HKSAR v. LIN CHI MAN AND ANOTHER

CACC 159 /2017

[2020] HKCA 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 159 OF 2017

(ON APPEAL FROM HCCC NO 376 OF 2016)

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JUDGMENT & REASONS FOR JUDGMENT

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1.  The two applicants (who will be referred by their trial designations as “D1” and “D2” respectively) were jointly charged with one count of conspiracy to traffick in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200. The particulars of the offence were that they, between 12 and 27 November 2013 inclusive, conspired with Cheung Chi-yuen (“Cheung”) to unlawfully traffick in a dangerous drug, namely 11,910 grammes of a solid containing 10,250 grammes of cocaine.

2.  Having indicated his plea some 11 days prior to trial, D1 pleaded guilty on the first day of trial, which was 2 May 2017.  D2 pleaded not guilty and stood trial alone before Deputy Judge ST Poon (as he then was) (“the judge”) and a jury.  On 15 May 2017, D2 was unanimously convicted on the indictment.  On 16 May 2017, D1 was sentenced to 22½ years’ imprisonment, with 5½ years of an existing sentence for drug trafficking being ordered to run consecutively to the 22½ years’ imprisonment.  D2 was sentenced to 30 years’ imprisonment.

3.  Having filed their respective Notices of Application for Leave to Appeal (“Form XI”), D1 now applies for leave to appeal against sentence, whilst D2 applies for leave to appeal against conviction only.

The undisputed background of the case

4.  It was admitted by D1 in pleading guilty, and by D2 at his trial, that on 27 November 2013, Cheung had been intercepted when he arrived at Hong Kong International Airport from Abu Dhabi in the United Arab Emirates.  Upon a search of his luggage, 11,910 grammes of a solid containing 10,250 grammes of cocaine (the same batch of dangerous drug as particularised in the conspiracy count alleged against D1 and D2), were found in his luggage.  The estimated street value of the drugs in question, as at November 2013, was HK$16,912,000.  Cheung was duly arrested and subsequently charged with an offence of trafficking in a dangerous drug.  In due course, he pleaded guilty to that charge and was sentenced to 20 years’ imprisonment.  Cheung gave information to the police implicating D1 and D2 in respect of the offence with which he had been charged.

D1’s appeal against sentence

Admitted facts by D1

5.  Apart from the undisputed background recited above, D1 admitted and agreed with Cheung’s account of the conspiracy to traffick in a dangerous drug between Cheung, D1 and D2, which was contained in Cheung’s non-prejudicial statements to the police following his sentence.

6.  In April 2013, Cheung had been approached by a woman and asked to bring something back to Hong Kong from Brazil for a reward of at least HK$40,000.  The exact figure was not stated.  Cheung subsequently accepted the offer in August 2013.  On 17 November 2013, Cheung met with D2 and received a suitcase and a Nokia mobile telephone from him.  On 19 November 2013, Cheung further received from D2 a printout of an electronic air ticket to Abu Dhabi as well as cash of US$1,300.  Cheung then flew to Abu Dhabi later on the same day and maintained telephone contact with D2 whilst he was in Abu Dhabi.

7.  On 15 November 2017, D1 flew from Hong Kong to Brazil, via Abu Dhabi.  On 23 November 2017, D1 left Brazil with a suitcase containing the dangerous drugs particularised in the charge against him and flew back to Abu Dhabi.

8.  On 24 November 2013, Cheung met with D1 in Abu Dhabi. They swapped their respective suitcases, with Cheung receiving the one brought by D1 from Brazil containing the dangerous drugs.  Cheung and D1 became friendly with each other in Abu Dhabi.  Eventually, D1 left Abu Dhabi for Hong Kong on 26 November 2013, while Cheung returned to Hong Kong on 27 November 2013.

Mitigation

9.  In mitigation, the judge was informed that D1 suffered from diabetes, which required him to inject himself four times a day. As far as his role in the conspiracy was concerned, it was said that it was similar to Cheung’s role and he was nothing more than a courier.  His counsel urged the judge to adopt an enhanced starting point similar to that accorded to Cheung.

