HKSAR v. LEE YUEN FOOK AND OTHERS

CACC 69/2018

[2019] HKCA 1105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 69 OF 2018

(ON APPEAL FROM DCCC NO 67 OF 2017)

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J U D G M E N T

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1.  This is a case of two police officers agreeing to procure and provide confidential information about a murder investigation to a third party for monetary reward.

2.  On 31 January 2018, the 1^st, 2^nd and 3^rd applicant, who I will refer to by their trial designations as D1, D2 and D3 respectively, were convicted after trial by District Court Judge E. Yip (the judge) of conspiracy to commit misconduct in public office, contrary to common law and sections 159A and 159C of the Crimes Ordinance, Cap 200, and section 101(1) of the Criminal Procedure Ordinance, Cap 221.  The judge sentenced D1 to 3 years’ imprisonment, D2 to 2 years and 6 months’ imprisonment, and D3 to 2 years and 3 months’ imprisonment.

3.  By notice of appeal dated 14 February 2018, (which was received on 8 March 2018), D1 applied for leave to appeal against his conviction and sentence.  However, D1, at the leave hearing on 3 October 2019, abandoned his appeal against sentence.  By notice of appeal dated 14 February 2018, (which was received on 8 March 2018), D2 applied for leave to appeal against his conviction and sentence.  By notice dated 27 September 2019, D2 formally abandoned his appeal against sentence.  By notice of appeal dated 6 March 2018 (which was received on 8 March 2018), D3 applied for leave to appeal against his conviction and sentence.  By notice dated 27 September 2019, D3 formally abandoned his appeal against sentence.

4.  The end result is that the three applicants now only apply for leave to appeal against conviction.

The offence

5.  At the time of the offence, D1 and D2 were serving police officers, a police constable and station sergeant respectively. D3 was a civilian and an acquaintance of D1.  It was alleged that between 8 October 2014 and 7 June 2015, the applicants conspired together with other unknown persons that D1 and D2, being public officials, “without reasonable excuse or justification, would wilfully and intentionally misconduct themselves in the course of or in relation to their public offices, in return for monetary reward, by: (i) procuring and obtaining confidential information of the police investigation into the murder of Wong Man-kin (“the Investigation”); and (ii) divulging confidential information of the Investigation to other persons.”

The murder investigation

6.  On 5 October 2014, Wong Man Kin, whose nickname was Ah Tse, (Wong), together with a Chinese male, assaulted two customers at a restaurant in Tsim Sha Tsui.  They fled the scene but were caught nearby by a gang of Chinese males armed with knives.  Wong was attacked and stabbed, sustaining injuries to his head which resulted in his death two days later.  A murder investigation was undertaken by the police which was initially investigated by District Anti-Triad Team at Yau Tsim District but later transferred to a Regional Crime Unit at Kowloon West Regional Headquarters.[1] 

7.  The police identified five suspects, Tang, Chan, Kan, Lau, and Luk (for present purposes it suffices just to refer to them by their family names, although they were also known by nicknames).  Two of the suspects, Tang and Chan, were arrested by the police on 7 and 8 October 2014 respectively, while the other three were at large, with Kan and Lau having left Hong Kong.  On 10 October 2014, Tang was charged with murder while Chan was released on police bail.  The case against Tang was adjourned to 30 January 2015 for further inquiries, including his participation in an identification parade on 9 December 2014 which proved to be unsuccessful.  He was released unconditionally for insufficient evidence on 30 January 2015.  On 7 November 2014, Luk was arrested and released on police bail, but later on 5 January 2015 he too was released unconditionally for insufficient evidence.  Lau and Kan, accompanied by legal representatives, surrendered to the police on 21 and 28 May 2015 respectively.  Both remained silent under caution.  Eventually no prosecution was initiated against them and they were released unconditionally for insufficient evidence.

