HKSAR v. LOW LING LEE

CACC 35/2017

[2022] HKCA 309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 35 OF 2017

(ON APPEAL FROM HCCC NO 244 OF 2014)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  On 3 February 2017, the applicant was unanimously convicted before D’Almada Remedios J (the Judge) and a jury of a single count of trafficking in a dangerous drug, namely, 3.97 kilogrammes of a powder containing 3.25 kilogrammes of cocaine. She was sentenced to 27 years and 6 months’ imprisonment.

2.  Having initially applied for leave to appeal against conviction and sentence, the applicant subsequently abandoned her application in respect of sentence and now only pursues her application in respect of conviction.

The prosecution case

3.  The prosecution case was that the applicant was one of the principal organisers in smuggling a large quantity of a dangerous drug from Malaysia into Hong Kong. She recruited Lim Aun-paik (Lim, who was PW1 at trial) and Poh Seng-han (Poh, who was PW2 at trial) to act as couriers. There was also a third courier that she had recruited, Tan Boon-kwang (Tan), but he was stopped and arrested by security officers at Kota Kinabalu Airport. The applicant accompanied the couriers and made all necessary arrangements for their travel and accommodation as well as arranged for them to carry the dangerous drugs, which had been provided by another person, known as “Yap”, when they stopped over at Kota Kinabalu, having begun their journey in Penang. The applicant worked for a person whom she referred to as the “Boss”.

4.  Lim met the applicant in September 2013 through a friend. She offered him a job of bringing “medicine” to Hong Kong for a fee of 20,000 Malaysian ringgit. He thought about it and in October he accepted the job offer.

5.  On 20 October 2013, Poh was introduced to the applicant by Tan (also known as “Ah Or” and “Roti”), whom he had known for over ten years. Poh was out of work and in debt. He told the applicant that if she had any jobs she should contact him. The applicant contacted him on 23 October 2013 and offered him a reward of 20,000 Malaysian ringgit for transporting something from Malaysia to Hong Kong. On the following day, the applicant made the necessary travel arrangements for him and told him that he would be conveying “medicine” to Hong Kong.

6.  The applicant arranged for Tan, Poh and Lim to act as couriers. On 24 October 2013, she instructed Lim to pick up Tan and Poh and meet her at Penang Airport. She gave the three of them air tickets for a flight to Kuala Lumpur. They boarded Air Asia flight number AK6119 at 6:40 pm and arrived at Kuala Lumpur at 7:40 pm. It was an admitted fact that all four of them either sat next to, or just behind one another, on this flight.[1]

7.  The next morning, the four of them boarded Air Asia flight number AK5104 from Kuala Lumpur to Kota Kinabalu. The flight left at 11:05 am and arrived at 1:40 pm on 25 October 2013. It was an admitted fact that all four were sitting in the same row together.[2] In Kota Kinabalu, they all stayed in the same hotel. The prosecution alleged it was Yap who met the group and produced the drugs wrapped in packets. Lim says at this point he became very angry as he did not realise he was being asked to transport drugs, but he was scared of Yap. The applicant told him, “These were the things you people had to take to Hong Kong … No more deceiving, no more hiding from us. These are dangerous drugs.”[3] Yap and the applicant then helped strap the dangerous drugs to the thighs of Lim, Poh and Tan.

8.  Early the next morning, the applicant, Lim, Poh and Tan went to Kota Kinabalu airport. However, when Tan was going through security, he was stopped and arrested, leaving the other three to continue their journey to Hong Kong on board Air Asia flight number AK1641. The flight left at 6:30 am and arrived at 9:20 am on 26 October 2013. Likewise, it was an admitted fact the three of them were sitting next to each other on this flight.[4] When they landed at Hong Kong International Airport they were to take a ferry to Shenzhen, Shekou, but they were stopped and searched.[5] The police found on Lim and Poh the drugs as particularized in the charge, namely, 1.99 kilogrammes of powder containing 1.62 kilogrammes of cocaine on Lim and 1.98 kilogrammes of powder containing 1.63 kilogrammes of cocaine on Poh.[6]

9.  On 30 May 2014, Lim and Poh pleaded guilty to unlawfully trafficking in a dangerous drug. They admitted they were in possession of the drugs strapped to their thighs for the purpose of trafficking and that they knowingly brought them into Hong Kong.[7]

10.  On the other hand, no drugs were found on the applicant. Rather, it was the prosecution case she was jointly trafficking in the drugs with Lim and Poh. Accordingly, she was charged with trafficking the total amount of the drugs found on Lim and Poh.

11.  Lim and Poh were prosecution witnesses at the trial of the applicant and gave evidence against her. Lim was 39 years old at the time of the offence. He was a welder. He has two children and was introduced to the applicant in 2003 through a mutual friend. The applicant had first approached him with the prospect of bringing a package to Hong Kong when they met in a coffee shop.[8] The applicant insisted it was not dangerous drugs and offered him 20,000 Ringgit to bring the package to Hong Kong.[9] After several days thinking about it, he agreed as long as it was not dangerous drugs. He was then asked to give his name and passport number. The prosecution produced the SMS messages revealing that this had been discussed and arranged.[10] The applicant then arranged the flight to Hong Kong for Lim.[11]

12.  Lim testified the applicant had also booked the tickets for Poh and Tan and gave them all their boarding passes at the ticket counter at Penang airport. She also booked the hotels for the group in Kuala Lumpur and Kota Kinabalu.[12] It was at the hotel in Kota Kinabalu that the applicant and Yap, produced the drugs[13] and helped them package the drugs by taping them to the thighs of Lim, Poh and Tan.

13.  Poh first met the applicant about a week before the offence. It was his friend, Ah Or, who brought the applicant to Poh’s home and introduced the two of them. Poh explained to her he was in debt and did not have a job. He told her that if she had any jobs for him to let him know. Three days later, on 23 October 2013, the applicant called him and told him she had a job for him to deliver a package of medicine to Hong Kong. He would be paid 20,000.00 ringgit for doing so.[14] The applicant provided Poh with his air tickets[15] and arranged the hotels. It was the applicant, along with Yap, who produced the drugs in the hotel in Kota Kinabalu and instructed Lim, Poh and Tan to strap them to their thighs.[16]

14.  After Tan was intercepted by security officers at Kota Kinabalu Airport, Lim became very scared and telephoned the applicant who told him to go to the toilet, unstrap the drugs from his thighs, and put them in his carry-on luggage.[17] Lim and Poh did this, then re-strapped the drugs to their thighs upon landing in Hong Kong. This was done on the instructions of the applicant, who also provided the adhesive tape.[18]

15.  The prosecution relied on SMS messages sent between the applicant, Lim and Poh. These were exhibits at trial and produced by way of admitted facts.[19] There were messages in which Lim had sent to the applicant his passport details.[20] There was a message from Lim to the applicant expressing dismay about Tan having been intercepted at Kota Kinabalu airport.[21] Shortly thereafter there was a message from the applicant to Lim and Poh instructing them to “delete all” messages and calls, instructions which Lim and Poh followed.[22]

The defence case

16.  The applicant’s defence was that she was trying to set up a business in Hong Kong to traffic girls for sex.[23] She was not in Hong Kong to traffic drugs and the evidence of Lim and Poh was made up so that they would benefit from a reduction in sentence.

17.  Lim and Poh were cross-examined at length. They were asked about the discrepancies between their testimony and the video record of interview they each gave after they were first arrested.[24] It was put to Lim that he was receiving a reduction in sentence by agreeing to give evidence against the applicant,[25] that he was making up his evidence,[26] and that he had colluded with Poh to implicate the applicant.[27] They were also cross-examined about the applicant coming to Hong Kong to traffic in girls for sex.

18.  The applicant testified at trial. There were no other witnesses called by the defence. She said she introduced girls to clients for sexual services and had done this for two to three years.[28] The applicant had been to Hong Kong before on 7 October 2013. On this occasion she had travelled with Lim by bus from Penang to Kuala Lumpur, then, on 8 October 2013, from Kuala Lumpur to Hong Kong. On the same day, she travelled onwards from Hong Kong to Shekou.[29] She said that on this visit Lim had been with her and the purpose of this visit was to meet the “Boss” who was running the sex trafficking business in which she was involved.[30] Her evidence was that, on this second trip to Hong Kong on 26 October 2013, everything had been arranged by the “Boss”; he had sorted out where they would stay and had arranged the flights. In so far as the text messages were concerned, the applicant said they were written in coded language that was referring to sex trafficking and not drugs.[31]

19.  The prosecution accepted some of the text messages obtained from the applicant’s telephone may have been related to the provision of sex workers, whereas the applicant contended these messages all related to sex trafficking in girls. Words or phrases such as “goods” or “I no carry anything” or “persons” were all pertaining to sex trafficking.[32]

Procedural history

20.  This case has had a long history, traversing a wide range of issues and matters as well as dealing with changing grounds of appeal, that needs to be described in detail to put in context the grounds of appeal that this Court ultimately had to address and to highlight the difficulties encountered in dealing with this case.

