Secretary for Justice v. Wong Kwok Kau

CAAR000001/2004

CAAR 1/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 1 OF 2004

(ON APPEAL FROM HCCC 383 OF 1999)

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Coram: Hon Stuart-Moore Ag CJHC, Woo VP and Yeung JA

Date of Hearing: 4 August 2004

Date of Judgment: 13 August 2004

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Introduction

1.On 28 April 2000, the respondent was sentenced by Nguyen J to seven years' imprisonment. This represented a mere third of the twenty-one-year starting point originally taken for the offence of trafficking in a mixture containing 845.74 grammes of heroin hydrochloride.

2.The mitigation which had led the judge to impose this remarkably lenient sentence was, as it now turns out, entirely misleading. It had been manufactured to give the respondent the appearance of having really substantial mitigation to place before the court which, in turn, could be expected to make a material difference to the sentence he was otherwise bound to have received under the guidelines in R v Lau Tak-ming & Anor [1990] 2 HKLR 370.

3.In short, by means of a conspiracy with others, who included a police sergeant attached to the Narcotics Bureau, the respondent was able to obtain a confidential report dated 19 January 2000 from the Hong Kong Police Force, purporting to contain genuine information which was duly presented to the court as mitigation. This stated that the respondent had given information that an international drugs trafficking syndicate was arranging a transaction which involved a substantial quantity of methamphetamine (ice) at a hotel in the West Kowloon area. When the hotel room in question was raided, police were able to seize ten kilogrammes of ice worth about $5 million.

4.In reality, as a later ICAC investigation revealed, the respondent had agreed to pay for the purchase of the ice as well as additional expenses such as the work of couriers and others who had been involved in setting up this bogus transaction. The drugs were then hidden inside a hotel room which was duly raided after the Narcotics Bureau had been given a tip-off that drugs were to be found there.

5.In these circumstances, the matter now comes before us as an application by the Secretary for Justice (the applicant), under the provisions of section 81A of the Criminal Procedure Ordinance, Cap. 221, for a review of sentence. Leave out of time was granted for this purpose on 16 January 2004.

6.The principal questions arising from this application are firstly whether we have, in the particular circumstances which have arisen, jurisdiction to take into account fresh evidence with a view to increasing the respondent's sentence and, secondly, if there is such jurisdiction, to what extent, if at all, the respondent's sentence should be increased.

Jurisdiction

7.For the purposes of putting its arguments forward, the applicant has necessarily had to rely on material which has been obtained subsequent to the imposition of sentence upon the respondent. This takes the form of evidence which, on 9 October 2002, was placed before Deputy Judge Day sitting in the High Court when the respondent pleaded guilty (in HCCC 419/2001) to a count of conspiracy to pervert the course of public justice. The applicant sought to have the court records from that case, demonstrating how the respondent had been sentenced to seven years' imprisonment for trafficking in heroin (in HCCC 383/1999) on a wholly false basis, admitted in evidence before us pursuant to section 83V(1)(a) of the Criminal Procedure Ordinance, Cap. 221, on the ground that its reception was necessary or expedient in the interests of justice.

8.The application to adduce fresh evidence was not resisted by Mr Mughal, on the respondent's behalf. However, he submitted that there could, by reason of its admission, be no increase in sentence having regard to section 85V(5). Mr Mughal did not appear for the respondent in the court below.

9.The relevant provisions of section 83V are as follows:

"(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case; ....

(5) In no case shall any sentence be increased by reason of or in consideration of any evidence which was not given at the trial."

10.Additionally, section 81B provides, in respect of an application for a review of sentence by the Secretary of Justice, that:

"(3) For the purposes of this section the Court of Appeal may exercise any of the powers conferred by section 83V."

11.The situation which has arisen is apparently one which is unique in Hong Kong. It has, however, been encountered in the Australian courts and, relying on the decisions of those courts, it was contended by Mr Cross, SC, for the applicant, that section 83V(5) did not operate to prevent the court records in HCCC 419/2001 from being utilised in the resolution of this application. Hong Kong legislation closely follows Australian statutory codes in respect of the point at issue.

