yes, stand up, Jim. I want you to understand that I am sentencing you on the basis of your conviction for possession of a gun and ammunition, only on your possession. There is nothing to be said in mitigation of sentence in this case. The Proper sentence for this offence is 5 years' imprisonment, and that is the sentence of the Court."

11. It is to be noted that the Ordinance provides the maximum sentence of a fine of $100,000 and 14 years' imprisonment for offences under. s. 13(1). In respect of the offences charged in the Counts upon which the jury could not agree, maximum sentences of life imprisonment are prescribed.

12. On behalf of the Attorney General, Mr. Cross submits that the sentence imposed the judge for the illegal possession of a .38 calibre revolver, loaded with rounds of ammunition, was manifestly inadequate. He contends that such a sentence would have been contrary to authority, even on the basis of a plea of guilty. He has drawn our attention, inter alia, to the two authorities Mr. Cagney handed up to the judge.

13. In Attorney General v. Lai Shu-piu and another, 12 of 1985 (28th August 1985, unreported) Sir Alan Huggins, V.-P. said:

"It is implicit that in a case where it was intended that the arms should be used for an unlawful purpose then a higher sentence would be appropriate. Since that case the Legislature [in July 1984] has thought proper to increase the maximum sentence for this offence from ten years' to fourteen years' imprisonment. It is clear therefore that the guideline which was laid down in the case of Wong Ping Kwan must be altered; and we think that the proper sentence on a plea of guilty for simple possession of a gun would be six years'. It follows that where there is an intent to use the gun for an unlawful purpose something in excess of six years' is appropriate.

That decision was expressly approved in Attorney General v. Li Kit-wai, AR 4 of 1988 (16th March 1988, unreported) by a Court presided over by Cons, V.-P. which held that concurrent sentences of 30 months' imprisonment imposed after a plea of guilty to possessing a semi-automatic pistol and a .45 calibre revolver (both loaded) were wrong in principle.

14. In R. v. Cheng Muk-chin , Cr. Appeal 29 of 1986 (20th May 1986 unreported) power, J., as he then was, giving the judgment of the Court, had this to say:

"The judge stated that the proper sentence, if there were no mitigating circumstances, would have been one of imprisonment for six years. We do not agree. Given the seriousness of this offence, we think that, without mitigating circumstances, it would have called for a sentence of imprisonment of 10 years"."

In that case the defendant had admitted possessing two automatic pistols (of 9mm and 7.65mm calibre) and one .38 calibre revolver with about 50 rounds of varied ammunition. Some of the weapons had been used in a robbery. However, the defendant had given evidence for the Crown in connected trials.

15. Another case on Mr. Cross's list was The Queen v. Tsang Kwok-wing, Cr. Appeal 26 of 1988 (21st September 1988, unreported) where the appellant was convicted after a trial of the unlawful possession of two .38 calibre revolvers, one 9 mm calibre pistol and 150 rounds of ammunition. Macdougall, J. (as he then was) giving the judgment of the Court said:

"In view of the nature and quantity of the arms and ammunition involved and the fact that the circumstances of possession were that the applicant had smuggled these articles into Hong Kong [on board a vessel which sailed from Thailand] we do not think that the sentence of ten years for that offence was wrong."

16. Then there was Attorney General v. Tam Kwok-chuen, AR 14 of 1988. (13th January 1989, unreported). The defendant pleaded guilty in the High Court to the unlawful possession of a .32 calibre revolver in working order and 23 rounds of live ammunition. In judgment for the Court, Silke, V.-P. referred to a number of cases including, Cheung Muk shing and Li Kit-wai and held that the sentence of 3 years' imprisonment was wrong in principle and manifestly inadequate. Earlier he had observed:

"The line of authorities set out above makes it quite clear that, as a general guideline, six years after plea would be an appropriate sentence. We, respectfully, reiterate that."

17. We would note here that of the cases just mentioned only Lai Shu-piu (28th August 1985) and Cheung Muk ching (20th May 1986) had been decided at the time the judge passed the sentence which is the subject of this review. However the later authorities did not lay down new guidelines and therefore the respondent is not prejudiced by their citation to us (see Chan Wing-hung v. R. [1976] HKLR 119).

18. On behalf of the respondent, Mr. Howard has submitted that the sentence passed by the judge was entirely appropriate and that the Court of Appeal had not in fact laid down guidelines for this sort of case because, as he put it, one could not "quantify arms and ammunition". He cited a number of decisions of the Court of Appeal which concern firearms offences.

19. In The Queen v. Chan Sik-ping, Cr. Appeal 403. of 1984 (25th October 1984, unreported) a police officer in a very high state of intoxication drew his service revolver,, forced a taxi driver at gun point to lie on the around and fired three shots, one of which hit the windscreen of a van he had stopped. Another shot caused members of the public to flee the scene. After a trial in the District Court he was sentenced to 3 months' imprisonment for being drunk while in possession of a loaded firearm (an offence contrary to s.28 of the Summary Offences Ordinance) and to a concurrent sentence of 30 months' imprisonment for the dangerous or reckless use of a firearm, contrary to s.22 of the Firearms and Ammunition Ordinance. The Court refused his application for leave to appeal against sentence, saying, through Silke, J.A. (as he then was) that a "proper" sentence had been imposed.

20. The next case Mr. Howard cited was The Queen v. Ng Kwok-ying Cr. Appeal 109 of 1986 (15th May 1985, unreported). There a woman was convicted of unlawfully possessing a .22 calibre revolver, 202 rounds of live ammunition and 101 blanks. All these were in her safe deposit box in her bank which she shared with her husband. She was sentenced to two concurrent sentences of three and a half years' imprisonment. The application for leave to appeal against sentence succeeded and the sentences were reduced to 18 months' imprisonment to run concurrently. Penlington, J. (as he then was) giving the judgment of the Court observed:

"The applicant has a young family and there is the strong suspicion that while legally in possession she had no real control over the arms ... we consider this is a wholly exceptional case."

21. We draw attention to the fact that in Tam Kwok-chuen Silke, V.-P. remarked of Ng Kwok-ying: "... the circumstances were wholly exceptional. The sentence is not indicative of sentencing policy."

