HKSAR v. ANSIR MAHMOOD AND ANOTHER

CACC 370/2017

[2019] HKCA 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 370 OF 2017

(ON APPEAL FROM HCCC NO 165 OF 2016)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  Ansir Mahmood, the 1^st applicant (“A1”) and 1^st defendant at trial, was jointly indicted in the High Court, together with Muhammad Afzal, the 2^nd applicant (“A2”) and 2^nd defendant, and Ko Tse‑yu, the 3^rd defendant (“D3”), on two counts contrary to the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”).

2.  Count 1 averred that, on or about 24 September 2015, at Room 1526, Harbour Plaza 8 Degrees, Kowloon City, the three defendants unlawfully trafficked in a dangerous drug, namely 551.46 grammes of solid and powder containing 389.56 grammes of cocaine and 743 grammes of a powder containing 440.90 grammes of cocaine hydrochloride, contrary to section 4(1)(a) and (3) of the Ordinance.  Count 2 averred that, at the same time and place, the three defendants manufactured cocaine, contrary to section 6(1)(a) and (2) of the Ordinance.  A1 and D3 pleaded not guilty to both offences before Deputy Judge Stuart-Moore (the “Judge”) and a jury, while A2 pleaded guilty to both counts.  A2 was subsequently called as a defence witness at trial on behalf of A1.

3.  On 2 August 2017, the jury convicted A1 on Count 1, but acquitted him on Count 2; whilst D3 was acquitted on both counts.  On 1 November 2017, A1 was sentenced to 22 years’ imprisonment on Count 1, whereas A2 received an overall sentence in respect of Counts 1 and 2 of 15½ years’ imprisonment.

4.  On 30 November 2017, A1 filed a Form XI Notice of application for leave to appeal, by which he sought leave to appeal against both conviction and sentence out of time.  On the same day, an affirmation in support of his application for an extension of time in which to appeal was filed by A1’s solicitor explaining the lateness of the application by one day. It was said in the affirmation that there had been an honest mistake on the solicitor’s part in calculating the relevant deadline for filing a Form XI Notice.  A2 applied within time for leave to appeal against sentence only.

5.  On 14 March 2019, we granted A1 an extension of time but indicated that we would reserve our decision as to both conviction and sentence in respect of A1.  However, we adjourned the application for leave to appeal against sentence by A2 to 27 March 2017 for further hearing.  This is the Court’s judgment in relation to the application for leave to appeal against conviction and sentence by A1.  M Poon J has written a separate judgment on behalf of the Court in respect of A2’s appeal against sentence.

The undisputed facts

6.  In the afternoon of 24 September 2015, a team of police officers mounted an operation at the Harbour Plaza 8 Degrees hotel in Kowloon City, Kowloon.  At about 18:45 hours, they observed A1 approaching Room 1526 on the 15^th Floor of the hotel.

7.  Before he was able to enter Room 1526, A1 was intercepted by police officers.  However, the police were unable to gain entry into Room 1526 using the key card carried by A1, since the security chain had been put in position and someone was pushing against the door from the inside of the room.  PC 14241 (“PW2”) immediately announced his police identity and demanded that the door be opened, but to no avail.  Using pliers to cut the security chain, police officers managed to enter the room.  D3 was found standing behind the door, while A2 appeared to be resting on a sofa.

8.  A search was conducted of A1’s person and HK$3,510 in cash, a Samsung mobile telephone and a key card for accessing Room 1526 were seized from him.  Inside Room 1526, which included a kitchen, were found the drugs particularised in Count 1 openly displayed in various packages and locations, as well as other items such as pots and sieves with traces of cocaine, 396 transparent re‑sealable plastic bags, seven mobile telephones and HK$132,930 in cash lying on the sofa.

9.  A1 was arrested and cautioned for the offence of trafficking in a dangerous drug by PW2, whereupon he responded in Cantonese, “I only rent a room for my friend.  I know nothing”.

