HKSAR v. LAM HOI KIT

CACC 63 /2023, [2024] HKCA 719

On Appeal From [2023] HKCFI 1151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 63 OF 2023

(ON APPEAL FROM HCCC NO 84 OF 2022)

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J U D G M E N T

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1.  The applicant faced a single count of trafficking in a dangerous drug, namely 2,322 grammes of a powder containing 1,988 grammes of cocaine, contrary to section 4(l)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the indictment and stood trial before Deputy Judge Keith (“the judge”) and a jury of nine. On 24 February 2023, the applicant was convicted after trial, and on 3 March 2023, sentenced to 27 years’ imprisonment.

2.  The applicant now applies for leave to appeal against both conviction and sentence.

The prosecution case

3.  On 8 March 2020, Ms Chung Lai-tung (“Chung”) left Hong Kong through Hong Kong International Airport^[1].  In the evening of 14 March 2020, Chung and Ms Ho Hiu-ling (“Ho”) arrived back at Hong Kong International Airport but on different flights^[2]. At about 23:50 hours on 14 March 2020, Ho was intercepted by a Customs officer^[3] and a search was performed on her personal belongings.  The officer found the cocaine, the subject-matter of the indictment, inside Ho’s black backpack^[4].  Accordingly, she was arrested at about 0045 hours on 15 March 2020^[5].

4.  Meanwhile, also on 15 March 2020, Chung was intercepted and arrested by another Customs officer.  However, upon search, nothing suspicious was found on her.^[6] On 11 August 2020, Chung and Ho attended an Identification parade, at which they both identified the applicant^[7].  On 20 June 2022, they each pleaded guilty to trafficking in the cocaine in question.^[8]

5.  The prosecution called Ho and Chung as accomplice witnesses to testify at the trial of the applicant.  Essentially, they said that a male named “Hung Jai”, whom they had both identified at the Identification parade to be the applicant, had recruited them to traffic in the cocaine in question.  They each testified that the applicant had instructed them how the cocaine was to be collected and then brought through Customs into Hong Kong.  The applicant had booked and paid for their flights and hotel accommodation and was in touch with them as they returned to Hong Kong, answering their questions and monitoring their movements^[9].

6.  In his video-recorded cautioned interview, the applicant admitted that he and a person called “Fat Jai” were working partners looking for people to bring dangerous drugs into Hong Kong.  Fat Jai had introduced Ho to the applicant, and she in turn introduced Chung to the applicant^[10]. The applicant and Fat Jai had decided to recruit Ho and Chung to bring cocaine back to Hong Kong.  The arrangement was that Chung would go to Brazil via Dubai, and when she was inside the restricted area of the airport in Brazil on her return trip to Hong Kong, someone would give her the cocaine, which she would then bring back to Hong Kong.  Meanwhile, Ho would go to Kuala Lumpur and then return to Hong Kong.  Chung would meet up with Ho inside Hong Kong International Airport and hand over the cocaine to Ho to bring through Immigration and Customs.  Ho would afterwards bring the dangerous drugs to a hotel in Tsuen Wan^[11]. The applicant stated that his role was to recruit Ho and Chung to carry out the job and get their aeroplane tickets, whereas Fat Jai would make arrangements for the cocaine to be brought to whichever of the two women went to Brazil^[12].

The defence case

7.  The applicant, who gave evidence before the jury, denied that he was Hung Jai, which he said was just one of the nicknames of Fat Jai^[13]. Hung Jai was in fact Chow Lok-yin (“Chow”) and Ho had confused the applicant with the real Hung Jai^[14].

8.  He said that he had not recruited Ho and Chung to traffic in dangerous drugs.  He had befriended Chow at work^[15], and from time to time, Chow would ask the applicant to get air tickets from him^[16]. On this particular occasion, Chow had asked him to collect some tickets and bring them to him at a food stall.  However, when he arrived at the food stall, Chow was not there, but Ho and Chung were.  He called Chow, who told him to give the tickets to Ho, which he did^[17]. The applicant said he had no idea that the air tickets were used to bring dangerous drugs to Hong Kong.  He also did not know how much the tickets had cost or, indeed, what the flight destinations were^[18].