21.  The applicant was arrested for this offence on 26 October 2013, but it took more than three years for the case to proceed to trial. The trial commenced on 4 January 2017 and the applicant was convicted on 3 February 2017. It would seem that this was largely due to the fact that the applicant’s two accomplices, both of whom admitted their wrongdoing and pleaded guilty to the offence, agreed to give evidence for the prosecution at her trial.

22.  On 13 February 2017, the applicant filed a notice for leave to appeal against conviction and sentence, without specifying any grounds of appeal. The applicant supplied an appeal bundle to the Legal Aid Department to consider an application for legal assistance but the application was refused on 29 May 2017.

23.  The applicant requested a Chinese translation of the Judge’s summing-up and reasons for sentence to be provided to her, which the Court approved on 28 June 2017. A copy of an additional appeal bundle, incorporating copies of various messages that were exhibited at trial, was prepared and supplied to the applicant on 29 August 2017. The Chinese translations requested by the applicant were later provided to her on 19 January 2018.

24.  The applicant’s leave application was listed for mention on 19 April 2018, but was vacated because, two days prior to the hearing, on 17 April 2018, the applicant filed a lengthy hand written letter dated 11 April 2018, consisting of some 30 pages. It was written on behalf of the applicant by fellow prison inmate, Ms Nancy Kissel, who at the outset of the letter applied for additional transcript and requested an extension of time to address the application, noting that she could only provide limited assistance to the applicant as she was not legally qualified.

25.  The letter was in the form of a submission made on behalf of the applicant, which was mainly an anecdotal account of the trial proceedings, throughout which Ms Kissel purportedly advanced legal arguments in relation to the evidence of the two accomplice witnesses, raising certain queries and offering her views in the process. She essentially questioned the basis on which the two accomplices gave evidence and whether their evidence had been properly received and addressed before the jury. On behalf of the applicant, she requested that additional transcript be provided in relation to the pre-trial review proceedings, the exclusion of the video record of interviews of the two accomplice witnesses, the evidence of the two accomplice witnesses and officers of the Correctional Services Department, as well as rulings made by the Judge throughout the trial. She said the additional material was required in order for the applicant to explore whether the proper approach had been taken in dealing with the two accomplice witnesses.

26.  On 30 May 2018, the applicant was provided with an audio recording of the entire trial (including the pre-trial reviews) for her to listen to and identify which parts she required. She was also reminded that written submissions were limited to 15 pages as specified in Practice Direction 4.2 and directed to file a replacement submission in compliance with the page limit.

27.  The application was then fixed for mention on 5 September 2018.

28.  At the hearing, the applicant produced a letter from the University of Hong Kong, Faculty of Law, dated 27 August 2018, explaining they would cease to assist the applicant with her case because she failed to supply by 24 August 2018 information and documents as requested. She also produced another letter from Ms Kissel dated 31 August 2018. This time Ms Kissel took issue with the fact that the Court’s direction of 11 April 2018 only allowed the applicant herself to listen to the tapes and to identify the relevant parts of the transcript she required. This meant Ms Kissel was not able to listen to the tapes and help the applicant. Also, the applicant’s English was limited and so the task was difficult for her. According to Ms Kissel, the applicant listened to the recordings on her own and made notes in Chinese. These were then translated by a fellow inmate into English for Ms Kissel to consider. Ms Kissel also apologised for her tardiness in having submitted the document on 31 August 2018 for the hearing scheduled on 5 September 2018, the reason for her delay being she had been unwell, which prevented her from doing legal work. Ms Kissel specifically requested the transcripts of the following: (i) the three pre-trial reviews; (ii) discussions about Lim and Poh being kept apart; (iii) the evidence of Lim; (iv) the evidence of Poh; (v) the evidence of PW3 (SGT 47124, the police officer who took statements from Lim and Poh); (vi) the evidence of PW4 (officer of the Correctional Services Department); (vii) the evidence of PW5 (Chief Inspector Cheung Pak-kit); (viii) the evidence of SGT 810; and (ix) the evidence of DPC 51516 and PW8 (PC 5021, forensic examiner).

29.  The mention hearing was adjourned in order to deal with the applicant’s request for transcript. After consideration of the applicant’s request, the Court issued directions on 17 September 2018 to obtain and include in the appeal bundle the transcript of the testimony of Lim and Poh and to obtain transcript of the proceedings concerning the arrangements between Lim and Poh, while the other requests required further justification by reference to the applicant’s grounds of appeal.

30.  On 30 November 2018, Ms Kissel submitted a further request for additional transcript. This related to the three officers who investigated Lim and Poh, the discussion on 19 January 2016 surrounding a possible stay of proceedings as PW4 had become ill, and a legal argument on 23 January 2017, which took place in the absence of the jury during the evidence of PW8. She stated that the purpose of making the request for additional transcript was in relation to the applicant’s grounds of appeal which, as best as we could understand, were as follows. First, the police disregarded the Judge’s Rules in their dealings with Lim and Poh and failed to keep any records of their dealings with them. Secondly, there was material non-disclosure by the prosecution. Thirdly, the proceedings should have been stayed because such an application had been made in the applicant’s previous trial, the basis for which would have continued in the context of the present trial.

31.  On 21 December 2018, it was directed by the Court that the transcript of the testimony of the three officers be obtained and provided to the applicant, that an audio recording of the previous stay application, on 19 January 2016, be provided to the applicant but that she should explain how it related to a ground of appeal, and that she should explain how a transcript of the discussion, on 23 January 2017, in the absence of the jury about the expertise of a an expert witness related to a ground of appeal.

32.  The audio recording of the proceedings on 19 January 2016 and a transcript of the testimony of the three officers were supplied to the applicant on 10 January and 21 February 2019 respectively.

33.  On 25 March 2019, having noted that the applicant had been refused legal aid, the Court issued directions to the parties, that the applicant, whether through private legal representation or in person, should file her grounds of appeal and submissions, within 14 days of the date of the letter, citing correctly any case references; and that the respondent was to file a written reply within 28 days of the date of the letter. The respondent was also directed to provide the Court with copies of the authorities cited by the applicant and to expeditiously apply to the Court for any inclusion of any additional transcript or material in the appeal bundle. As will become apparent later, the respondent had an extremely difficult task in responding to the applicant’s leave application as it consisted of grounds of appeal that were broad and wide-ranging and referenced by numerous case authorities.

34.  On the same day, the Court separately reminded the applicant to consolidate all her grounds of appeal in her written submission in compliance with the page limit and other requirements, and to apply with justification for the inclusion in the appeal bundle of any transcript previously provided to her.

35.  In the meantime, the applicant’s leave application was fixed for hearing on 9 July 2019 before a Single Judge.[33]

36.  On 2 April 2019, the Court received a letter from the applicant dated 27 March 2019, in which she said she did not have funds to pay for private legal representation and would act in person. She said she was unable to file grounds of appeal and a written submission within 14 days, but she was in the process of putting together a comprehensive written submission and requested more time to do so. On 9 April 2019, the Court extended the time for the parties to file written submissions by 21 days.

37.  On 12 June 2019, the respondent filed a written submission opposing the applicant’s leave application against conviction and sentence. The respondent gleaned from the applicant’s written submissions dated 11 April, 31 August and 30 November 2018 the following complaints: (1) the video recorded interviews of Lim and Poh were wrongly used as evidence against the applicant; (2) the prosecution had to prove that the “confessions” of Lim and Poh were “not induced” by the police and were given by them voluntarily; (3) Tan must have “given them all up when he was arrested” and the applicant did not know how his “confessions” were obtained; (4) “different forms of warnings” should be given in relation to the evidence of Lim and Poh, including “corroboration”, whether their evidence was “tainted by improper motive”, of their “strong incentive to give evidence”, and their “prospect of obtaining discount”; (5) the Judge erred in not giving “a special warning tailored to” the fact that Lim and Poh were kept at the same correctional institution for most of the time, and this would enable them to “corroborate” each other; (6) the Judge wrongly told the jury the fact that Lim and Poh pleaded guilty would have no effect on their verdict against the applicant; (7) the Judge wrongly told the jury that if they accepted “either” the evidence of Lim or Poh (and not necessarily both) they were entitled to convict the applicant; (8) a letter written by Lim “3 months after arrest” was never disclosed; (9) there had been no record kept by the police as to the taking of non-prejudicial statements from Lim and Poh, in relation to which there had been a “disregard of the Judge’s Rules” and “non-disclosure”; and (10) a previous stay application was relevant to the trial of the applicant. The respondent also addressed the applicant’s leave application against sentence. In respect of the leave application against conviction and sentence, the respondent thoroughly and conclusively answered the numerous complaints. Having considered the relevant evidence and circumstances of this case, we have no hesitation in concluding that these grounds were variously lacking in accuracy or substance, or were plainly misconceived.