22. Mr. Howard also cited The Queen v.Wong Wai-yip, Cr. Appeal 156 of 1986 (7th August 1986, unreported). In that case after a trial, the applicant was sentenced to 5 years' imprisonment for the illegal possession of a .38 calibre Smith and Wesson revolver loaded with 6 rounds of ammunition. In dealing with the application for leave to appeal against sentence, Kempster, J.A. observed:

"We do not have to emphasise, because it must be widely known, that the possession of a firearm is an extremely grave offence. Indeed, in a recent application for review this court took into account the present maximum sentence for the offence, being 14 years imprisonment, and expressed the view that the proper sentence on a plea of guilty would be 6 years imprisonment. Before passing from that judgment we remark that it has been brought to our attention [by Counsel for the Crown] that relatively few judgments given after applications for review and which are of a singular importance to the profession and to the judiciary at large find their way into the Hong Kong Law Reports."

23. After commenting upon the facts found by the trial judge, Kempster, J.A. concluded the judgment of the Court as follows:

"Be that as may it will be apparent that the sentences of 5 years imprisonment overall are substantially below the level which this court has indicated as appropriate following a plea of guilty. The applicant was convicted after trial. We also observe from the record that he was a man of bad character. In the circumstances it is open for us to consider whether or not the sentence should be increased but, balancing the factors which we have outlined, we propose only to dismiss the application for leave to appeal against sentence, also."

24. Counsel for the respondent also referred us to The Queen v. Devendra Singh Bagga and another, Cr. Appeal 373 of 1986 (15th August 1986, unreported). There the two applicants arrived at the airport on a flight from Los Angeles with onward tickets to Bombay for the next day. They had to stay overnight in Hong Kong and left their luggage at the airport. They misses their flight for Bombay. They asked what had happened to their luggage and were told that it had been put on a plane for Bombay. This turned out not to be the case. After one week, the suitcases were opened as a routine measure by officers in the Baggage Bond Office. In one suitcase was found a .25 calibre revolver; in the other, a .32 calibre revolver and 100 rounds of ammunition. The weapons were brand new and in working order.

25. The applicants pleaded guilty in the District Court and were each sentenced to concurrent sentences totalling, 12 months' imprisonment. Counsel appearing for the applicants accepted the guidelines laid down in Lai Shu-piu but submitted that those guidelines did not envisage circumstances such as those in the case before the Court. The applicants had been in custody for one month, before being released on bail. The sentences were set aside and the applicants were given absolute discharges.

26. In delivering the judgment of the Court, Macdougall, J. (as he then was) said:

"This is a wholly exceptional case. There was no intention on the part of either applicant to bring the weapons or ammunition through customs into urban Hong Kong nor did they intend to use Hong Kong as a conduit to violate the law of India. Whilst we emphasise that the possession of arms or ammunition without a licence is an offence of a very grave nature, and we reiterate what was said in Lai Shu-piu, we agree that the court did not intend that those sentencing guidelines should apply to circumstances such as those in the present case."

27. We agree with Mr. Howard that it is apparent from what the judge said to the respondent before he passed sentence, that he was anxious to make it absolutely clear that he was dismissing from his mind any views he might have formed of the evidence relating to the more serious charges upon which the jury could not agree. This was, of course, entirely proper and the sentence under review must be approached in the light of this important consideration.

28. Counsel submitted that the respondent did not have a very bad record for the Court night feel that the only relevant previous conviction was his 1984 conviction for possessing an imitation firearm. We had not been convicted of the three far more serious offences he had been facing. Mr. Howard suggested that it was more than possible that the judge, when considering sentence, had not believed the evidence of the police officers upon which the whole case for the prosecution rested. He further submitted that the two leading authorities were, in fact, drawn to the attention of an experienced judge that this Court should assume that he was familiar with them.

29. On the assumption that the learned judge was indeed familiar with what the Court of Appeal had said in Cheng Muk-ching and Lai Shu-piu, we have to say, with very great respect, that he did not have sufficient regard to those cases. Whatever else the respondent might have done at the time of his arrest, he was abroad at night with a servicable revolver which was loaded. He was a mature man and this was not the first time that be had committed an offence against the Firearms and Ammunaition Ordinance. The judge himself recognised that there were no mitigating circumstances and said nothing to indicate why he was imposing a sentence of imprisonment which was lower than the sentence suggested as appropriate by the Court of Appeal for the illegal possession of a firearm following a plea of guilty, where there are no other mitigating circumstances.

30. This Court has on a number of occasions pointed out that guideline cases are not to be regarded as binding precedents and that there will be circumstances which will enable the sentencing judge to depart from the normal tariff. We venture to say the four decisions referred to us by Mr. Howard were just such cases. We would here refer to the remarks made by Roberts, C. J. on behalf of the Court in The Queen v. Yau Koon-yau, AR 12 of 1984 (4th September 1984, unreported):

"It is necessary for us from time to time to reassure judges and magistrates that, when tariffs are issued by this court, they are intended to be guidelines and not strait jackets. There must always be room for a judge or magistrate to exercise mercy and to impose sentences well below the normal range if the circumstances of the case, in his view, justify such a course. So long as he makes it clear that he realizes what the correct scale of sentences is, and states why he has decided to impose a lesser sentence than is usual."

31. We accept, of course, that the respondent must not be penalised for having pleaded not guilty, but in the absence of any mitigating factors, and without the reduction to which the respondent would have been entitled had he chosen to admit the offence of which he was convicted, we had no doubt that the sentence imposed by the judge was demonstrably wrong in principle and manifestly inadequate. We did not think that the excessive leniency shown to the respondent could be justified merely on the basis that the judge wished to demonstrate that he was not influenced by any other evidence in the case save that which related to the respondent's possession of the revolver and ammunition. With respect, we express the view that after making this clear, the judge should have gone on to pass a proper sentence. It should not be necessary for this Court, once again, to stress how serious is this offence. The legislature itself has made this plain enough.

32. It was for these reasons, that at the conclusion of the hearing of this application, we allowed it and decided that the appropriate sentence in all the circumstances would have been one of 9 years' imprisonment and, having made the customary discount for the nature of the proceedings, ordered the respondent to serve 8 years' imprisonment in place of the sentence imposed by the judge.

33. The Crown sought the opportunity afforded by this application of inviting this Court to consider what role prosecuting counsel should play at the sentencing stage of a trial. We therefore heard argument on the point, first from Mr. Cross for the Crown, then in turn from Mr. Sedgwick, Mr. Alan Hoo and Mr. Sarong on behalf of the Bar Association (who naturally wished its views to be taken into account) and finally from Mr. Bell who was appointed amicus curiae for this purpose. He have been greatly assisted by all the submissions made to us. We hope we shall be forgiven if we do not identify which particular submission was made by which of the three Counsel who shared the responsibility of addressing us on behalf of the Bar Association.

