HKSAR v. YEUNG HO WAI

CACC 271/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 271 OF 2013

(ON APPEAL FROM HCCC NO. 407 OF 2012)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the court) :

1. The applicant sought leave to appeal against his conviction on 25 July 2013, after trial before Toh J and a jury of a single count of unlawfully trafficking in a dangerous drug, namely 1.14 kilogrammes of methamphetamine hydrochloride (“ice”) on 26 May 2012, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and the sentence of 22 years’ imprisonment, imposed on him in consequence of that conviction. The applicant was unrepresented in his application in respect of conviction, but was represented by Mr James McGowan in his application in respect of sentence. At the hearing we refused the application and said that we would give our reasons in due course. That, we do now.

The Trial

Prosecution case

2. There was no dispute that at about 5.45 pm on 26 May 2012 the applicant was intercepted by a Customs and Excise officer in the Departure Hall of Hong Kong International Airport as he made his way to board a plane to travel to Australia.  A search of his person revealed the dangerous drugs the subject of the count on the indictment strapped around his waist.  He was in possession of $6,305, Australian $1,000 and Renminbi $437.50 and $6,305. Having been arrested and cautioned the applicant responded to being asked if he knew what the substance wrapped around his waist was by saying that he knew it was contraband.  He explained that at noon that day at a hotel in Dongmen in the Mainland a mainlander whom he called ‘Sze Fu’ (Master) helped him wrap the substance to his body.  He went on to say that on arrival in Australia someone was to contact him to retrieve the two packets and reward him with HK$10,000.

3. In a subsequent video recorded interview made under caution, the applicant said he had agreed to the request of a friend whom he called Law, who was also a parallel trader, to carry something to Australia.  Law gave him $30,000 to pay to join a tour to Australia.  He had a two-year-old debt to Law of $15,000.  When he arrived in Australia, he would be rewarded $10,000, which would be used to offset the loan owed to Law.  Law took him to a hotel in Shenzhen where he met Sze Fu, who took him to a room in the hotel where he strapped the bags to his person.  In answer to the question, as to what was contained in the bags, he had been told that it was “contraband”.  Sze Fu did not reply to his enquiry if they were dangerous drugs.

4. The retail value of the dangerous drug found on the applicant was HK$918,390.

Defence case

5. The applicant testified at his trial.  He said that he was a parallel goods courier, married with a son aged 4.  His family lived in Shenzehn.  He had known and worked for Law since March or April 2009.  He testified that he did not know the substance in the bag strapped to his waist was dangerous drugs.  Whilst he did suspect that to be the case, his suspicion was not confirmed.  He thought the substance to be one that enhanced male sexual prowess.  When he refused to have the substance strapped to him, he had been threatened that his family would be in danger.  So, it was under duress that he agreed to take the substance to Australia.

6. The applicant testified that in early May 2012 Law had asked him to repay a debt of $15,000 incurred two years earlier.  Then, he suggested that the applicant act as a courier to Australia of a consignment of a substance that enhanced male sexual prowess, telling him that he would be rewarded with payment of $10,000 which could be used to offset the debt.

7. On 22 May 2012, Law gave him $30,000 to make payment to join a tour to Australia.  He did so at a travel agent at Sheung Shui.  At Law’s request by telephone the previous day the applicant met him on 26 May 2012 at the Gold Coast Hotel, Dongmen Shenzhen and gave him a mobile phone and a SIM card for use in Australia.  Then, the person he called Sze Fu arrived and Law left.  The former took him to a room in the hotel, where he strapped the substance to his body.  His request to see the substance was denied.  He was scared because he had no idea of the nature of the substance.  In face of his indication that he did not wish to proceed with the plan, Sze Fu said that was impossible, adding that if he did not do so, Law would do something unfavorable to his family, and that Law knew where his family lived.  The applicant testified that as a result he feared that Law would harm his family.  He knew Law to be cruel and fierce.  Furthermore, Law knew where his family lived. 

8. As instructed by Sze Fu he travelled by a seven-seater vehicle to Hong Kong International Airport.  During the journey and before he crossed into Hong Kong he received a telephone call from Law who threatened him not to report to the police, otherwise he would do something unfavorable to his wife and son.  Whilst he was at the airport he received further telephone calls from Law, who told him that he had ‘persons’ in the vicinity.  He did not make any report of his dilemma because he was afraid of what might happen to his family.

