HKSAR v. SIU HIU FUNG

CACC 183/2022 [2024] HKCA 547

On appeal from [2022] HKCFI 3441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 183 OF 2022

(ON APPEAL FROM HCCC NO 179 OF 2020)

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J U D G M E N T

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1.  On 13 October 2022, following a trial before Deputy High Court Judge Woodcock (the Judge)  and a jury, the applicant was convicted of trafficking in a dangerous drug,[1] namely, 4,982 grammes of a solid containing 3,799 grammes of ecstasy (Count 1), and possession of a dangerous drug,[2] namely 0.32 grammes of a crystalline solid containing 0.31 grammes of Ice (Count 2). He was sentenced to 20 years 11 months’ imprisonment.

2.  On 26 October 2022, the applicant applied for leave to appeal against his conviction.  On 31 May 2023, the applicant also applied fror leave to appeal against his sentence out of time.  He appears in person, having had an application for legal aid refused.

The prosecution case

3.  The case for the prosecution was as follows.[3]  On 9 March 2019, Customs officers intercepted and examined a DHL air parcel from Germany purportedly containing 16 boxes of chocolate.  They found inside the boxes yellow crystalline solids containing ecstasy.  The applicant was the recipient of the parcel and his residential address was stated to be the delivery address on the parcel and the DHL shipping documents.

4.  On 21 March 2019, the Customs officers mounted a controlled delivery operation.  Two Customs officers posing as postmen delivered the parcel, with six other officers waiting nearby.  The applicant, who was at home, signed and collected the parcel.  He was arrested and cautioned for trafficking the drugs in the parcel (Count 1).  He denied knowledge of the drugs and explained that he received the parcel for a friend “Ah B”, who told him the parcel contained vehicle spare parts.  He did not receive any reward for the parcel.

5.  An examination of the applicant’s mobile telephone, revealed WeChat messages with “Siu B” (Ah B)  and WhatsApp messages with “Tai Mun”.[4] The messages revealed that the applicant agreed to take the risk of using his home address to receive a parcel for a reward of $18,000; he was repeatedly reminded to pay attention and not open the parcel upon receipt; he and others were impatient about the delivery; he used the tracking number of the parcel to monitor the progress of its delivery; and he needed the money badly to buy “manna for the soul”.[5]

6.  After the applicant was arrested, his home was searched.  He and his girlfriend were present during the search.  Inside the bedroom, a Customs officer found a small packet of Ice under the blanket on the bed and four apparatuses for inhaling Ice in various places, on the bed, under the pillow, on and under the bedside table.  The applicant admitted possession of the Ice and the apparatus, which was post recorded in the officer’s notebook.[6]  He admitted that he bought the Ice from Ah B for $1,000.  The applicant challenged the admissibility of the post record, but it was ruled admissible by the Judge.[7]

7.  The applicant later agreed to assist in a controlled delivery of the parcel.  Under instruction from the Customs officers, he had numerous telephone calls and text messages with Ah B and Tai Mun.[8]   However, they did not turn up and instead used a courier service to collect the parcel.

8.  At trial, the sole issue on Count 1 was whether the applicant had knowledge of the drugs in the parcel; and the issues on Count 2 were whether the applicant possessed and had knowledge of the Ice found in his bedroom.  It was the prosecution case that the only reasonable inference to be drawn from the circumstantial evidence was that the applicant knew of the drugs in the parcel, and possessed and knew the Ice found in his bedroom.

The defence case

9.  The applicant gave evidence in his defence but did not call any witnesses.[9] He testified that he and Ah B had a hobby of modifying car exteriors.  They had previously modified five cars together.  He explained that he had been deceived by Ah B, Ah B’s wife and Tai Mun, who led him to believe that the parcel from Germany contained an expensive GPS computer for a car.  He did not know the parcel contained a dangerous drug.  He had no reason to believe there was a dangerous drug in the parcel because they had on previous occasions, received parcels containing car parts.  Nor did he receive any reward for receiving the parcel.