38.  On 4 July 2019, the Court received a letter from the applicant dated 28 June 2019, in which she applied for an extension of time in order to arrange for legal representation. She said she needed time to contact her family in Malaysia to check on the progress of engaging a lawyer for her. The applicant was directed that if she wished to make an application for an adjournment she should do so at the hearing fixed for 9 July 2019.

39.  At the hearing on 9 July 2019, the applicant applied to the Single Judge for an adjournment of the leave application on the ground that she was arranging legal representation. She submitted a letter to the Single Judge from Father John Wotherspoon, which appeared to be a submission on the applicant’s behalf, in which he outlined four points. First, he complained that the applicant’s two co-accused, Lim and Poh, had changed their stories. He said that they initially implicated Yap as the mastermind, but only later accused the applicant as the one responsible. Secondly, he complained that counsel at trial had engaged in robust discussion in front of the jury which should not have taken place before them. Thirdly, he queried whether it was mentioned at trial that Lim and Poh were staying in the same room at Lai Chi Kok after they were arrested, noting that they should have been separated. Fourthly, he explained that the applicant had been open and honest, in admitting coming to Hong Kong for the purpose of arranging accommodation for prostitutes from Malaysia and not for bringing drugs into Hong Kong. He said that the applicant felt that the Judge spoke harshly to her in the presence of the jury in a manner which influenced them about the applicant’s honesty. He finally concluded by remarking that he became acquainted with Lim and Poh before they were sentenced and one of them asked him to contact his wife in Malaysia when he went there in 2018. He said from his “research” he learnt that Yap was a friend of his and this added weight to the conclusion that Lim and Poh were far from coerced by the applicant to come to Hong Kong.

40.  Father Wotherspoon also produced what appeared to be a decision of the Court of Appeal of Malaysia in Tan Boon Kwang v Public Prosecutor, Appeal No: S-05(M)-205-07/2015, 25 January 2017. From the facts of the case it seems to relate to the case of Tan, who was one of the three couriers arranged by the applicant to smuggle drugs from Malaysia into Hong Kong. The Court of Appeal in its judgment upheld his conviction of trafficking in a dangerous drug and sentenced him to death.

41.  The Single Judge granted the application for an adjournment and re-fixed the hearing for the leave application on 20 September 2019. It was ordered that the applicant file a written submission before 6 September 2019, and the respondent file a written submission before 13 September 2019, with any reply from the applicant to be filed before 18 September 2019.

42.  On 29 July 2019, the Court received a letter from the applicant dated 27 July 2019, in which she asked for an extra copy of all the relevant documents as she had sent her papers to her family in Malaysia seeking legal advice but forgot to make a photocopy of them.

43.  In a letter dated 31 July 2019, the Court received a request from another prisoner, Mr Rurik Jutting, asking for the applicant’s appeal bundle as the applicant had sought advice from him. The Court directed that as he was not involved in the case, his request could not be entertained.

44.  On 7 August 2019, the Court granted the application that a further copy of the appeal bundle be provided to the applicant with photocopying charges.

45.  On 22 August 2019, the Court received a letter from the applicant dated 18 August 2019, in which she requested that she be provided with a large portion of the appeal bundle in order to submit it to the Bar Association Free Legal Service Scheme. She also requested that the hearing of the leave application be adjourned in the meantime. It was directed by the Court that a further copy of the appeal bundle had already been granted to her on 5 August 2019 and therefore no additional copy would be provided. The application to adjourn the leave hearing was refused and accordingly the applicant was informed that the case would proceed on 20 September 2019.

46.  On 19 September 2019, a day before the leave hearing, the applicant renewed her application for legal aid. On the same day, the applicant abandoned her appeal against sentence and it was accordingly marked dismissed.

47.  On 20 September 2019, the applicant filed a written submission dated 15 September 2019, this time from another person, Mr Rurik Jutting. It contained the applicant’s perfected grounds of appeal. It was 15 pages in length, but in very small handwriting which at times was almost illegible, together with 34 case authorities and 2 text references. It seems the small handwriting was employed as a means to get around the practice direction that written submissions be limited to 15 pages and to say a lot more that the page limit would otherwise permit. This made it extremely difficult for all involved because the written submissions had to be typed up and the numerous cases cited obtained in order to understand and examine these new arguments.

48.  At the hearing on 20 September 2019, the applicant informed the Single Judge that Ms Kissel was now no longer involved in her case, explaining she had some difficulty getting her appeal bundle from her because she refused to return it to her. The applicant requested that the leave application be adjourned as she was seeking legal assistance from the Bar Free Legal Services Scheme and the Legal Aid Department. In a letter to the Court from the Legal Aid Department it was requested that the applicant’s leave application be adjourned to allow the processing of her application for legal aid. The applicant also requested that she be provided with another appeal bundle which she did not previously obtained because she could not afford to pay the photocopying charges. The Single Judge granted the adjournment and fixed the hearing for 6 November 2019. He also ordered that the applicant be provided with an additional appeal bundle.

49.  The applicant during the course of the hearing informed the Single Judge that Mr Jutting was now assisting her, and he had drafted the latest submission on her behalf. The submission contained the Amended Grounds of Appeal against conviction which, in very general terms, set out the following complaints. Ground 1A complained that the Judge erred by failing to direct the jury properly on the correct approach in considering the telephone data evidence. Ground 1B complained that the applicant was deprived of a fair trial because of the treatment of the evidence of certain messages found in the applicant’s mobile telephone sent by two individuals who were neither charged as co-defendants nor called as witnesses. Ground 1C complained that the Judge’s remarks to the jury about the telephone data were unfair and unbalanced. Ground 2 complained that the Judge misdirected the jury on how to approach the applicant’s evidence. Ground 3 complained that the Judge misdirected the jury in relation to a finding of guilt against the applicant on the evidence of PW 1 or PW2 or either of them. Ground 4A complained that the opportunity which PW1 and PW2 had to collaborate on a joint story amounted to a material irregularity. Ground 4B complained that the Judge failed to direct the jury that police officers enjoy no special status and they should disregard PW5’s evidence on his promotion and that of other officers in the case. Ground 5 complained that the Judge materially misrepresented the basis of PW1 and PW2’s pleas to the jury. Ground 6 complained that the prosecution adduced evidence from PW3 that the applicant was carrying 6 mobile telephones at the time of her arrest and this had not been put to the applicant when she testified. Ground 7 complained that the conviction of the applicant was unsafe or unsatisfactory because of the previous grounds.

50.  On 23 September 2019, the applicant was provided with a copy of the appeal bundle.

51.  On 10 October 2019, the Court directed that the applicant’s submission dated 15 September 2019 be treated as her consolidated grounds of appeal and submission replacing her existing grounds of appeal. The applicant was also informed that if her grant for legal aid was refused she could make an application for legal aid at the next hearing.

52.  On 14 October 2019, the hearing for leave to appeal against conviction was re-fixed for 15 November 2019.

53.  On 23 October 2019, the Court received a letter from the applicant dated 21 October 2019, in which she requested the transcript of proceedings when she was cross-examined by prosecuting counsel. She claimed that the questioning was stopped by the Judge and there followed a discussion between the Judge and prosecuting counsel which had not been translated to her.

54.  On 30 October 2019, the Court refused the applicant’s request for transcript because she was in possession of the audio recording of the whole of the proceedings, given to her on 17 May 2018, and hence could listen to it to assess this part of the proceedings.

55.  On 11 November 2019, the Court received a letter from Mr Jutting dated 4 November 2019, who stated that he was assisting the applicant in identifying arguable grounds of appeal and that he had been informed by the applicant that at the hearing on 20 September 2019 she had been told by the Single Judge that the Amended Grounds of Appeal against conviction were “not strong” and that the applicant should “make new grounds which are strong”. He said that he examined a complete copy of the appeal bundle and as a consequence submitted an undated and unsigned copy of Re-Amended Grounds of Appeal against conviction (consisting of 25 pages) and a list of authorities (consisting of 3 pages).

56.  The suggestion that the Single Judge had commented that the Amended Grounds of Appeal were “not strong” was not correct. This seems to have been used as an excuse to file a lengthy written submission that did not comply with the requirements of the practice direction, and at the same time provide a set of new grounds. It should be noted that when the Single Judge raised this matter with the applicant at the hearing on 15 November 2019, she responded by saying that Mr Jutting may have misunderstood what she said.

57.  In the meantime, on 13 November 2019, the Court received a letter from Mr Jutting dated 6 November 2019, in which he sought to make an application to amend the Amended Grounds of Appeal and to which he attached Re-Amended Grounds of Appeal. He wished to make some corrections to his previous submission and to amend Ground 5 to the effect that it was necessary for the Judge to have directed the jury that Lim and Poh had three years to collaborate on their testimony.