12.In R v Beldan [1986] 21 A Crim R 159, where more or less the same point arose for the consideration of the Court of Criminal Appeal in Queensland as we have in these proceedings, false mitigation had been placed before a District Court in Queensland on which the judge had placed significant reliance. The main thrust of the mitigation was that since the commission of her offence, the respondent had been able to gain employment working with an organisation which looked after children who were physically handicapped and, in the event that a non-custodial sentence was imposed upon her, she would be able to continue her employment. The judge conditionally discharged the respondent following which the prosecution appealed against what they contended was an inadequate order. In dealing with the apparent evidential hurdle contained in section 671B of the [1899] Queensland Criminal Code which, for all practical purposes, equates with section 83V(5) of the Criminal Procedure Ordinance, McPherson J, having found that the District Court judge had been materially misled, said (at p. 167):

"On behalf of the respondent Mr White objected to the admission of this further evidence on appeal. He did so in reliance on s 671B, which, after conferring on the court a discretion to receive evidence on the hearing of an appeal, adds the proviso that '... in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial'. Section 671B is one of a group of sections that were inserted in the Code by the Criminal Code Amendment Act 1913 (Q1d), which constituted the Court of Criminal Appeal and, for the first time, conferred general rights of appeal in criminal cases arising out of proceedings on indictment. At that time only the offender was given a right of appeal or of leave to appeal in respect of conviction or sentence, although the court was, on appeal by the offender against his sentence, expressly empowered by s 668E(3) to impose a more severe sentence if of the opinion that it was warranted. The proviso to s 671B was no doubt added so as to ensure that, on such an appeal by the offender, the admission on appeal pursuant to s 671B(c) of further evidence not given at trial should not lead to an increase in the sentence imposed on him. However that may be, there is, as the Chief Justice remarked in the course of submissions before us, no reason why the provisions of s 671B including the proviso should not be applied to an appeal by the Attorney-General against sentence under s 669A once that section was inserted. That was effected only in 1939 by the Criminal Code Amendment Act of that year.

The proviso to s 671B must therefore be taken as extending as much to the present appeal as to any other. Nevertheless, the prohibition it contains is confined to evidence 'not given at the trial'. Whatever may be the limits of the prohibition in the proviso, the evidence now sought to be adduced by the Crown does not fall within them. The material sought to be placed before us is directed at evidence, particularly the contents of the letter dated 14 August 1985 and other statements received from the Bar table under s 650, that was in fact given at the trial and which is said to have involved a deliberate misleading of the court in an influential respect. In cases of that nature courts have shown a strong disposition to interfere on appeal: see, for example, Meek v Fleming [1961] 2 QB 366; Bills v Roe [1968] 1 WLR 925; Skone v Skone [1971] 1 WLR 812. It would be surprising if the prohibition contained in the proviso was designed to cover evidence of that kind."

The court in that case was also concerned with other issues which are of no relevance to the proceedings before us. It suffices to say that the new material which had become available to the prosecution was unanimously held to be properly received and, by a majority, the sentence was varied to twelve months' imprisonment.

13.In R v Ly & Ors [1992] NSW Lexis 7560, the Court of Criminal Appeal in New South Wales, where again the legislation makes a proviso which is for all practical purposes the same as section 83V(5), relied on Beldan in a case where a prisoner, having promised to give evidence for the prosecution in return for which he was given a discount, went back on his promise. In this regard, it should be emphasised that such a situation ought never to arise in Hong Kong because of the practice that no discount should be given based upon a mere promise. In any event, when the promise is given in relation to a trial which is reasonably imminent in this jurisdiction, the prisoner should first be allowed to testify before being sentenced.

14.Nevertheless, Ly & Ors provides an analogous situation to that with which we are now confronted, and led the court, when giving judgment, to observe:

"The proviso to s 12 of the Criminal Appeal Act does not preclude the receipt by this court of evidence to show that the sentencing process miscarried because the sentencing judge was misled."

15.In a further judgment of the New South Wales Court of Appeal, Gleeson CJ relied on Beldan and on Ly & Ors when stating in R v Walters & Anor [1994] NSW Lexis 14223, that the court could review the sentences on the basis that they were procured by fraud. In that case, which in a similar way to Ly & Ors was concerned with the failure of the respondents to honour their undertakings to give evidence against one other involved in their offence, the court considered that it was unnecessary to determine whether the respondents were lying at first instance when they professed an ability to give material evidence against their co-offender or were attempting to mislead the Court of Appeal by their later claim to have fabricated a story about the co-offender. The court stated that:

"The section is not intended to operate on the basis that the Court of Criminal Appeal should set out, at first instance as it were, to punish the respondents for telling lies to the police or to Judge Kirkham. The purpose of the section is to enable the Court of Criminal Appeal to review the sentencing process with the benefit of hindsight, and if it is minded so to do in the exercise of its discretion, to alter the sentence to take account of certain events that have occurred since sentencing and that falsify the basis on which the sentences were imposed."