10.  The trial had been fixed from 4 to 17 May 2017, the listing hearing having taken place on 28 September 2016, which was 26 days after the delivery of the judgment in HKSAR v Ngo Van Nam^[1].  D1 did not indicate his plea at the listing hearing but gave notice of his plea of guilty by letter on 21 April 2017, which was 14 days before the trial was due to take place.  D1’s counsel at trial, however, accepted that the new approach to sentencing discounts set out in Ngo Van Nam should be applied to D1[2], and that in consequence he should receive a discount of between 20% and 25% for what was a late guilty plea[3].

11.  At the time of his sentencing, D1 had six previous convictions. Although five were unrelated to dangerous drugs and dealt with in a magistrate’s court, the last one was a conviction in the High Court in December 2015 for trafficking in a dangerous drug, for which he was sentenced to 16 years’ imprisonment^[4]. D1 committed that offence in December 2014, after the date of the offence in the present case.  At the time of sentencing for the present offence, he was, therefore, already serving that sentence.  Counsel urged the judge to order one third of the then existing sentence to run consecutively to the sentence for the count in the present case.

Reasons for sentence

12.  The judge found that the role played by D1 in the conspiracy was similar to that played by Cheung[5].  In view of the quantity of cocaine involved, he adopted 28 years’ imprisonment as the starting point for sentence, which he then enhanced by 2 years for the international element involved in bringing such a large consignment of drugs across the border into Hong Kong.  Since he was of the view that the guidelines under Ngo Van Nam governed the present case, he gave D1 a reduced discount of 25% for his guilty plea and sentenced him to 22½ years’ imprisonment.

13.  Since the present case was unrelated to the offence for which D1 was already serving a sentence of 16 years’ imprisonment, the judge considered that an appropriate overall sentence for the two offences should be 28 years’ imprisonment[6]. In achieving that totality, the judge ordered that 5½ years of the sentence he was already serving should run consecutively to the 22½ years’ imprisonment in the present case, with the remainder running concurrently.

D1’s grounds of appeal and submission

14.  In his Form XI, D1 complained that the sentence passed was excessive and “too few (of the prison term) ran consecutively”, by which I think he meant concurrently.

15.  In both of his letters to the court, dated 20 March 2020 and 15 May 2020, D1 referred to the reasons for sentence of HKSAR v Cheung Kam Shing^[7] and attached a document which appears to be an extract of a written submission by counsel for a defendant in an unknown case in 2017.

Respondent’s submission

16.  In her written submissions dated 5 June 2020, Ms Fung for the respondent relies on the sentencing guidelines in HKSAR v Abdallah Anwar Abbas^[8] and submits that it is not reasonably arguable that the starting point of 28 years’ imprisonment, duly enhanced by 2 years for the international element to 30 years’ imprisonment, is manifestly excessive.

17.  The relevant chronology of events leading to D1’s plea of guilty is as follows:

Date	Event
19 August 2016	D1 pleaded not guilty on the Return Day and the case was committed to the High Court for trial.
2 September 2016	The judgment in Ngo Van Nam was handed down.
28 September 2016	The listing hearing for the present case was held.  The trial was fixed to be heard from 4 to 17 May 2017, with a PTR on 24 February 2017.
24 April 2017	D1 indicated his intention to plead guilty by letter, dated 21 April 2017.
4 May 2017	The 1st day of trial, at which D1 formally pleaded guilty.

18.  Thus, on 24 April 2017, when D1 indicated his intention to plead guilty, the trial dates had already been fixed.  In those circumstances, Ms Fung submitted that, under the Ngo Van Nam guidelines, the 25% discount for plea adopted by the judge was the maximum that could have been given: indeed, it could well have been less. 

19.  The judge had been invited in mitigation to order one third of his existing sentence to run consecutively to the sentence in the present case.  In fact, the judge ordered 5½ years’ imprisonment of that sentence to run consecutively to the 22½ years’ imprisonment, which was equivalent to 34.4% of the sentence he was imposing for the present offence.  It was, therefore, close to what D1’s counsel had advocated.

20.  Ms Fung contended that the judge had sufficiently taken totality into account and that it was not reasonably arguable that the final term of 28 years’ imprisonment after plea (from a notional starting point of 42 years’ imprisonment for the two cases) was manifestly excessive.