10.  The applicant explained that the text messages between himself and Ah B and Tai Mun before his arrest were all innocent.  He claimed that the messages referred to more than one parcel and not just the one from Germany.  Any references to risk and money, for example, “If you panic, then you won’t make money”, “You will get 18,000 if succeeded”, “Come on, take a risk”, were not related to the receipt of or reward for the parcel from Germany. Instead, they related  to money owed to him for previous car modification jobs or forthcoming jobs.  He also claimed that the messages complaining about the slow delivery of the parcel were not referring to the parcel from Germany, and the message in which he said “manna for soul”, he was referring to his hobby of collecting limited edition toy cars.

11.  The applicant denied knowledge of the Ice and drug apparatus found in his bedroom.  He said they did not belong to him or his girlfriend.  He claimed he was forced to sign the post record containing the admission because of threats and oppressive conduct by the Customs officers, including refusing his requests to give water to his dog, to call his parents, to go to the toilet or take a break, threatening to beat him and arrest his girlfriend and parents.

12.  It was the defence case that, based on the applicant's evidence, there was more than one inference to be drawn, namely that the applicant was a victim and used by his friends to collect the parcel of drugs, and that the applicant did not possess the Ice found in his bedroom.

The applicant’s mitigation

13.  In mitigation[10], it was submitted that the applicant was aged 34 with a clear record.[11]  As for the starting point, it was contended that the sentencing cases were only guidelines, not tariffs, for a large quantity of drugs and the Judge was urged to exercise her discretion to lower the starting point.[12] It was argued that the guidelines for an international element in HKSAR v Chan Ka Yiu and Others [13] concerned ketamine and did not apply to ecstasy.[14]  As for the applicant’s assistance to the authorities, it was emphasised that he willingly assisted in a 6 hour controlled delivery operation and that he and his parents were at risk of danger as a consequence.  It was accepted that a 7 percent discount from the notional starting point was appropriate for his assistance.[15] 

The reasons for sentence

14.  The Judge, in her reasons for sentence[16], found that the applicant was tasked to receive the parcel of drugs from Germany for a reward. 

15.  Taking into account the large quantity of ecstasy involved, namely 3,799 grammes, the Judge adopted a starting point of 20 years and 6 months for Count 1, which she enhanced by 2 years to 22 years and 6 months’ imprisonment for the international element.  She then reduced the notional sentence by 7 percent for the applicant’s assistance to the authorities to 20 years and 11 months’ imprisonment. 

16.  The Judge adopted a starting point of 1 year imprisonment for Count 2, which she ordered to run concurrently with the sentence on Count 1.  The sentence the applicant was ordered to serve was 20 years and 11 months’ imprisonment.

The appeal against conviction

17.  In his leave application against conviction dated 25 October 2022, the applicant advanced the following grounds of appeal:

Ground 1:   The Judge wrongly allowed the prosecution to adduce evidence of the drug inhaling apparatuses found in his bedroom, for which no charges were laid;

Ground 2:  During the trial, the Judge suggested to the prosecutor how to supplement her questions, which she forgot to ask, as well as questioning the applicant herself;

Ground 3:  After the prosecution’s closing address, the Judge reminded the prosecutor to further supplement the contents of the WhatsApp messages to the jury;

Ground 4:  In response to questions from the jury, the Judge gave examples that favoured the prosecution; and

Ground 5:  The Judge failed to mention that no identifiable fingerprint was found and failed to explain that even though the applicant received the parcel with the delivery address as his home, did not mean he knew there were drugs in the parcel.

Ground 1: the evidence of the drug inhaling apparatuses

18.  After the Judge ruled admissible the applicant’s post record,[17] the defence made an application to exclude the evidence of the four apparatuses for inhaling drugs found inside the applicant’s bedroom, together with the Ice in Count 2 and the applicant’s relevant admission, on the basis that they constituted “uncharged acts”.[18]

19.  Having discussed the relevant authorities and legal principles, the Judge took the preliminary view that this evidence did not amount to inadmissible evidence of “uncharged acts” for they provided the setting and context relevant to Count 2.[19] In rejecting the defence’s application at that stage, the Judge stated that the parties could revisit the issue before the summing-up.[20]  However, she maintained her view after further discussion.