10.  Between 19:11 and 20:11 hours on 25 September 2015, and in the presence of an interpreter and A1’s legal representative, the police conducted a video recorded interview with A1.  In that record of interview, A1 refused to answer most of the questions asked of him.  However, he did acknowledge that he had rented the room for A2[1]; and that A2 also had a key to the room[2]. He denied knowing D3[3] and claimed that after renting the room up until the time of his arrest, he had never seen any of the exhibits seized at the scene[4], nor did he know what A2 had been doing inside the room after it had been rented[5].

11.  It was an admitted fact that Room 1526 had been rented by A1 on 15 September 2015 for a period of one month until 14 October 2015 at a rate of HK$25,660.00.  In the light of the grounds of appeal advanced before us, it is relevant to note that it was a further admitted fact that the hotel had a closed‑circuit television (“CCTV”) security system in operation covering the 15^th floor and, in particular, the corridor outside Room 1526, during the relevant period from 15 to 24 September 2015 inclusive. There was also CCTV coverage of the reception area on 15 September 2015.

The voir dire in relation to the CCTV evidence

12.  In his written objections to the admissibility of the CCTV evidence, counsel on behalf of A1 at trial objected to the production of both the CCTV recordings and the photographs made from them throughout the period 15 to 23 September 2015.  No issue was taken, however, with the admissibility of either the CCTV recordings or the photographs of 24 September 2015, the day of the arrest.

13.  The basis of the objection was that the material was not sufficiently relevant to the events of 24 September 2015; even if it had some relevance, it should nevertheless be excluded in the exercise of the judge’s discretion on the basis that its prejudicial effect outweighed its probative value.  Photographs depicting “unknown males” or “unknown females” (sometimes both) either entering, leaving or waiting outside Room 1526 were said to be prejudicial because a jury might speculate as to why such persons should have been visiting the room, thus imperilling the right of A1 to a fair trial.

14.  On 20 July 2017, the judge ruled that the CCTV recordings, and the images made from them, were admissible.  On the same day, a set of admitted facts under section 65C of the Criminal Procedure Ordinance, Cap 221 were signed by counsel for A1 and D3.  In view of the argument advanced, it is instructive to set out the precise terms of those admitted facts, namely:

“36. The Harbour Plaza 8 Degrees had a CCTV security system in operation and that system covered the 15^th floor and in particular captured the scene in the corridor outside Room 1526. The CCTV system also covered the reception area on the 21^st floor. At the request of the police copies of the recordings for the period from 15 September until 24 September 2015 inclusive for the corridor outside Room 1526 were provided. Further a copy of the recording for 15 September 2015 in respect of the reception area on the 21^st floor was also provided.

37. The CCTV discs are Exhibit P108(1‑5).

38. A set of still photographs from the CCTV recordings have been prepared and the bundle of photographs (total 332) is Exhibit P108A (1‑327 in respect of the corridor outside Room 1526 and 1-5 in respect of the reception area on the 21^st floor).

39.  Attached to the bundle of photographs are four charts which summarise the entry and exit from the room during the period 15^th September until 24 September 2015 by the 1^st, 2^nd and 3^rd accused.”

The prosecution case

15.  The prosecution alleged that A1 and A2 had formed a joint enterprise to traffic in dangerous drugs.  To that end, A1 had purposely rented the room for A2 in order to manufacture and traffic cocaine. In order to establish that A1’s connection with the room went beyond simply renting it on behalf of another person, the prosecution were able to show that A1 and A2 had made use of Room 1526 every day, with A1 entering and leaving the room on 41 occasions throughout the period 15 to 24 September 2015.

16.  During the same period, the CCTV recordings revealed that there were repeated visits to Room 1526 by unknown persons.  On some of those visits, these unknown persons were accompanied by A1.  On other occasions, he would have been inside the room when they arrived.  In particular, A2 having entered Room 1526 at 01:48 hours on 24 September 2015 carrying a blue bag alleged to contain cocaine hydrochloride and sodium bicarbonate, A1 entered the room two minutes later at 01:50 hours.