34. It is perhaps helpful to say at once that all the Counsel who have addressed us agree that para. 163 of the Bar Association's publication "Conduct of Counsel for the Bar of Hong Yong" states a principle which should not be doubted or relaxed:

"163. Prosecuting Counsel should not attempt by advocacy to influence the Court in regard to sentence. If, however, an accused person is unrepresented, it is proper for Prosecuting Counsel to inform the Court of any mitigating circumstances as to which he is instructed."

No one suggests that it would be acceptable that Counsel for the prosecution should be permitted to press for a particular sentence, or a specific type of sentence, or indeed to invite the Court, in general terms, to take a serious view of the case and pass a heavy sentence.

35. Mr. Cross drew our attention to observations made by Cons, V. -P., delivering the judgment of the Court in Attorney General v. Dominic Cheung Kai-man [1987] HKLR 788, at p.797:

" Mr. Marash, who appears together with the Attorney General in these proceedings, tells us that prosecuting counsel feel in any event very much constrained by the long established practice of the Bar to do no more in respect of sentence at first instance than to state the relevant facts of the case dispassionately and provide personal details of the accused. Where appropriate they would like for example, but feel reluctant, to offer the court information as to sentences passed by other judges in comparable circumstances. On review before this Court much greater latitude is allowed and counsel is permitted to argue the principles of sentencing which he thinks should apply, draw the court's attention to the facts which militate for a heavier or different sentence, seek, by argument, to persuade us that the lower court was wrong and draw attention to sentences in posed in similar cases: Attorney General v. Chan Wai-lan [1982] HKLR 68.

We assume that the practice of the Bar became established at a time when anything in the nature of an appeal against sentence would have been regarded as near heresy. That outlook no longer prevails and it may be that the time is ripe for a reconsideration of the practice at first instance. In any event, while not wishing to encourage prosecuting counsel to press for any particular sentence, we do not think any objection could be raised if counsel came prepared with details of comparable sentences which he could make known to the judge if so requested. Judges are commonly engaged in a variety of different work and most would, we think, he grateful to know that they could rely upon prosecuting counsel in this way."

36. Mr. Cross went on to submit that, traditionally, prosecuting Counsel has always had some role in sentencing, for example, as Griffiths, J. (as he then was) remarked in Re O'Neil (1977) Cr. App. R. 318 " ... it has always been the duty of the prosecutor to acquaint himself as to the maximum sentence the Court can impose and be alert to see that it is not exceeded". It was also clear that prosecuting Counsel will necessarily be involved in assisting the Court to ascertain the proper factual basis for the sentence.

37. The Crown's contention, put briefly, is that it should also be proper for the prosecutor to seek to acquaint the Court with relevant sentencing authorities of which it may not be aware, provided that if the judge accepts the offer of assistance, any relevant authorities are cited dispassionately and objectively, adequate notice having been given to the defence.

38. Mr. Cross asks us to note that in Li Kit-wai (AR 4 of 1988) Cons, V.-P. remarked : "Unfortunately that authority [Lau Shu-piu] was not drawn to the attention of the judge below. It follows that in passive the sentences that he did, the judge erred in principle and the sentences were manifestly inadequate." And Silke, V. -P. commented in Tam Kwok-chuen (AR 14 of 1988): "None of these guideline cases were brought to the attention of the trial judge." All the members of this Court recall other instances when similar comments were made.

"Mr. Cross also cited R. v. Clitheroe (1987) 9 Cr.App.R. (S), 159, where Lord Lane, C.J., at p.162, said:

"We have said before, and we reiterate once again, where the Crown is represented, it is their duty to bring to the notice of the Court decisions which affect the Court in sentencing matters, and where the Crown is not represented, a similar duty rests upon counsel for the defendant or the appellant as the case may be. The sooner that is appreciated by all concerned the better."

39. He also referred us to the commentary on that case by Professor D.A. Thomas, when it was first reported in the Criminal Law Review: [1987] Crim. L. R. 583, at p.584:

"The decision is also interesting for the observations of Lord Lane, C.J. on the duty of counsel to bring to the attention of the court decisions which affect the Court in sentencing matters. It may be that these observations were made primarily with reference to the Court of Appeal (Criminal Division) , but the comments on the duty of counsel ‘for the defendant or the appellant as the case might be' seem to be intended to apply to the Crown Court as well. In principle, it seems that any obligation to ensure that a decision maker has before him all the relevant material should apply as much to the proceedings of a tribunal of first instance as to those of an appellate court, although the issues will often be more clearly identified in the Court of Appeal (where a specific sentence has been challenged on grounds which have been previously identified in the grounds of appeal) than in the Croon Court, before sentence has been passed. If however counsel for the defendant were to base his mitigation in the Crown Court on an argument which is contrary to decisions of the Court of Appeal on matters of principle, it seems to be expected that counsel for the Crown will bring those decisions to the attention of the sentencer if counsel for the defence does not."

40. Mr. Cross argues that, just as it is proper on a review of sentence, it should be acknowledged that it is equally proper, at first instance, for the Crown to put before the Court relevant sentencing authorities. Such an approach, it is suggested, might lead to fewer applications for review. It is also submitted that it' is in the interests of justice that a sentence is imposed which cannot later be criticised on appeal. Defence Counsel, it is pointed out, regularly cite relevant authorities in mitigation; the Crown, says Mr. Cross, also has an important role to play in the sentencing process - a role which must, of course, always be exercised fairly and objectively - in terms of the general duty of prosecuting Counsel to assist the Court.

41. Mr. Cross brought to our attention certain amendments which have recently been made to the 4th Edition of the Code of Conduct for the Bar of England and Wales. A new Annex 7B has been added and we feel that it would be valuable to set it out in full for amplifies what is said about the duties of prosecuting Counsel in the Code itself and goes far to explain the stand taken by the par Association:

"    THE ROLE OF THE PROSECUTION IN THE TENTENCING PROCESS

NOTES FOR THE GUIDANCE OF COUNSEL

(1)    The duties of Prosecuting Counsel are set out in Section 25 of the Code of Conduct. In addition the role of Prosecuting Counsel was the subject of a Committee under the Chairmanship of the Honourable Mr Justice Farquharson which reported to the Chairman of the Bar and the Lord Chief Justice in July 1986. These notes are restricted to the functions and duties of Prosecuting Counsel in relation to the sentencing process and should be read in conjunction with the Code of Conduct and the Farquharson Report. The obligations of Prosecution Counsel are different from those of Counsel instructed for the defence in a criminal case or of Counsel instructed in civil matters. His duties are wider both to the Court and to the public at large. He should not regard himself as appearing for a party. He should lay before the Court fairly and impartially the whole of the facts which comprise the case for the Prosecution. We should assist the Court on all matter of law applicable to the case.