9. The applicant said that, having been arrested by Customs Officer Tsang, he had told him that his family was in danger and that he would like to make a phone call to them, but he was ignored.[1] After the video recorded interview he had been allowed to call his wife and a friend.

Summing up

10. In her summing up the judge identified the issues for the jury as being:

“ (i) whether the prosecution has proved beyond a reasonable doubt that the defendant knew that he was carrying the drug into Hong Kong on his way to Australia;[2] and

(ii) in light of the applicant’s testimony as to duress, whether the prosecution has proved “the duress did not apply in these circumstances.”[3] ”

Reasons for Sentence

11. In her reasons for sentence the judge noted that the applicant had been convicted of unlawfully trafficking in 1.14 kg of methamphetamine hydrochloride.  Stating that she had regard to the guidelines articulated by this Court in AG v Ching Kwok Hung[4]the judge noted that the amount of ice in which the applicant trafficked unlawfully “has gone beyond the sentencing guidelines”.  Having regard to the circumstances of the case, the judge said that the appropriate sentence would be “21 to 22 years”.  Noting that this was the first occasion on which the applicant was being sentenced to imprisonment for an offence of unlawfully trafficking in dangerous drugs, she stipulated a starting point for sentence of 21 years’ imprisonment.  Then, she stated that she increased that sentence by one year’s imprisonment to reflect the aggravating factor of the importation of the dangerous drugs into Hong Kong.  She said specifically that she disregarded the fact that the applicant was en route to exporting the dangerous drugs from Hong Kong and importing them into Australia.  Accordingly, she sentenced the applicant to 22 years’ imprisonment.

Grounds of appeal against conviction

12. In an attachment to Form XI filed with the court on 6 August 2013, by which the applicant gave notice of his applications for leave to appeal against conviction and sentence, the applicant set out home-made grounds of appeal against conviction.  In a letter to the court dated 9 April and 4 June 2014 the applicant advanced in additional grounds of appeal against conviction.

13. The applicant contended that on the fourth day of trial, namely 24 July 2013, the judge refused to allow evidence relevant to the defence of duress to be led in the trial.  Next, it was contended that the judge had directed the jury, in respect of the issue of the applicant’s knowledge that he was in possession of dangerous drugs, that “even the defendant only suspected those were dangerous drugs, the defendant had already committed the offence of trafficking in a dangerous drug”.

14. Then, it was submitted that, notwithstanding the fact that the judge directed the jury not to be prejudiced against the applicant in reaching their verdict on the count on indictment, the judge erred in reminding the jury that the applicant worked as a courier of parallel goods and thereby was involved in smuggling and the evasion of tax. 

15. Further, in effect, it was submitted that the judge’s summing up was biased in favour of the prosecution and against the applicant.

16. Also, the applicant complained that the judge’s directions in respect of evidence relevant to duress were flawed, namely:[5]

“ …ask yourself firstly whether the defendant was driven to act as he did - that is, carry the dangerous drugs into Hong Kong - because he genuinely and reasonably believed that if he did not do so, his wife and son would be harmed either immediately or almost immediately. If you are sure that is not the case, then the defence of duress does not apply.”

The applicant submitted that in the last sentence of those directions the judge ought to have directed the jury to the effect that the question was to be answered in favour of the applicant if they were satisfied that may have been the case.

17. Further, it was contended that the judge’s directions in respect of the objective limb of the direction in respect of duress was also flawed, namely:[6]

“ if you think a reasonable person would or might have been driven to do what the defendant did, then the defence of duress suppliers, and you may find him not guilty.” [Italics added.]

It was submitted that the judge ought to have directed the jury, “you must find him not guilty.”

18. At the hearing, we permitted the applicant to advance yet another ground of appeal, which arose from the transcripts with which he had been supplied only recently, and was dealt with by the judge in her summing up in which she said that the applicant admitted that “the methamphetamine hydrochloride was strapped on his person”.[7] The applicant asserted that he had never made that admission.