The defence case

17.  A1 elected not to testify.  However, he called A2, who had pleaded guilty but not yet been sentenced, as a defence witness.  A2’s evidence was that he would go from hotel to hotel in order to traffic in dangerous drugs.  On 13 September 2015, he had called A1, whom he had known for many years, to book a hotel room for him.  The reason he needed A1 to do so was that he did not possess the necessary identification as a Form 8 recognizance holder to make a booking himself.  On 14 September, he and A1 went to the hotel and made the booking, with A2 paying over HK$25,000 to the hotel staff.  They both then went to choose a room, after which they were told that the key could be collected on the following day.  On 15 September, A1 obtained the keys on A2’s behalf.

18.  A2 claimed in evidence that D3 was his girlfriend and partner in the business of manufacturing cocaine.  The females who subsequently visited Room 1526 had gone there for sex with A1 or A2; for that reason, D3 was not given a key to the room.  The male visitors were A2’s friends.  It was A2’s evidence that A1 had no knowledge of what was going on in Room 1526.  According to A2, all of the cocaine had been brought to the room by D3 in the afternoon of 24 September.  He said that the manufacturing process took place after that.  The money found on the sofa inside Room 1526 was from A2’s customers, who had paid in advance for the finished cocaine.

Prosecuting counsel’s closing speech

19.  In his closing speech, prosecution counsel drew the jury’s attention to the CCTV evidence in order to establish A1’s close connection with Room 1526.  Indeed, it was pointed out that A1 had in fact remained in the room longer than A2.  Although A2 testified that he had received friends and arranged prostitutes in the room, the pattern of short repeated visits was not consistent with friends coming and going in order to have a chat. Moreover, A1 was seen entering and leaving the room repeatedly throughout the day, sometimes in the company of another unknown person.

20.  Towards the end of his speech to the jury, prosecuting counsel addressed the evidence in respect of A1[6]:

“So what do we have against the 1^st defendant? He rented the room. He is seen coming and going through that period. On the 24^th, in particular, he is seen coming and going. D3 puts him in the room at the time when there are drugs scattered all over the room and he is in the room when this bag arrives with the 2^nd defendant. So no matter how much the 2^nd defendant tries to distance the 1^st defendant from the activities in that room, the 1^st defendant's involvement is clear. He is there all the way through. He was there, importantly, on the 24^th, coming and going throughout the day. And he is there arriving at 6.45 in the evening at the time when the drugs were being dried in various places in the room and cooked using that pot.”

Nowhere in his closing speech did prosecuting counsel specifically rely on any suggested purpose for the visits to Room 1526 by various unknown persons from 15 to 23 September 2015.  He did, however, refer to the pattern of these visits as being inconsistent with the purpose for which A2 had contended in evidence[7]. His focus, however, was on the events of 24 September 2015 and the arrivals at, and departures from, the room on that day.

A1’s grounds of appeal against conviction

21.  Five grounds of appeal against conviction have been advanced by Mr Simon Young, on behalf of A1.  The first three grounds concern the admission and treatment of the CCTV evidence (by which term we also include the still photographs derived from the CCTV footage).  Ground 1 contends that the CCTV evidence of the period from 15 to 23 September 2015 (but not 24 September) was inadmissible as being irrelevant and prejudicial.  Ground 2 complains that it was a material irregularity for the judge to invite the jury to make use of the CCTV evidence, which was inadmissible; or, if it was admissible, not to give the jury instructions as to the limits of its use.  Ground 3 contends that it was a material irregularity for prosecuting counsel to use the CCTV evidence to incriminate A1 when it was inadmissible; or, if it was admissible, to use it to allege acts outside the scope of the count particularised.

22.  Ground 4 effectively complains of an unfair and unbalanced summing‑up by making favourable remarks concerning D3’s case to the prejudice of A1’s defence.  Ground 5 alleges that the judge failed to direct the jury that even if A1 was aware of the dangerous drugs inside Room 1526, it did not mean that he was party to drug trafficking.

Discussion

23.  Before examining the validity of the various complaints about the CCTV evidence, it is important to see how defence counsel at trial (not Mr Young) dealt with the issue of its admissibility.  The objection to all of the CCTV evidence, save for that relating to events on 24 September 2015, was mounted on the first day of the trial, namely 20 July 2017, following the arraignment of the defendants.  The question of the admissibility of the CCTV evidence was determined by the judge, therefore, prior to the empanelment of the jury and before prosecuting counsel’s opening address.