9.  The applicant challenged the admissibility of the video-recorded interview alleging ill-treatment at the hands of the police from the moment he was arrested until the interview began^[19].  However, the judge ruled the interview to be admissible.

Grounds of appeal against conviction

10.  A single ground of appeal against conviction has been advanced on the applicant’s behalf by Mr Donald, with him Ms Mohamed, to the effect that the judge failed to give a Liberato direction in accordance with the principles as laid down in HKSAR v Kwan Tat Yee [2023] 1 HKLRD 289.  By failing to do so, it is suggested the jury may have convicted the applicant simply because they did not believe him.  The failure to give such a direction was a material irregularity.

Grounds of appeal against sentence

11.  The applicant complains that the judge erred in finding that the applicant’s role was that of a “manager or organiser” of the scheme to bring drugs to Hong Kong; although Mr Donald describes him as a “middle-manager”.  It is submitted that the judge failed to adequately consider the principles laid down in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  Issue was also taken with the international cross-border element being an aggravating feature.

The arguments in respect of conviction

12.  Complaint is made that the judge should have given a so-called Liberato direction.  The applicant submits that the judge’s only references in relation to the standard and the burden of proof came during the early stages of the summing-up^[20], but these were not sufficient.  Because of the way the judge summed up the evidence in the case, by contrasting the evidence of the prosecution witnesses with the evidence of the applicant, there was a risk the jury would have preferred the evidence of Ho and Chung to that of the applicant, or been left with the impression that the evidence relied on by the applicant could only give rise to a reasonable doubt if they believed it to be true.

13.  By not giving the direction that the applicant’s evidence was “true or might be true” under Specimen Direction 2.2, the jury may not have understood that the applicant did not have to prove anything, and that even if they did not accept his version, they could still not convict if there was a reasonable doubt as to an issue on which they had to make a finding.  Mr Tsang, on behalf of the respondent, takes issue with the suggestion that the judge encouraged the jury to make a preferential choice between one side or the other.  Moreover, the summing-up was both fair and balanced. It is said that the judge drew to the jury’s attention several matters, which were actually favourable to the applicant^[21].

The arguments in respect of sentence

14.  The applicant takes issue with the judge’s findings in respect of the applicant’s role and the international element when sentencing.  It is said that the judge did not apply the proper approach to sentence set out in Herry Jane Yusuph.

15.  The respondent submits that the judge correctly considered the sentencing guidelines in respect of the starting point for the quantity of the drugs concerned, which indicated a starting point of just less than 24 years’ imprisonment^[22] in accordance with HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 (at [40]-[43]).

16.  It is contended that the judge had duly taken into consideration the hierarchy of the roles of those who traffic in dangerous drugs and rightly placed the applicant in the category of manager or organiser. Moreover, the international element was rightly taken into consideration in the sentencing exercise. 

Consideration

(i)  Conviction

17.  Nowhere in the judge’s summing-up, as the respondent concedes, is there any direction or other statement that the jury might come to their determination by “preferring” or “choosing” the evidence of one side rather than the other.  Nor, in setting out the evidence for the prosecution and the evidence for the defence, as the judge was required to do, was there any suggestion or implication that the jury must choose one version rather than the other; or of the corollary, which was that the applicant’s version could only give rise to a reasonable doubt if it was believed to be truthful.  In fact, the judge made clear in assessing the witnesses that[23]:

“…you do not have to accept the whole of a witness’ evidence in just the same way you do not have to reject the whole of a witness’ evidence. You can accept the whole of a witness’ evidence of course just as you can reject the whole of a witness’ evidence. It is also open to you to accept some parts of a witness’ evidence and reject other parts of it.”

18.  Nevertheless, it is suggested that the judge did not make clear that the jury did not have to believe the applicant’s evidence in order to entertain a reasonable doubt about the allegation.  But this, with respect, is to ignore the overall effect of the judge’s directions in his summing-up, which the appellate courts have consistently reminded the parties that they must not do.  In this regard, the judge said[24]:

“The first and by far the most important is that it is for the prosecution to prove Mr Lam’s guilt. You have been told that by the lawyers, but the law requires me to tell it to you as well. Mr Lam does not have to prove anything. He certainly does not have to prove his innocence.”