58.  On 12 November 2019, the applicant filed Re-Re-Amended Grounds of Appeal. This again was written by Mr Jutting and was about 26 pages in length and written in very small handwriting. Whilst the document purported to contain amended grounds, it in fact consisted of 24 new grounds of appeal.[34] Attached to this document was a list of 73 authorities.

59.  It is necessary to deal in some detail with the grounds and sub-grounds of appeal advanced by Mr Jutting because, as will become apparent later, most of them were subsequently abandoned, having resulted in a great deal of time and effort being wasted by all those involved in considering and addressing them. They are a conflation of grounds of appeal and submissions, consisting of lengthy arguments interlaced with numerous case authorities. The following is a very general description of the grounds and does not necessarily reflect the minutiae of the numerous points raised and the lengthy and convoluted arguments advanced in support of them.

60.  Ground 1 concerned complaints about pre-trial irregularities and the failure to exclude PW1 and PW2’s evidence. Ground 1A complained that the Judge erred in failing to sentence PW1 and PW2 before testifying at the applicant’s trial. Ground 1B complained that the Judge erred in failing to recuse herself for apparent bias and actual prejudice toward the applicant by failing to sentence PW1 and PW2. Ground 1C complained that the Judge erred in failing to order that PW1 and PW2 be separated from each other whilst in custody. Ground 1D complained that the failure by PW3 and PW7 to make any record of the contents of the interviews with PW1 and PW2 on 6 January 2014 amounted to a material irregularity. Ground 1E complained that the failure to warn PW1 and PW2 on 6 January 2014 not to collaborate with each other acted as an aggravation to the other grounds in Ground 1. Ground 1F complained that PW1 and PW2 whilst in custody together had a 3 year opportunity to collaborate with each other and this amounted to a material irregularity. Ground 1G complained that the failure to make timely disclosure of the police interviews with PW1 and PW2 on 6 January 2014 affected the cross-examination of PW1 and PW2 and acted as an aggravation to the other grounds in Ground 1. Ground 1H complained that the cumulative effect of the grounds in Ground 1 and the failure to exclude the evidence of PW1 and PW2 deprived the applicant of a fair trial.

61.  Ground 2 concerned complaints about irregularities in the evidence of PW1 and PW2 and other related issues. Ground 2A complained that the previous consistent statement of PW1 to the police after his arrest was inadmissible and the Judge erred in failing to direct the jury on the issue. Ground 2B complained that the previous consistent statement of PW1 in his non-prejudicial statement was inadmissible and the Judge erred in failing to direct the jury on the issue. Ground 2C complained that prosecuting counsel made an improper comment about the summary of facts showing consistency with PW2’s evidence. Ground 2D complained that the Judge improperly intervened during defence counsel’s cross-examination of PW1 and PW2. Ground 2E complained that PW5, a police officer, made a comment about integrity when giving evidence that was inadmissible and was not adequately dealt with by the Judge.

62.  Ground 3 concerned complaints about collateral issues of limited or no relevance that were presented by the prosecution and were otherwise inadmissible. Ground 3A complained that the prosecution wrongly adduced evidence from police witnesses about information as to the description of the applicant that led to her arrest and the Judge erred in failing to direct the jury on the issue. Ground 3B complained that the prosecution produced evidence of the 6 mobile telephones and 2 Sim cards found on the applicant which was irrelevant evidence and the Judge inadequately directed the jury on the issue. Ground 3C complained that the Judge erred by allowing the prosecution to re-examine PW1 on his previous trip to Hong Kong. Ground 3D complained about the Judge’s handling and directions to the jury in relation to the issue of the images extracted from the applicant’s mobile telephone by the defence technology expert on whether there had been tampering. Ground 3E complained about the admission of PW4’s evidence and that the Judge’s directions to the jury in relation to it amounted to a material irregularity.

63.  Ground 4 concerned complaints about the Judge’s failure to correctly direct the jury in relation to the elements of the offence. Ground 4A complained that the Judge breached the rule in DPP v Stonehouse [1978] AC 55 when she told the jury that that if they came to the conclusion that either Lim or Poh or both was believable then they should find the applicant guilty of trafficking in dangerous drugs. Ground 4B complained that the Judge erred by wrongly conflating “a common intention” with “knowledge” in her directions. Ground 4C complained that the Judge erred by directing the jury that it sufficed for the prosecution to prove that the applicant knew that the “substance was drugs”.

64.  Ground 5 complained that the Judge gave an inadequate direction on appropriate caution when approaching the evidence of PW1 and PW2.

65.  Ground 6 complained that the Judge gave an erroneous and inadequate direction on the approach to be taken in relation to the applicant’s evidence. It was noted that this was previously Ground 2 of the Amended Grounds of Appeal against conviction dated 15 September 2019.

66.  Ground 7 complained about the irregularities and misdirections by the Judge in respect of the telephone data. It was noted that this was previously Grounds 1A, 1B and 1C of the Amended Grounds of Appeal against conviction dated 15 September 2019 and that, additionally, prosecuting counsel asked a leading question of PW2 about the message sent by the applicant, namely “delete all message and calling”, which amounted to a material irregularity.

67.  At a hearing on 15 November 2019, the applicant informed the Court that the Bar Free Legal Advice Scheme was now looking into her case. She said that Mr Phillip Ross, of counsel, had been assigned to her case and he would require 8 weeks to make an assessment of her prospects for appeal.

68.  Mr Ross was requested to attend a mention hearing of the application on 21 November 2019, which he did. He produced some potential provisional grounds of appeal, although he noted that he had not yet been instructed by the Bar Free Legal Services Scheme. Mr Ross said he would need 6 weeks to read the papers and the application was re-fixed for mention hearing on 9 January 2020.

69.  On 29 November 2019, the Bar Free Legal Services Scheme granted legal assistance to the applicant and Mr Ross was assigned to her case.

70.  At the mention hearing, on 9 January 2020, the Single Judge directed that the applicant file new grounds of appeal on or before 7 February 2020, and a written submission on or before 21 February 2020. It was also directed that the leave application be dealt with by the full court of the Court of Appeal.

71.  On 10 February 2020, the Court received a letter from Mr Ross, in which he attached draft perfected grounds of appeal against conviction and sought leave to include in the appeal bundle the transcript of the applicant’s evidence. The request for the inclusion of the applicant’s evidence was granted by the Court.

72.  Mr Ross, with Mr Amos Ma, filed a written submission on 21 February 2020, which replaced the grounds previously drafted by Mr Jutting. The respondent filed a written submission dated 16 March 2020, followed by another written submission dated 20 March 2020 to replace those dated 16 March 2020. The respondent also requested that the appeal bundle include the transcript of the prosecution opening address and the closing addresses of the prosecution and defence as well as the discussion between the judge and the parties in relation to the directions and the applicant’s earlier trip. The Court directed that the respondent’s request for the inclusion of additional transcript in the appeal bundle would be considered at the hearing on 3 April 2020.

73.  On 5 March 2020, the Court directed that the filing of the papers by the applicant be extended to 9 March 2020, and by the respondent to 16 March 2020, and any reply thereto by the applicant to 23 March 2020.

74.  On 9 March 2020, the Court received a letter from Mr Ross dated 2 March 2020, in which he enclosed signed perfected grounds of appeal, the written submission against conviction, and the index and list of authorities. The applicant’s challenge to her conviction was reduced down to two grounds. Ground 1 complained that the Judge erred in failing to direct the jury on inferential reasoning. Ground 2 complained that the Judge erred in giving a propensity direction in inappropriate terms.

75.  On 25 March 2020, the applicant’s renewed application for legal aid was granted. Now in possession of a legal aid certificate, Mr Ross, three days before the hearing before the full court, on 31 March 2020, filed a third ground of appeal, with an attached written submission and additional authorities. The new Ground 3 complained that the Judge erred in allowing PW1 to give evidence in relation to a prior consistent statement.

76.  Since the third ground of appeal had been filed so late, Mr Ross was invited by the Court to address why. By way of written explanation dated 1 April 2020, he stated that he had received a letter from the applicant on around 23 March 2020. Attached to the letter was a note from Mr Jutting. The note referred to Grounds 2A and 2B of Mr Jutting’s written submission of 12 November 2019. Mr Ross did not have the document to hand. By the time he had sight of the document it was 25 March 2020. Mr Ross had therefore further considered the point and thought it was reasonably arguable. He added that he might have been negligent if he, having become aware of these grounds which he thought arguable, had not brought them to the Court’s attention.

77.  At the hearing on 3 April 2020, we heard from Mr Ross on Grounds 1, 2 and 3, but because of the last minute inclusion of Ground 3, we treated the hearing as part heard and adjourned it to 29 May 2020 so as to enable the respondent to file a written submission in response and hear full argument in relation to it.

78.  By this stage, the appeal bundle consisted of 839 pages and because of the changing position of the applicant in challenging her conviction, a lot of the material was apparently unnecessary. This was also the position with the various written submissions and numerous case authorities that had been cited along the way.