20.  There is a distinction between on the one hand criminal acts that are part and parcel of the charge and items used in or connected to the commission of the charge, and on the other hand, a separate and unrelated offence that is not the subject of a charge.  The fundamental consideration is whether an uncharged act if adduced into evidence would result in unfairness to an accused.  Count 2 was concerned with an allegation against the applicant for possession of a quantity of Ice.  It was an admitted fact that the Ice was found in his bedroom together with drug inhaling apparatuses with traces of Ice.  In these circumstances, the evidence of the drug inhaling apparatuses was probative that the applicant was in possession of the Ice and did not result in any unfairness to him. 

21.  Evidence that amounts to an uncharged act can be admitted into evidence if its refusal would result in the jury having an incomplete account of the events, including where the evidence could prove the setting and context in which the offence occurred.  It is stated in HKSAR v Kwok Hing Tony [21] that when a court admits into evidence an uncharged act, the judge should be alert to give proper direction to the jury on (i)  the standard of proof; and (ii)  the use to which such evidence could be put.  However, as stated in HKSAR v Ali Nazakat [22], the approach that should be taken with such evidence will depend upon the particular circumstances of the case. 

22.  The respondent submits that, as the Judge rightly observed, the evidence of the four drug inhaling apparatus found together with the Ice and the applicant’s confession of ownership and use of such apparatus for inhaling Ice, clearly provided the setting and context for the offence of possession of the drugs under Count 2.  However, the Judge gave a firm direction to the jury not to use the evidence of the drug apparatus in any way against the applicant for Count 1, and unnecessarily for Count 2 as well:[23] 

“There was also reference to tools found for taking the drug ‘Ice’, the ‘Ice’ pipes and other miscellaneous items. You will remember that there were tools for inhaling ‘Ice’ found in a blue bag, soft blue bag, on top of the pillow, there were tools under the pillow, on the bedside table, as well as in a blue metal box under the table.

Let me say this in relation to those items. Even if you believe he admitted they were his and that the admissions were true, under no circumstances can you conclude that these items prove that he knew the parcel of Count 1 contained dangerous drugs nor does it show a propensity to commit a drug trafficking offence nor do they prove that he must therefore have been in possession of that bag of ‘Ice’ of Count 2.” (Emphasis added)

23.  As pointed out by the respondent, the prosecution did·not rely on the evidence of the apparatus against the applicant, except stating that the applicant denied owning them.[24]  The defence had also stressed in its closing address that no charges were laid in respect of the apparatus.[25]  There was no objection by the defence to the Judge’s summing-up on this issue. 

24.  It is clear from the foregoing that this ground of appeal is not reasonably arguable. 

Ground 2: the Judge’s suggestions to the prosecutor

25.  As submitted by the respondent, a judge is entitled to intervene during criminal proceedings provided that he or she does so in an impartial and fair manner.  It is a judge’s duty to ensure that criminal proceedings are tried fairly and efficiently and to intervene as necessary to ensure the goal is achieved.  This may include asking questions in order to clarify matters of evidence or to serve some evidential purpose.  However, it will depend upon the nature and circumstances of the questions and to whom and how they were directed as to whether they impacted upon the fairness of the trial: HKSAR v Lai Oi Yan [26].

26.  The applicant alleged that the Judge hinted to the prosecutor as to how to supplement her questions and personally asked the applicant questions during cross-examination.  Nonetheless, the applicant has not particularised his criticism, setting out at what stage or on what matters the Judge asked the prosecutor to supplement her questions, or what questions the Judge asked the applicant.  Nor is it apparent that defence counsel raised any objection with the Judge about such matters.

27.  The respondent points out that relevant to this ground is the applicant’s complaint in Ground 3 about the Judge’s comments directed to the prosecutor’s closing address.  It is noted that the Judge actually corrected the prosecutor’s unfavourable remarks against the applicant, which is contrary to the suggestion under this ground that the Judge was favourably disposed to the prosecutor and the prosecution case.

28.  This ground of appeal is a general complaint that lacks specificity and I am not satisfied that it is reasonably arguable.

Ground 3: requesting the prosecution to supplement its closing address

29.  The applicant alleged that the Judge asked the prosecutor to supplement and address the jury on the text messages after she had made her closing address.