Discussion

21.  On the last occasion when this matter was before me, I raised the issue of whether the new sentencing guidelines in Ngo Van Nam did in fact have any application to the case of D1, since the offence was committed almost three years before Ngo Van Nam was decided.  Article 12(1) of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 stipulates that:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. …” (Emphasis supplied)

22.  It seems to me reasonably arguable that D1 was entitled to a full one third discount, since the reduced discounts under Ngo Van Nam (and, therefore, the heavier penalties) would not have been part of the sentencing policy of the courts at the time when the criminal offence was committed by D1.  If the respondent wishes to argue otherwise, the Court of Appeal should determine the matter with the benefit of full argument from the parties.

Conclusion (D1)

23.  Accordingly, I grant D1 leave to appeal on this matter, and in order that the point can be properly addressed, with the benefit of any legal research, I shall grant D1 an appeal aid certificate in respect of his appeal against sentence.

D2’s appeal against conviction

The prosecution case

24.  Whilst the prosecution called four prosecution witnesses, the prosecution case against D2 essentially relied on the evidence of Cheung (who gave evidence as PW3), which comprised his oral testimony, text messages extracted from a Samsung mobile telephone (“Exhibit P62”) and photographs extracted from a Nokia mobile telephone (“Exhibit P28”).  The two mobile telephones were seized from Cheung upon his arrest.

25.  In 2011, Cheung had met a woman called “Kwai Che” inside an amusement game centre.  In April 2013, Kwai Che asked Cheung if he was bold enough to travel to a foreign country and bring goods back for a reward of at least HK$40,000.  At that time, Cheung did not accept the offer.  However, in August 2013, Kwai Che mentioned the offer again to Cheung and, this time, he accepted it.  One to two days later, a person called “Ah Kei”, who was identified by Cheung as D2, called Cheung and asked for the particulars of his passport and Home Visit Permit.  D2 told Cheung to wait for further instructions about the trip.  Cheung stored D2’s mobile telephone number under the name “Ah Kei” in Exhibit P62.  Cheung then followed up with Kwai Che and D2 about the trip he was to make, during August and September 2013.  In September 2013, D2 called Cheung and asked for the particulars of his passport once again.  

26.  On 10 November 2013, Cheung again sent the particulars of his travel documents to D2 at D2’s request made during a further telephone call.  At about 10 pm on 17 November 2013, inside Neway Karaoke in Mongkok, D2 gave a suitcase and Exhibit P28 to Cheung and told him to take them with him when he went overseas.  Exhibit P28 was for the purpose of communication between D2 and Cheung whilst he was overseas.  D2 then said that Cheung would be leaving one or two days later and that he would call him again. On 19 November 2014, Cheung had a further meeting with D2, at which D2 gave him a print-out of an electronic air ticket to Abu Dhabi, the address of a hotel in Abu Dhabi and US$1,300 in cash with which to rent a room during his stay.  Cheung was told that the destination had been changed to the Middle East because of the lower risks involved; accordingly, his reward was to be reduced to HK$25,000.

27.  During his stay in Abu Dhabi, Cheung maintained contact with D2 via Exhibit P28 using D2’s two telephone numbers in Hong Kong.  One of the numbers was the same telephone number that Cheung had communicated with D2 when he was in Hong Kong.  On 24 November 2013, Cheung received a telephone call from D2, who said that he was to meet a person in the lobby of the hotel where he was staying, and that that person would give him something.

28.  Subsequently, Cheung met D1 and they swapped their respective suitcases, with Cheung receiving the suitcase containing the dangerous drugs (“Exhibit P1”).  On the same day, D2 sent Cheung a photograph of an electronic air ticket and informed him that he would be flying back to Hong Kong later that evening.  Subsequently, D2 re‑scheduled Cheung’s return flight to 27 November 2013 because of a visa problem.  On one occasion during Cheung’s stay in Abu Dhabi, D2 had remitted HK$1,000 to Cheung via Western Union for expenses.  On 27 November 2017, Cheung flew back to Hong Kong with Exhibit P1 and was arrested.  