24.  It was submitted by defence counsel; firstly, that the earlier CCTV material was not relevant to the events of 24 September, the day of the arrest; secondly, that even if the earlier material had some relevance, it should be excluded as being more prejudicial than probative; thirdly, that the still photographs had appended to them, in both English and Chinese language, a police officer’s opinion as to what they depicted; and fourthly, which was said by defence counsel to be “of particular concern”, that there were a number of photographs showing unknown males or females entering, leaving or waiting outside Room 1526, with no evidence to explain their purpose.  The material giving rise to the last complaint ran the risk of the jury speculating as to why these persons should have been visiting the room.

25.  When counsel had articulated his fourth objection, the judge interrupted, and the following exchange took place:

“COURT: But you’ve been told by (prosecuting counsel) that he doesn’t require these in there. Actually, they are in case you wanted them in.

DEFENCE COUNSEL: Well, I know he says …

COURT: And if you don’t want them in, he’ll take them out.

DEFENCE COUNSEL: Right. Whether we want them in or not will depend upon what the court thinks about the relevance objection, because as I say in simple terms, that’s the reason why …

COURT: But at the moment we’re arguing about something there isn’t an argument on.

DEFENCE COUNSEL: Well, that’s only one branch of the argument, my Lord.

COURT:   I know, but that branch of the argument isn’t an argument. If you don’t want them in, (prosecuting counsel) has said “I’ll take them out.”

DEFENCE COUNSEL:   Right. If you rule that they are admissible, we may want them in for the reasons that he says.  We’d rather the whole lot go out, except of course for the 24^th.”

26.  When the judge told defence counsel that he could not stop the prosecution from adducing the evidence, defence counsel responded:

“DEFENCE COUNSEL: Well, that is the objection, and I’ll take it no further”.

Thereupon, the judge returned to the issue of what was to be done about the depictions of unknown men and women visiting Room 1526:

“COURT: Right. Now, if they are admissible, then do you want those other pictures out, or you want them in?

DEFENCE COUNSEL: Well, my Lord, if they’re going to go in, then we want them in in their entirety …

COURT: All right. Well, then I think that’s how it stands.

DEFENCE COUNSEL: … boots (warts?) and all.

COURT:   All right. There you are; that answers that one.”

27.  It thus becomes clear that, although the primary position of defence counsel at trial was to exclude all of the CCTV material between 15 and 23 September 2015, the defence did not want photographs showing various people coming and going to Room 1526 throughout this period excluded if the CCTV material was ruled to be admissible, notwithstanding the prosecution’s offer to remove it.  We have not been told why defence counsel took this view and there is no suggestion from Mr Young that such a decision on his part was incompetent.  However, since defence counsel must have known that A2 in his later evidence would be claiming that A1 came to the room to have sex with various women, while others came to have a chat with A2, it may be that counsel thought the CCTV footage tended to support his evidence.  Whatever the reason, given the position defence counsel adopted, notwithstanding the prosecution’s offer to remove the photographs in question, the argument that such evidence was more prejudicial than probative is somewhat undermined.

28.  Furthermore, as we have already observed, after the judge said that he was not prepared to “stop the prosecution putting in that kind of evidence”, defence counsel then indicated he wanted the CCTV evidence put into evidence “boots (warts?) and all”.  Accordingly, after the ruling on 20 July 2017, a comprehensive set of admitted facts were signed by the parties in the terms set out in paragraph 14 above. They were subsequently read out to the jury following prosecuting counsel’s opening address on 21 July 2017.  Such admissions not only bound the jury but are binding upon this Court, by virtue of section 65C(3) of the Criminal Procedure Ordinance, Cap 221.  We do not, with respect, see how we can be expected to get around those admissions, unless it can be said that the defence could never have admitted them, since they were irrelevant, or hearsay, or more prejudicial than probative, or otherwise legally inadmissible.

