Criminal sentencing — road traffic offences — speeding — defendant pleaded guilty to charge which did not specify exact speed of vehicle alleged — whether magistrate had power to conduct Newton hearing to determine exact speed for sentencing purposes — whether magistrate erred in refusing to hold hearing and sentencing defendant on artificial basis
D was charged with speeding and admitted the offence but denied the actual speed alleged of 137 km/h in a 70 km/h zone. At the beginning of the trial, the prosecution sought to amend the summons and summary of facts by deleting the precise speed alleged and told the Magistrate that after conviction on D’s own plea, the prosecution would adduce evidence to prove the actual speed by “somewhere in the nature of a Newton hearing”. The application was granted and D then pleaded guilty to speeding on the amended summons and summary of facts. The Magistrate however queried the legal basis for holding the hearing sought and ruled that there was no dispute on the amended facts to warrant a Newton hearing. D did not advance any mitigation. The Magistrate then sentenced D on the basis that he had exceeded the speed limit by 1 km/h and imposed a fine of $2,000. On an application by the Secretary for Justice (’SJ’) for a review of the decision not to hold a hearing to receive evidence on the actual speed, the Magistrate upheld it and the SJ now appealed against it by way of case stated.
Held, allowing the appeal and remitting the case to the Magistrate to conduct a Newton hearing and to sentence D accordingly, that:
- If the Magistrate erred in law in sentencing D, an appeal by way of case stated could be brought against his decision. If the exact speed of D’s car were proved to have been 137 km/h, ie 45 km/h over the speed limit, the sentence would be much more severe and include a mandatory disqualification order. The exact speed would therefore make a material difference to D’s sentence. (See paras. 31–32, 63.)
- Where there was a plea of guilty, both sides had a duty to ensure that the judge was aware of any discrepancy between the basis of plea and the prosecution case that could potentially have a significant effect on sentence, so that the court could consider holding a Newton hearing. Even where the basis of plea was agreed, the judge retained a discretion (R v. Tolera  1 Cr App R(S) 25, R v. Cairns  2 Cr App R(S) 73 applied). (See paras. 35–37, 52.)
- The prosecutor’s conduct was out of the ordinary. It was not necessary to amend the summons by deleting the exact speed. The proper course was for the defendant to plead guilty to the offence and then for a trial to determine the exact speed in excess of the limit. Notwithstanding, the amended summons here was not a nullity (R v. Yiu Yuk Lun (unrep., HCMA 381/1993) applied). (See paras. 40–42.)
- The amended summary of facts was not the agreed basis of D’s plea for the purpose of sentencing, but a reflection of the extent of the prosecution case that could be admitted by D. There was clearly a serious dispute on a significant fact alleged by the prosecution. Although D was convicted on his own plea and admission of the amended summary of facts, the Magistrate had the power to hold a Newton hearing to decide the actual speed of D’s car. (See paras. 43–47, 54–55.)
- It was the duty of both the prosecution and the defence to assist the Magistrate as to what was the true basis of the plea of guilty tendered by D; and of the Magistrate to sentence D on the true facts of the case. D would not have been prejudiced by a hearing to prove the exact speed of his car. Accordingly, the Magistrate erred in refusing to hold such a hearing; as well as in sentencing D on an artificial basis (R v. Beswick  1 Cr App R(S) 343, HKSAR v. Cheung Cho Fat  5 HKC 400 applied). (See paras. 57–58, 61–64, 66.)
This was an appeal by way of case stated by the Secretary for Justice against the decision of a Deputy Special Magistrate not to hold a hearing to receive evidence from the prosecution as to the actual speed of the respondent’s car after the respondent pleaded guilty to speeding. The facts are set out in the judgment.