New South Wales Court of Criminal Appeal CITATION : REGINA v CHEUNG [1999] NSWCCA 421 FILE NUMBER(S) : CCA 60061/99 HEARING DATE(S) : 9/9/99 JUDGMENT DATE : 17 December 1999 PARTIES : The Crown Ying-Lun Cheung (aka Gary Cheung) (Appl) JUDGMENT OF : Newman J at 1; Simpson J at 78; Hidden J at 78 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70007/91 LOWER COURT JUDICIAL OFFICER : Badgery-Parker J COUNSEL : J V Agius SC/E Wilkins (Crown) J I Doris (Appl) SOLICITORS : Commonwealth Director of Public Prosecutions Stephen Hodges (Appl) CATCHWORDS : Criminal law; verdict; factual basis of verdict; enquiry by judge of jury; discretion; sentence; factors to be taken into account; worst type of case; duty of judge to find the facts after verdict ACTS CITED : Customs Act (Cth) 1901 R v Isaacs (1996-97) 41 NSWLR 374 @ 377 Veen v The Queen (1979( 143 CLR 458 at 466 R v Low (1991) 57 A Crim R 8 R v Petroff (1980) 2 A Crim R 101 at 138-39 CASES CITED: R v Cawthorne [1996] 2 Cr App R (S) 445 R v Warner [1967] WLR 1209 R v Kingswell (1985) 159 CLR 264 R v Bright [1916] 2 KB 441 at 444-5 R v Martin [1981] 2 NSWLR 640 R v Cheung, CCA, unreported, 21 November 1997 (conviction appeal) DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60061/99 NEWMAN J SIMPSON J HIDDEN J FRIDAY, 17 DECEMBER 1999 REGINA v Ying-Lun CHEUNG JUDGMENT 1 NEWMAN J: This is an application for leave to appeal against a life sentence imposed upon the applicant by Badgery-Parker J on 6 August 1993. 2 The applicant had stood trial before his Honour and a jury on a charge of being knowingly concerned with importation of prohibited import, namely heroin, contrary to the provisions of s 233B(1)(d) of the Customs Act (Cth) 1901. 3 After a trial which had commenced on 22 March 1993 the jury brought back a verdict of guilty on 19 May 1993. After hearing extensive submissions on sentence his Honour sentenced the applicant pursuant to the provisions of the Customs Act (Cth) to a sentence of imprisonment for life which was deemed to have commenced on 9 February 1990 setting a non-parole period commencing on the same date, having a duration of twenty-one years and eleven months. 4 The applicant originally filed a Notice of Appeal against conviction. The Notice of Appeal was filed in time but the grounds did not include an application for leave to appeal against sentence. It was the applicant's belief that the originally Notice of Appeal did in fact contain an application for leave to appeal. 5 The present application was filed literally years too late. However, because of the seriousness of the matter and the applicant's false belief as to what was originally contained in the original Notice of Appeal, I am of the view that the court should hear the application for leave to appeal on the substantive grounds raised and excuse the failure to lodge a Notice of Appeal in time. 6 The charge on the indictment alleged that between 1 August 1988 and 12 May 1989 that the applicant was knowingly concerned in the importation into Australia of a quantity of heroin being not less than the commercial quantity of heroin. 7 The Crown case and the material relied upon by the applicant may be summarised as follows. It should be noted that the applicant did not give sworn evidence at the trial but, as was his right at that time, made an unsworn statement from the dock. 8 At the time of the offence the applicant was a Senior Inspector in the Hong Kong Customs Service. On 9 May 1989 a ship named The Nimos berthed at the Glebe Island Container Terminal in Sydney. Its cargo included a freezer and water heater within which were concealed 148 blocks of high grade heroin with a total gross weight of approximately 50 kilograms and a total pure weight of approximately 38 kilograms. The heroin had been shipped to Australia from Hong Kong via Vanuatu. 9 The impending arrival of the heroin had been notified to the Australian Federal Police on 24 April 1989 by a man named Cheung Siu Wah who arrived in Australia on that date. Cheung Siu Wah had been a participant in the export of the drug from Hong Kong in December 1989 and had arranged its shipment from Hong Kong to Vanuatu and its re-packing in Vanuatu for shipment to Australia. He received indemnities from the Director of Public Prosecutions in Hong Kong and Australia and gave evidence for the Crown at the applicant's trial. 10 The applicant had first met Cheung Siu Wah in his role as a law enforcement officer in Hong Kong. He had arrested him for drug trafficking. Cheung Siu Wah became an informant for the applicant. Their relationship progressed to one of friendship and at one stage they planned to go into business together. The business involved the setting up of a garment factory in Vanuatu through a company called Olympic Champion Investment Company. The factory was to be staffed by labourers from China. 