29.  When a voir dire is held to determine the admissibility of a confession, for example, and the judge rules in favour of the prosecution, the defendant does not normally go on to agree voluntariness as an admitted fact before the jury.  Of course, he may do so for tactical reasons, but if he does so, the issue of voluntariness, and thereby admissibility, falls away as a live issue for the jury.  In this case, Mr Young argues that defence counsel at trial should not have admitted the inadmissible and we should therefore disregard the admission of the CCTV evidence by way of admitted fact; at least the part covering 15 to 23 September 2015.

30.  In addressing this rather startling submission, it is necessary to identify why it was that the prosecution needed to adduce the CCTV evidence.  It will be recalled that when PW2 arrested A1, he had responded by saying: “I only rent a room for my friend.  I know nothing”.  Such response was incorporated as an admitted fact[8]. Although A1 did not answer most of the questions put to him in the record of interview, he did nevertheless positively assert that he did not know what his friend (A2) was doing in the room after he rented it for him[9]; he had never seen the dangerous drugs inside the room[10]; he did not know what was inside the pot found in the kitchen[11]; the money on the sofa was not his[12]; the seven mobile telephones seized were not his[13]; he did not know D3[14]; and he did not know anything about the “drugs matter”[15]. He further confirmed that A2 also had a key card to Room 1526[16].

31.  It was, however, the prosecution case that A1 and A2 (and D3) were engaged in a joint enterprise of trafficking and manufacturing dangerous drugs inside Room 1526 on or about 24 September 2015. With A2 admitting his guilt to both counts, a fact known to the jury, it was necessary for the prosecution to establish that the drugs in Room 1526 were also in A1’s possession.  Since A1 was intercepted outside the room, with no drugs in his physical custody, it was incumbent on the prosecution to prove that the dangerous drugs inside Room 1526 were still in A1’s possession because they were within his control in the sense that he knew they were there and he had the intention to exercise custody and control over them.  That issue was brought into even sharper focus when A2 gave evidence for the defence purporting to exonerate A1, whilst implicating D3.  It then became even more relevant to demonstrate A1’s close connection with Room 1526, that he did not simply rent it for another, that he did not go to the room to have sex but that he went there to traffic in (and manufacture) dangerous drugs.

32.  The evidence by which the prosecution sought to establish A1’s possession of the drugs was the key card to Room 1526 in A1’s possession and the CCTV evidence, which showed A1 visiting Room 1526 on a daily basis on numerous occasions since hiring the room.  Possession of the key card by itself may not have been enough in this regard, particularly when A2 had given an explanation as to why A1 had booked the room on his behalf and retained a key.  It will also be remembered that the days of a legal presumption of possession deriving from the possession, custody or control of a key to a room in which a dangerous drug is found are long gone: see R v Sin Yau Ming[17], which repealed section 47(1)(d) of the Dangerous Drugs Ordinance, Cap 134 as being inconsistent with Article 11(1) of the Hong Kong Bill of Rights Ordinance, Cap 383.

33.  However, A1’s repeated daily visits to Room 1526 on some 41 occasions over 10 days, sometimes alone, sometimes with another, at times when others, including A2, would have been inside the room, was compelling evidence establishing a close connection with whatever was going on inside the room; and a close connection with A2.  To have been prevented from showing that A1 had been to the room on a repeated daily basis since 15 September 2015 would have given a distorted picture to the jury of A1’s connection with the room and with A2.

34.  We might add here that there was another aspect of significance concerning the CCTV evidence.  As we have pointed out, A1 in his interview claimed that he did not know D3[18], who was also arrested inside Room 1526 on 24 September 2015, and who was alleged to be part of the joint enterprise with A1 and A2 to traffic and manufacture dangerous drugs.  Yet the CCTV evidence placed A1 and D3 together inside Room 1526 at the same time on 18, 19 and 24 September on at least five separate occasions totalling several hours before the arrest.  Quite apart from giving the lie to A1’s claim that he did not know D3, the CCTV evidence established an obvious connection between A1 and D3.