16.The same point has also been considered in the Court of Criminal Appeal South Australia, in R v J [1992] 64 A Crim R 441 where, again, the legislation is on all fours with section 83V(5). Olsson J, giving the principal judgment of the court, said:

"Whilst the situation now before the Court is not, factually, precisely on all fours with that in Beldan, it seems to me that, as in that case, evidence of the type now in question is not that which the legislature had in contemplation in enacting the proviso to s 359.

There is no doubt that the clear intention of the Parliament was to ensure that, so far as possible, an offender was not unfairly placed in double jeopardy; and that, where further evidence not given at trial is admitted on appeal, that ought not, in the normal course, to lead to an increase in the sentence imposed.

The sole evidence which was tendered in the instant case focuses upon establishing that, as a matter of objective fact, the undertaking given by the offender, as part and parcel of the basis upon which he was sentenced, has not been honoured and that, accordingly, the sentencing process proceeded on a false premise.

When the proviso to s 359 speaks of evidence that was not given at the trial it is, in my opinion, directing its attention to matters going to either the commission of the offence or the personal circumstances of the accused. It is not concerning itself with a situation in which the Crown is merely informing the Court that the person sentenced has failed to honour a specific undertaking given to the Court as an express basis upon which sentence is imposed.

It follows that this Court is entitled to review the sentences imposed upon the footing that, due to the conduct of the respondent, the essential rationale for the sentencing package decided upon by Duggan J has disappeared." (Emphasis added)

17.In the present case, it is accepted, for reasons to which we shall shortly turn in greater detail, that the respondent was dealt with by the judge on an entirely false basis. Mitigation which was designed to deceive the judge, and which did in fact do so, materially affected the sentence he imposed. Necessarily, therefore, this was only discovered after sentence had been passed.

18.Although Meek v Fleming [1961] 2 QB 366, to which the court in Beldan had referred, was concerned with civil litigation, where the defendant's reduction from high rank in the police force for misconduct had been concealed throughout the trial from the judge, jury and plaintiff, in order to maintain his credibility, the principle with which we are now concerned was well-expressed in that case by Holroyd-Pearce LJ (at p. 379) who said:

"Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even, as I think, where it may reasonably have done so), it would be wrong to allow him to retain the judgment thus unfairly procured. Finis litium is a desirable object, but it must not be sought by so great a sacrifice of justice which is and must remain the supreme object. Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to such behaviour, and do even greater harm than the multiplication of trials."

19.We have not the slightest doubt that section 83V(5) was never intended to prevent the consideration by the Court of Appeal of evidence which, if utilised, would have the effect of putting the record straight in circumstances where a judge has been purposely misled into taking a lenient course of action as the result of material being placed before him which had been fraudulently obtained. Whilst it might be said that such conduct in itself amounted to doing an act tending and intended to pervert the course of public justice for which the offender could be additionally punished, such an offence would generally give rise to separate sentencing considerations (see: Attorney General's Reference [No.1 of 1990], 12 Cr App R(S) 245 where it was held that the sentence imposed for such an offence should normally be consecutive to any sentence for the substantive offence in relation to which the act was committed).

20.Accordingly, with these considerations in mind, we admitted the evidence which the applicant had sought to adduce by way of fresh evidence for the purpose of giving consideration to it when deciding whether to increase sentence.

The facts in HCCC 383/1999

21.The respondent's plea of guilty in HCCC 383/1999, which he had entered at Eastern Magistrates' Court, was confirmed before Nguyen J on 28 April 2000. The particulars of this offence were that on 14 June 1999, the respondent had unlawfully trafficked in 1,746.35 grammes of a mixture containing 845.74 grammes of heroin hydrochloride.

22.The summary of facts, somewhat unusually for a case of this gravity, provided almost no detail of the case. This merely described how, at 3:50 a.m. on 14 June 1999, the respondent was observed going up to the seventh floor of a building in Kwun Tong and returning to the ground floor at 5:00 p.m. on the same day. He was then arrested by Customs and Excise officers who found a total of five blocks of heroin in the two bags he was carrying. The respondent admitted he was carrying heroin. The value of these drugs was later estimated to be in the region of $687,600.