79.  We observe that throughout this whole process the applicant’s challenge against her conviction changed constantly in terms of the nature and number of grounds of appeal, which placed an extraordinary burden on court resources as well as on the respondent. The application commenced on grounds that were vague, inaccurate and misconceived, then changed to grounds that were numerous, prolix and technical, before finally relying on grounds that were fewer in number and reframed in different terms.

The grounds of appeal

80.  The applicant advances the following three grounds of appeal, which are all directed at the Judge’s failure to address certain evidential matters.

Ground 1:  The Judge erred in failing to direct the jury on inferential reasoning set in the context of the evidence and the arguments thereon.

Ground 2:  The Judge erred in giving a propensity direction, and that, by commenting on the direction to such an extent, the jury may have taken the view that they may adopt or disregard the direction at their discretion.

Ground 3:  The Judge erred in failing to: (a) exclude certain evidence by PW1; (b) direct the jury to ignore the evidence; or (c) discharge the jury after hearing the evidence because the evidence (1) purported to be a prior consistent report by PW1 to police officers of other evidence by PW1 implicating the applicant, (2) there was no evidence from any police officer confirming the receipt of the report and of its contents, (3) was not subject to a direction that the contents of the report was not evidence of what happened but, at best, could be treated as admissible to establish consistency of the other evidence by PW1.

Ground 1: the failure to direct on inferential reasoning

81.  Mr Ross submits that the Judge never gave any direction on the drawing of inferences. He says that in the context of the SMS messages, a direction was needed on inferential reasoning because the prosecution and defence were asking the jury to infer different interpretations from these messages. The prosecution were saying they referred to drug trafficking, whereas the defence were saying they referred to sex trafficking.

82.  The applicant’s position at trial was that she was using jargon to arrange for the recruitment of girls for sexual services. She explained the text message she sent to Lim and Poh to “delete all messages and calls”, was because she wanted to hide the sex trafficking, not dangerous drugs.[35] Similarly, Mr Ross takes issue with the message from the “Boss” to the applicant saying “work does not start till five, six o’clock”[36] and how the Judge went on to remind the jury that the prosecution was asking the jury to infer from this message that “work” was in relation to dangerous drugs, not sex workers; while the defence sought to explain these messages as references to trafficking in women.

83.  The prosecution contended the SMS messages supported, independently, the evidence of Lim and Poh.[37] Mr Ross submits the jury may well have drawn inferences from the SMS messages to support Lim and Poh’s evidence and ultimately convict. This was especially so when the Judge had invited the jury to look for evidence to support Lim and Poh before acting on their evidence. She directed the jury:

“There is nothing, as a matter of law, which prevents you from convicting the defendant if you are sure of her guilty on the evidence of either Lim or Poh alone. However, when you consider their credibility and their reliability there are a number of matters which you will wish to take into account.”[38]

84.  Mr Ross refers to Nguyen Anh Nga v HKSAR,[39] in which the Court of Final Appeal remarked:

“Where inferential reasoning is concerned, by far the most helpful reference to the circumstances of the case would be one made in the court of, and as part of, the directions on such reasoning. Whatever the form or forms of which a Judge sees fit to direct the jury on inferential reasoning, and however many times such directions are repeated in the course of the summing up, it always remains important that there be at least one instance in which the directions on such reasoning are specifically set in the context of the evidence and the arguments thereon.”

85.  Given the SMS messages were circumstantial evidence which did not by and of themselves demonstrate drug trafficking, the applicant contends the jury should have been given an example of what is an inference or a reasonable inference.

86.  The jury were directed generally on the duty to convict only if they were sure beyond a reasonable doubt of the applicant’s guilt. The applicant says this was insufficient. The jury should have been given a further direction to the effect that an inference based on a primary fact (the SMS messages) could only be relied on against the applicant if it was the only reasonable inference that could be made.

87.  The respondent accepts there was no direction by the Judge on inferences,[40] but submits there was no need for the Judge to give such a direction as it “will not normally be needed unless there are exceptional circumstances present. Depending on the facts of the case, the drawing of inferences by the jury can be ‘left to their common sense’”. See HKSAR v Lau Tok Mong.[41]

88.  Mr Ivan Cheung, for the respondent, further submits the applicant could never have been convicted on the basis of the telephone messages alone, and indeed, this was never the prosecution case. Given Lim and Poh gave direct evidence on the text messages, what they meant, and the jargon they used, Mr Cheung submits the text messages cannot properly be described as circumstantial evidence.

Ground 1: Discussion

89.  The law in Hong Kong is that it is normally unnecessary to provide the jury with a special direction on how they are to approach circumstantial evidence. It is sufficient that the jury are directed that they may not convict unless they are sure of guilt. See Nguyen Anh Nga at 156.

90.  In Tang Kwok Wah v HKSAR[42] the defendant was convicted of raping his domestic helper. There was no dispute there had been sexual intercourse. The issue was whether the victim consented. The circumstantial evidence which the prosecution relied on included, amongst other things, injuries sustained by the victim and a broken hair clip. The appellant argued on appeal there was a legal requirement that the trial judge provide direction to the effect that no inference can be drawn unless it is in the only reasonable inference. The Court of Final Appeal found there was no such requirement, Bokhary PJ held that:

“… No question of giving such a direction even arises where all that the jury is really being invited to do is to assess a witness’s credibility and reliability in the light of the other evidence. No such question arises unless the jury is being invited to find the prosecution’s case or a part of it proved by or partly by the drawing of inferences from primary facts. If the jury is being asked to do that, then the trial judge should give consideration of whether the jury would, in all the circumstances, be assisted by a special direction.”[43]

91.  In a separate judgment, Sir Anthony Mason NPJ, stated:

“65. Although trial judges in Hong Kong from time to time have given a special direction to juries in cases in which the prosecution has relied upon circumstantial evidence or inferences to establish the accused’s guilt or to prove an essential element in the offence charged, the courts in Hong Kong have always accepted the principle enunciated in McGreevy v DPP (1973) 57 Cr App R 424 as an authoritative and correct statement of the law. …”[44]

92.  Sir Anthony Mason then went on to explain the circumstances in which a special direction on inferences would be appropriate:

“68. … the giving of such a direction is, of course, initially a matter within the discretion of the trial judge. A trial judge should give careful consideration to giving such a special direction in cases where the jury is asked to draw inferences from primary facts and the giving of the direction involves no risk of confusing the jury having regard to the nature of the issues and to the directions otherwise to be given to the jury.”[45]

93.  The first point to note is the giving of the special direction is at the discretion of the trial judge. As to how that discretion is to be exercised involves considering whether the jury are being asked to draw inferences from primary facts “and the giving of the direction involves no risk of confusing the jury having regard to the nature of the issues and to the directions otherwise to be given to the jury”.[46]

94.  The requirement for a trial judge to warn a jury that it is dangerous to convict on the uncorroborated evidence of an accomplice witness has been abrogated by section 60 of the Criminal Procedure Ordinance, Cap 221, which reads:

“Any requirement whereby at a trial by and before a judge and jury it is obligatory for the judge to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is an alleged accomplice of the accused is hereby abrogated.”

95.  However, the trial judge still retains a discretion whether or not to give such a warning. See R v Makanjoula and R v E[47];followed in HKSAR v Leung Chi Keung,[48] paragraph 33, per Li CJ.

96.  To support a witness the evidence must still possess the quality of being independent of the witness. It will not have probative value in its own right, unlike corroborative evidence; its value lies in the fact that, because it is consistent with the witness’ testimony it enhances the credibility of that witness and makes it more likely that what he is saying is the truth.

97.  The question is essentially one of whether the SMS messages were capable of bearing the meaning which Lim and Poh ascribe to them. If not, they would undermine their credibility; if they did, then they support the credibility of their testimony in respect of the meaning they gave to them. However, what the messages were to mean was a finding the jury was to make. This depended on whether the jury believed the evidence of Lim and Poh or the evidence of the applicant about what those messages meant. In this way, it was not dependent on a process of inferential reasoning from primary facts.

98.  The central issue in this case was the credibility of Lim and Poh. The Judge, before referring to the SMS messages, directed that if Lim and Poh’s evidence was not accepted they should “find no difficulty that she did not know [of the subject narcotics] and therefore [they] must find her not guilty”.[49]

99.  Lim was asked about the message he received after Tan was intercepted at Kota Kinabalu airport instructing him to delete all his messages and calls. This message was sent by the applicant and Lim gave testimony to the effect that he had complied with her instruction.[50] When one considers Lim’s direct evidence was that he was recruited by the applicant to transport drugs, SMS messages such as this cannot reasonably be described as circumstantial, as in fact they served as evidence which supported his testimony. This is what the Judge was addressing when she directed the jury that the messages were being used as evidence tending to support the testimony of Lim and Poh.[51]

100.  Similarly, Poh also gave direct evidence that he was being asked to transport drugs and the SMS messages were referring to drugs. When Poh was examined by prosecuting counsel, the following exchange took place:

“Q: And you arrived in Sabah, I think, in the afternoon time?