(2)    It is a fundamental principle of the Code of Conduct that Prosecuting Counsel should not attempt by advocacy to influence the Court in regard to sentence.

(3) The Prosecution has recognised the necessary duties which have direct effects upon sentence. These include the decision as to whether a person charged with a criminal offence should proceed to trial; the selection of the charges upon which that person will stand trial; and the selection of mode of trial which distinguish between those cases which are tried summarily or may be tried upon Indictment. In accepting pleas to alternative Counts or some Counts only of an Indictment, the prosecution plays a significant part in delineating the range of sentence to be considered by the Court.

Prosecution Counsel will perform a role in some or all of these decision-making processes. In so doing he performs his role in the interests of the community. The public has an undoubted concern to see that sentences imposed are appropriate and adequate.

(4)    There are obvious ways in which Prosecution Counsel discharges his duty to lay before the Court fairly and impartially the whole of the facts which comprise the case for the Prosecution. At a contested trial the Prosecution calls all the relevant evidence in order to discharge the burden of proving the case and in so doing will provide the sentencer with the factual material which may aggravate or mitigate the sentence.

(5)    On a plea of Guilty the Prosecution will address the Court to provide a proper presentation of the facts of the case.

(6)    On conviction the Prosecution call the evidence of the Defendant's antecedents.

(7)    The Prosecution has a duty to deal with appropriate compensation, forfeiture and restitution matters which may arise on conviction. These will include for example Section 35 of the Powers of Criminal Courts Act 1973, Section 42 of the same Act, the Drug Trafficking Offences Act 1986 and drawing to the Court's attention its powers of criminal bankruptcy in appropriate cases.

(8)    Prosecuting Counsel has further and no less important duties:

(i)    He must make himself and the Court aware of any legal limitations on sentence. Regina v. Clarke (1974) 59 CAR 298. 'Counsel as a matter of professional duty to the Court ... should always satisfy themselves as to what the maximum sentence is. There can be no excuse for Counsel not doing this.' Lawton L.J.

Regina v. Kennedy [1976] CLR 508

Bridge L.J. 'It is the duty of Counsel to inform themselves what are the permissible sentences for the offences with which a defendant is charged, so as to be in a position to assist tile Judge if he makes a mistke...'

(ii)    The Lord Chief Justice Lord Lane has extended this duty to Prosecution Counsel in the Court of Appeal. In his Judgment in Regina v. Clitheroe 23rd March 1987 the Lord Chief Justice referred to conflicting decisions on sentence and a failure of Counsel to cite authorities to the Court of Appeal. 'We have said before, and we reiterate once again, where the Crown is represented it is their duty to bring to the notice of the Court of Appeal decisions which affect the Court in sentencing matter...'

(iii)    In cases where there is a major difference between the factual basis upon which a Defendant tenders a plea and the case contended for by the Prosecution, Reging v. Newton [1983] 77 CAR 13 provides an adversarial role for the Prosecution in establishing the facts upon which to base a sentence for the other sentencing tribunal.

(9)    The prosecution is under a duty to assist the Court to avoid appealable error. It is the duty of Counsel, therefore, to be prepared to assist the Court by directing the Judge to such statutory provisions as may guide him in his sentencing task in relation to specific penalties and to specific classes of offender and to such guidelines as may have been laid doom by the Court of Appeal to assist the Judge in the non-statutory prts of his duties.

(10)    This assistance should be given by the Prosecution on invitation from the Court, or if in the opinion of Prosecution Counsel the Judge has erred on a matter of sentencing law.

This duty to assist the Court is not conducted in an adversarial role but is part of Prosecution Counsel's general duty in the administration of justice.

(11)    A more difficult area is the response of the Prosecution to factually inaccurate mitigation.

If there is an assertion of material facts by the Defence in mitigation, which the Prosecution can prove is wrong, it is the duty of Prosecution Counsel first to inform the Defence that the basis of the mitigation is not accepted. If the Defence persists in the matter it is then the duty of the Crown to invite the Court to put the Defence to proof of the disputed material and if necessary to hear any rebutting evidence. It is a matter for the careful exercise of Counsel's discretion as to whether the inaccurate mitigating facts are of such a nature as to require the intervention of the Prosecution to prevent the Court from proceeding to sentence on a wrong basis.

(12)    The Prosecution has no interest in securing a more severe sentence.

(13)    The public interest is confined to assisting the Court to have access to all available and relevant matters which may affect sentence and to protecting the Court falling into appealable error."

42. The first submission made to us on behalf of the Bar Association was based upon s.9 of the Criminal Procedure Ordinance which is in these terms:

"9. (1) The Chief Justice may make rules and orders regulating the practice and procedure under this Ordinance.

Provided that no such rules and orders shall be binding until the same have been approved by the Legislative Council and have been published in the Gazette.

(2) Such rules and orders may provide for regulating and prescribing forms to he used, the times for or within which documents must he filed or notices given, the duties of the various officers of the court, the manner in which cases and arguments are to be presented, and generally for the better carrying out of the provisions of this Ordinance.

(3) Subject to the provisions of this Ordinance and to such rules and orders and any other enactment (including any enactment relating to juries) applicable thereto, the practice and procedure in all criminal causes and matters (including trials for treason or misprision of treason) shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England."

43. It was contended that in the light of subsection (3) it was not for this Court to alter the practice so that it ceased to be the same As the practice in force in England. The Court had no power to depart from English practice in criminal matters except where a different practice was laid down in an ordinance or by rules or orders made by the Chief Justice under subsection (1).

44. The submission is made that the English practice regarding the role of prosecuting Counsel at the sentencing stage of a trial is quite clear as shown by the two articles from the Criminal Law Review which were referred to the Court. We mention them later. Clitheroe and Dempster were concerned only with the duty of Counsel for the Crown in the Court of Appeal and, in effect, in Dominic Cheng Kai-man this Court had recognised the existing practice in England as being applicable to Hong Kong.