Grounds of appeal against sentence

19. The single ground of appeal against sentence advanced by Mr McGowan is that the judge stipulated a starting point for sentence which was too high having regard to the sentences imposed on others in which the circumstances of the commission of the offence was similar.  He noted the court noted that the judgment relevant to unlawfully trafficking in ice was that of this Court in AG v Ching Kwok Hung.  He pointed out that the judgment of this Court in HKSAR v Abdallah [8] concerned heroin and cocaine, and not ice.  In consequence, he submitted there was no applicable specific guideline of this Court for sentencing for unlawfully trafficking in ice in quantities greater than 600 grammes.  Furthermore, he reminded this Court’s judgment in HKSAR v Tam Yi Chun [9] in which a guidance was given for sentencing in cases of unlawfully trafficking in place, including in amounts greater than 600 grammes was not relevant to the instant application, since the judgment was delivered after the commission of this offence.

20. As a result, Mr McGowan invited the court to have regard to a series of its earlier judgments and sentences imposed by judges in the Court of First Instance as relevant to consideration of whether or not the sentence imposed on the applicant was manifestly excessive and to note that this Court and said that consistency in sentencing, in particular for offences of unlawfully trafficking in dangerous drugs, was an important consideration.  In doing so, he invited the court to proceed on the basis that the applicant was a mere courier and occupied no greater role in the commission of the offence.

A consideration of the submissions

The judge’s directions in respect of duress

21. The judge’s directions in respect of duress follow in large part, but not entirely, Specimen Direction 49, of the Judicial Institute’s ‘Specimen Directions in Jury Trials’.  Having directed the jury that it was for the prosecution to prove that the defendant was not acting under duress the judge said:[10]

“ … you must ask yourself firstly whether the defendant was driven to act as he did - that is, carry the dangerous drugs into Hong Kong - because he genuinely and reasonably believed that if he did not do so, his wife and son would be harmed either immediately or almost immediately. If you are sure that is not the case, then the defence of duress does not apply.

[11] Now, if you consider that the answer to the question that I have just said is yes[12], then you have to further consider whether a reasonable person in the defendant’s situation and believing what the defendant did would have been driven to do what the defendant did. Now, by “a reasonable person”, I mean a sober person of reasonable firmness of the defendant’s age and sex. If you are sure a reasonable person would not have been driven to do what the defendant did, the defence of duress does not arise. If you think a reasonable person would or might have been driven to do what the defendant did, then the defence of duress applies, and you may[13]find him not guilty.” [Italics added.]

22. Whilst judges are enjoined in the Specimen Directions to tailor their directions in the summing up to the facts and circumstances of the particular case, it is not readily understandable why the judge should have omitted one part of the direction, namely “However, if you think this was or may have been the case” and substituted it with the direction of what they were do if they answered the first question in the affirmative and to have changed the mandatory direction, “must”, to the permissive, “may”.  The judge fell into error in giving those directions to the jury.

23. Neither counsel for the prosecution, Mr Laskey, nor counsel for the applicant, Mr Boyton, raised any matter with the judge at the conclusion of the summing up.

24. Shortly after the passages in the summing up cited above, the judge went on to direct the jury:[14]

“ Onus is on the prosecution to prove there was no duress, and if you are not sure as to whether to believe his evidence or not, then the prosecution has failed to discharge the burden of proof, and the benefit of the doubt is to the defendant and you must acquit.”

25. That direction resonated with the direction that the judge had given the jury shortly before in respect of their approach to the applicant’s evidence:[15]

“ It is for you to decide whether you believe the evidence of the defendant or whether it may be true. If the account given by the defendant is true, or maybe true, then he is entitled to be acquitted. You can only convict if you are sure that a normal person, a sober person of reasonable firmness like the defendant, would not have acted as he did.”

26. Furthermore, that direction served to confirm the assertion made by the defence, specifically in the context of the defence reliance on the issue of duress, referred to by the judge at the outset of the summing up when she addressed the cases of the respective parties:[16]

“ So the defendant asserts that he was under duress to bring the drugs which were found on him to Australia and they assert that if you find that what he says is true or maybe true he should be acquitted.”

27. Having regard to the summing up as a whole, we are satisfied that that although the judge fell into error in the directions that she gave to the jury that we have identified that error was not material because we are satisfied that it was brought home to the jury that, subject to resolution of the second and objective limb relevant to the issue of duress, if they accepted that the applicant’s evidence was or maybe true he was to be acquitted.