A: I believe so.

Q: So looking at the message itself you sent this message ‘how about’ and then stop ‘ting’?

A: I don’t quite remember that. I probably was asking her where something was.

Q: What does ‘ting’ mean?

A: The stuff that was being brought to Hong Kong.

Q: ‘Ting’ was the stuff strapped to your legs is it?

A: Yes.

Q: Why did you use the word ‘ting’ what does that literally mean in Malaysian ?

A: No. it doesn’t mean anything.”[52]

101.  Poh’s evidence was that the SMS messages (in the above example) were referring to drugs. In this way the SMS messages were evidence that tended to support the testimony of Lim and Poh.

102.  This ground of appeal fails.

Ground 2: the propensity direction

103.  The propensity direction was given in relation to the applicant’s previous trip to Hong Kong and her professed involvement in trafficking women for sex. The Judge had directed the jury that this trip had nothing to do with drugs as follows:

“Merely because she has related to you her involvement in these sex offences does not mean she is likely to have committed this offence of trafficking in drugs. You may think that as a result of her admitting to you her involvement in the sexual offences she is less likely than otherwise might be the case to commit the crime of trafficking in drugs. In the end, however, it is for you to decide what weight you should give to the matters I have just mentioned. In so doing, you are entitled to take into account everything you have heard about the defendant, such as her age, her occupation and other background.”[53]

104.  By being directed to decide “what weight” the jury should give matters (namely, the applicant’s involvement in sex offences), the applicant complains the jury were given the impression they had a discretion in deciding whether there was a causal link between the sex trafficking and the dangerous drugs. Mr Ross takes issue with the third sentence in the above direction “in the end, however, it is for you to decide what weight you should give the matters I have mentioned”, which he says opens up the issue of causation, meaning the “propensity direction is really a propensity opinion.”[54]

105.  The respondent submits there was no need for a direction as to propensity because the Judge was clear in her summing-up to the jury that the applicant’s sex trafficking should not affect their decision as to whether the applicant is guilty of drug trafficking.[55] The Judge also reminded the jury that the applicant’s previous trip to Hong Kong (on 8 October 2013) was an uncharged act and was not included in the indictment. The respondent submits that the Judge therefore did all that was necessary to guard against this matter becoming “part of an impermissible process of reasoning” by the jury. See HKSAR v Wong Hei Chit.[56]

106.  The respondent also relies on HKSAR v Yueng Ho Wai.[57] In that case the defendant was a parallel trader and it was suggested that this might involve him in tax evasion and smuggling. The jury were directed that they could not use the defendant’s involvement in smuggling to find he was a drug trafficker. The respondent in fact submits the Judge in the present case was even more favourable when she invited the jury to consider whether her admission to involvement in sex trafficking would make her “less likely than otherwise might be the case to commit the crime of trafficking in drugs”.[58]

107.  Furthermore, when the applicant was cross-examined on this point the Judge suitably intervened and the prosecution conceded there was nothing in this earlier trip to suggest it was related to drug trafficking. The applicant was also warned by the Judge, during examination-in-chief, that by answering questions related to sex trafficking she may be incriminating herself.[59]

Ground 2: Discussion

108.  The applicant’s defence was that she was in Hong Kong to traffic women, not drugs. She is a self-confessed sex trafficker. Propensity directions arise to protect a defendant who is of good character. Therefore, whilst this ground is a complaint about a propensity direction, that is really a misnomer, because the appropriateness of such a direction should only arise when someone is of good character, which in the circumstances of this case cannot be asserted on behalf of the applicant by any stretch of the imagination.

109.  The real issue here is whether the Judge has adequately directed the jury that the applicant’s criminal conduct in the sex trade was to have no bearing on the issue of her alleged criminality in relation to trafficking in dangerous drugs.

110.  Jury directions are to be read in context. As stated by Macrae VP in HKSAR v Lam Chiu Mo:[60]

“All summings-up should be read as a whole. The danger of focusing on an individual passage is that it can be artificially removed from the overall context and scheme of a summing-up and may give an impression or interpretation when read in isolation that is undeserved or unmerited.”[61]

111.  The directions the Judge gave to the jury on how they were to approach this issue of the applicant’s confessed involvement in sex trafficking were as follows:

“In this case you have heard the defendant admit that she may have committed a criminal offence in Malaysia in her provision of girls for sexual services and that she was intending to bring girls into Hong Kong to provide sexual services in Hong Kong. Bringing girls to Hong Kong for sexual services that would, in Hong Kong law, be an offence of trafficking in women. She has willingly told you this despite a warning by me about self-incrimination; the same warning I gave to Lim but she nevertheless told you.

You may consider her openness and frankness of these matters support her credibility. You may take this into account in considering whether she is believable. You may not approve of the prostitution of women but do not let that affect or support any decision as to whether the defendant has committed this crime of drug trafficking.

Merely because she has related to you her involvement in these sex offences does not mean she is likely to have committed this offence of trafficking in drugs. You may think that as a result of her admitting to you her involvement in sexual offences she is less likely than otherwise might be the case to commit the crime of trafficking in drugs. In the end, however, it is for you to decide what weight you should give to the matters I have just mentioned. In so doing you are entitled to take into account everything you have heard about the defendant, such as her age, her occupation and other background.”[62] (Emphasis added)

112.  Hence, when read in context it is clear that when the Judge said “it is for you to decide what weight you should give to the matters I have just mentioned”, she was referring to sex trafficking in respect of the applicant’s credibility. Furthermore, the Judge had made it abundantly clear, in the preceding paragraph of which Mr Ross now complains, that the sex trafficking was not to “affect or support” any decision as to whether the defendant had been trafficking drugs.

113.  The Judge outlined to the jury in clear and plain terms the elements of the offence of which the applicant was charged. She described to the jury the charge and that it related to events on 26 October 2013;[63] that the prosecution were to prove Lim and Poh were bringing drugs into Hong Kong; that the jury were to consider whether the applicant had a common intention with Lim and Poh to bring drugs into Hong Kong; and that the prosecution had to show the applicant knew they were dangerous drugs.[64]

114.  The identification of the charge and its constituent elements were then fortified by the Judge reminding the jury they were to decide this case only on the evidence before them:

“You must not speculate about what evidence there might have been. You must not look for evidence which is not there. Do not speculate about what other evidence there might have been so please do not be side tracked in your consideration by irrelevant matters. If there have been any media reports in this case, then please ignore them. You are not to base your findings of fact on any emotional reactions to the evidence in this case. Please base your findings of fact and your verdict on an objective appraisal of the evidence before you”[65]

115.  There is no substance in this ground of appeal.

Ground 3: the prior consistent statements

116.  In re-examination, Lim was asked what happened after he was arrested, and the following exchange took place:

“A: I told the police that those things were given to me by her …

A: At the airport I had already been asked and I told the police that the things were given to me by Ah Lee, and so she was also arrested.”[66]

117.  Mr Ross submits, in his new ground of appeal, that this report by Lim should not have been admitted into evidence, as, by the time the prosecution case had closed, he had given an account of what he had said to police when he was first arrested, and had confirmed what he said was correct. He submits this report should have been inadmissible because (i) it was a prior consistent statement; and (ii) it was not confirmed by the evidence of any police officer.

118.  Mr Ross relies on Nominal Defendant v Clements,[67] where Dixon J set out the principles for admission of a prior consistent statement:

“ … if the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possible self-serving statement made by a witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evidence however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.”[68]

119.  In so far as the evidentiary requirements are concerned to admit a prior consistent statement, Mr Ross relies on the decision of the Privy Council in Kory White v the Queen[69], submitting that the person to whom the statement is made must give evidence of having had the statement made to them. Mr Ross complains this was not done as the police officer who received the statement did not give evidence.

Ground 3: Discussion

120.  In Kory White,Lord Hoffmann outlined two common law exceptions to admitting prior consistent statements, the first of which he explained as follows:

“There are two well-known common-law exceptions to this rule. The first permits proof of complaints in sexual cases. If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent but that its terms should be proved by the person to whom it was made. If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent. …”[70]

121.  This passage makes clear that this first exception is only applicable in the context of recent complaint in sexual assault cases. However, Mr Ross submitted this exception had general application and applied to the applicant in the immediate context of drug trafficking.