30.  The respondent submits that this allegation is misconceived and stemmed from a misunderstanding in the exchange between the Judge and the prosecutor.  In her original closing address, the prosecutor invited the jury to consider the telephone conversations between the applicant and Tai Mun during the controlled operation to infer the applicant’s knowledge of the drugs in the parcel.[27] It was accepted that this was inappropriate as the applicant’s comments were dictated to him by the Customs officers and, for this reason, should not be used against him.  After the prosecutor concluded her closing submissions and the jury retired, the Judge properly pointed that out to the prosecutor and required that she correct herself in a supplementary address.  In particular, the Judge asked the prosecutor to clarify what circumstantial evidence the prosecution relied on to infer knowledge, namely the text messages before arrest, but not the telephone conversation during the controlled delivery operation.[28]  This is the reason why the prosecutor made a supplementary closing address in respect of the text messages[29] and clarified the circumstantial evidence the prosecution relied upon when the jury returned[30].  Moreover, the Judge emphasised with the jury in her summing-up that they should not rely on any telephone conversations or text messages during the controlled delivery operation to infer knowledge against the applicant.[31]

31.  In these circumstances, the Judge’s request that the prosecutor make a supplementary closing address ensured that the prosecutor fairly presented its case and safeguarded the applicant’s interests.  This also explains why the defence made no objection to the Judge’s approach at trial. 

32.  Whilst I can understand the applicant’s concern about this matter, no criticism can be levelled against the Judge who took appropriate remedial action in the circumstances by correcting the prosecutor and making her explain the prosecution case properly.  In any event, there was no disadvantage to the applicant as the defence had the last word by its closing address. 

33.  I am not satisfied that this ground is reasonably arguable.

Ground 4: inappropriate examples in answering the jury’s questions

34.  The applicant complained that the examples given by the Judge in answering the jury’s questions during its deliberation were favourable to the prosecution, without specifying which examples.  It appears that the applicant was referring to the jury questions of “Indirect evidence definition?  More example?” and “How to qualify indirect evidence?  How to justify?  Use common sense?  Or (give the defendant the benefit of doubt)”[32].  

35.  The respondent submits that such a complaint is unfounded.  Before answering the jury, the Judge had prepared a draft answer for the parties to comment.[33] Having read the draft, the defence counsel asked the Judge (i)  to recite not only the evidence relied on by the prosecution, but also the defence's explanations as to the circumstantial evidence[34]; (ii)  to repeat the whole of Special Jury Direction 21.2, including the part which states that circumstantial evidence must be examined with care and it may also cast doubt upon or destroy the prosecution case[35]; and (iii)  to include that the applicant should be given the benefit of doubt[36].  All of the comments were accepted by the Judge, who eventually answered the jury as follows:[37]

“You have asked for more examples. You can only consider the evidence before you. Indirect evidence here is, as I said this morning, is circumstantial evidence ...

I am going to repeat what I said this morning about circumstantial evidence and that is circumstantial evidence can be powerful evidence. Indeed it can be as powerful as or even more powerful than direct evidence, but it is important that you examine it with care as with all evidence. And you must consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt or whether on the other hand, it reveals any other circumstances which are or maybe of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.

In law, I said this morning, you are entitled to make relevant findings of fact based on circumstantial evidence. This was -- this is called drawing of inferences and I gave you examples of inferences, your friend in Manila and seeing him back in Hong Kong.

What is the circumstantial evidence that the prosecution is relying on here? The evidence, the defendant was named on the parcel, he was a recipient. The defendant's address on that parcel, the evidence of the WeChat and the WhatsApp messages in tab 18. His messages between himself and Ah B, his messages between himself and Tai Mun.

These are pieces of evidence the prosecution want you to look at altogether. You will recall the defendant's evidence relating to tab 18. He went into the witness box, he gave you explanations as to the WeChat and WhatsApp messages, the meaning of the messages.

He explained the car exterior modification hobby with Ah B. He explained that those messages referred to more than one parcel, several parcels, not just the parcel from Germany.