11 The applicant travelled to China with Cheung Siu Wah in 1988 to discuss with Chinese officials the arrangements for the recruitment of the workers for the garment factory in Vanuatu. Thereafter the applicant withdrew from this business venture. 12 However after returning from this trip to China, the applicant recruited Cheung Siu Wah in connection with the proposed importation into Australia of heroin from Hong Kong via Vanuatu. There were a number of discussion between the applicant and Cheung Siu Wah in Hong Kong regarding the arrangements for this importation. The first discussion between them took place in about September 1988. The applicant suggested ways in which the drugs could be concealed. They discussed ways to finance the importation and the amount that Cheung Siu Wah would be paid. The applicant said that he was in a position to arrange for people in Australia to receive the drugs. 13 The applicant had another informant who was also a drug dealer. His name was Ng Yun Choi (nicknamed "Ah Kam"). Prior to this importation, Cheung Siu Wah had met Ah Kam through the applicant. The applicant suggested that Cheung Siu Wah meet Ah Kam in connection with this importation. Ah Kam introduced Cheung Siu Wah to another participant in the importation named Cheung Wai Man, whose role was that of a financier in the enterprise. 14 Ah Kam was the liaison person in Hong Kong between a Triad group involving persons named Ko Lo Wah and Siu Lam (nicknames) who were apparently the suppliers of the heroin which was to be exported to Australia; the applicant and Cheung Siu Wah; and those in Australia involved in receiving the drugs. 15 There were a number of meetings in Hong Kong between Ah Kam and Cheung Siu Wah regarding plans for the drug venture. The drugs left Hong Kong in December 1988 for Vanuatu by ship. They were concealed in a van containing twenty sewing machines. Both the van and the sewing machines were to be used in the garment factory in Vanuatu. 16 The Crown case was that the applicant had become aware of the availability of a substantial quantity of heroin for export from Hong Kong and had involved himself in instigating, planning, coordinating, financing and supervising the operation for the movement of the drugs from Hong Kong to Australia. It was the Crown case, and this was not contested by the applicant, that the applicant made no report to the Hong Kong Customs Service of any details of this transaction. There was evidence in the Crown case that he was under a duty to report significant intelligence which he acquired in relation to drug transactions and that he deliberately decided not to make any report regarding this transaction. 17 In January 1989 and February 1989 Cheung Siu Wah travelled from Hong Kong to Vanuatu to arrange the unloading of the drugs in Vanuatu and the repacking and shipment of the drugs from Vanuatu to Australia. Cheung Siu Wah was in Vanuatu on the second of these visits from 26 February 1989 to 18 March 1989. During this time he arranged for two persons named Lo Ling (known as "Charlie") and Kwan Yuk Ming (Known as "Amy") who lived in Vanuatu to repack the heroin in a freezer and water heater and ship it to Australia. 18 Cheung Siu Wah returned to Hong Kong on 19 March 1989, met the applicant and told him of the progress of the drug shipment. The applicant asked to meet Amy who had arrived back in Hong Kong on or about the same date as Cheung Siu Wah. Cheung Siu Wah arranged this meeting for the evening of 20 March 1989. He and his wife gave evidence that they left the applicant talking to Amy at the Wing Wah restaurant in Hong Kong. The applicant denied that this meeting took place. 19 There had been delay in the shipment of the drugs from Hong Kong to Australia, and shortly after 20 March 1989 the applicant directed Cheung Siu Wah first to return to Vanuatu and then to travel to Sydney to appease those in Sydney who were waiting for the drugs to arrive. 20 From his arrival in Australia on 24 April 1989, Cheung Siu Wah cooperated with the investigation by the Australian Federal Police, who recorded pursuant to a warrant, a number of telephone conversations between Cheung SiuWah and others concerned in the drug importation. These included three telephone calls from the applicant to Cheung Siu Wah which on the Crown case contained a series of instructions or directions or suggestions as to how to complete the importation and requests for information consistent with the applicant being an active participant in the importation. 21 The originally intended recipient of the drugs in Australia was a Chinese man living in Melbourne who had come to Sydney to receive the drugs. His name was Tsui Lok Ping (known as Ah Ting). 