Later, the judge was to remind the jury that the applicant “did not have to give evidence but he chose to” and to make allowances when considering his evidence since it may have been a “strange and stressful experience” for him[25].

19.  Having then explained the standard of proof upon the prosecution in accordance with the Specimen Direction, emphasising that “suspicion of guilt is not enough”[26], the judge made clear[27]:

“If, having heard all the evidence, you are not sure of his guilt on the one charge he faces, then you must acquit him. On the other hand, if you are sure of his guilt, then it is your duty to return a verdict of guilty.”

20.  Nor, having regard to the last passage of the summing-up cited, can it reasonably be said that there was any danger that the jury might have convicted unless they were sure of the defendant’s guilt.  The contrasting versions for the prosecution and defence were stark and the standard directions on the burden and standard of proof were sufficient to ensure that the jury only convicted if they were sure beyond a reasonable doubt of the evidence of Ho and Chung.  In fact, the judge concluded his remarks about their evidence by saying[28]:

“…are you sure that despite the potential benefit to them of implicating (the applicant) and giving evidence against him, they have nevertheless been telling you the truth? If you are sure that they have been telling you the truth, then you can rely on their evidence.” (Emphasis supplied)

21.  It is also important to remember, when looking at the summing-up as a whole, that the applicant made a full confession to the offence, which was ruled admissible and was before the jury.  If the jury believed the confession was voluntary and true, they would inevitably have convicted the applicant.  On that issue, the judge was quite clear and no complaint could conceivably be made about his direction, namely[29]:

“That confession is worthless if (the applicant’s) account of how it came about is true. So the bottom line here is that if this account of how it came about is true or even if it may be true, you must disregard it altogether and you must treat the interview as if it never happened, could not use it against (the applicant) at all.” (Emphasis supplied)

22.  Accordingly, it seems to me that the applicant’s argument must come to this: even though the jury were correctly directed that if they found the applicant’s evidence was or may be true, they must disregard his confession completely, it was a material irregularity for them not to be directed that if his evidence on the general issue was or may be true, he should be acquitted; despite being told that they could only rely on the evidence of Ho and Chung if they were sure of it, and they could only convict the applicant if they were sure of his guilt.  With respect, the applicant’s argument is somewhat contrived and unrealistic.  Reading the summing-up as a whole, I do not consider it to be reasonably arguable that the jury would have convicted if they had entertained a reasonable doubt about his guilt.  A reasonable doubt, by its nature, can arise from any source.

23.  There is one further section of the summing-up, which was not referred to by the parties, but which is important.  Having concluded a very thorough summation of the applicant’s evidence up to the time of his arrest[30], the judge summed up the parties’ respective positions on the defence case for the jury.  The judge noted that it was the prosecution’s position that the applicant’s account “is really very implausible” and he posed certain questions for the jury arising from prosecuting counsel’s argument[31].  In respect of defence counsel’s argument, the judge said[32]:

“For his part, (defence counsel) says that the girls are lying and they are implicating him because they both know Chow much better than they are letting on. He says that he never meant to confess to the police. What he told the police when he was interviewed was what the police coached him to say.

The defence say that there is no reason why you cannot take his evidence at face value. At the very least, the defence say, you cannot say that you are sure his account is untrue.” (Emphasis supplied)

It must have been obvious from this statement as well as others in the summing-up as a whole that if the applicant’s account made the jury unsure of his guilt, or if it caused them to entertain a reasonable doubt (the judge had earlier equated the concept of being sure with proof beyond reasonable doubt[33]), then they could not convict. 

24.  The Courts have said time and again, it is very important that a summing-up should be read as a whole.  As Li CJ held on behalf of the Court of Final Appeal in Tam King Hon v HKSAR (2006) 9 HKCFAR 206, at [15]:

“A summing-up must of course be fair. In considering whether it contains material misdirections, the directions complained of must not be looked at in isolation but must be examined in their proper context. Ultimately, it is the effect of the summing-up as a whole on the jury that has to be assessed.”