35.  Mr Eddie Sean, on behalf of the respondent, has convincingly argued that no jury could conceivably have accepted that these 41 visits by A1 to Room 1526 were for the purpose of having sex, still less if crack cocaine was being cooked in the kitchen and dangerous drugs openly displayed in the sitting room.  Once the jury rejected such an improbable, indeed extraordinary, suggestion, there was only one reasonable inference to be drawn, that A1 went to Room 1526 knowing that cocaine was being trafficked inside the room.  That was, after all, why A2 had instructed A1 to hire the room on his behalf; albeit that he claimed not to have told A1 the true reason.

36.  In our judgment, the CCTV evidence was plainly relevant to establish A1’s possession in terms of his knowledge and control of the dangerous drugs inside Room 1526, together with A2, on or about 24 September 2015, as each count averred.  Once the evidence was relevant, it was admissible, subject to any argument of prejudice.  However, as we have pointed out, the argument that the CCTV evidence was more prejudicial than probative was rather undermined by defence counsel’s expressed desire (for whatever reason) to have all of the CCTV evidence, including that of unidentified males and females attending the room during the period 15 to 23 September 2015, placed before the jury.

37.  Mr Young then argued that the suggestion that drugs were being trafficked prior to 24 September 2015 was akin to alleging uncharged acts against A1.  We do not agree.  Right at the outset of the summing‑up, the judge posed the question[19]:

“How do (the prosecution) illustrate the guilt of the 1^st defendant?”

He immediately outlined the prosecution’s answer to that question[20]:

“They say look at those CCTV pictures through all the days up to the 24^th and you can see that two people above all the others feature in those pictures; the 1^st defendant, Ansir Mahmood, and the 2^nd defendant who pleaded guilty, Muhammad Afzal, backwards and forwards every single day, time and time again.

They say whatever you make of those activities between 15 and 23 September, once the door was opened on the 24^th and we can see what is going on, then you have exactly what was going on, drugs, and that is why they took the room. That is what they say. That is the allegation.

When the police raided that room the 1st defendant, of course, was not inside. He was trying to go into the room with his key card when he was arrested. The door itself was on a lock. But what the police were able to find inside the prosecution say demonstrates clearly that drugs were the business; making them and making them for what purpose? To traffic, that is why it is trafficking and manufacturing on or about … 24 September.”

38.  It seems to us that the jury’s minds were properly focussed on the trafficking of the drugs found inside Room 1526 on 24 September 2015, which were the only drugs that were ever seized.  Moreover, the jury were properly given two admonitions against speculation; the first endorsing defence counsel’s submission to the jury that they must not speculate, he having characterised the whole of the prosecution’s case against A1 as speculative[21]; the second in the traditional context of his directions on how to approach circumstantial evidence[22].

39.  Finally, it should be remembered that while the jury unanimously convicted A1 of trafficking in the dangerous drugs found in Room 1526, they acquitted him of manufacturing those drugs by a majority of 5:2. Whether or not that was because the jury were unsure that A1 had actually taken part in any manufacturing of any dangerous drugs on or about 24 September 2015, it clearly shows how careful and faithful they were in respect of the directions they received.

40.  We do not accept any of the complaints in Grounds 1, 2 or 3 and refuse leave to appeal on those grounds.

41.  Ground 4 complains of an unfair and unbalanced summing‑up which, by virtue of the way the judge dealt with D3’s case, is said to have unfairly prejudiced A1’s case.  This ground is, with respect, wholly unrealistic.  The thrust of A1’s defence was that the drugs were nothing to do with him.  To that end, he called A2 as a defence witness to point the finger away from himself and at his co‑accused D3 instead.  Given this tactic, it was incumbent on the judge to review the respective cases of A1 and D3 with particular care.

42.  In addressing D3’s case, the judge reminded the jury that “One of the points made in her favour is that she was remarkably straightforward with the police …”[23], after which he summarised the answers she had given in her record of interview.  He then immediately gave a summary of the oral evidence she had given before the jury.  It is to be observed that he had earlier conducted the same exercise in respect of A1, namely summarising A1’s answers in his record of interview, although he had exercised his right of silence in respect of most of the questions asked of him, and then summarising the evidence of A2, which had been called on his behalf.