22 The Australian Federal Police recorded a number of telephone conversations between the applicant and Cheung Siu Wah between 24 April 1989 and 9 May 1989 concerning the delivery of the drugs. These became exhibits at the trial. Ah Ting was observed by Australian Federal Police in Sydney during this period with Law Yat Kai and Law Chiu Chun (nicknamed "Sha Tsang"); two Chinese men from Hong Kong who on the Crown case had arrived in Australia to assist in the importation and delivery of the drugs. Due to the repeated delays by Cheung Siu Wah in delivering the drugs in Australia, Ah Ting and his companions withdraw from the enterprise on 10 May 1989 and went to Melbourne. 23 The drugs were ultimately intercepted by the Australian Federal Police who confiscated all but two blocks of the heroin which were repacked with other substitute blocks. New receivers of the drugs were arranged through Ah Kam in Hong Kong. These were Hong Kong Chinese men by the name of Chi Tak Leung (Chi) and Chan Kam Wah ("Chan"). 24 Cheung Siu Wah eventually delivered the drugs to Chi on 11 May 1989 in a motor vehicle that Chi drove away and parked in Surry Hills. This delivery was filmed by Australian Federal Police. The vehicle containing the drugs was collected soon afterwards by a local Chinese man named Sik Lam. 25 Evidence of the observations by the Australian Federal Police of those concerned in Sydney with the importation and delivery of the drugs was reduced to a written observation schedule which by consent became an exhibit in the applicant's trial. 26 On 11 May 1989, Chi, Chan and Sik Lam were arrested in Sydney. On 12 May 1989, Law Yat Kai, Law Chui Chun and Lok Ping Tsui (Ah Ting) were arrested in Melbourne and Cheung Wai Man Ng Yun Choi (Ah Kam) and the applicant were arrested in Hong Kong. 27 The applicant participated in two interviews with the Hong Kong police and the records of these interviews became exhibits at his trial. The applicant also gave sworn evidence during his extradition hearing in Hong Kong. The notes of this evidence became exhibits at his trial. His evidence at pre-trial proceedings in Australia in August 1992 was also read to the jury at the applicant's trial. In summary from that material, the applicant stated that he had not made any reports concerning this importation as he was trying to protect the lives of his informants Ah Kam and Cheung Siu Wah. He intended to report this matter once delivery of the drugs had been made in Australia and his informants were safe. His statement from the dock was consistent with the sworn evidence he had given during the extradition proceedings. 28 The Crown relied as corroboration of the evidence of Cheung Siu Wah upon the following material: 1. evidence of the applicant's failure to make any reports concerning this importation when he had a duty to make such reports; 2. evidence of what the applicant said in the three telephone calls he made to Cheung Siu Wah during the course of the importation; 3. lies told by the applicant in relation to the alleged meeting with Amy in Hong Kong on 20 March 1989, and in relation to three intercepted telephone calls to Cheung Siu Wah. 29 It was the Crown case that, leaving aside the evidence of Cheung Siu Wah, the above corroborative and circumstantial evidence was capable of independently satisfying the jury beyond reasonable doubt that the applicant was knowingly concerned in the importation. 30 Thus the Crown case went forward on two bases: (a) either the jury could accept the evidence of the informant Cheung Siu Wah as corroboration as the Crown suggested it was; or (b) the jury could put that evidence entirely to one side and take the evidence advanced as corroborative material as substantial and the statements made by the accused as being in support of the substantial case raised by the accused and still convict the accused of the offence. 31 His Honour, having carefully reviewed the evidence in the trial, found, as a fact, that the Crown had established the first bases upon which it relied. 32 Before his Honour and before this Court there was no substantive submission made that if his Honour was correct in so finding then this case did not fall within the category of the worst type of case and thus the sentence option of the maximum penalty namely life imprisonment was open to his Honour. 33 His Honour in finding the facts accepted the veracity of the evidence of Cheung Siu Wah in relation to the essential matters relied upon by the Crown, specifically finding that the matters of corroboration relied upon by the Crown were made out. 34 His Honour rejected the applicant's contention that his failure to report the matter prior to the importation was motivated by his desire to protect the lives of his informants, Ah Kam and the said Cheung Siu Wah. 35 The matter of this motive was raised as I have indicated, by the applicant in his sworn evidence during the extradition proceedings and in his unsworn statement from the dock. 36 In rejecting the applicant's contention as to his motive in not reporting the matter, his Honour relied, inter alia, upon the fact that the jury had rejected, by its finding, the applicant as a witness of truth and in particular his Honour found that the jury must have rejected the applicant's denial that he had any intention to advance or assist the importation. 