25.  When that is done, the applicant’s contention is not reasonably arguable.  Accordingly, I refuse leave to appeal against conviction.

(ii)  Sentence

26.  No issue is taken with the starting point for sentence of just less than 24 years’ imprisonment.  The argument for leave concerns the enhancements of that sentence resulting in 27 years’ imprisonment after trial.  However, there were three significant aggravating features, which needed to be borne in mind by the judge when he came to sentence, either in assessing the applicant’s role and culpability, or as aggravating features enhancing the starting point. 

27.  The most important feature is that the applicant was clearly the “manager or organiser” of this trafficking expedition, having recruited Ho and Chung to play an elaborate part in carrying it out, while he himself was able to keep a safe distance.  The judge expressly found that the applicant came within this classification of offender[34], and I do not believe an appellate Court would agree with Mr Donald’s characterisation of the applicant as a “middle-manager”.  Then there is the fact that this was a cross-border expedition, in which Ho and Chung, both residents of Hong Kong, were sent abroad to bring dangerous drugs back into the territory, well knowing the risks they were running and the punishment they would face, if and when they were caught.  Finally, there is the fact that the applicant had, in August 2014, only some 5½ years before the present offence was committed, been sent to prison by the District Court for 4 years also for trafficking in dangerous drugs[35].

28.  I do not consider it reasonably arguable that the sentence of 27 years after trial for the quantity of narcotic concerned bearing in mind the applicant’s role and culpability, as well as the aggravating features present, was manifestly excessive and/or wrong in principle.  I have given consideration to the totality of these factors justifying an enhancement to 27 years’ imprisonment, but given the recruitment and exploitation of two young woman, one of whom was 20 at the time of the offence[36], the other in her last year at University studying accounting[37], and the fact that the applicant has effectively blighted their young lives by involving them in international drug trafficking, an appeal against sentence is not reasonably arguable.

29.  Accordingly, the application for leave to appeal against sentence is likewise refused.

Loss of time warning

30.  Having refused the applicant leave to appeal against both conviction and sentence, I remind him that he has the right to renew his application for leave in either case to the Court of Appeal, but he is also warned that if the Court were to come to the conclusion that there was no justification for the renewal of the application, it has the power to order the loss of any time which the applicant has spent in custody pending the appeal.

[1] Admitted Facts, at [1], Appeal Bundle (“AB”), p 7.

[2] Admitted Facts, at [2]-[3], AB, p 7.

[3] Admitted Facts, at [3], AB, p 7.

[4] Admitted Facts, at [4], AB, p 8.

[5] Admitted Facts, at [5], AB, p 8.

[6] Admitted Facts, at [6], AB, p 8.

[7] Admitted Facts, at [11], AB, p 9.

[8] Admitted Facts, at [14], AB, p 9.

[9] AB, p 19E-N.

[10] AB, p 52B-E.

[11] AB, p 52M-Q.

[12] AB, pp 52S-53B.

[13] AB, p 51P.

[14] AB, p 29K-L.

[15] AB, p 46A.

[16] AB, p 46G.

[17] AB, p 49G-M.

[18] AB, p 49M-P.

[19] AB, pp 54D-58R.

[20] AB, pp 14J-R; 19N-20D.

[21] For example, AB, pp 17F-L; 18E-G; 23P-24D; 25C-H; 29A-C; 29T-30E; 30I-L; 30M-Q; 40O-S; 43E-O; 45I-T.

[22] AB, pp 70P-71A.

[23] AB, pp 17S-18B.

[24] AB, p 14J-M.

[25] AB, p 18E-D.

[26] AB, p 14O.

[27] AB, p 14P-R.

[28] AB, p 43N-O.

[29] AB, p 58P-R.

[30] AB, pp 44T-49M

[31] AB, pp 49P-50C.

[32] AB, p 50C-H.

[33] AB, p 14N-O.

[34] AB, p 71D.

[35] According to his evidence, the applicant presumably pleaded guilty to this offence: AB, p 45R-S.

[36] AB, p 21J (Ho).

[37] AB, p 33D-F (Chung).