23.The respondent, aged 43, has a bad criminal record. The judge's attention was drawn to the respondent's thirteen previous court appearances, the last three of which related to trafficking in dangerous drugs.

Mitigation in chambers

24.The judge heard mitigation on the only aspect of any substance at a hearing which was rightly conducted in chambers. (See: HKSAR v Tse Ka-wah [1998] 1 HKLRD 925). The judge heard that the respondent had provided information to the police which resulted in ten kilogrammes of ice valued at $5 million being seized on 8 July 1999 from a hotel room. There had, however, been no arrests.

25.In the course of the hearing, the judge enquired of counsel then appearing on the respondent's behalf as to the sort of discount he had in mind. Counsel wisely perhaps, in view of what then occurred, did not directly answer this question and indeed tried at one stage, very responsibly, to disabuse the judge of any notion that he could treat the case as one which fell into the "supergrass" category for which a two-thirds reduction in sentence might be appropriate. The judge had raised the topic and counsel had quite rightly discounted it as irrelevant to the case. As to this, firstly, this was plainly not a "supergrass" case. (See, for example, R v Chan Sik-wai & Anor, CACC 134/1999 at p. 9 (unreported)). Secondly, the normal discount for providing information with positive results is usually in the region of 40-45%, with a higher discount of 50% if the offender actually gives evidence from the witness box. This practice is now well-known and is almost always implemented to preserve parity of sentencing.

26.It is unfortunate that in this case matters appear to have gone awry. Having apparently accepted that this was not a "supergrass" case for which a two-thirds discount would be appropriate, the judge hinted to counsel in chambers that he might be minded to give an additional discount of a third in respect of the valuable information provided by the respondent.

27.When the judge later came to pass sentence in open court, he rightly made no mention of the chambers hearing. He gave credit for the timely plea of guilty. He then went on to discount the overall sentence by two-thirds, saying that there were "special circumstances on the papers" which justified him in taking a lenient view. He took a starting point of twenty-one years and reduced this to seven years.

28.On any basis, the sentencing exercise had gone badly wrong. The real foundation for this, leaving aside an apparent misapprehension on the part of the judge about the appropriate limits within which the sentence should have been discounted, was the false material innocently laid before the court by counsel then acting for the respondent.

Conspiracy to pervert the course of public justice (HCCC 419/2001)

29.Almost thirty months later, on 9 October 2002, the respondent pleaded guilty in the Court of First Instance before Deputy Judge Day to conspiracy with Police Sergeant Lai Ka-cheong, a further person identified only by the pseudonym D123 and others unknown to pervert the course of public justice by dishonestly permitting the setting up of a dangerous drug transaction and causing information concerning that transaction to be supplied to the Hong Kong Police, thereby enabling the respondent to obtain a reduction in the sentence imposed on him in HCCC 383/1999.

30.As the respondent's plea indicated, based upon the matters revealed by an ICAC investigation, he had in fact provided no genuine assistance to the authorities at all. The summary of facts in HCCC 419/2001 stated:

"4. Enquiries by officers of the ICAC subsequent to 28th April 2000 revealed that the first accused (the respondent) had provided no information to the police in respect of the D.D. found in Room 1356 of the Royal Plaza Hotel on 8th July 1999 and thus the first accused had intentionally misled the sentencing judge and dishonestly obtained an additional discount of 7 years.

5. The first accused was interviewed by ICAC officers under caution and admitted the offence to which he now pleads guilty.

6. Further enquiries by ICAC disclosed the following facts which are admitted by the first accused:

(a) He had provided no such information to the Narcotics Bureau.

(b) He had conspired with a person identified by the pseudonym D123 and a police sergeant attached to the Narcotics Bureau, Lai Ka-cheong, and others to set up a bogus D.D. transaction solely for the purpose of gaining an additional discount in HCCC 383/1999.

(c) He agreed to pay $600,000 HK for the purchase of the quantity of D.D. which was subsequently found in the Royal Plaza Hotel and for the payment of couriers and other persons involved in setting up the bogus transaction. The bogus transaction was referred to as 'a project'.