37 Prior to making that observation his Honour found: "I am satisfied that the prisoner's attempt to explain the tapes both to Magistrate Carlson in Hong Kong and to the jury here were false. I am satisfied that he lied. I am satisfied that I can place no credence on what he has said." 38 This finding came after a careful analysis of all the material advanced in evidence in the case. 39 I turn then to the grounds raised on the appeal. Ground 1: That his Honour should have asked the jury whether they found the applicant guilty on the Crown's primary case or on the alternative. 40 The applicant's submission here may be simply expressed. The learned trial judge had a power to ask the jury on which bases they had found their verdict and should have done so. 41 The first question which arises is whether in criminal cases other than those involving the crime of manslaughter such power exists. 42 In R v Isaacs (1996-97) 41 NSWLR 374 at 377, the court which consisted of five judges, observed as follows: "In the light of authorities extending back over a century, it must be accepted that there is a power in a trial judge, in a case such as the present, to ask a question of the jury, after verdict, of the kind in contemplation. However, we consider that the exercise of such a power is, save in exceptional circumstances, to be discouraged rather than encouraged. Far from criticising Newman J for not questioning the jury as to the basis of their verdict, we consider that I tis ordinarily better not to ask such a question. The following principles concerning the law and practice of sentencing in this State are well-established: 1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury: R v Harris [1961] VR 236; see also Kingswell v The Queen (1958) 159 CLR 264 at 283, per Mason J. 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1. 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury. 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris. … In R v Solomon (1984) 6 Cr App R (s) 120 at 126, Beldam J said: 'In a criminal case the jury cannot bring in a special verdict. The verdicts open to them are guilty or not guilty. … The only instance we have been able to find in which it might be said to be common practice to go behind the general verdict and to enquire from the jury the basis on which it was reached is in the case of a verdict of manslaughter, when the jury may have reached their decision on alternative grounds which have been left to them by the judge.' 43 The court having cited Stephens J's acknowledgment of the existence of such a practice in cases of manslaughter in Veen v The Queen (1979) 143 CLR 458 at 466 the court observed that while the power to question the jury as to the basis upon which they brought a verdict of manslaughter has long been acknowledged there has been disagreement as to the wisdom of the practice. 44 It should be noted that Lee CJ at CL in R v Low (1991) 57 A Crim R 8, approved the practice whereas Roden J in R v Petroff (1980) 2 A Crim R 101 at 138-139 criticised the wisdom of the practice. 45 The court expressed the view at 379 that Roden J's reasons in advancing his criticism of the practice were convincing. 46 Roden J's conclusion in Petroff at 138 was as follows: "The relevant principles regarding jury verdicts in criminal trials I believe to be clear. They can be stated simply. The jury is required to return a verdict, and no more. More may be added by way of rider or recommendation, but ought not to be sought. Provided that the jury's verdict is as a matter of law supportable on the evidence, that is the end of the matter, and no question ought to be asked, as to the grounds upon which the verdict was arrived at as a matter of law, or as to the findings of fact upon which it was based. It is no part of the jury's function to decide questions of fact which are not necessary for the purpose of their verdict. Facts relevant to sentence are for the sentencing judge. His findings must be consistent with the verdict." 47 In Isaacs the court then set out seven considerations which the court stated should lead trial judges to refrain from asking the jury the basis of a verdict of manslaughter, save in exceptional cases. 48 In England, the Court of Appeal in R v Cawthorne [1996] 2 Cr App R (S) 445, their Lordships observed that in many cases there were grave dangers in asking juries how they had reached a particular verdict. 