The prosecution case

8.  The prosecution case was that, in the early stages of the murder investigation, D3 contacted D1 in order to procure and provide information about the progress of the murder investigation and the sufficiency of evidence against the suspects.  D1 then contacted D2 to obtain such information.  D2 in turn contacted Cheng Pak-to (Cheng), a police sergeant, who was a member of the team investigating the murder at Yau Tsim District.  Whatever information D2 received, he would provide it to D1.  D1 in turn divulged the information to D3.  It was agreed that D3 would pay D1 and others, including D2, monetary reward for the information provided.

9.  The Independent Commission Against Corruption (the ICAC) carried out a covert operation in relation to the dealings between the applicants during the relevant period.  ICAC officers placed recording devices inside the motor vehicles of D2 and D3.  They conducted six covert surveillance operations (which were designated at trial as CS 1 to CS 6), between 5 November 2014 and 6 June 2015, of a meeting between D1 and D2 in D2’s motor vehicle on 5 November 2014 (CS 1), and of meetings between D1 and D3 in D3’s motor vehicle on 14 January 2015 (CS 2), 25 February 2015 (CS 3), 6 March 2015 (CS 4), 2 June 2015 (CS 5), and 6 June 2015 (CS 6).  During each of the surveillance operations, the ICAC officers had the applicants under observation and covertly recorded the conversations taking place inside the motor vehicles.  The audio recordings and transcripts of the six covert surveillance meetings were produced as exhibits by way of admitted facts.[2]

10.  In the early hours of 7 June 2015, D1 and D2 were separately arrested by ICAC officers, after they had left the Music Lounge bar in Yuen Long.  D3 had also been at the Music Lounge Bar but had left earlier and was elsewhere when he was arrested.  D2 was arrested first at 1:15 am.  He had in his possession a mobile telephone number 98091857 and a memory card, together with a total of $27,190 cash.[3] D1 was arrested next at 1:27 am.  Apart from a Nokia mobile telephone and three keys, he had no other personal items in his possession, such as a wallet, cash or his Hong Kong Identity Card.[4]

11.  D3 was arrested by ICAC officers at about this time at an estate in Tin Shui Wai.  D3 had in his possession two mobile telephones with the number 61111355 (the 1^st iPhone) and 91400080 (the Nokia Phone) respectively, as well as a total of $44,390 cash.  A search of D3’s office also uncovered a mobile telephone with a prepaid Sim card, which had a Hong Kong number 67394742 and a Mainland number 14715684742 (the 2^nd iPhone); and cardholder certificates for the 2^nd iPhone and the Nokia Phone.[5]

12.  D1 was interviewed under caution. He exercised his right of silence and did not answer questions about the matter under investigation.

13.  D2 was interviewed under caution. He also exercised his right of silence but on some occasions he answered questions.  He admitted that he knew Cheng when they were attached to the same police team and that he had known D1 for about 8 to 10 years, with whom he would occasionally go out for meals.  He acknowledged that at some social gatherings he met a person with the nickname “Fanling”,[6] whom he accepted was D3.

14.  D3 was also interviewed under caution.  He admitted that he had used the mobile telephone number 61111355 for at least 3 years and that he was also a user of the mobile telephone number 91400080. 

15.  The ICAC retrieved about a thousand WhatsApp messages between D1 and D2, D1 and D3, and D2 and Cheng, from the Sim cards of the mobile telephones of D2 and D3.[7]

16.  The prosecution case against the applicants was mainly based on the evidence of the ICAC officers in relation to the surveillance operations together with their observations; the audio recordings of the meetings between the applicants; and the WhatsApp messages. 

The defence case

17.  The applicants at trial neither gave evidence, nor called evidence on their behalf.  The defence case was directed to whether D1, D2 and D3’s voices were on the audio recordings of the covert surveillance operations; whether they sent or received the WhatsApp messages retrieved from the Sim cards relating to them; and whether the information procured or provided was confidential.