122.  In order to explain the rationale for calling the recipient of the statement to give evidence, Lord Hoffmann in Kory White cited the judgment of the New Zealand Court of Appeal in R v Kincaid[71] quoting the following passage:

“The immediate question is — ‘How is one to know she is a truthful girl telling of her complaint?’ The answer-that her own assertion that she did complain will help the jury to assess her truthfulness-needs only to be stated to be recognised for its logical absurdity. Without independent confirmation of what she said, the girls own evidence in chief that she complained takes the jury nowhere in deciding whether she is worthy of belief.”[72]

123.  Given Mr Ross’ submission that it was necessary to call the arresting officer to whom PW1 made the statement, it is worth emphasising that in Kincaid, Casey J warned against eliding the doctrine of recent complaint with recent invention. He said:

“The doctrine of ‘recent complaint’ in sexual cases allowing the prosecutor to adduce evidence of a prior complaint is not to be confused with the rule allowing recourse to such a statement in order to report a specific charge of recent invention”[73]

124.  The second exception to admitting a prior consistent statement comes from Fox v General Medical Council,[74] and deals with recent invention, which Lord Radcliffe described it as follows:

“If in cross examination a witness’s account of some incident or set of facts is challenged as being a recent invention, thus presenting a clear issue as to whether at some previous time he said or thought what he has been saying at the trial, he may support himself by evidence of earlier statements by him to the same effect. Plainly the rule that sets up the exception cannot be formulated with any great precision, since its application will depend on the nature of the challenge offered by the course of cross examination and the relative cogency of the evidence tendered to repel it. Its application must be, within limits, a matter of discretion.”[75]

125.  Fox has been applied in Hong Kong see R v Wong Bing Fai;[76] HKSAR v Sau Ming[77]and HKSAR v Chan Chun Chen.[78]

126.  These authorities make it plain that there was no requirement to call the officer who heard Lim implicate the applicant after arrest. In recent complaint in sexual cases, it is necessary to call the receiver of the statement. This is not necessary in cases of recent invention.

127.  It was an admitted fact that, on 30 May 2014, Lim and Poh were convicted on their own pleas to trafficking in the quantity of drugs that each had brought into Hong Kong on 26 October 2013.[79] Lim and Poh had agreed to give evidence at the applicant’s trial, implicating her as one of the organizers who had arranged for them to smuggle drugs into Hong Kong.

128.  The defence case was succinctly stated by the Judge as follows:

“… it is the defence case that Lim and Poh are both not credible witnesses; they are not believable witnesses; they are liars; they have a motive or a reason to tell lies that the defendant was involved principally because they have pleaded guilty to the offence of trafficking in these drugs they imported into Hong Kong; they will be sentenced but have not yet been sentenced. The motivation to them to invent and implicate or point a finger at the defendant is that they may get a reduced or shortened sentence.

A further motivation or deal Mr Iu suggests is that they struck a deal with the prosecution in that if they give evidence they plead guilty to a smaller amount of drugs that being only the drugs found on both of them which is what the defendant is facing now. so if you do not accept their evidence you will find them not guilty”.[80]

129.  The Judge then reminded the jury that Lim and Poh’s guilty pleas should have no bearing on their decision in the case against the applicant.[81] She noted there was no dispute that Lim and Poh committed the offence of drug trafficking, but the issue for the jury to resolve was whether the applicant was involved with them. In other words, whether they could be sure the applicant trafficked in the drugs in question.[82]

130.  It is important to note the line of cross-examination that was embarked upon by defence counsel. He first sought to establish with Lim what he had said to the police and whether it had been recorded. This led to extensive cross-examination about his previous statements in order to show inconsistencies with his oral evidence. He alleged against Lim that he was lying about the involvement of the applicant and that he had struck a deal with the police. He denied this was the case and responded by saying that he had been willing to be a witness since his arrest. Plainly, the fact that Lim had made prior statements had been extensively canvassed in cross-examination.

131.  In examination-in-chief, PW1 was asked about how, following his arrest, he decided to become a prosecution witness.

“A: Because I had to tell the whole thing so they arranged me to give evidence against her, asked me whether I was willing to give evidence against her.

Q: Who asked you?

A: The police asked me whether I was willing to go to court to give evidence against her. I said I was willing.

Q: When did that happen? When were you first asked to do that?

…

A: First ask probably it was in January, sometime in January 2014, but the exact date I don’t remember.

Q: Where were you when you were first approached and asked?

A: At that time I was in Lai Chi Kok reception centre.

Q: And how many police approached you and asked you this?

…

Q: How many other times did the police come and see you in Lai Chi Kok?

A: You mean all together?

Q: Yes, if you can remember.

A: From 2014 up to now?

Q: Well do you have a list, do you know, do you remember? Do the best you can.

A: Probably roughly four times.

Q: And was there always two people coming to see you on each occasion or did it differ?

A: The first time and then subsequently each occasion one.

Q: On the first occasion, was anything recorded, anything written down?

A: At that time when I was being caught, I already mentioned that Ah Lee was involved in going through this trafficking activity. So after my first court appearance, so the police approached me and they were investigating and asked me whether I was willing to go to court to give evidence against Ah Lee. And then I said was very willing to do that. So next day they recorded down my statement for me.”[83] (Emphasis added)

132.  Nothing more was said on the matter in examination-in-chief. Significantly, the answer to the last question was unprompted and was not responsive to the question. When prosecuting counsel mentioned “on the first occasion”, he was obviously referring to when Lim was formally interviewed by the police on 26 October 2013. As such, Lim brought up this notion of his having implicated the applicant of his own volition, and at no point did defence counsel object to this evidence. There is also nothing in the last question which seeks to explore the issue of what Lim had been asked and what he had answered, questions which undoubtedly would have led to Lim giving evidence about prior statements to the authorities.

133.  As noted, the defence case at trial was that Lim and Poh had colluded with each other after their arrest and during their incarceration to implicate the applicant. In cross-examination, defence counsel focussed initially on what Lim had said to the police. This then to lead to extensive cross-examination about his previous statements in an effort to show inconsistencies with his oral evidence.

“Q: You mentioned it slightly on Friday. Okay? So let’s start from the beginning. On 26 October after you were arrested, as I said, you were interviewed by the police in the afternoon of that day?

A: I’m not clear about the time of the interview.

…

Q: Let me introduce you what this document is. This is the transcript of the video interview you had with the police. This is in Chinese in front of you.[84]

…

Q: You can clearly see the date and the time. 26 October 2013, top of the page the time, 1732 to 1850, total of 78 minutes. Do you see that?

A: I see that.

Q: That will be about seven hours after your arrest?

A: Yes

Q: During those seven hours you would have been separated from Poh and the defendant?

A: Correct.

Q: And it will have been the first time that the police asked you about your visit on the 26^th?

A: Correct.

…

Q: Then the following day, one officer came to take a statement from you.

A: Correct.

Q: I’d like to ask you about the visit the day before. That would’ve been the first time the police came to see you when you were in Lai Chi Kok Reception centre. Right? Oh, two officers came to see you.

A: Yes.”[85]

134.  After having taken some time to establish with the witness that he was in fact interviewed by the police on 26 October (that is, immediately after his arrest) and then again on 6 January 2014, defence counsel put the defence case to PW1:

“Q: So you agree – you and Poh had plenty of time during that period, 26 October to 6 January, to discuss about this case?

A: You can put it that way but there is nothing he did that linked with this case, because at that time we had already pleaded guilty for the things that we brought over.

…

Q: So let’s talk about this time. On 6 January, the police officers came and asked you if you would be willing to turn to become a prosecution witness. This was last Friday you say.[86]

A: Correct. Because at the time when I was called, I already said that for the things, they were given to me by Ah Lee. At that time Ah Lee claimed that she did not know us at that time I said to the police that definitely it was her, if necessary I was willing to be a witness.”[87] (Emphasis added)

135.  In the above series of questions the obvious implication by defence counsel was that this was all a recent invention, to which Lim disagreed and insisted his account had been the same from the very moment he was arrested.

136.  Defence counsel then asked Lim about the 6 January 2014 interview. He asked who he was interviewed with; whether Lim and Poh were interviewed together, and whether or not it was under caution, before returning once again to questions accusing Lim of having lied about the applicant’s involvement in order to get a reduction in his sentence.

“Q: Put it this way, from this interview one thing is clear, that you need to give a statement, correct, to the police?

…

A: Correct.

Q: Right. So you knew that the contents of that statement is very important because it has to implicate the defendant in order to make you a prosecution witness?

A: What do you mean, you mean when I gave the statement? Could you repeat that once again?

Q: When you gave the statement on seven January the purpose was to make you a witness for the prosecution, and therefore you knew that you had to implicate the defendant.

A: I’m just telling the truth.

Q: Right of course. And you knew if you implicated the defendant and accepted by the prosecution that you’ve done so you will get a reduction in your sentence.

COURT: Sorry, say that again please, Mr Iu?

Q: If you did indicate the defendant in that statement, on seven January, and if you were to be accepted as a witness for the prosecution you will get a reduction in your sentence.