(d) He subsequently found out that, in pursuance of the agreement, a quantity of methamphetamine hydrochloride had been purchased and placed in Room 1356 of the Royal Plaza Hotel and a courier had been recruited to collect the D.D. from Room 1356 of the Royal Plaza Hotel.

(e) The first accused knew that Sergeant Lai Ka-cheong would inform the Narcotics Bureau about the location of the D.D. and dishonestly claim to the Narcotics Bureau that this information had come from the first accused whom he had registered as a Narcotics Bureau police informer.

(f) The implementation of the project required the courier to be intercepted in possession of the D.D. by Narcotics Bureau officers so that the first accused through the assistance of Sergeant Lai Ka-cheong could dishonestly gain discount in respect of the find.

(g) The first accused later learnt about the D.D. seizure on 8th July 1999 and learnt that no courier had been arrested.

(h) Sergeant Lai Ka-cheong visited the first accused in prison a number of times before and after 8th July 1999 on the pretext of receiving D.D. information from the first accused."

31.When passing sentence, Deputy Judge Day said:

"Your aim was to provide information to the police enabling them to seize a sizable quantity of drugs and make arrests. The consequence of this and what, of course, you really wanted was that when you came to be sentenced in case No. 383/1999, the sentencing judge was told that you were a valuable informer and the seizure of 11 kilogramme(s) of 'ice' was held up as an example of the help you gave to the police. Your sentence was reduced by 7 years in consequence of the supposed help you had given ....

It is a well-established part of our system of public justice that those who provide assistance to the law enforcement agencies may, in the right circumstances, have that assistance recognised by the court should they find themselves on the wrong side of the law.

Thus, if someone who has provided useful information to the police or the ICAC is himself to be sentenced for an offence, then the judge may be told of his help. The judge may well reduce the sentence he has to pass on the informer in recognition of the help he has given. This is a well-recognised weapon in the war against crime. Public policy dictates that informers should be encouraged to come forward with information that will lead to the arrest and conviction of criminals or the recovery of proceeds of crime. Informers are to be encouraged.

What you have done here, cynically abuses that system. You have twisted it to suit your own purposes. You were prepared to spend in excess of $600,000 to buy the drugs and set up its seizure in order that you could be portrayed as an informer. You were effectively buying your way out of gaol early and the fact that you and your colleagues were prepared to go to these sort of lengths and spend that sort of money to ensure your early release is not without significance. Your cynicism is compounded by the heartless sacrifice of the couriers, the 'piglets' who, if arrested, would have faced upwards of 30 years in gaol ....

Your actions also of course strike at the heart of the system whereby courts reward informants. The courts must be able to assume that the man portrayed to them as an informer is genuinely so described. Your crime makes a mockery of the system and shakes it to its roots."

32.Having taken seven years' imprisonment, the maximum penalty for this offence, as the starting point for sentence, the judge reduced the sentence by a third, to reflect the plea of guilty, making four years and eight months' imprisonment. This was ordered to run consecutively to the seven years being served by the respondent. The judge concluded his sentencing observations with the suggestion that:

".... the prosecution consider whether the Court of Appeal should be invited to review the sentence passed in HCCC 383/1999 in the light of Mr. Wong's guilty plea today; a plea which acknowledges that he misled the sentencing court in that case. Mr. Wong should not profit from his crime, nor should he be seen to have done so."

33.The judge had encapsulated by his remarks the full gravity of the situation. For the record, we should add that Deputy Judge Day's reference to "11 kilogrammes" was in relation to the actual weight of the crystalline solid, which had a narcotic content of just over eight kilogrammes of ice. Its value was estimated to be $4,025,000. The weight was based on the Government Chemist's analysis. In the earlier proceedings before Nguyen J, the police had used only an approximate weight and valuation before the Government Chemist had made his report. However, this disparity is of no consequence to these proceedings.

The application

34.With this background, we can now turn to the application itself.

35.Mr Cross, to whom we express our gratitude for the extensive research he has conducted into the legal aspects of this matter, submitted that the sentence of seven years' imprisonment was manifestly inadequate having regard to the gravity of the trafficking offence and the manner in which the court below had been persuaded to reduce the tariff rate by the deceit which had been practised upon it. A full seven years had been discounted from the original starting point for which there was, he submitted, no entitlement at all.