He explained the meanings behind the reference to either the sums or the references to being paid. They were not for the parcel, they were for -- he gave you explanations, they were for jobs done or for jobs coming up.” (Emphasis added)

36.  The respondent rightly submits that the examples given by the Judge in answering the jury’s question were not unfair and as is apparent, a substantial part of the Judge’s answer highlighted the defence explanations in respect of the circumstantial evidence.  Furthermore, the Judge twice emphasised that the applicant should be given the benefit of the doubt and be acquitted if the jury was not sure.[38] 

37.  This ground of appeal is not reasonably arguable.

Ground 5: the evidential matters

38.  The respondent submits that the applicant’s two criticisms in Ground 5 are untenable. 

39.  As for the absence of fingerprints, there was no evidence relating to fingerprints produced at trial.  The defence counsel did not rely on the absence of fingerprint evidence, or make any argument in her closing address or request a direction to the jury on this topic.  The prosecution case in Count 1 was that the applicant trafficked in the dangerous drugs by receiving the parcel from Germany.  There was no allegation against him of packaging the parcel, and therefore, the absence of fingerprints was of no significance.  The dangerous drugs in Count 2 were found in his bedroom, and the absence of any fingerprints did not have any evidential significance: HKSAR v Chan Kai Ming and Another [39]. In these circumstances, there was no basis on which the Judge was obliged to direct the jury of the absence of fingerprint evidence. 

40.  As for the postal address and receipt of the parcel, this was all part of the circumstantial evidence that the jury were asked to consider in its totality and whether, from the evidence they accepted, they could draw the only reasonable inference that the applicant knew the parcel contained dangerous drugs: HKSAR v Lai Kwok Hung [40].  In this regard, the Judge’s directions on circumstantial evidence and inferential reasoning were in accordance with the specimen directions and cannot be faulted.[41] 

41.  This ground of appeal is not reasonably arguable.

Ground 6: the Judge’s directions on the post record

42.  In addition to the grounds of appeal submitted by the applicant, Mr Eric Cheung of the Clinical Legal Education Office of the University of Hong Kong has filed a submission dated 30 May 2024, raising for consideration the Judge’s directions to the jury on the applicant’s post record.  I will refer to this point raised by Mr Cheung as Ground 6.

43.  At the leave hearing, the applicant applied for an adjournment to file an application for legal aid so that he could have a legal representative argue this new ground of appeal.  I refused the application for an adjournment as Mr Cheung has provided a detailed written submission together with two authorities and the respondent had filed a written submission and authorities in response.  The ground was comprehensively addressed in the hearing to determine whether it was reasonably arguable.

44.  The applicant made a post record after he was arrested and cautioned.  The defence position at trial was that the first part of the post record regarding Count 1 was true, but the second half regarding Count 2 was untrue and a fabrication.  The applicant claimed that he did not admit possession of the Ice and the drug inhaling devices found in his bedroom.[42]

45.  Mr Cheung notes that defence counsel made a strong submission on the post record, alleging that it was made in a suspicious and unprofessional manner and that the confession was false.  He complains that the following comments of the Judge left the jury with little choice other than to reject the defence submission:[43]

“I will add here that there was a suggestion from Ms Cheung that it was an unprofessional post-recorded statement. Members of the jury, it is up to you to decide whether the confessions were made and whether the confessions were true, but this record itself was not improperly conducted. There was no rule or regulation that PW2 had to record down the time he finished writing in the vehicle. There is no rule or regulation he had to sign it at that point, or even underline it, because it was not finished or completed at that stage. He could not go any further without the defendant.

There was nothing suspicious about the fact the defendant did not sign after every answer in that notebook when he was shown the post-recorded statement later, because the notebook and all those entries, including the answers, were not written down in front of him. They were written down in the car. The fact it was not recorded or written down in front of him is not suspicious either because the controlled delivery operation in the premises had to be conducted as soon as possible, and PW2, as the arresting officer, had to post-record the events, questions and answers as soon as possible to ensure accuracy. He was basing it off his memory so he had to do it as soon as possible. You can see from page 21 of that notebook that this, a record was finished when it was dealt with later at 8.35 pm at the airport offices. That is when it was signed.” (Emphasis added by Mr Cheung.)