29.  D2 was arrested on 16 September 2015 for conspiring to traffick in dangerous drugs with Leung Kwai Ho, D1 and Cheung.  Under caution, D2 said “I do know the three of them, but I do not know they trafficked in (dangerous) drugs”^[9]. In a subsequent video recorded interview under caution^[10], D2 said he had known D1 from childhood^[11]. He had become acquainted with both Leung Kwai-ho, whose nickname was Kwai Che^[12], and Cheung^[13] in a video game centre in To Kwa Wan.  He had come to know Kwai Che in about July 2012^[14].  In August 2012, Kwai Che introduced Cheung to D2^[15].  On about 17 November 2013, he assisted his friend, Eddie, to hand over a newly purchased suitcase^[16] and a printout of an electronic air-ticket^[17] to Cheung in Neway Karaoke in Mongkok.  D2 further said he had two mobile telephone numbers in use^[18].  He said he did not have any recollection^[19] of the telephone number which Cheung allegedly communicated with D2 both in Hong Kong and in Abu Dhabi.  He denied meeting Cheung on 19 November 2013.

Defence case

30.  D2 elected not to testify or call witnesses.  By way of a set of Admitted Facts, made pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, D2 admitted most of the prosecution case including D1’s itinerary to and from Brazil and Hong Kong via Abu Dhabi between 15 and 27 November 2013.  The voluntariness of D2’s record of interview was not challenged.

31.  Through questions put to the witnesses, D2’s case was that he had no knowledge of any trafficking activities involving Cheung and D1.  D2 did not take part in arranging the return air ticket from Abu Dhabi.  Ultimately, Cheung was not a credible witness and should not be relied upon to convict D2.

Summing-up

32.  The judge set out the core factual issues which the jury had to decide^[20]:

“The first question you need to consider is whether you accept the evidence of Cheung Chi-yuen that the defendant is that Ah Kei. If you are not sure the defendant is that Ah Kei, there will be insufficient evidence against the defendant and you must acquit the defendant. If you are sure the defendant and that Ah Kei is the same person(,) (y)ou must first consider whether you are sure Cheung Chi-yuen’s evidence regarding the participation of that Ah Kei is true. If not, you cannot rely on his evidence to draw any inference. If you are sure, you should then move on to consider whether taking all the evidence together the only reasonable inference you can draw is that there was an agreement to traffic in dangerous drugs and that Ah Kei, the defendant, was a party to the agreement and also he intended to carry it out at the time he agreed. Members of the jury, you are the sole judges of fact and it is a matter for you whether the evidence is sufficient to make you sure.”

He gave a direction in similar terms shortly before the jury retired to consider their verdict^[21].

33.  The judge provided an extensive summary of Cheung’s evidence^[22] in his summing-up.  In particular, he highlighted various inconsistencies and queries in Cheung’s evidence, which had been canvassed by D2’s counsel at trial^[23] and in his closing speech^[24].

D2’s grounds of appeal

34.  D2’s grounds of appeal against conviction have taken several forms since his original grounds of appeal were set out in his Form XI on 18 May 2017, more than three years ago.  His first series of grounds of appeal may be said to comprise his Form XI grounds, his subsequent letter to the Court dated 4 September 2017 and his two affirmations, sworn respectively on 24 November 2017 and 14 June 2018.  This first series of grounds of appeal essentially focused on three main grounds.

35.  It is not necessary to say anything further about this first series of grounds of appeal because, on 3 July 2020, the Court received a voluminous bundle of documents, hand written by a fellow prison, Mr Rurik Jutting, on the applicant’s behalf, withdrawing and abandoning all previous grounds of appeal and substituting nine grounds of appeal accompanied by a list of no less than 32 authorities.

36.  Nor is it necessary to say anything further about this second set of grounds of appeal because, on 31 August 2020, the Court received yet a third bundle of 20 pages of handwriting, this time in a different script, enclosing 11 pages of grounds of appeal identifying 10 grounds of appeal, although in reality there were also a number of sub-grounds, which were said to be “in substitution for all other grounds and submissions filed to date”.  Attached to the new grounds of appeal were also what appeared from the handwritten pagination to be 7 out of 15 pages of written submission. A further case authority was also attached to the submission.

37.  At the hearing before me, D2 produced another letter, dated 12 October 2020, obviously also written by Mr Jutting on D2’s behalf since the handwriting corresponds to the second set of grounds of appeal, referring to a further Court of Appeal decision from England and Wales.