Knowledge: suspicion

28. There is no merit in the applicant’s contention that the judge had directed the jury that the applicant’s admitted suspicion that substance was dangerous drugs was sufficient to prove knowledge of that fact.  The direction that the judge gave the jury in respect of the applicant’s submission accorded with the notes to Specimen Direction at 61.2:[17]

“ Now, the other matter which I want to say to you, members of the jury, is the knowledge. That is the constructive knowledge. Now, you remember, as Mr Laskey has pointed out to you, that his last question before the break the other day to the defendant was the defendant said he was suspicious that it was dangerous drugs that was being strapped on him, but when he asked Sze Fu, Sze Fu did not answer him.

Now, suspicion is not enough. The prosecution must prove that the defendant knew. However, knowledge can be inferred from the circumstances. The prosecution cannot open the defendant’s brain and say to you, “Look, he knew.” So how do you, at the end of the day, find that he knew? It is through all the circumstances. Mr Laskey said it must have been obvious to him, and Mr Laskey says, well, it was clear that the defendant, even from his own evidence, said he suspected it was dangerous drugs, but he avoided getting confirmation because he neither wanted nor indeed needed the confirmation, whereas in common sense and in truth, he knew.

Mr Laskey says well, there was opportunity for him.  Particularly, he arrived at the airport, he got off by himself.  He could confirm that what he was carrying on him, if he went perhaps, you may think, to the toilet and looked at what was strapped on his person, he would get confirmation of what he was actually carrying, and so Mr Laskey is saying, “Well, use your common sense and consider whether he did shut his eyes to the obvious.”

So that is a matter for you, members of the jury, whether, considering all the circumstances and all the evidence, if he actually shut his eyes to the obvious and whether he actually knew at the time he came into Hong Kong with the substance strapped around his body that it was dangerous drugs he was carrying.  So this is what is meant by constructive knowledge. You have to look at all the facts before you, look at what he says to the Customs officer, look at what he says to you in the witness-box, take into account Mr Laskey’s and Mr Boyton’s arguments before you, and draw your own conclusion, and really, it is a matter of using your common sense, members of the jury, and using your experience as men and women of this world when assessing the evidence.”

The judge’s refusal to allow evidence relevant to the issue of duress to be adduced

29. During the evidence of the applicant, in the absence of the jury, Mr Boyton raised with the judge his concern that the prosecution was suggesting that the applicant’s testimony that he had complained to Customs Officer Tsang and other Customs officers shortly after his arrest that his family were in danger was a recent fabrication.  He said that he had instructions to that effect.  That was not a matter that had been put to Customs Officer Tsang.  He suggested that he be permitted to put those written instructions to the applicant.[18] However, the issue was resolved by being agreed between the parties that Customs Officer Tsang be recalled for the matter to be put to him in cross-examination.

30. At the conclusion of the evidence of the applicant Customs Officer Tsang was recalled and denied the suggestion that the applicant had requested on several occasions to phone his wife “because she was in danger”.[19]

31. There is no merit whatsoever in this ground of appeal.

Parallel trader

32. As counsel for the respondent pointed out in written submissions, evidence that the applicant was a parallel trader was led at the outset of the applicant’s evidence-in-chief by way of a leading question.[20] Its clear relevance was as to his relationship with Law, the nature and origin of the debt owed to Law and to the issue of duress.

33. In her summing up, in the context of addressing the personal characteristics of the applicant relevant to the issue of his knowledge that he was possessed of dangerous drugs, the judge said:[21]

“ In his evidence, he said he came to Hong Kong, although he was born in China, he came to Hong Kong at about the age of 11 and that he had been a parallel goods courier over the years and that is how he came to meet Mr Law. So you may consider that he had quite ample life experiences. He is not a young man without any life experiences. He has dealt with people who are also in the parallel goods business. It is, as you have heard, a form of smuggling to evade the imposition of tax, and you have heard from the defendant that he mainly deals with, I think he said, red wine and mobile telephones.”

34. However, the judge went on immediately to give the jury directions not to use evidence as to his activities as a parallel trader to conclude that he was trafficking in dangerous drugs as alleged in the indictment:[22]

“ But I have to warn you, as Mr Boyton has said, even though you may think he is a smuggler of these items into China, that does not make him guilty of being a drug trafficker. You cannot say, because he is a smuggler, he is therefore a drug trafficker. That cannot be done. The only thing you can do is say he has ample life experiences as a parallel goods courier, smuggling wine and mobile phones into China, so he cannot be that stupid as far as life experiences are concerned. You still have to look at the facts in this case and taking into account his characteristics, whether, in the circumstances, what he says to you is true or may be true.”