46.  However, the above impugned passage related to Count 2 only, and the Judge’s preceding remarks made that abundantly clear:[44]

“In this case, for count 1, there is no direct evidence which points to the defendant’s knowledge of the drugs inside at the time when he received the parcel. This means there is no admission or confession by him that he knew that there were drugs inside the parcel. However, the absence or lack of direct evidence does not mean the prosecution cannot prove its case so that you are sure. The prosecution says they can still do that. They are inviting you to draw the only reasonable inference from all of the evidence before you that the defendant did know that the drugs were in the parcel that he received. I will come back to this issue of circumstantial evidence and the only reasonable inference. I will come back to that.

This is quite different from the evidence the prosecution presents relating to count 2. In count 2, the prosecution relies on direct evidence. They say that there is a verbal confession from the defendant that the bag found under his blanket in his bed contained the drug ‘Ice’ and that it was his. They rely on a confession to prove guilt.

  Let me first deal with that verbal admission or confession relating only to count 2.  This verbal admission, the prosecution say, it was said and then it was recorded down, recorded down in the post-recorded statement which the defendant confirmed was true and that he made it of his own free will and he signed that statement.  That statement you have seen many times.  It is at tab 8.”

47.  Immediately following the impugned passage, the Judge went on to say:[45]

“Now, you will recall it is the defendant’s evidence that the answers he gave that are recorded in the first half of the post-recorded statement, only those relating to the parcel delivery those answers he says are true. But the admissions or confessions in the second half of the post-recorded statement relating to the drugs and those items found in his bedroom, those are not true. The defendant’s evidence is that he did not make any verbal admission. He did not say it. He did not say that those things belonged him and he knew they were drugs. His evidence is that those answers recorded down were fabricated or made up by PW2.

But the defendant adopted those admissions when he signed the statement or the notebook later because he was forced to do so. He felt he had no choice. He was forced to do so through threats, promises, inducements, misconduct.

The prosecution suggests that you should not accept everything said by the defendant as accurate or true, referring to the first half of the statement. The prosecution are suggesting that, yes, he did deny knowledge of the drugs in the parcel, but the prosecution are suggesting that that is not true. He was not telling the truth. However, the prosecution are saying that the second half of the statement with the admissions and confessions by the defendant that he possessed the ‘Ice’ found in his bedroom, those are true. That is the prosecution’s case.

Now, in deciding whether you can safely rely on the verbal admission and the post-recorded statement against the defendant, members of the jury, you must take several steps. You must first decide, did the defendant in fact make the verbal admission? Did he say it? If you are not sure that he made the verbal admission that the bag, the plastic bag found under his blanket was the drug ‘Ice’ and it belonged to him, you must ignore the verbal admission and the related post-recorded statement which records that verbal admission. You must ignore them both if you are not sure.

Second step. If you are sure, if you are sure that the defendant did make the verbal admission, he did say it and he signed the post-recorded statement to confirm the accuracy of that verbal admission, you need to go on to decide whether they were or may have been made because of or, as a result of, the threats, the inducements, the misconduct, the promises, the things said or done which may make it unsafe to rely on what was said. If you conclude that the verbal admission and the post-recorded statements were or may have been obtained by PW2 as a result of threats, inducements, misconduct, promises, oppression, you must disregard, you must ignore the verbal admission and the post-recorded statement.

In this case, the defendant’s case is that PW2 threatened to assault him, deprived him of his basic rights, induced him to sign by threatening to arrest his girlfriend and parents and promised that if he admitted possession of the drugs found in his bedroom, they would release his girlfriend.

If that is true or may be true, you must disregard or ignore the verbal admission and the confession recorded in the post-recorded statement altogether - all of it - and you must treat the defendant as not having admitted possession in answer to the Customs officer’s questions when the bedroom was searched and, as I have explained earlier, that is not something that can be used against the defendant in any way.

  Thirdly and finally, if you are sure that the defendant did make those admissions, he did say them, and that they were not obtained as a result of oppression, threats, inducements, promises, misconduct, or something said or done which may render them unreliable, you must then consider whether when he said those things they were true.  You must then consider whether when he said those things they were true.  If you are not sure that what he admitted was true, you must ignore it altogether.  On the other hand, if you are sure what he admitted was true, you may treat it as evidence which supports the prosecution’s case, that he possessed the bag knowing it was dangerous drugs in his bedroom.”