38.  It is the third set of grounds of appeal with which I shall deal, although I am bound to point out that Ms Fung, for the respondent, has had to prepare three different written arguments to meet the evolving cases of the applicants.  Her latest written argument, dated 15 October 2020, deals with D2’s third set of grounds of appeal, although she points out that she has not been able to deal with the other 8 pages of the 15 pages of submission because neither she nor the Court have received them.  Upon my specific enquiry at the hearing about the apparently missing pages, no further pages were produced by D2.

39.  On 16 October 2020, the Court received notification from the Legal Aid Department that D2 had made what was said to be a “4^th legal aid application” and that time was needed to process his application before a decision could be made.  In fact, to be strictly accurate, this is D2’s 5^th application for legal aid, the relevant dates of his applications being: 12 June 2017 (refused on 28 August 2017); 26 March 2019 (initially granted on 11 April 2019, but discharged on 28 October 2019); 15 November 2019 (refused on 7 February 2020); 24 June 2020 (refused on 24 August 2020); and 16 October 2020 (the present application, to be determined).  Meanwhile, the Hong Kong Bar Association Free Legal Service and the Clinical Education Unit of the Faculty of Law of Hong Kong University have both declined to assist D2, on 15 November 2018 and 24 August 2020 respectively.

40.  I am now told by D2 that the reason for his latest application for legal aid is a new ground of appeal, of which neither the Court nor the respondent was hitherto aware.  The new ground, which has not been filed with the Court, alleges incompetence of counsel.  There is also apparently a further ground of appeal in the pipeline, as yet unformed or reduced to writing.  I have pointed out to D2 that nowhere in any of the three sets of grounds of appeal he has provided to the Court is there any complaint of flagrant incompetence against his trial counsel.  Indeed, in his latest grounds of appeal, he expressly says that he is not making any specific complaint of flagrant incompetence against counsel.  It is true that the remark is made in respect of a particular issue concerning Ground 5: nevertheless, D2 is clearly conversant with flagrant incompetence as a species of ground of appeal, yet he has never in more than 3 years since his conviction made such a complaint before. 

41.  Whilst I understand the position of the Legal Aid Department and the need to process applications made for legal aid properly, from the Court’s perspective D2’s conviction took place more than 3 years ago, while the offence giving rise to that conviction took place almost 7 years ago.  If there were ultimately to be a successful appeal and an order for retrial by the Court of Appeal, such retrial would be taking place 8 or, conceivably, 9 years after the offence, in circumstances where the principal witness is a civilian within sight of the end of his own sentence of imprisonment[25]. Such extraordinary delays are not in the public interest.  There is also the position of D1, whom I have determined has a reasonably arguable ground of appeal against sentence: he is entitled to know where he stands in terms of the length of his sentence, complicated as it is by the existence of the earlier period of imprisonment. 

42.  Moreover, this is the third time this application for leave has been listed for hearing, although it is the second time the case has been brought before me.  I am not prepared to let this matter drag on with another adjournment.  I will, however, say that if I am to grant leave to D2, I will inevitably also grant D2 an appeal aid certificate: if I refuse leave, I shall not, of course, be granting an appeal aid certificate but it does not stop the Legal Aid Department taking its own course in deciding whether to grant legal aid should the applicant renew his application for leave, as he is entitled to do.  Accordingly, I decided that this matter must proceed.

Consideration

43.  The foundation stone of a large number of the grounds of appeal put forward by D2 is that Cheung may not have been a conspirator because he did not know, or may not have known, that he was carrying, and that the conspiracy therefore concerned, dangerous drugs.  On this foundation, the applicant has constructed an elaborate argument that, since there was insufficient evidence that Cheung knew he was trafficking in dangerous drugs, D2 could not have been party to any conspiracy with Cheung to traffick in dangerous drugs.  Nor could he have been party to a conspiracy with D2 alone, which was never the prosecution’s case.  This foundational argument lies at the heart of Grounds 1A, 1B, 2A, 2B, 5, 6, 7, 8A, 8B, 9 and 10.  I shall therefore deal with this issue first.