36.Mr Cross took no exception to the starting point of twenty-one years being reduced by the judge to fourteen years to take into account the plea of guilty. However, there was no justification, he submitted, for a discount of any kind beyond this level. What the judge had described as "special circumstances on the papers" related entirely to a report from the police confirming the mitigation that the respondent had provided information which had led to the seizure of the drugs found at the hotel. The police themselves had been misled into issuing this report which, in turn, had deceived the judge.

37.Accordingly, Mr Cross invited us to substitute a sentence of fourteen years' imprisonment on the indictment for trafficking in heroin.

38.Mr Mughal submitted, having regard to a combination of the delay in bringing this application to court and the fact that a sentence of seven years had been passed which was in addition to the four years and eight months' sentence imposed for the conspiracy to pervert the course of public justice, that the respondent had ultimately received a proper sentence when the whole of the respondent's criminality was considered.

39.We were left unimpressed by the arguments which were advanced by Mr Mughal. In fairness to him, he had very little ammunition available to him with which to attempt to ameliorate the respondent's present position.

40.The respondent has been in custody throughout the time pending these proceedings so that it will not be a case of his having to suffer further incarceration following a release from prison. The delay in making this application between April 2000 and October 2002 is explicable on the basis that the applicant was in no position to make it until the full facts were known. Furthermore, although there was a further delay of about fifteen months, for which no real explanation has been forthcoming, although it is said that the applicant was considering the legal position (in the light of section 83V(5)), the respondent had been put on notice that such proceedings might be instituted from the time Deputy Judge Day invited the prosecution to consider making an application for the review of the drug trafficking sentence. In any event, when delay has occurred, it is only likely to be a relevant consideration if it has been shown to have caused prejudice. In this case, the respondent has been unable to show any.

Conclusion

41.We are satisfied that the judge in HCCC 383/1999 would have imposed a sentence of fourteen years' imprisonment but for the deliberately misleading information he was given about the respondent's cooperation with the authorities which was designed by the respondent, in agreement with others, to put himself into a good light in order to gain an unjustified reduction in his sentence.

42.We shall, therefore, pursuant to section 81B of the Criminal Procedure Ordinance, allow this application and quash the seven-year sentence passed by Nguyen J in HCCC 383/1999. In its place, we shall substitute a sentence of fourteen years' imprisonment on the ground that the former sentence was manifestly inadequate. We have considered, this being a review of sentence at the applicant's instigation, whether there ought to be any downward adjustment to the sentence having regard to a possible perception of double jeopardy. However, we have decided that it would not be appropriate in this case. The respondent has now received the sentence he ought to have had imposed on him at the original hearing and which would have been imposed but for the deliberate deception practised on the judge by the respondent himself. The entire blame for what has happened lies with him.

43.The sentence of four years and eight months in HCCC 419/2001 will continue to run consecutively, as Deputy Judge Day had ordered, making an overall sentence for the respondent to serve of eighteen years and eight months' imprisonment. We have considered totality, as Mr Mughal invited us to do, but we were not persuaded that a wholly concurrent or partially consecutive sentence could be justified in these particular circumstances.

44.Finally, we felt it right to mention that although in this case we have been able to adjust the sentence in a way which now appropriately deals with the respondent's criminality, the factual scenario provides an awesome demonstration of the lengths to which some influential criminals are capable of going in order to extricate themselves from the trouble in which they find themselves. It is not difficult to envisage situations where, for example, false evidence is created with the assistance of corrupt agents within the police, which could lead to an acquittal in a case which was contested. As the law presently stands, there are no circumstances in which an acquitted defendant can be re-tried. Depending on the gravity of the offence which has been alleged, a maximum sentence of seven years' imprisonment for perverting the course of public justice, or conspiring to do so, in the event that the defendant is found out is not, in our opinion, a sufficient deterrent for a defendant who is faced, as the respondent in this review was, with a sentence of fourteen years or more on conviction. We would, therefore, invite Mr Cross, who has informed us that the matter is presently under consideration, to take note of our concern that the maximum sentencing limit for offences of this kind has been set too low. In England and Wales, it is to be remembered that the sentence is at large, giving the sentencer an unfettered discretion to impose an appropriate sentence for the situation which has arisen.

Representation:

Mr I. Grenville Cross, SC, DPP and Ms Vinci Lam Wing Sai, GC, of the Department of Justice, for the Applicant.

Mr Hanif Mohamed Mughal, instructed by Director of Legal Aid, for the Respondent.