45. In our judgment a matter of the kind we are considering, is simply not within the contemplation of s. 9(3). We lean against a construction of the section which would require the Court of Appeal here slavishly to follow English practice on the point now in issue, despite any views it may have, after full argument and careful consideration, about desirable variations to suit local conditions, unless and until the Chief Justice makes rules on the subject, which have to be approved by the Legislative Council and published in the Gazette. It seems to us that s.9(3) is designed as a "catch-all" provision so that the Courts can resort to English practice and procedure if it turns out that our law or approved practice (which must necessarily change from time to time) is silent on a point which arises.

46. For the Bar Association, stress was laid on the fact that in Attorney General v. Dominic Cheng Kai-man, in the passage cited above, Cons, V.-F. had suggested that Counsel should only give "details of comparable cases" to the sentencing judge "if so requested". It was submitted that the judges were the sole arbiters of the law, including the law relating to sentencing, and this judicial responsibility should not be compromised. The Court should not be informed by the prosecution of applicable tariffs unless the judge felt it necessary to ask for assistance. When the Court did seek assistance as to the prevailing tariffs for a particular offence, prosecuting Counsel should supply the necessary material, without more. And if such material were to be handed up, it should be comprehensive and not selective.

47. The Bar Association also submits that such assistance, when called for, should be restricted to the District and High Courts because so many of the defendants who appear before magistrates are unrepresented, and magistrates deal with comparatively minor cases. They try, we are told, not far short of 1 million cases a year.

48. It is moreover suggested, that where the Court invites prosecuting Counsel to assist during the sentencing process, only decisions of the Court of Appeal should be cited, and then only cases which are identifiable as "tariff guideline cases" - where a statement or re-statement of principle is involved. Cases which are merely "comparables", and involve no discernable principle, should not be cited.

49. On behalf of the Bar Association it is argued that the primary role of the sentencing judge is to exercise his professional skill and judgment. Too close an involvement in the sentencing process by prosecuting Counsel might lead the public to think that the Executive is influencing the judicial process. This danger would be obviated by restricting their role to:

(a)    assisting the court within strictly limited bounds when called upon to do so;

(b)    correcting the Court when it erroneously passes a sentence which is ultra vires or contrary to an established principle of sentencing.

50. We would observe here that in our view, in Clitheroe, Lord Lane, C.J. was speaking of the duty of Counsel in the Court of Appeal, and did not intend his comments to apply to Crown Courts as well, as suggested by Professor Thomas in his commentary on Clitheroe in the Criminal Law Review. We say this because Lord Lane contrasts the position where the Crown is, and where the Crown is not, represented, and the Crown will surely seldom be unrepresented at a trial in the Crown Court. Moreover, it seems to us that the use by Lord Lane of the words "a similar duty rests upon counsel for the defendant or the appellant as the case may be" which was the foundation for the suggestion made by Professor Thomas in his commentary, were probably meant to embrace the situation both where the person invoking the jurisdiction of the Court of Appeal is an appellant proper and where his status is that of an applicant applying for leave to appeal.

51. With great respect to Professor Thomas (even Homer sometimes nods) reading Lord Lane's remarks as a whole, it is clear to us, as submitted by Counsel for the Bar Association, that Lord Lane was concerned that relevant decisions of the Court of Appeal or the principles of activating suspended sentences had not been cited to that Court in two cases decided by that Court during 1982 so that the decisions in those two cases were reached per incuriam. Para. (8) (ii) of the Notes for the Guidance of Counsel set out above can be said to reflect this understanding of Clitheroe.

52. Dempster (1987) 9 Cr. App. R. (S) 176 was an appeal against a sentence of life imprisonment on pleas of guilty to two counts of rape. After Gatehouse, J. had given the decision of the Court of Appeal, Lord Lane, C.J. was, it seems to us, clearly referring to assistance to that Court in sentencing; matters when he added the following remarks:

"..... As problems of sentencing become more and more complicated, so help from the Crown becomes more and more necessary. We very much hope that the Crown will in future be represented on an increasing number of occasions before this Court when questions of sentence are being considered. ...."

53. In Hong Kong, as we all know, the Crown is always represented in every appeal and, unlike the position in England, the Court of Appeal still has power to increase a sentence appealed against.

54. We were referred by Mr. Cross to two articles, both in [1979] Crim. L. R. - the first: "Prosecution and Procedure in Criminal Justice" by Dr. A.J. Ashworth (at pp. 480-492), and the second: "The Role of Prosecuting Counsel in Sentencing" by Graham Zellick (at pp. 493-503). With respect, the second article is particularly helpful for it canvasses the arguments for and against giving prosecuting Counsel a larger role in the sentencing process, dispassionately and with great clarity. Its value is enhanced by the fact, as the author indicates, that he received the benefit of comment on an earlier draft of his article from such distinguished lawyers in this field as Professor Bernard Dickens and Professor John L1. Edwards (both of Canada) as well as Dr. R.M. Jackson and Professor D.A. Thomas.

55. In the general context of the function of Crown Counsel in sentencing matters, our attention was also drawn to the decision of the Full Court in Yuk Chi Fung v. The Queen [1966] HKLR 518 in which, at pp. 521-522, Huggins, J. made the following observations "on the position of the Crown and its advisers" during the hearing of an appeal where the Court was considering the exercise of its power (now contained in, s.83 I of the Criminal Procedure Ordinance) to increase a sentence imposed by the lower Court:

"It has sometimes been said that counsel for the prosecution is not concerned with the matter of sentence and this view finds expression in the report of a lecture by Mr. Christmas Humphreys which appears at 1955 Crim. L. R. 739, 747: 'In the matter of sentence (Crown counsel) will exercise no grain of pressure towards severity, and will leave his opponent to say what he may in the matter of mitigation'. We would prefer to state the rule to be that counsel for the Crown should not ask for or suggest any particular sentence and that he should not indicate what he or those instructing him would consider an appropriate sentence. Although there may be only a subtle difference, we think that it is not only permissible but that it is the duty of counsel for the Crown to draw to the attention of the Court any facts which might affect the assessment of sentence whether as a mitigating or as an aggravating factor. He should not press for a severe sentence, in the same way as counsel for the defence may properly press for a lenient sentence, but he has a duty to ensure that the Court is aware of any matters which might justify, in the public interest, a severe sentence, e.g., the prevalence of a particular type of offece. However, it is for the Court, once it is in possession of all the facts, to suggest to itself the appropriate sentence. It is, in our view, proper for prosecuting counsel to remind the Court of the danger in such cases as this that members of the public will be dissuaded by undue leniency from attempting to assist the Police (and this is a factor which, we venture to think with respect, the learned trial judge did not have sufficiently in mind), but we think it is undesirable that, having brought these matters to the attention of the Court, counsel should himself propose an increase: if the Court is not so strongly of opinion that the sentence is inadequate that it raises the question of its own motion the sentence is not one which ought to be interfered with."