44.  One of the specific grounds of appeal advanced (Ground 5) is that the judge erred in law in directing the jury that Cheung’s plea of guilty to trafficking in the very same quantity of cocaine particularised in the indictment against D2 was evidence of Cheung’s knowledge that he was trafficking in dangerous drugs.  The judge directed the jury as follows[26]:

“You may remember Cheung Chi-yuen said in his evidence that he guess(ed) what was contained in the suitcase was smuggled goods or drugs. But you may also remember he said in his evidence that he knew there was drug inside the suitcase but he did not know the quantity of it. In any event, Cheung Chi-yuen had pleaded guilty to (the) offence of trafficking in dangerous drugs and an essential element of that offence was that he had knowledge that what he was importing was dangerous drugs. By pleading guilty to that offence, Cheung Chi-yuen has admitted that he knew of (sic) believed that there was drug inside the suitcase.”

45.  I do not regard it as reasonably arguable that this direction was wrong, or that the judge was not entitled to give it.  It was an admitted fact, by which the jury were bound[27], that Cheung had been arrested at Hong Kong International Airport and subsequently pleaded guilty to trafficking in the cocaine found in his baggage, namely 11,910 grammes of a solid containing 10,250 grammes of cocaine[28].  Earlier, in directing the jury on the necessary elements of the offence of trafficking in dangerous drugs, which was the substantive offence in the conspiracy, the judge had directed the jury perfectly correctly that[29]:

“… to commit the offence of trafficking in dangerous drugs, the person charged with the offence must have known what he was importing was a kind of dangerous drugs.”

If the jury were told that knowledge was an ingredient of trafficking in dangerous drugs (which it is), and that they were bound by the fact that Cheung had pleaded guilty to such an offence (which they were), then they hardly needed to be told that by pleading guilty, Cheung had admitted knowing there were dangerous drugs inside the suitcase.  The judge was doing no more than stating an obvious fact which the jury were bound to find.

46.  Ground 5 is not reasonably arguable.  Nor are any of the other grounds which are constructed upon the thesis that Cheung may not have been knowingly trafficking in the very dangerous drugs with which D2 had been charged.  Quite apart from the admitted facts, the evidence that Cheung was a knowing party to a conspiracy to traffick in dangerous drugs was overwhelming, given the elaborate preparations and steps taken to send him to collect the dangerous drugs from D1 in Abu Dhabi and bring them back to Hong Kong.  Once one realises that the jury would inevitably have found that Cheung was a conspirator, the grounds which are constructed on the premise that he was not, become unarguable, let alone not reasonably arguable.  I do not find Grounds 1A, 1B, 2A, 2B, 5, 6, 7, 8A, 8B or 10 to be either realistic or reasonably arguable.

47.  Ground 3 takes issue with what are said to be leading questions asked by prosecuting counsel of Cheung both in examination‑in‑chief and re-examination.  No objection was raised by defence counsel to any of these questions; the first of which did not concern D2[30]; while the second actually assisted the defence, since Cheung might on one view have appeared to be trying to minimise his knowledge of the dangerous drugs, or at least his knowledge of the quantity of those dangerous drugs[31].  Ground 3 is not reasonably arguable.

48.  Ground 4 is a puzzling ground, because I can see nothing wrong with what prosecuting counsel had said to the jury.  The impugned passage forms part of his closing address and is neither factually wrong nor prejudicial.  Ground 4 is not reasonably arguable.

49.  Ground 6 also forms part of the series of grounds which are founded upon Cheung not being a conspirator knowingly trafficking in dangerous drugs.  However, it also attacks the judge’s summing-up for not giving the jury a fair and balanced account of Cheung’s evidence in relation to what he knew or didn’t know about the contents of the suitcase.  I do not think that is a fair criticism.  Cheung had said different things at different times as to his state of mind, including his awareness of the suitcase containing dangerous drugs (which, judging by her subsequent question, defence counsel treated as knowledge[32]), albeit he did not know the quantity of drugs[33], to his guessing that the suitcase contained dangerous drugs[34].  The judge directed the jury as much in the passage already quoted above at paragraph 44.  While these differing answers might have been useful in attacking Cheung’s consistency and credibility as a witness, in reality the jury would inevitably have found that he must have known from the circumstances that the suitcase contained dangerous drugs and he had admitted as much by pleading guilty to trafficking.  The evidence in this regard, both direct and inferential, was overwhelming.