The reasons for verdict

18.  The judge in his reasons for verdict accepted the evidence of the ICAC officers in relation to their identification of the participants and observations of the six meetings, CS 1 to CS 6.  He accepted that most of the ICAC officers evidence confirmed that they had recognised the relevant applicants because they had seen them previously.  He concluded that there was no other person getting in and out of the motor vehicle at each of the meetings after listening to each audio recording of the six meetings.  He also found that the applicants were the users of their respective WhatsApp accounts and the senders or the receivers of the messages in question.  He was satisfied that the information procured and divulged was information kept by the police for the detection of crime, which he determined was confidential.  He also rejected the defence argument that the agreement between the applicants was for D1 and D2 to procure and obtain information in the public domain. 

19.  The judge found that the case against the applicants was proven and that they were guilty of the charge of conspiracy to commit misconduct in public office.[8]

D1’s appeal against conviction

20.  Mr Andrew Bruce, SC, with Mr David Khosa, for D1, advances five grounds of appeal against conviction. 

Grounds 1 and 2

21.  In Ground 1, it is complained that the WhatsApp messages which purported to come from D1 and D2 as displayed on the mobile telephone of D3 in relation to (1) their content; (2) time of sending the purported messages; (3) the asserted source of the messages; and (4) the purported communications/replies by D3, were inadmissible hearsay as against D1.  In consequence of Ground 1 being successful, it is submitted in Ground 2 that the conviction is unsafe and unsatisfactory because it is based on a material irregularity.

Grounds 3 and 4

22.  In Ground 3, it is complained that the judge failed to consider whether D1 believed that the information so transmitted was confidential information.  In consequence of Ground 3 being successful, it is submitted in Ground 4 that the conviction is unsafe and unsatisfactory because the judge had erred in his conclusion that the information was in fact confidential.

Ground 5

23.  In Ground 5, it is complained that the conviction was unsafe and unsatisfactory because the judge failed to deal with significant weaknesses or flaws in the identification evidence of D1.  Under separate headings in this ground, it is specifically complained that the judge: (1) was unable to evaluate the quality of the Registration of Persons photograph of D1 that was used by ICAC officers who testified of identifying D1 and having him under surveillance because the photograph was not retained; (2) failed to properly take into account the failure on the part of the ICAC officers of keeping a record of any meaningful detail of the surveillance; (3) relied on the observations of the ICAC officers to bolster the quality of the identification of D1 which were unreliable or questionable; (4) erred in equating credibility of the identifying witnesses with reliability of their identification of D1; (5) failed to take into account the absence of an identification parade by the identifying witnesses; and (6) failed to identify how the Turnbull guidelines impacted on his analysis and reasoning in accepting the observations and identification of the ICAC officers.

Discussion

24.  Mr Bruce has crystallised the grounds of appeal by relating them to three distinct areas of complaints. 

Inadmissible hearsay

25.  In respect of Grounds 1 and 2, concerning the issue of inadmissible hearsay of the WhatsApp messages, Mr Bruce accepts that he is not so much challenging the treatment of the contents of the WhatsApp messages by the judge but rather his reliance on the number that appeared on the screen of the mobile telephone, which the judge treated as being the number of the mobile telephone of one of the other applicants.  He argues that the judge was relying on the truth of the number, which was inadmissible hearsay, to link the WhatsApp messages to the mobile telephones of the other applicants. 

26.  A similar argument was mounted in HKSAR v Ali Muhammad Kamran (unrep., CACC 202/2018, 26 July 2019) and rejected by the Court of Appeal.[9] In that case, the applicant sent text messages to a doctor on his mobile telephone, making blackmail threats, which were contended to be inadmissible hearsay.  The Court found that there was independent evidence which established the applicant’s telephone number.  Once the text messages were proved to have come from the applicant they had relevance in supporting the doctor’s evidence that he was being blackmailed by the applicant.  See Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98.