A: I knew that but no promise was given to me by anyone.”[88]

137.  As the morning break was about to take place, defence counsel informed Lim what his cross-examination would focus on that afternoon:

“I don’t mind explaining to the court, is to find out from you what you said on 26 October 2013 in your video interview, alright. And I shall demonstrate to this court how you have changed your story on 7 January 2014 in order to become a prosecution witness, in order to get a sentence reduction.”[89]

138.  After the morning break, defence counsel showed Lim a transcript of his interview with the police on 26 October 2013. Defence counsel then sought to demonstrate there were inconsistencies between his interview on 26 October and his interview on 6 January 2014. There was some confusion, on behalf of Lim as to what the questions were about that were being asked of him. To make his point abundantly clear defence counsel asked:

“Q: Do you accept that your testimony last week was completely different from what you told the police on 26 October 2013 in particular the areas that I’ve mentioned, in those particular areas, important areas that I’ve mentioned.

A: Only now did I come to realise that what I said back then. Well, indeed, there is some kind of difference as when compared with what I said subsequently when I was emotionally stable.”[90]

139.  In re-examination, Lim was asked:

“Q: And he went on to say this, but upon arrest you had already said, ‘things were given to me by Ah Lee, and she claimed she didn’t know us’. Do you remember saying that?

…

A: Yes.

Q: You went on to add this, “because when caught I already said things given to me by Ah Lee and she claimed she didn’t know us”. Do you remember saying that?

A: Yes

…

Q: So what did you mean by, when ‘I already said things given to me by Ah Lee and she claims she didn’t know us’ when did you say that? Was it at the airport or later that you said “things were given to me by Ah Lee to a police officer” you said when caught…

A: At the airport I had already been asked and I had told the police that the things were given to me by Ah-Lee, and so she was also arrested.

Q: Alright. We’ll pause there. Who did you say that to, and who else was present when you said that, do you remember?

A: The police officer who handled me.”[91]

140.  Lim was then asked about the circumstances surrounding his having said the drugs were given to him by the applicant. He was equivocal in his answers:

“A: I don’t quite remember. Anyway, I -- I do not know. Anyway, I was hooded. I did not know where they took me from the airport, and besides I was frightened.

Q: But you remember saying these words to, was it one police officer or more than one police officer, who was escorting you with a hood on?

A: I do not know how many officers were escorting me.

Q: Alright. As for the second claim, you said that she claimed she didn’t know us. Was that said by her in your presence or how was it said?”

A: Because by that time we had already been separated, so I did not know where she was, but I could hear her voice. She kept saying that she did not know us, why the police arrest her.

…

Q: How far away were you? Could you see her?

A: I believe I could not see her then. We were separated. She was kept in one room whereas we were kept in another room, but I could hear her voice.[92]

141.  Defence counsel did not object to prosecuting counsel questioning Lim about either him having said the drugs were given to him by the applicant nor the applicant having said she did not know Lim and Poh.

142.  It is relevant to note that in cross-examination of the applicant, it was put to her that, upon her arrest, she had deliberately tried to distance herself from Lim and Poh.

“Q: Right. Well, this was never put to Lim or Poh. But Lim did say that you were heard, in an adjacent room, shouting loudly words to the effect, “I don’t know these people, and not part of the group”, is that what happened?

A: That did not happen.

Q: You wanted, knowing that you had got illicit substances or dangerous drugs on you at the time of your rest, this was your opportunity to pull the wool over the eyes of the investigation team and say, “I’ve got nothing to do with these men”, and that’s what you tried to do.”[93]

143.  Defence counsel did not raise any objection to the applicant being cross-examined in this way.

144.  When this matter is laid out in its proper sequence, it is apparent Lim was told, very clearly, that between 26 October 2013 and 6 January 2014, he had colluded with Poh. And that, his testimony on 6 January was “completely different” from that of 26 October. It was suggested it was materially different, in so far as on 26 October he had not implicated the applicant, but on 6 January he had. It was therefore legitimate for the prosecution to clarify in re-examination that his account had been the same all along. This was necessary as it was probative of the fact this was not a recent invention and he had implicated the applicant from the time of his arrest.

145.  The basis of the defence case was that Lim and Poh were not credible witnesses on account of their receiving discounts in sentence for having given evidence against the applicant. Moreover, this was an influence the defence contended did not exist at the time of arrest, and only arose once Lim and Poh had shared a cell, discussed matters with the authorities and agreed to testify. The prosecution were entitled to address the clear allegation of recent fabrication against Lim and Poh.

146.  In fact, this proves to be a clear application of the principle outlined by Windeyer J in Nominal Defendant:

“The kind of imputation and allegations that if sufficiently clearly made - will let in prior consistent statements are; first, the witnesses testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible secondly, that his testimony was the result of some motive, bias, influence or moral duress operating on some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated.”[94]

147.  We were unpersuaded that this ground was sustainable. It follows that this ground fails.

Conclusion

148.  For the reasons we have given, we find no merit in the grounds of appeal and dismiss the applicant’s appeal against conviction.

[1] Appeal Bundle (AB), VIII (2.1).

[2] AB, VIII (2.2).

[3] AB, 165N-U.

[4] AB, IX (3).

[5] AB, 1.

[6] AB, 1.

[7] AB, 2.

[8] AB, 158J-L.

[9] AB, 158R-T.

[10] AB, 25G-J.

[11] AB, 159M-V.

[12] AB, 163-164.

[13] AB, 165N-V.

[14] AB, 32.

[15] AB, 328.

[16] AB, 330-332.

[17] AB, 177J-N.

[18] AB, 178.

[19] AB, XIII.

[20] AB, 193K-V.

[21] AB, 194.

[22] AB, 195A-D.

[23] AB, 4J-L.

[24] AB, 231.

[25] AB, 221.

[26] AB, 229.

[27] AB, 247.

[28] AB, 552E-F.

[29] AB, 559-561.

[30] AB, 561-562.

[31] AB, 621-642.

[32] AB, 23A-K.

[33] Zervos JA.

[34] Grounds 1A, 1B, 1C, 1D, 1E, 1F, 1G and 1H; 2A, 2B, 2C, 2D and 2E; 3A, 3B, 3C, 3D and 3E; 4A, 4B and 4C; 5; 6; and 7.

[35] AB, 672D.

[36] AB, 21A.

[37] AB, 19H – O.

[38] AB, 13D-H.

[39] Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149, 165, at [57].

[40] See paragraph 24 of the respondent’s Submissions.

[41] HKSAR v Lau Tok Mong [2018] 2 HKLRD 473, at [69].

[42] Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209.

[43] Ibid., at [16].

[44] Ibid., at [65].

[45] Ibid., at [68].

[46] Ibid.,at [68].

[47] R v Makanjoula and R v E [1995] 2 Cr App R 469.

[48] HKSAR v Leung Chi Keung (2004) 7 HKCFAR 526.

[49] AB, 12S.

[50] AB, 195A-F.

[51] AB, 19J.

[52] AB, 347I-N.

[53] AB, 11F-K.

[54] The Applicant’s Submissions, at [34].

[55] AB, 11C-F, the Respondent’s Submissions, at [26].

[56] HKSAR v Wong Hei Chit [2017] 1 HKLRD 928.

[57] HKSAR v Yueng Ho Wai, unrep., CACC 271/2013, 31 March 2015.

[58] AB, 11H-I.

[59] AB, 560M-R.

[60] HKSAR v Lam Chiu Mo, unrep., CACC 206/2018, 9 August 2019.

[61] At [35].

[62] AB, 11C-L.

[63] AB, 1H-L.

[64] AB, 2L-O.

[65] AB, 7A-I.

[66] AB, 165N-S.

[67] Nominal Defendant v Clements (1960) 104 CKR 476.

[68] At [479].

[69] Kory White v the Queen [1999] 1 AC 211.

[70] At 215G-216A.

[71] R v Kincaid [1991] 2 NZLR 1.

[72] [1999] 1 AC 211, at 216A-B.

[73] Ibid., at 216B-C.

[74] Fox v General Medical Council [1960] 1 WLR 1017.

[75] Ibid., at 1025.

[76] R v Wong Bing Fai, CACC 12/1983, unrep., 31 October 1983.

[77] HKSAR v Sau Ming,CACC 145/2003, unrep., 20 January 2005.

[78] HKSAR v Chan Chun Chen, CACC 233/2013, unrep., 30 October 2015 at [133]-[141].

[79] AB, XIV and XV, at [19]-[21].

[80] AB, 5E-N.

[81] AB, 11L-P.

[82] AB, 11P-S.

[83] AB, 195N-196L.

[84] AB, 217Q-S.

[85] AB, 217G-218Q.

[86] The comment “this was last Friday” was a reference to PW1 having given evidence on the previous Friday of the trial.

[87] AB, 220N – 221B.

[88] AB, 222J-S.

[89] AB, 223C-D.

[90] AB, 237M-P.

[91] AB, 316A-T.

[92] AB, 317A-N.

[93] AB, 731I-O.

[94] Nominal Defendant v Clements, at 494.