COURT: The 1st and 2nd defendants are jointly charged with an offence of trafficking in dangerous drugs. The prosecution case is that on 28 July 2020, in Room A, 4th Floor, No. 41 Tai Po Road, Sham Shui Po, Hong Kong, they unlawfully trafficked in:
(i) 727.5 grammes of a crystalline solid containing 72.8(721.8?) grammes of methamphetamine hydrochloride;
(ii) 119 grammes of a solid containing 62.1 grammes of cocaine; and
(iii) 986.8 grammes of tablets containing 233.12 grammes of 3-4 methylenedioxymethamphetamine.
Both defendants have since their committal hearing all along been prepared to plead guilty to trafficking to some but not all of the dangerous drugs as quantified in the charge. The 1st defendant admits that he trafficked in 424.6 grammes of ‘Ice’, that is prosecution Exhibits No. 1 and 6. He says the remainder of the drugs belongs to D2. On the other hand, D2 admits that he trafficked in the remainder of the drugs.
The prosecution have refused to accept their pleas of guilty on the basis of their admitting to trafficking in part of the drugs.
When the defendants came to the High Court after their committal, the defendants then agreed to plead guilty to the charge as stated, that is, to all the drugs as charged in the trafficking charge.
The prosecution’s case as it stands now is that they do not accept the plea of the defendants to the drugs as stated in the trial and thereafter to hold a Newton hearing to decide whether they only trafficked in part.
Ms Patricia Alva for the 1st defendant and Mr Andrew Raffell for the defence have submitted that the proper course to take is for the defendants to plead guilty to the charge as it stands, that is as to all the dangerous drugs in the charge, and hold a Newton hearing to decide what quantity of drugs the defendants were trafficking in, and or whether they were jointly trafficking in all the drugs.
The prosecution, represented by Mr Jeevan Hingorani, counsel on fiat, submits that the pleas of guilty should not be accepted and that this case should be tried by a jury on the basis of a not guilty plea.
It is a prosecution case that this was a joint enterprise between the two defendants to traffic in the entirety of the drugs found in Room A and it is for the jury to determine that matter and not a situation where the court should have a Newton hearing.
My Consideration
The question is should the court hold a Newton hearing or should this be a case to be tried by a jury? The following passages can be found in the 10th edition of Cross and Cheung at paragraph 21-28.
“In R v Newton [1982] 4 Cr App (S) 388, 390, Lord Lane CJ said that if the parties cannot agree on questions of fact, the court has [to consider] three choices. First, if the divergence is great, as when it relates to whether accused is guilty of a greater or lesser charge, it is possible to obtain the answer from the jury. Second, the court can itself assume a jury function and reach a conclusion after hearing evidence. Third, the court can hear no evidence and reach a conclusion after hearing the submissions of counsel.”
At 21-29 of Cross and Cheung:
“The Newton hearing is not confined to situations where there is a ‘factual dispute’ between the prosecution and the defence after a guilty plea; so long as there is a ‘material discrepancy between the prosecution and the defence on the facts for sentencing which could have a significant effect on the sentence, the court has to decide whether to hold a Newton hearing’.”
And that’s stated in Secretary for Justice v Chan Yu Tung Anthony [2018] 1 HKC 434, 44(444?). 21-30 of Cross and Cheung:
“If an accused pleads guilty to an offence of trafficking in dangerous drugs, but claims in mitigation that a significant proportion of the drugs was intended for his own consumption and not for trafficking, regard will be had, in determining the issue, to such factors as the quantity of the drugs, their value, the general circumstances, whether the accused is an addict, the explanation given following arrest, and the criminal record, if any; the issue can normally be determined without a Newton hearing [or with a Newton hearing].”
Firstly, upon the prosecution’s submission that this case be tried before a jury. If this case were to be tried before a jury, the direction to the jury on whether the defendant was trafficking in drugs in Room A would be:
“You do not need to find that all the drugs in Room A were trafficked by each defendant. If you find that only part of the drugs in Room A were trafficked by the defendant, that would be sufficient for you to conclude the defendant was trafficking in the drugs in Room A.”
On the basis of the defendant’s pleas and the defence at trial, that is that they admit that they each trafficked in part of the drugs in Room A, it would be inevitable that the jury would find the defendants guilty of the charge.
Upon a jury’s verdict of guilty, their verdict will not specify whether each defendant was trafficking in all or part of the drugs nor will their verdict indicate whether this was a joint enterprise. The issue will still be left for the judge to decide on the facts of the case. In this case, there is a difference in facts which are material to the sentence depending on which version of facts is accepted.
The defence case is in complete contradiction to the prosecution case. For example, the defendants do not admit where each quantity and type of dangerous drugs was allegedly found.
In my view, this case is similar to the case of where a defendant pleads guilty to an offence of trafficking in a dangerous drug, but claims that a significant proportion of the drugs was for his own consumption in which case a Newton hearing would be held to determine the quantity if it was disputed by the prosecution.
In the circumstances, I conclude that it is appropriate for the defendants to plead guilty to the offence of trafficking as charged. The court should then hold a Newton hearing to determine and resolve the following issues:
(1) If this was a case of joint enterprise and
(2) If only part of the drugs only was trafficked by each defendant.
In the circumstances, on the first day of the trial, the defendants shall be arraigned before Deputy Judge Martin Hui and thereafter a Newton inquiry is to be held with the prosecution calling the required witnesses.
I shall now deal with the witnesses to be called by the prosecution and the number of days required.