27.  The judge in the present case addressed the issue as to who was the sender or recipient of the WhatsApp messages that the prosecution relied on.[10] He did not just rely on the number on the screen to determine that D1 was the user of the mobile telephone number 93484901 at the material times.  He noted that D1’s wife was the subscriber for the telephone number[11] and that some of the recorded contents on the telephone related to personal matters of D1 which had been proven through independent evidence, such as photographs of D1, and D1’s Hong Kong Jockey Club number 05381401, which was proven by admitted fact.[12]

28.  In the circumstances, I am not persuaded that this is a reasonably arguable ground of appeal.

Knowledge that the information was confidential

29.  In respect of Grounds 3 and 4, Mr Bruce argues that the judge did not address whether D1 “knew” that the information was confidential.  He argues that it was a requirement of the charge of conspiracy to commit misconduct in public office that D1 knew he was divulging confidential information.  He accepts that this point was not raised or addressed at trial but submits nevertheless it is an important issue in proving the offence.  He articulates the point in his written submission as follows:

“49. This judge simply did not address the requirement that it be proved that the accused knew that what he was conveying was confidential information. This is particularly critical given the amount of information about the case in the public domain.”

30.  It needs to be borne in mind that the offence for which the applicants were convicted was a conspiracy to commit misconduct in public office.  It is trite law that the offence is established by proving “the agreement” to commit the crime.  It was alleged that the applicants agreed for D1 and D2 to commit misconduct in public office by them procuring and divulging confidential information in relation to a murder investigation to other persons for monetary reward.  The information concerned the nature and progress of the murder investigation, and what the police knew or did not know at the material times.  The judge addressed the issue as to whether the information was confidential.  He found that the conspiratorial agreement was to procure and divulge confidential information.  He said:

“143. The prosecution has identified 8 items of information which were passed by Sgt CHENG to D2, by D2 to D1, or by D1 to D3, as the case may be. They include:

(1) the results of forensic examination;

(2) the evidence of eye-witness;

(3) information concerning the suspects;

(4) status of the investigation;

(5) information about the issue of warrants of arrest;

(6) information about CCTV footages;

(7) information about the bail or custody of the arrested persons;

(8) information about the identification parade.

  144.     From the contents of whatsapp messages and CS1 – CS6, I am satisfied that these were passed between the parties as aforesaid.”

31.  The judge went on to discuss the nature of the information and rejected the notion that the agreement was to procure and obtain information in the public domain.[13]

32.  It would appear from the record that there was no issue as whether the applicants “knew” the information was “confidential”. They challenged the information on the basis that it was in the public domain, which the judge rejected.  Otherwise, by the very nature of the information, as found by the judge, and the circumstances in which it was sought and conveyed, it would have been clearly apparent to the relevant applicant that it was “confidential”.

33.  I do not find this ground reasonable arguable.

Identification analysis

34.  In respect of Ground 5, the main focus of Mr Bruce’s submission is the identification of D1 at the meeting with D2 on 5 November 2014 (CS 1).

35.  Mr Bruce complains that the judge’s evaluative assessment of the identification evidence was manifestly deficient.  He argues that the judge had to demonstrate that he understood the issues in relation to the identification of D1 by identifying them and explaining how he had resolved them.  He was particularly critical of the fact that one of the surveillance officers, PW5, who observed the meeting on 5 November 2014 (CS 1), relied on Registration of Person photographs of D1 and D2 which she described in her evidence were a bit more blurry than the ones produced in court.  The ones produced in court were the original five Registration of Person photographs from which her copies were made.  Her copies were not retained and when giving evidence, she was asked to make a comparison between the original photographs and the copies that had been given to her.  It was then that she said that her copies were a bit more blurry than the ones shown to her.

36.  Mr Bruce is very critical of the judge’s handling of this matter.  But I have to say that it was a very small part of the evidence that went to establish the identification of the applicants.  Having noted PW5’s evidence in relation to the photographs that she had were a bit more blurry than the ones produced in court, the judge accepted her identification evidence of D1 and D2 at the meeting on 5 November 2014.

37.  Mr Bruce also complains that the judge did not explain how he addressed the guidelines in R v Turnbull (1997) QB 224 and how he resolved the issues raised by the defence in relation to identification. 

38.  It seems clear from the record that the judge was aware of the challenge to the identification evidence and the points raised by the defence.  It is noteworthy that D1’s counsel in his closing address to the judge said that he did not see fit to rehearse the principles in Turnbull as they are well known.  This had also been stressed in D1’s closing written submission:

“8. … and the court is well versed in the case R v Turnbull (1997) QB 224 for cases involving identification which identifies dangers in identification of strangers.”