35. We are satisfied that in all the circumstances, and mindful of the fact that the applicant had chosen to volunteer in evidence that he was parallel trader, that the directions given by the judge to the jury to guard against impermissible prejudice were entirely appropriate.

Biased summing up

36. In her summing up, the judge adopted a scheme of reminding the jury on the one hand of how the prosecution put its case as arising from the evidence and on the other hand the defence put its case. So, she directed the jury:[23]

“ How does the question of inference arise in this case? What the prosecution say is that people normally know what they are carrying, especially if those things are strapped onto their body. The defendant says he was blindfolded when the things were put on him. The prosecution says, even if that were so, he had opportunity, at the latest, when he arrived at the airport, to go to the toilet and look for himself, even though, when he questioned the Sze Fu, Sze Fu refused to answer him. The prosecution says that, using your commonsense, do you accept that those drugs, the dangerous drugs were strapped on him in the circumstances which he has told to you?

Mr Laskey has pointed out the circumstances of his evidence and he submitted to you that it should not be believed. The prosecution also says that it is unlikely that the defendant would be entrusted with such valuable dangerous drugs in the amount of over HK$900,000 and that he was going to Australia by himself. In all the circumstances, the prosecution says, he is not telling you everything. So the prosecution says, from these circumstances, the only inference, the only reasonable inference, to draw is that when he came to Hong Kong, he knew that he was carrying dangerous drugs on his person.

  Apart from the fact that the defendant raised his defence of duress, very late in the day, Mr Laskey’s point is that he had plenty of time to think about it and the first time he raised it was in the video-recorded interview which was some hours after his arrest.”

37. Immediately, the judge went on to summarise how the defence put its case:[24]

“ The defence, on the other hand, says that while guilty knowledge may be a possible inference, it is not the only reasonable inference. Mr Boyton says it is not unusual that people like Mr Law and the Sze Fu would take advantage of a person like the defendant. He is not a very clever person. He is vulnerable because they knew where his wife and son lived, and so they could trust him with carrying those drugs via Hong Kong into Australia.

And Mr Boyton says that the defendant said in evidence before you that he did draw PW1, Mr Tsang, the Customs officer’s attention to the fact that his wife and son were in danger but he was ignored and Mr Boyton’s point is that the Customs officers did not take what he said seriously because when he, in the video-recorded interview, pointed out that Mr Law would do something to his family members - at Counter 335, when he said “Gung” or “Okay”, the Customs officers ignored it and moved onto another subject.

  So Mr Boyton’s point is that, members of the jury, it is the only -- you cannot draw an irresistible inference that the defendant knew that he was carrying dangerous drugs because he never got confirmation that he was carrying dangerous drugs, it was only a suspicion and that, also, on top of that, he was in fear because his family had been threatened and therefore he acted as he did.  So you cannot draw the inference that he was a willing participant in this dangerous drug trafficking.”

38. Having reviewed and summarised the position of the parties, the judge directed the jury as to how they were to approach the matter:[25]

“ In respect of that inference of knowledge, whether you draw it or not, it is a matter for you. And it is a matter for you what facts you find conclusively proved in this case.

  If you find that you are unable to draw the inferences the prosecution invite you to draw because you find that it is not the only reasonable inference that can be drawn from the facts you find proved, then the defendant must be acquitted.  If, from the facts proved, you find two equally compelling inferences, then you must draw the one most favourable to the defendant.”

39. The judge approached his summary of the competing positions of the parties on other points in a similar way.  Of the expenses involved in paying for the applicant to go to Australia in the context of the applicant’s evidence that he had been asked to take a substance which enhance male sexual prowess the judge said:[26]

“ You will take into account Mr Laskey’s observations that it seems to be a lot of expenses being spent to take this medicine to Australia, because apart from the $10,000 to be offset, the defendant was given cash, the tour cost some $27,000, and so Mr Laskey’s point is that well, it is a lot of money to spend for just sexual enhancing drugs to take to Australia. So it must have been obvious therefore to the defendant that he was not taking sexual enhancing medicine to Australia.

Mr Boyton’s point is that well, it is at that time, as the defendant said, the cash that he was taking he was being given which was found on him was really, he had to return that to Mr Law at the end of the journey, so really, Mr Law was only offsetting the $10,000 and the cost of the tour to Australia.