49 I should add that in R v Warner [1967] WLR 1209 Diplock LJ (as he then was) appeared to have approved the practice of asking a jury questions as to the basis of their verdict. At 1213-1214 Diplock LJ seeming to approve of the practice was the subject of doubt as to its correctness. 50 In an article in the Criminal Law Review written by Professor JC Smith [1968] Crim LR 177, Prof Smith held: "The 'common practice' spoken of by Diplock J certainly seems to be inconsistent with the decision in Larkin. There are certainly serious difficulties in the way of getting the jury's view of the facts. In the present case, for instance, it is conceivable that some of the jury thought manslaughter the correct verdict on the ground of provocation and that others thought that it was the correct verdict on the ground of excessive self-defence. The foreman would be entitled to say that 'guilty of manslaughter' was the verdict of them all; but on what basis should the Judge sentence if he knew of the division of jury opinion." 51 It should be noted that Warner like this case involved a drug offence. 52 Isaacs was, as I have said, a case involving a finding of manslaughter by a jury. That verdict in a case where the appellant had been indicted on a charge of murder resulted from the jury finding, either that the Crown had failed to discharge its onus to exclude provocation or that the accused had succeeded in establishing, on a balance of probabilities, the defence of diminished responsibility. The court was careful to confine its remarks to cases of manslaughter. 53 In the light of the approval given by the court to the reasoning advanced by Roden J in Petroff, it is doubtful whether the power exists in New South Wales in cases where the finding of the jury does not involve manslaughter. 54 If such a power does exist in relation to crimes other than manslaughter the exercise of power is, of course, discretionary. In the instant case no request was made by counsel for the appellant for such a question to be asked. 55 Because the matter is discretionary the absence of such a request at the trial would in most cases result in this Court refusing leave to appeal. However, as this case involves the most severe penalty the law imposes upon a citizen, namely a life sentence, this Court would be loathe to utilise r 4 to refuse leave to appeal. 56 It was submitted that an important reason why his Honour, even though he was not asked so to do by counsel, should have asked the jury as to the basis upon which they found, was that as it was a jury's duty to find the facts which supported a conviction, his Honour by not asking them the suggested question effectively negated the appellant's right to be tried by his peers. 57 Reliance in this regard was placed upon the Magna Carta. In the 1297 version the following extract appears: "[29] No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right." 58 This it is said, founded observations to be found in the High Court in R v Kingswell (1985) 159 CLR 264. There Deane J at 319 said: "In the light of the conclusion which I have reached about the effect of the reference to 'trial on indictment', the starting point of a consideration of the s 80 argument in the present case is that the section is not 'a mere procedural provision'. It embodies a constitutional guarantee of trial by jury in any case where a person is charged by the Commonwealth or an agency of the Commonwealth with a serious offence against a law of the Commonwealth. The content of that guarantee (where applicable) is not to be determined on the basis that the guarantee itself can be avoided completely by a procedural technicality so that the wider the content of the guarantee in a case to which it is applicable the stronger will be the incentive to avoid the guarantee altogether. To the contrary, the conclusion that the guarantee represents an effective restrain upon Commonwealth legislative power necessitates the approach that the words of the fundamental law which it embodies must, in accordance with settled principles of constitutional interpretation, be given their full force and effect." 59 Earlier, reference had been made by Gibbs CJ, Wilson, Dawson JJ to the rule adumbrated by Darling J in R v Bright [1916] 2 KB 441 at 444-445 where he said that the judge: "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation." 60 Gibbs CJ, Wilson and Dawson JJ at 280 then went onto say: "The rule of practice laid down in R v Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice in R v Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed." 61 It was put that what had fallen from the High Court in Kingswell supported the general proposition that by finding the facts of the matter without first making the subject enquiry of the jury, Badgery-Park J fell into error. Furthermore, it was submitted that the decision of this Court in R v Martin [1981] 2 NSWLR 640 was wrong. 