43.  It seems to us that the judge in his quoted remarks was merely reiterating defence counsel’s point that she had been immediately forthright in assisting the police investigation, which tended to support her credibility.  We do not accept that A1’s case was thereby unfairly undermined, the judge having given a perfectly clear and correct direction in respect of his right not to answer questions and the importance of not holding such a refusal against him, when addressing his particular case and what he had said in his record of interview[24].

44.  As for supposedly unfairly contrasting the case of D3, who answered questions asked of her in interview, with the case of A1 who, for the most part refused to answer questions asked of him, that is in fact what had happened and what D3 had said in evidence.  The judge was merely articulating her response under cross-examination by A1’s counsel, in the context of summarising her case[25]:

“It was put to her that while some of her answers were the truth, she tried to remove herself from responsibility for the drugs and blamed it on others. She said, ‘I disagree with your suggestion. If I really wanted to shift the blame on others then there is no need for me to give a statement. I was still in a very confused state, very frightened. I could have acted like D1 and D2 and remain silent but I tried my very best to relate the matter’.”

45.  We have examined the other complaints against the alleged imbalance of the judge’s summing‑up as between A1 and D3.  They are wholly without foundation.  Given that A1 had said very little in his record of interview and declined to give evidence at trial, as he was perfectly entitled to do, whereas D3 had answered questions in interview and given evidence, which was subjected to cross-examination by A1’s counsel, it was hardly surprising that the judge should have said more about her case, particularly when A1’s defence involved implicating her so as to exonerate himself.

46.  A1’s case and the evidence adduced on his behalf by A2 was also fully dealt with by the judge and no complaint has been levelled against the way his defence was summed up for the jury by the judge.  There is nothing whatsoever in this ground of appeal.

47.  The fifth ground of appeal contends that the judge did not direct the jury that even if A1 was aware of the drugs inside Room 1526, that did not make him a party to any trafficking or manufacturing.  However, reading the judge’s directions as a whole, that was the unmistakeable message of the summing‑up.  Prior to his directions on joint enterprise, for example, the judge said to the jury[26]:

“But the fact that she was there, her presence in that room would only make her guilty if she was herself a part of what was going on. Knowing exactly what was going to happen with those drugs to be sold she would have to be a person who was involved in the organisation of what was happening in that room. We will come back to that later on, because I have to explain to you later what a joint enterprise actually involves in a case. It is not going to a room to take drugs or for sex or for clearing up, or for even knowing what is going on and being there to do all those things. It is actually taking apart in the offences which are alleged against her.” (Emphasis supplied)

Although the direction seems at this early stage of the summing‑up to have been made in the context of addressing D3’s case in general terms, the reference to going to the room to have sex, albeit knowing about but not being involved in the drug trafficking going on inside the room, would have applied to A1’s case as well.

48.  The direction was reinforced when the judge later returned, as he said he would, to his explanation of the concept of joint enterprise, which was made in respect of both A1 and D3[27]:

“Now, I would like to add a very important point to that. It is very obvious but it needs to be said that the mere fact that someone is present in a hotel room which is full of drugs does not establish guilt. In this case, the evidence needs to establish for someone to be guilty that the reason for that person’s presence at or in the room is in order to take part in either or both of these offences. That is obvious.

In other words, if (A1) or (D3) were just visitors to the room and were not or might not be intending to take part with (A2) in what he was doing with dangerous drugs, then obviously the verdict is not guilty. To be guilty, the prosecution must prove that a defendant who went into that room or was proposing to go into that room did so with the intention of taking part in trafficking and/or manufacturing. Now, I hope that is clear.”

With respect to Mr Young’s argument, which of course does not enjoy the benefit of A1’s evidence as to his state of mind at the time, we cannot accept in the light of those directions and the summing‑up as a whole that the jury could conceivably have convicted A1, if they accepted that he knew about the dangerous drugs inside the room but were unsure whether he intended to take part in the joint enterprise of trafficking in them.  The argument is simply unrealistic in the light of the way the case unfolded before the jury and the clear terms and thrust of the summing‑up.

49.  For the above reasons, A1’s application for leave to appeal against conviction is refused and his appeal dismissed. Accordingly, we turn to A1’s application for leave to appeal against sentence.