39.  It should be noted that the judge in his reasons went on to address the evidence of the other surveillance officers who observed the meetings of CS 2 to CS 6 and identified D1 and D3 as present.  See HKSAR v Wan Yat Man [2015] 1 HKLRD 586.

40.  I am not persuaded that this is a reasonably arguable ground.

D2’s appeal against conviction

41.  Mr Joseph Tse, SC, with Mr Wilson Tam, for D2, advances three grounds of appeal against conviction. 

Ground 1

42.  In Ground 1, it is complained that the judge erred in not applying relevant and material rules and laws of evidence at the trial, in that he: (a) used evidence of acts and declarations of D1 and D3 as evidence of the truth against D2 without following the guidelines of Vivien Fan v HKSAR (2011) 14 HKCFAR 641; and (b) wrongly used the contents of D2’s cautioned interview that D3’s nickname was “Fanling” as evidence admissible against the other applicants in the conspiracy when there was no other evidence that proved this fact.

Ground 2

43.  In Ground 2, it is complained that the judge’s reasons for verdict were inadequate and that he failed to: (a) provide any analysis of the evidence in arriving at his conclusions; (b) explain how he used the co-conspirators rule against D2; (c) explain the basis upon which he was satisfied that some of the messages of conversations were relevant to the conspiracy as charged; (d) explain how he could use D2’s answer in his cautioned interview concerning the nickname of D3 against the other applicants in the conspiracy; (e) explain how he resolved that the name “Fei Sam” mentioned by the other conspirators in the audio recordings of the 5^th and 6^th covert surveillance meetings (CS 5 and CS 6) was a reference to D2; (f) explain how he arrived at the finding that the WhatsApp message from D2 to D1 on 2 June 2015 at 19:05:02 hours could be interpreted to mean that D2 was charging $20,000; (g) explain the process by which he arrived at the conclusion that D2 had admitted he had money dealings with D3 in his 2^nd cautioned interview when he had already denied that he had private contact with D3 in his 1^st caution interview; and (h) explain how he arrived at the conclusion that Sergeant Cheng had passed eight items of information to D2 which was not supported by the evidence.  Ground 2(f), (g) and (h) were abandoned at the leave hearing.

Ground 3

44.  In Ground 3, it is complained that the conviction of D2 was unsafe and unsatisfactory.

Discussion

45.  By his grounds of appeal, Mr Tse complains that the judge did not apply relevant and material rules and laws of evidence at trial and that his reasons for verdict were inadequate. 

46.  As for Ground 1, the general complaint is that the judge used the acts and declarations of the co-conspirators, contrary to the con-conspirator’s rule.  Mr Tse mainly pins his submission on the fact that D2 in his cautioned interview only stated that he had dealings with a person by the name of “Fanling”.  He contends that in his reasons for verdict under the heading “Prosecution’s Interpretations of CS 1 – CS 6 and WhatsApp Messages Put Together”, the judge set out the findings of fact that he adopted.  In two paragraphs (paragraphs 107 and 114) the judge refers to text messages between D1 and D2 in which there is a reference to “Fanling” that he treats as a reference to D3. 

47.  Mr Tse submits that the judge by adopting the findings stated in the two paragraphs was impermissibly using the statement made by D2 in his caution interview against D1 and D3, and the acts and declarations of D1 and D3 in the absence of D2 as the truth as to what was said and done against D2, contrary to the requirements of the co-conspirators rule. He again refers to the use of the name of “Fanling” as identifying D3 which he said was being relied on for the truth of what was contained in the WhatsApp messages, even though the prosecution were not relying on the truth of the contents of the WhatsApp messages.

48.  The two impugned paragraphs that Mr Tse refers read as follows:

“107. On 9/10/2014, D1 text D2 that someone called ‘Fanling’ [D3] had fixed up. D2 reminded D1 to delete the messages. D1 replied that he did not keep them.