62 In Martin's case Hope JA delivering the lead judgment of the court, found: "In criminal proceedings where the nature of the charge and the nature of the verdict of the jury do not identify for the judge or for anyone precisely what facts the jury has accepted as being proved to its satisfaction beyond reasonable doubt, the trial judge should, as the basis for sentence, form his own view of the facts, within the ambit of the verdict and of the charge; and in forming that view he must be satisfied beyond reasonable doubt." 63 At 643 he went on further to observe: "Accordingly, the learned trial judge was in error in coming to the conclusion that he was bound to act on the basis of that version of the facts which was most favourable to the accused. He was bound to look at the evidence and to determine for himself, upon the criminal onus, what facts he should act upon." 64 It was thus submitted that in the light of what had fallen from the High Court in Kingswell, Martin's case was wrongly decided. Let me say at once that Badgery-Parker J in adopting the course which he did in fact finding did not transgress in any way the principle adumbrated in Martin's case. 65 It must be remembered that in Kingswell the High Court was dealing with the matter of statutory aggravation of an offence created by s 233B(1)(cb) and the application of s 235 of the Customs Act to the penalty available for that offence in certain circumstances. 66 Not only am I of the view that the considerations in Kingswell are not relevant to the matters raised here but the principles stated in Kingswell do not offend what fell from Hope JA in Martin and what, may I add, fell from the court at 377-378 in Isaacs. 67 The applicant was, in fact, as the Magna Carta dictated, tried by his peers and found guilty of an offence by them. It should be noted that the Magna Carta in the relevant extract says not only that a man will not be condemned "but by lawful Judgment of his Peers" but also it adds, disjunctively, "or by the Law of the Land." 68 What Badgery-Parker J did in this case was, in my view, to correctly apply the law of the land in carrying out his sentencing function in the manner in which he did. 69 Even if there is a discretionary power to ask a jury in a case involving this offence, a question, I am of the view that Badgery-Parker J did not err in not asking such a question. Accordingly this head of appeal must fail. 70 The above discussion involves, of necessity, a consideration of the further submission made that the approach taken by Badgery-Parker to determine the appropriate factual basis for sentencing was in error. 71 As I have said his Honour followed the approach approved of in Martin and in my view in Isaacs and that he was not obliged as was submitted, to find the facts consistent with the alternative case. 72 In this regard it was strongly submitted that because the applicant's motive was to protect his informants, a sentence of three to five years would have been appropriate. 73 It is implicit from the jury's finding that even if they had found the applicant guilty on the alternative basis in so doing they found that the applicant intended to take part in the unlawful importation of heroin. Motive could have formed no part of their consideration. 74 The question of motive was raised by senior counsel for the applicant during the sentencing proceedings. His Honour's findings indicate emphatically that he did not accept that the applicant's conduct was motivated by ultraism. This submission must also thus fail. 75 Finally, it was submitted that s 61 of the Criminal Appeal Act 1912 applied to this case. It was urged that what transpired was a wrong decision on a question of law involving a substantial miscarried of justice. Substantial because it was put that the difference between the sentence the applicant would have received had his Honour utilised the alternative basis of conviction in finding the facts, resulted in him receiving a sentence which was far in excess of that which he in fact received. 76 In the light of the view I have already expressed, namely that his Honour was not in error, this submission must, of course, fail. 77 Accordingly while because of the seriousness of the matter I would grant leave to appeal, I would dismiss the appeal. 78 SIMPSON and HIDDEN JJ: We agree with the order proposed by Newman J and his Honour's reasons. 79 It may have been preferable for the indictment to have contained two counts, to reflect the significantly different bases upon which the Crown put its case. However, no such point was taken at the trial. Nor was it in the conviction appeal: R v Cheung (CCA, unreported, 21 November 1997). Accordingly, it fell to the learned trial judge to find the facts for the purpose of sentence and it was open to his Honour to arrive at the conclusions he did. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.