A1’s appeal against sentence

50.  It is argued on A1’s behalf that no sufficient distinction was drawn between A1 and A2 in the sentences passed on Count 1, bearing in mind A1’s suggested lesser role, which was made manifest by his acquittal on Count 2, to which A2 had pleaded guilty.

Discussion

51.  The judge presided over the trial of A1 and D3, at which A2 had given evidence, and he was able to sentence A1 and A2 on the same occasion on the same day.  He adopted a starting point on Count 1 for both applicants of 21 years’ imprisonment.  This he increased by 1 year in respect of A1 for his role as “an organiser and associate of the 2^nd defendant”[28], resulting in a sentence after trial of 22 years’ imprisonment.

52.  In respect of A2, the judge enhanced the starting point by 3 years to reflect his role as an organiser[29], for his “appalling record of trafficking in dangerous drugs”[30] and for his status as a torture claimant who had seriously abused the hospitality of the people of Hong Kong by committing such a serious offence[31], making a notional sentence after trial of 24 years’ imprisonment.  This he discounted for plea and other matters of mitigation to 14 years and 4 months’ imprisonment.  In respect of Count 2, the judge adopted a notional sentence after trial of 21 years’ imprisonment, which he likewise discounted to 12½ years’ imprisonment.  He then made 1 year and 2 months of the sentence on Count 2 consecutive to the sentence of 14 years and 4 months’ imprisonment on Count 1, resulting in an overall sentence of 15½ years’ imprisonment.

53.  There can be no doubt that the starting point of 21 years’ imprisonment for trafficking in 830.46 grammes of cocaine is entirely in accordance with the guidelines laid down in HKSAR v Abdallah[32].  As the judge correctly stated[33], and as this Court has recently re‑affirmed[34], those guidelines apply to couriers.  A1 was no mere courier: indeed, he was never seen carrying any drugs.  He was clearly one of the organisers of this enterprise, having booked the hotel room in question and having paid numerous daily visits to the premises.  He along with A2, but not D3, were each found in possession of a key to that room.  We can see no real distinction between his role and A2’s role as traffickers in dangerous drugs.  As for A2, he was indeed also a manufacturer of dangerous drugs and for that offence, he properly received a consecutive element in sentencing.

54.  We see nothing wrong with the sentence passed on A1 at all.  His application for leave to appeal against sentence is likewise refused and his appeal dismissed.

A2’s appeal against sentence

55.  A2’s application for leave to appeal against sentence is dealt with in a separate judgment.  For the reasons explained by M Poon J, his application is also refused and his appeal dismissed.

[1] Video record of interview (“VRI”), Entries 103-123; AB, pp 161-163.

[2] VRI, Entries 248-249 and 256-257; AB, pp 172-173.

[3] VRI, Entries 153-154; AB, p 165.

[4] VRI, Entries 204-205; AB, p 169.

[5] VRI, Entries 141-142; AB, p 164.

[6] AB, p 230D-H.

[7] AB, p 225L-O.

[8] Admitted Facts, paragraph 15; AB, p 13.

[9] VRI Entry 142; AB, p 164.

[10] VRI Entry 205; AB, p 169.

[11] VRI Entry 229; AB, p 171.

[12] VRI Entry 308; AB, p 177.

[13] VRI Entry 319; AB, p 178.

[14] VRI Entry 154; AB, p 165.

[15] VRI Entry 362; AB, p 181.

[16] VRI Entry 249; AB, p 173.

[17] R v Sin Yau Ming [1992] 1 HKCLR 127.

[18] VRI Entry 154; AB, p 165.

[19] AB, p 17T.

[20] AB, pp 17U-18K.

[21] AB, pp 22S-23A; p 31G-J.

[22] AB, p 31G-J.

[23] AB, p 64C-D.

[24] AB, p 42B-F.

[25] AB, p 73O-S.

[26] AB, p 20B-H.

[27] AB, pp 28N-29A.

[28] AB, p 204D.

[29] AB, p 206K.

[30] AB, p 206M.

[31] AB, p 206N-O.

[32] HKSAR v Abdallah [2009] 2 HKLRD 437.

[33] AB, p 204C-D.

[34] HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.