…

114.     On 1/1/2015, D1 text D2 to ask if D2 still heard nothing from his close friend ‘Fanling’ [D3].  D2 replied in the negative.”

49.  As pointed out by Mr Derek Lai, with Mr William Siu, for the respondent, the judge explained at the outset of this section of his reasons for verdict that the references in square brackets were the prosecution’s suggested interpretations, which he was simply noting.  He said:

“105. I consider the prosecution’s suggested interpretations [in square brackets] of CS1 – CS6 and WhatsApp messages put together in chronological order. The WhatsApp messages are in italics.”

50.  I do not find this ground reasonably arguable as presented in submissions to me. 

51.  As for Ground 2, the general complaint is about the adequacy of the judge’s reasons for verdict.  Mr Tse gives a number of instances to support this ground, but I do not find them convincing.  I do not consider that the judge inappropriately used the co-conspirator’s rule.  The judge seems to have based his decision on the evidence that directly implicated the relevant applicant as a party to the conspiracy.  Nor do I consider that there is any substance to the point about the reference to “Fei Sam” being D3 as only emerging from D2’s cautioned interview.  It would appear there was evidence that this was D3’s nickname.  However, I do find there is a reasonably arguable point as to whether the judge has sufficiently and appropriately set out the factual basis on which he has convicted the respective applicants on the conspiracy alleged against each of them.  See HKSAR v Hon Ming Kong [2014] 3 HKC 160.  It has been suggested by the respondent that the text messages and the audio recordings together with the surrounding circumstances, were comprehensively set out in the judge’s reasons for verdict which he adopted, and hence provided the factual basis on which he convicted the applicants.  But this is a matter for argument.  To this extent, I find this ground reasonably arguable.

D3’s appeal against conviction

52.  Mr Oliver Davies, with Ms Stephanie Ko, for D3, advances two grounds of appeal against conviction.

Ground 1

53.  In Ground 1, it is complained that the judge wrongly relied on the evidence of the voice expert, Dr Lo Tsz-fung (PW24),  to identify D3 as the person speaking on the audio recordings of the covert surveillance meetings, having found that the evidence of the expert did not reach the required criminal standard.

Ground 2

54.  In Ground 2, it is complained that the judge wrongly relied on his own analysis of the audio recordings to conclude that no other persons boarded or alighted from D3’s motor vehicle at the relevant times.

Discussion

55.  In respect of Ground 1, two witnesses gave evidence as to the voice identification of the persons speaking on the audio recordings of CS 1 to CS 6 which was qualified and limited to identifying some of the speakers.  The judge made it abundantly clear that this evidence alone could not prove to the requisite criminal standard the identity of the speakers recognised by these witnesses.  He went on to consider a body of other evidence on which he was satisfied established that the speakers at the relevant time of the audio recordings were variously D1, D2 and D3.  Such evidence was the owner of the motor vehicle in which the conversations took place, certain subject matters that were discussed that were peculiar to the identified speaker or speakers, and the observations of the surveillance officers.

56.  I do not find this ground to be reasonably arguable.

57.  As for Ground 2, the audio recordings of the meetings inside the motor vehicle were played in open court.  The judge explained in his reasons for verdict that he did not hear the sound of the doors of the motor vehicle opening or closing and was satisfied that no one boarded or alighted from the motor vehicle during the duration of the audio recordings.  By this ground it is complained that the judge did not put the parties on notice that he would rely on the audio recordings for this purpose. However, the audio recordings were produced by way of admitted facts and played in open court.  The contents of the recordings were evidence before the court to consider and used as appropriate.

58.  I do not find this ground to be reasonably arguable.

Leave to appeal

59.  As the murder investigation progressed in relation to the five suspects there were a series of text messages and meetings between D1, D2 and D3 where the case was discussed and information was sought and/or obtained in relation to it.

60.  The thrust of the defence case of the applicants was to challenge the evidence that identified them at the meetings and linking them to the text messages, and the contents of what had been discussed and whether the information was confidential.