56. Counsel for the Crown and the Counsel who addressed us on behalf of the Bar Association, although for different reasons, agreed that it is important to bear in mind that Hong Kong is one of the jurisdictions in which, by virtue of s. 81A of the Criminal Procedure Ordinance, the Attorney General can apply for a sentence to be reviewed. We have no doubt that this procedure has certain consequences. The Court of Appeal is able to lay down a considerable body of sentencing principles in a wide field, and has done so. Where the prosecution cannot, in effect, appeal against sentence, the field is necessarily narrowed because the appellate courts are only able to consider cases where undue severity is alleged by the appellant, although it is true that an unduly lenient sentence might come to light when disparity in sentencing co-defendants is put forward as a ground of appeal.

57. Decisions of the Hong Kong Court of Appeal, made on appeal or review, which offer guidance to trial Courts cover such offences as: rape; buggery; procuring a miscarriage; drug-related offences; illegal gambling and bookmaking; possession of objectionable articles for the purposes of gain; robbery; offences connected with prostitution; large scale fraud; immigration offences; perverting (and attempts to pervert) the course of justice; illegally exporting stategic commodities; unlawful possession of firearms and ammunition; kidnapping; burglary; illegal possession and use of identity cards; triad offences; persistent shoplifting; fraudulent evasion of profits' tax; pickpocketing; theft by employees and other persons in positions of trust; uttering forged banknotes and bribery and corruption. There are no doubt others which do not immediately come to mind; Some guideline cases deal with the offender (e. g. youthful offenders and those who fall into the "supergrass" category). Some authorities state principles governing, for example, the imposition of concurrent or consecutive sentences and the activation of suspended sentences.

58. We mention here that we understand that the Judicial Studies Board is considering putting together guideline cases in some form of booklet for easy reference by trial judges, and we would respectfully encourage any steps in that direction whatever practice this Court approves.

59. When seeking to demonstrate in the Court of Appeal that a sentence is manifestly inadequate on a review, the Crown regularly (and with the approval of this Court: Attorney General v. Law Chiu Tak [1984] HKLR 23, per Sir Alan Huggins, V.-P. at p. 26E) cites authorities which indicate relevant sentencing principles. Indeed, the leading authorities which lay down such principles are almost always mentioned and relied upon in the Attorney General's written application to the Chief Justice for leave to apply for review. Therefore, this question must starkly be posed: given the power by the Crown to seek the review of a sentence, is it consistent to deny prosecuting Counsel the right to draw the attention of the trial Court to authorities stating principles which might assist the Court to fix an appropriate sentence? The point is touched upon by Matas J.A. in the Canadian case of Regina v. Simoneau (1978) 40 CCC (2d) 307 (Manitoba C.A.). After explaining that in Canada the extent of submissions by Crown Counsel on sentence varied from jurisdiction to jurisdiction, he observed at p.314:

" There is another factor. The Criminal Code makes specific provision for an appeal by the Crown with leave from a sentence imposed by a trial Court. Obviously, Crown counsel in arguing the case on appeal would contend that the sentence was too lenient and that the appellate Court should substitute one which is more sever. I do not see the logic in Crown counsel being authorised to make that kind of argument in this Court but being precluded from recommending a more severe sentence to a trial Judge."

60. Our attention has been drawn to the fact that the Criminal Justice Act 1988 of the United kingdom, which received the Royal Assent on 29 July 1988, makes provision in Part IV (ss. 35 and 36) for reviews by the Criminal Division of the Court of Appeal of certain sentences on the application of the Attorney General, with the leave of the Court of Appeal, where it appears to him that a sentence imposed in the Crown Court was "unduly lenient". The sentences to which that Part applies are those passed for offences triable only on indictment and offences of a discription specified by Statutory Instrument made by the Secretary of State. Part IV of the Act was brought into force earlier this year. The first case to reach the Court of Appeal under this new procedure was heard on 18th July 1989. It will be of interest to see whether the experience of these provisions in practice will result in any modification of the present practice in England regarding prosecuting Counsel's role in the sentencing process.

61. Returning to Hong Kong, since manifestly inadequate (and excessive) sentences, and sentences wrong in principle can be corrected by the Court of Appeal on review, what, it might be asked, is to be gained by depriving the trial Court of such assistance as prosecuting Counsel is able to offer? If the trial judge imposes a sentence which is manifestly inadequate merely because he has not been apprised of authorities which are meant to guide him (although they do not, of course, by their very nature, bind him) such a disposition might result in eventual prejudice to the defendant for he is likely, perhaps several months later, to have to adjust to a severer sentence. As the case before us shows, the delay can be quite lengthy, particularly when a defendant's own appeal against conviction or sentence has first to be disposed of.

62. A judge cannot keep up to date with all the authorities relevant to sentencing. It sometimes happens, too, that important cases are not reported (see the remarks of Kempster, J.A. in Wong Wai-yip quoted above) or are yet to be reported, when the judge is required to consider what sentence he should impose. A judge may have had more experience, or more recent experience, in the civil field of law than the criminal. The Court of Appeal intends trial courts to take into account its views on the proper range of sentence for a particular offence or type of offender. It seems reasonable enough that busy trial judges should be given all the assistance they can get in the difficult task they have to perform, in the interests of the community as a whole.

63. We were told from the Bar, during the course of: submissions made on behalf of the Bar Association, that in England, prosecuting Counsel do not draw the attention of the sentencing judge to guideline cases which deal with the quantum of sentence for particular offences. If this is so, it may partly be due to the fact that there are comparatively few such cases and they are all listed conveniently in Archbold (see para. 7-66 of the 43rd Edition). This list might increase with the implementation of the new review procedure. Moreover, we know that the Judicial Studies Board in England has collected, and made available to judges, decisions of the Court of Appeal laying down guidelines. It seems to us that it would seldom be thought necessary for prosecuting Counsel to draw attention to them. However, we would be surprised to learn that Crown Counsel never think it right to say to a judge, who may have had little criminal experience, something on these lines: "Of course, your Lordship will be aware of the decision of the Court of Appeal in ..... which light assist you", without waiting, to be asked:

64. We would here observe that on the main issue there is perhaps no very great difference in practical terms between the stand taken respectively by the Crown and by the Bar Association. If prosecuting Counsel is to be allowed to mention suitable cases if so requested by the judge, it would, it seems to us, be but a small step if we were constrained to hold that the judge should always seek assistance from Counsel in case there are relevant decisions which have not come to his notice. From there it is but another small step if we were to hold that whenever prosecuting Counsel feels that the trial judge might derive assistance in the sentencing process from appropriate previous appellate decisions, it is his duty to the Court to cite them.