  So take all that argument into consideration, members of the jury, when you are considering whether the evidence of the defendant is to be believed.”

40. Of the alleged inconsistencies in the accounts the applicant had given in his out-of-court and in his evidence in the trial, the judge said:[27]

“ …. in P38, which is the post-record record that PW1, Mr Tsang, wrote he said that he knew it was contraband and that he would get $10,000 when he arrived in Australia. He did not say that that would offset the debt he owed Mr Law in that initial interview, and he did not mention that his family was in danger. As Mr Laskey pointed out, there was an ending declaration in P38 where he wrote in his own writing that he knows he can correct or alter anything he said, but he never wrote in there that he forgot he had not mention about the harm that would be done to his family.

So take that into account. Mr Laskey says well, he had a lot of time to think about it, and so by the time he was interviewed at P44 in the transcript, he then mentioned about his family being harmed, and Mr Laskey’s point is that by the time he gave evidence before you he elaborated that into much more than what he initially said to the Customs officers. So the prosecution’s point is that he was making up, fabricating, the story as he was going along, and he was not recounting the truth to you. So that is what he said.

  Mr Boyton says, well, the attitude of the Customs officers was to ignore what he said.  He actually did complain about danger to his wife to PW1, but PW1 ignored it, and look at the attitude of the inspector when interviewing the defendant in P44.  When the defendant said there would be harm to his wife and son, the inspector moved on to another topic.”

41. Of the issue of whether or not the applicant had complained to Customs officers at the outset that his wife was in danger, the judge reminded the jury of the conflicting evidence:[28]

“ So the defendant said he told PW1, Mr Tsang, and other Customs officers that his family were in danger when he was brought into the room initially, and that he would like to make phone calls, but they ignored him, and finally, at 2.50 am, after the video-recorded interview, he was allowed to call his wife….”

42. The judge went on to say:[29]

“ Now, he was asked why did he not say to Mr Tsang, the first prosecution witness, that “You feared for the safety of your wife and son and you did it because of that”, and his answer was “My mind went blank. I could not think of anything.” But yet in P38, which is the post-record which he admitted he said those things, he said he will get a reward. So although his mind went blank, you may think he still remembered that he was to get a reward. So, members of the jury, that is a matter for you.

And he said that it did not cross his mind at the beginning of the video-recorded interview which was P44 to tell the inspector that there was danger to his wife and child, and he agreed that what he said in the video-recorded interview about the threats was different to what he told you in court.

Now, after the defendant gave evidence, the first prosecution witness, Mr Tsang, was recalled in order for the defence to put to him that the defendant told him that his wife was in danger and he had to call her when he brought the defendant into the room.  Mr Tsang denied that, and he said that if the defendant did tell him that, then he would report the matter to his senior and also see what extent the danger was.”

The issue of whether or not the applicant admitted that ice was strapped to his body

43. The passage to which the applicant took objection in his oral address to the court, in which the judge told the jury that the applicant admitted that the ice was strapped to his body is to be viewed in context.  The judge was addressing the issues arising in the case and said:[30]

“ In considering your verdict in this case, you will need to ask yourself two questions. Firstly, am I sure that the defendant took the drugs into Hong Kong? I do not think you will have a problem with that question because he admitted that the methamphetamine hydrochloride was strapped on his person.

   The second question is, at the time he came here into Hong Kong, before being stopped by the Customs officers, did he know that what was strapped on him were dangerous drugs?  If you are not sure that he knew he was carrying dangerous drugs, then that is the end of the matter and you must find him not guilty.”

44. In context it is clear that the judge differentiated entirely appropriately between the fact that the applicant had ice strapped to his body when he came into Hong Kong and the issue of his knowledge that he was in possession of dangerous drugs.  The direction reflected the evidence and the position taken by the parties in the trial.  There is no merit at all in this ground.

Conclusion

45. In the result, we are satisfied that there is no merit in the grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction is refused.

A consideration of the submissions in respect of sentence

46. It is to be noted, that in sentencing the applicant, the judge referred to only one judgment of this Court, namely Ching Kwok Hung.  No doubt, the judge’s reference to the fact that the 1.14 kg of ice in which the applicant trafficked unlawfully “has gone beyond the sentencing guidelines” was a reference to the fact that the guidelines stipulate “over 600 grammes - 18 years and upwards”.