61.  The judge sets out in detail what was said in the text messages and the meetings which were audio recorded.[14]

62.  The judge accepts the evidence that identifies the applicants as present at the relevant meetings[15] and as the users of the telephones of the relevant WhatsApp messages.[16]

63.  The judge adopts the general summary of the information that was passed between the applicants and he concluded the information was confidential.[17] In conclusion, the judge said:

“149. I am satisfied on the evidence that between 8/10/2014 and 7/6/2015 there was a conspiracy for D1 and D2 and others to procure and obtain confidential information of police investigation into the murder of WONG Man-kin and divulge it to D3 in return for monetary reward. The aforesaid act of procuring, obtaining, and divulging was to be a continuum of wilful misconduct in their course of or in relation to their public office as police officers. There was no reasonable excuse or justification for them to do so. Such misconduct was serious in that it was contrary to the public interest in the investigation of crimes and the apprehension of suspects.

  150.     I find all ingredients of the charge proved beyond reasonable doubt.  D1 – D3 are convicted as charged.”

64.  As I have already mentioned, the only issue I consider to be reasonably arguable is whether the judge has appropriately addressed the evidence on which he found each applicant guilty of the offence of conspiracy to commit misconduct in public office.  It brings into issue the findings of fact made by the judge, either explicitly or implicitly, and whether he has appropriately addressed them when considering the ingredients of the offence in relation to each applicant.

65.  The countervailing argument is that the audio recordings and text messages once accepted, proved conclusively the conspiratorial enterprise alleged against the applicants.  And in any event, it is apparent from the judge’s reasons for verdict the basis on which he has found each applicant guilty of the offence as charged. 

66.  In the circumstances, it will be important to understand the issues at trial to assess whether there is any merit to this ground of appeal.

67.  However, it remains that there is a reasonably arguable ground in respect of the judge’s reasoning in convicting each of the applicants and, on this basis alone, I grant the applicants leave to appeal against conviction.  I do not find any of the grounds advanced by each of the applicants to be reasonably arguable (except where there is overlap with D2’s Ground 2) and they are refused leave on those grounds. 

68.  In respect of the grounds for which leave has been refused, I remind the applicants of their right to renew their application for leave to the Court of Appeal, but they are also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending their appeal, if the Court were to come to the view that there was no justification for the renewal of their application.

[1] Appeal Bundle, 25 – 35, Admitted Facts (Part 1), paras 9 – 16, 19 – 22 and 26 – 28.

[2] Appeal Bundle, 36 – 40, Admitted Facts (Part 2), paras 2(CS 1); 3(CS 2); 4(CS 3); 5(CS 4); 6(CS 5) and 6(CS 6).

[3] Appeal Bundle, 30 – 31, Admitted Facts (Part 1), para 29.

[4] Appeal Bundle, 31, Admitted Facts (Part 1), para 30.

[5] Appeal Bundle, 31 – 32, Admitted Facts, paras 31 and 32.

[6] Appeal Bundle, 292 – 323, Record of Interview on 8 June 2015, at 11:28 – 11:58 hours, at counters 58, 123 – 162.

[7] Appeal Bundle, 33 – 34, Admitted Facts, paras 34 – 37.

[8] Appeal Bundle, 52 – 101, Reasons for Verdict.

[9] At paras 79 – 88.

[10] Appeal Bundle, 74 – 77, Reasons for Verdict, paras 61 – 68.

[11] Appeal Bundle, 41 and 42, Admitted Facts (Part 2), para 13.

[12] Appeal Bundle, 29, Admitted Facts (Part 1), para 23.

[13] Appeal Bundle, 98 – 100, paras 145 – 148.

[14] Appeal Bundle, 81 – 94, Reasons for Verdict, paras 73 – 136.

[15] Appeal Bundle, 60 – 74, Reasons for Verdict, paras 20 – 60.

[16] Appeal Bundle, 74 – 81, Reasons for Verdict, paras 61 – 72 and para 73.

[17] Appeal Bundle, 97 -100, Reasons for Verdict, paras 143 – 148.