65. We accept that only tariff and guide line cases should be cited by prosecuting Counsel if the practice is to be changed. The observations of Dunn, L. J. in R. v. De Havilland (1983) 5 Cr. App. r. (S) 109, although referring to the citation of cases on sentence to the Court of Appeal, are helpful and support the point made by the Bar Association about the sort of case that prosecuting counsel should be permitted to cite, whether or not the main submission made on their behalf (that assistance should be provided to the judge only if he asks for it) is accepted by this Court.

66. The passage we are about to cite from the judgment of the English Court of Appeal was approved by Hunter, J. A. giving the judgment of the Court in The Queen v. Wan Ho Hung and Others Cr. Appeal 342 of 1988 (30 December 1988, unreported). This is what Dunn, L.J. said at p.114 of De Havilland:

"[W]e think it desirable to say a few words about the increasing practice of citing decisions of this Court relating only to sentence. Apart from the statutory maxima and certain other statutory restrictions, for example, those on the sentencing of young offenders, the appropriate sentence is a matter for the discretion of the sentencing judge. It follows that decisions on sentencing are not binding authorities in the sense that decisions of the Court of Appeal on points of substantive law are binding both on this Court and on lower courts. Indeed they could not be, since the circumstances of the offence and of the offender present an almost infinite variety from case to case. As in any branch of the law which depends on judicial discretion, decisions on sentencing are no more than examples of how the Court has dealt with a particular offender in relation to a particular offence. As such they may be useful as an aid to uniformity of sentence for a particular category of crime; but they are not authoritative in the strict sense. Occasionally this Court suggests guidelines for sentences dealing with a particular category of offence or a particular type of offender ... But the sentencer retains his discretion within the guidelines, or even to depart from them if the particular circumstances of the case justify departure. The vast majority of decisions of this Court are concerned with the facts and circumstances of the particular case before it and are directed to the appropriate sentence in that case. Each case depends on its own facts."

67. And in The Queen v. Cheung Ming Lim [1989] 1 HKLR 415, Macdougall, J.A. who gave the judgment of the Court, referred to R. v. Morris, The Times, 16th December 1987, and commented:

"Their Lordships [in the English Court of Appeal] stated that the Court did not encourage the practice of reading the facts of one case in which there was a successful appeal and suggesting that that case acted as a precedent, compelling another court to take a similar course in the case to which it bore apparent similarities."

68. We see considerable force in the Bar Association's argument that to give prosecuting Counsel the right and duty contended for by the Crown, might be regarded as tantamount to allowing them to address the trial Court on what sentence should be imposed. We think that the point which troubles the Bar Association is very clearly articulated in Graham Zellick's article in the Criminal Law Review when he is putting part of the case against any change in the practice. In his article, [1979] Crim. L. R. 493, at p. 498 he says:

"It may be felt that it would be desirable to allow greater scope to prosecuting counsel to speak to sentence without going so far as to permit a specific recommendation, thus avoiding the unseemliness referred to But, in practice, can such a line be drawn? Once counsel ventures into the principles and criteria and applies them to the case at hand, can he refrain from indicating not only the type of sentence which his researches suggest but also the appropriate range? And having done the latter, he has all but invited the court to pass a particular sentence, albeit not in so many words. Moreover, having permitted some address on sentence, it is difficult to hold the line so that specific recommendations do not eventually come about...."

69. However, in our judgment, if prosecuting Counsel were merely to be allowed to refer to guideline and tariff authorities which might assist the sentencer, and while para. 163 of the Bar Association's "Conduct of Counsel for the Bar of long Kong" stands (as we hope it always will) Counsel will be guilty of professional misconduct if they employ "advocacy to influence the Court in regard to sentence". They would soon be stopped by the Court if they unwisely attempted to embark upon any sort of submission that went beyond the dispassionate reference to authority.

70. Another valid consideration is whether any change in the practice would unduly lengthen the sentencing process. There is, it cannot be doubted, a strong public interest in the imposition of the appropriate sentence in each case and it may also legitimately be argued that consistency of approach is difficult to achieve without having regard to decisions intended to guide sentencing Courts. If only guideline or tariff decisions of the appellate courts are mentioned, and advocacy is strenuously eschewed, it does not seem likely that much extra time would be spent over the sentencing stage of the trial. If it can be maintained that the public interest demands a change in the practice, then the fact that the sentencing process might take a little longer should we accepted with equanimity.

71. If the Judicial Studies Board decides to collect tariff and guideline authorities together in booklet or loose-leaf form (and we respectfully express the hope that they will) the reference to relevant authorities would, perhaps, not always be necessary. We have every confidence that prosecuting Counsel (whether they are members of the Attorney General's chambers or members of the private Bar), would, exercise discretion and judgment in this matter during the sentencing process. They will often know the particular experience of the tribunal before which they are appearing and, in any given trial, may feel it quite unnecessary to make any mention at all of guideline cases.

72. It has also to he remembered that the proper citation by the prosecution of authorities at this stage will sometimes result in a less severe sentence than the judge might otherwise have imposed, had he been made aware of an appropriate guideline case which defence Counsel might have overlooked. The necessity of an appeal would thereby be obviated.

73. The Attorney General and his officers have wide powers regarding the choice of the venue of a trial and the selection of charges, matters which will have a direct effect on the sentence the Court will impose on conviction. The prosecution's role in these matters is very clearly re-stated in paras. (3) to (6) of the Notes for the Guidance of Counsel which we have set out above. None of the duties there reviewed is any different in Hong Kong, and when they are undertaken we cannot believe that the thinking public feels that the Executive is exerting influence upon the Courts. We respectfully do not accept that were the prosecution to be given the severely limited role in the sentencing process which we have discussed, the public would gain the impression that the Executive is influencing the judicial role, as has been suggested on behalf of the Bar Association

74. We recognise the special position of Magistrates Courts where defendants are often unrepresented and where sometimes the prosecution is conducted by lay persons. However, in the more serious cases, the Duty Lawyer Scheme will operate and a lawyer will prosecute; and it is in respect of such cases that guidelines are likely to have been issued or tariffs laid down by the appellate courts. If the practice is in need of change, we see noreason why Magistrates Courts should not be afforded appropriate assistance in fixing the proper sentence. Not a few of the appellate decisions giving guidelines, or fixing, tariffs, concern cases tried regularly in those Courts. No doubt these cases will have to be cited if a magistrate is invited to review a decision he or she has given, pursuant to s. 104 of the Magistrates Ordinance, Cap. 227. Lay prosecutors could be instructed by or on behald of the Attorney General precisely what they should, and should not, do during the sentencing process.