50.  In respect of Ground 9, there is a further complaint that hearsay evidence was admitted, in which D1 had told Cheung that Ah Kei was D2, which was never the subject of any warning or direction to the jury by the judge.  In the context of a conspiracy allegation between D1, D2 and Cheung, I do not accept that it would be hearsay under the co‑conspirator’s rule.  In any event, such an argument is completely otiose and redundant.  Defence counsel never objected to this evidence, no doubt because Cheung had several contacts with D2, as a result of which he was able to positively identify him as Ah Kei.  It was an Admitted Fact that at an identification parade conducted on 5 October 2015, Cheung had positively identified both D2 and D1 “as the people he had named as his co‑conspirators in his statements to the police”[35].  Furthermore, in his evidence-in-chief, Cheung gave the following evidence when identifying D2[36]:

“Q. One man you identified on that identity parade was Ah Kei, is that correct?

A. Yes.

……

Q. Where is he today?

A. This one, the defendant.

Q. Right. You’re pointing at the man in the dock.

A. Yes.

Q. And that’s the man you know as Ah Kei.

A. Yes.

Q. And you met with a suitcase on 17 November.

A. Yes.

Q. And did you speak to each other?

A. Yes.

Q. And did he confirm that he was Ah Kei?

A. Yes.” (Emphasis supplied)

This aspect of Ground 9, particularly in light of the last italicised question and answer, is totally unarguable, let alone not reasonably arguable.

51.  In respect of Ground 10, I have already said that the fundamental basis of this ground, as with others, is not reasonably arguable.  The eponymously named Kevin Brown[37] point simply does not arise.  But even if the fundamental basis of these various grounds were correct, the point would still not arise: the essential ingredients of the offence alleged were the same whether it was a two-man or a three-man conspiracy.  Ground 10 is not reasonably arguable.

52.  Since there are a number of sub-grounds and sub-arguments in the grounds of appeal, I should say for the sake of clarity and completeness that I have considered them all, as well as Mr Fung’s helpful submissions in dealing with them.  I have also considered the summing‑up in the context of the evidence of Cheung and the closing addresses of both counsel.  I can find no reasonable grounds of appeal against conviction.

Conclusion (D2)

53.  The application for leave to appeal against conviction by D2 is accordingly refused.  I advise D2 that he has the right to renew his application for leave to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which D2 has spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

[1] HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

[2] AB, p 33F-H.

[3] AB, p 33K.

[4] AB, p 138.

[5] AB, p 30K.

[6] AB, p 31C.

[7] HKSAR v Cheung Kam Shing (Unrep. HCCC 438/2016, 7 September 2017).

[8] HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.

[9] AB, p 42.

[10] Exhibit P56B: Transcript of video recorded interview.

[11] Counter 30: AB, p 98.

[12] Counters 38-42, AB, pp 98-99.

[13] Counters 51-54: AB, p 99.

[14] Counter 96: AB, p 100.

[15] Counter 120, AB p 101.

[16] Counters 183-184: AB, pp 104-105.

[17] Counters 318-322: AB, p 112.

[18] Counters 155-160: AB, p 103.

[19] Counters 177-178: AB, p 104.

[20] AB, pp 9T-10H.

[21] AB, pp 22R-23O.

[22] AB, pp 16C-20S.

[23] AB, pp 20T-22F.

[24] AB, pp 20G-22I.

[25] In HKSAR v Cheung Chi Yuen (Unrep., CACC 288/2015, 16 May 2018), Cheung’s sentence was reduced from 20 years’ to 13½ years’ imprisonment for his assistance to the authorities in the case against D1 and D2.

[26] AB, p 7J-O.

[27]  AB, p 12A-E.

[28] AB, p XIV, paras 7 and 9.

[29] AB, p 5L-N.

[30] AB, p 287Q-R.

[31] AB, p 373B-Q.

[32] AB, p 319D.

[33] AB, p 318E-F.

[34] AB, p 319D-E; p 317B-C.

[35] AB, p XV, para 11.

[36] AB, pp 272S-273J.

[37] Derived from R v Kevin Brown (1984) 79 Cr App R 115.