47. There is no dispute that the revised guidelines for sentencing for offences of trafficking unlawfully in ice articulated in HKSAR v Tam Yi Chun[31] have no application to the applicant, since it post-dates the commission of this offence.  In that case, this Court stipulated that henceforth the same tariffs as set out in Abdallah, for sentencing for offences of unlawfully trafficking in quantities of heroin and cocaine of “600 grammes and over”, were to be applicable to sentencing for offences of unlawfully trafficking in ice.  As the Court noted in its earlier judgment in HKSAR v Chan Po Wah[32], the guidelines for sentencing for offences of unlawful trafficking in cocaine and heroin by this Court in Abdallah did not apply to sentencing for offences of unlawful trafficking in ice.[33] For purposes of sentencing in Tam Yi Chun, Stock VP said that the applicant was to be sentenced:[34]

“ on the basis that at the time of the offence when she was convicted, he Abdallah guidelines did not apply to trafficking in very large quantities of ICE and that a slightly lower tariff was applicable at that level.”

48. Of the fact that importing cocaine or heroin into or exporting from Hong Kong was an aggravating factor in the commission of the offence, this Court noted in Abdallah:[35]

“ It has long been accepted that the international element in trafficking, whether by importation or exportation, is to be regarded as a factor in material aggravation of the offence in sentencing purposes..”

Those observations apply equally to ice.

Conclusion

49. Whilst the starting point of 21 years’ imprisonment stipulated by the judge was at the high end of the appropriate range of sentence of obtaining at the time of the commission of the offence, the enhancement of sentence for the aggravating factor of the international element of the commission of the offence of only one year’s imprisonment was lenient having regard to the amount of ice, namely 1.14 kg.  In our judgment, the resulting sentence of 22 years’ imprisonment was not manifestly excessive.  Accordingly, we refused the application for leave to appeal against sentence.

[1] Appeal Bundle, pages 135 S - 136 N.

[2] Appeal Bundle, page 2 D-E.

[3] Appeal Bundle, page 4 Q.

[4] AG v Ching Kwok Hung [1991] 2 HKLR 125.

[5] Appeal Bundle, page 14 B-E.

[6] Appeal Bundle, page 14 I-L.

[7] Appeal Bundle, page Q-R.

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

[9] HKSAR v Tam Yi Chun (CACC 524/2011; unreported 9 June 2014).

[10] Appeal Bundle, page 14 B - F.

[11] Specimen Direction 49(4) suggests the following direction, which the judge omitted:

   “However, if you think that this was or may have been the case you must next consider whether a reasonable person in D’s situation and believing what D did would have been driven to do what he did.” [Italics added.]

[12] Modified version of Specimen Direction 49 (4), namely “However, if you think this was….. the case”.

[13] Specimen Direction 49(5) suggests the following direction:

   “However, if you think that a reasonable person would or might have been driven to do what he did, the defence of duress does not apply, and you must find the not guilty.”

[14] Appeal Bundle, page 14 P-S.

[15] Appeal Bundle, page 12 H-J.

[16] Appeal Bundle, page 1 S-U.

[17] Appeal Bundle, pages 15 M - 16 O.

[18] Appeal Bundle, pages 200 I - 203 M.

[19] Appeal Bundle, page 192 8-C.

[20] Appeal Bundle, page 117 O-P.

[21] Appeal Bundle, page 11 F-L.

[22] Appeal Bundle, page 11 M-S.

[23] Appeal Bundle, pages 6 O - 7 H.

[24] Appeal Bundle, pages 7 I - 8 B.

[25] Appeal Bundle, page 8 E-K.

[26] Appeal Bundle, pages 18 - 19 F.

[27] Appeal Bundle, page 17 C-Q.

[28] Appeal Bundle, page 21 B-F.

[29] Appeal Bundle, pages 21 K - 22 B.

[30] Appeal Bundle, page 8 P-U.

[31] HKSAR v Tam Yi Chun (CACC 524/2011; unreported, 9 June 2014).

[32] HKSAR v Chan Po Wah (CACC 179/2012; unreported, 26 March 2013).

[33] HKSAR v Chan Po Wah, paragraph 19.

[34] HKSAR v Tam Yi Chun; page 17 N-P, paragraph 41.

[35] HKSAR v Abdallah; 447, paragraph 21.