75. Mr. Bell, to whom we are indebted for his assistance as amicus, did not see it as his duty to address us on the desirability or otherwise of any change in the existing practice. He reviewed the proper role of prosecuting Counsel at the sentencing stage and did not challenge or seek to doubt the submissions made on behalf of the Bar Association. He did however submit that Huggins, J.'s observations in the Full Court's decision in Yuk Chi-fung which we have earlier cited were directed to prosecuting Counsel's role in an appellate Court. With every respect to a judge who was always so careful about the language he used, it is not perhaps entirely clear whether Mr. Bell's understanding is right or whether Mr. Cross is on sure ground in suggesting that Huggins, J. was speaking in terms which included Crown Counsel's Responsibility at the trial stage. As we have seen, the learned judge began - [1966] HKLR 518, at p. 521 - with a quotation from a lecture by the late Mr. Christmas Humphreys which clearly concerned the trial, and went on to reformulate "the rule". But having used the word "Court" throughout, without explanation, towards the end of the passage in question he said "having brought these matters [including the prevalence of a particular type of offence] to the attention of the Court, Counsel should not himself propose an increase" words only apt, one would think, to the appellate stage and, as we noted earlier, the Court was considering increasing the sentence imposed by the lower Court and, in fact, did so. We think, therefore, that Mr. Bell's interpretation of Huggins, J.'s remarks is probably right.

76. However, it is generally accepted that the trial Court can take into account the prevalence of a particular offence when assessing sentence, although the cases show how carefully the Court must reflect any such consideration in the sentence it passes. A local decision which states that "the incidence of the offence" is a relevant factor is Kong Ming and others v. The Queen [1977] HKLR 474 (CA).

77. Mr. Bell suggested that it would be a dangerous procedure to allow prosecuting Counsel to address a sentencing Court on the prevalence of a particular offence. We would not encourage prosecutors at first instance to volunteer information about the prevalence of particular offences but they should, we feel, he ready to assist the Court if they have really reliable material which is called for by the judge or magistrate. In most cases the sentencer will himself be aware of the incidence of particular offences and make such use of this knowledge as he or she thinks proper.

78. With regard to the provision of statistics, about which we were also addressed, we know that the Court of Appeal has had regard to them: see e.g. Attorney General v. Chan Chi-man [1987] HKLR 221, at p.225 and Lau Yiu-nam [1996] HKLR 964, at p. 965. As to the lower Courts, in our judgment, there can be no objection to accurate and up to date statistics being given In appropriate cases provided the Court asks for them. However we think it will very seldom be necessary or desirable for statistics to be sought by a trial Court before sentence is passed, and we would not wish to encourage sentencers to seek such information.

79. We are also of the opinion that there could be no valid objection if a Court were to be told of the broad range of sentences being passed for a particular offence if the prosecutor is asked for this information. We feel that he should not volunteer such information for it will, we think, only be called for by a judge or magistrate who has not previously, or recently, dealt rich such offences.

80. If this is not already being done, we respectfully invite the Attorney General to consider issuing directions to prosecutors as to precisely what information they should be ready to give a Court about the prevalence of a particular crime, the range of sentences being passed for particular offences, as well as any information in statistical form. This would ensure that the information provided to the Courts was consistest, fairly presented, up to date and accurate. We do not think that individual prosecutors, some of whom may be inexperienced, should be allowed to provide information of this-kind unassisted and unsupervised.

81. After carefully considering the submissions so ably addressed to us, we summarise our main conclusions:

(a)    prosecuting counsel In the High Court should be permitted to bring decisions of the Court of Appeal to the attention of the trial judge where he or she considers they will help the Court to arrive at a just and proper sentence;

(b)    this should be done before the address in mitigation, and prosecuting Counsel should not be given anything in the nature of a right of reply;

(c)    they should select only cases which are "tariff" or "guideline" cases (by which we mean to include cases which lay down relevant sentencing principles) but not decisions which merely uphold, reduce, or increase a particular sentence;

(d)    they should be careful not to suggest any particular sentence or type of sentence, or to say anything that could be taken as advocating severity;

(e)     the same principles should apply in the District Court and the Magistrates Courts, save that it should be permissible in Magistrates Courts for the prosecutor to draw attention to "tariff" or "guideline" cases which emanate from the High Court on appeal from those Courts;

(f)     where the defendant is represented, the cases intended to be cited should be made known to Counsel or the solicitor conducting the defence.

82. As we promised Counsel at the hearing, we have consulted the President and the other members of the Court of Appeal before handing down this judgment and each has indicated that he is in general agreement with our observations on the proper role of prosecuting Counsel at the sentencing, stage of a trial.

83. Before taking leave of this case, we would mention that after our judgment had been drafted, one of our brethren brought to our attention an article in (1985) 9 [Australian] Criminal Law Journal 202, by I.G. Campbell LL.M. under the title "The Role of the Crown Prosecutor on Sentence". The Crown has a right to appeal against sentence in all the Australian jurisdictions. Mr. Campbell suggests, at p.205: "It is fairly obvious that the opinions cited as representative of the 'hands off' approach to the Crown's role in sentencing are English and that this approach is conditioned by the absence of power in the Crown to appeal against sentencing".

84. Mr. Campbell refers, inter alia, to the "oft-cited" decision of the Full Court of the Federal Court of Australia (Brennan, Deane and Gallop, JJ.) in Tait and Bartley (1979) 46 FLR 386. At p.389 the Court made the following observations:

"The Crown has been said not to be concerned with sentence (see, eg Lawrence J. in Paprika Ltd. v. Board of Trade [1944] 1 KB 327 at 332), but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basic - a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court."

Representation:

Mr. Grenville Cross and Mr. W.S. Cheung (Crown Prosecutor) for the Crown.

Mr. William Howard, Q.C. and Mr. Brian van Burren (Director of Legal Aid) for the Respondent.

Mr. A. W. Sedgwick, Q.C., Mr. Alan Hoo and Mr. Neville Sarony for the Bar Association.

Mr. Adrian Bell, amicus curiae.