48.  In my view, the criticisms of the Judge’s remarks on the impugned passage are not material.  PW2 commenced making the post record in his vehicle which was parked downstairs from the applicant’s home.  He ceased making the record because the applicant had agreed to participate in a controlled delivery operation and resumed making the record when he returned to the airport offices.  The post record commenced at 1:50 pm and concluded at 8:35 pm.  A major part of defence counsel’s attack on the post record was the lack of professionalism by PW2 in making the post record. 

49.  Mr Cheung argues that the first part of the post record was made in the absence of the applicant and yet it refers to the applicant in the first person as if he was present.  The applicant was referred to as “you”.  I do not consider referring to someone in the first person when they were not present in the making of the record to be a significant matter. It is a record of the arrest and caution of the applicant and his answers to questions, and therefore it is not uncommon to refer to him in the first person in such circumstances.  Mr Cheung further argues that the Judge mentioned that the post record was concluded at the airport offices when there was no such reference in the post record.  This ignores that the applicant participated in a controlled delivery operation, who was taken afterwards to the airport offices.  He submits that the post record gives the impression that the applicant was present throughout the making of it and does not record the time and location of when it was made.  He contends that the Judge’s comments that there was nothing suspicious nor improper of the post record, effectively dismissed the defence case.  It should be noted that the Judge was only commenting on certain aspects concerning the making of a post record, but otherwise gave a very detailed summary of the defence case on this issue.

50.  The Judge was entitled to make comments on the evidence and the submissions of the parties: HKSAR v Lau Chun Shu [46] and R v Chau Chun Wai [47].  As I have already noted, her remarks in the impugned passage were general remarks addressing the procedure of making a post record[48].  Moreover, she made it abundantly clear to the jury that they were the judges of fact and did not have to accept any view that she expressed about the evidence.  She said:[49]

“… if when I go through the evidence with you, I appear to express views of the evidence or the facts to which you do not agree, then you can reject my views. Or, if I mention or emphasise a particular aspect of the evidence that you think is unimportant, then ignore that aspect of the evidence. If I do not mention some evidence that you regard as important, you should follow your own view and you should take that evidence into account even if I do not mention it. When it comes to the facts of this case, it is your judgement alone which is important.”

51.  I am satisfied that the Judge comprehensively set out the evidence and the arguments for and against the issue of the applicant’s admission of possessing the Ice under Count 2.  She also addressed in detail the evidence of PW2[50] and the applicant[51] on this issue.  It was a matter for the jury to decide whether the second part of the post record was untrue and fabricated. 

52.  There was a strong case against the applicant of Count 2.  It was an admitted fact that the Ice and the drug apparatuses (exhibits P106 and P112 had traces of Ice)  were found and seized from the applicant’s bedroom.[52] The applicant was present together with his girlfriend at his home when the Customs officers delivered the parcel and searched his bedroom. 

53.  I do not consider that the impugned passage when considered in its full and proper context, resulted in any unfairness to the applicant.  I am not satisfied that this ground is reasonably arguable.

The appeal against sentence out of time

54.  Notwithstanding the length of the delay in filing his application for leave to appeal against sentence, I will consider his grounds of appeal in order to ensure that I am not shutting out a substantial and plainly arguable ground of appeal.  He advances the following grounds:

Ground 1:  The Judge failed to consider and give sufficient discount for the applicant’s clear record;

Ground 2:  The Judge failed to consider and give a 10 percent discount for the applicant’s assistance to the Customs officers in the controlled delivery operation;

Ground 3:  The Judge wrongly increased the applicant’s sentence by 2 years for the international element when compared with HKSAR v Fang Gencheng [53], which was less than 2 years.

55.  Defence counsel in mitigation highlighted the applicant’s clear record[54], which the Judge acknowledged in her reasons for sentence[55]. 

56.  The Judges carefully considered the extent and willingness of the applicant’s assistance to the Customs officers in the controlled delivery operation.[56] There is no single uniform discount for participation in a controlled delivery operation and each defendant's assistance will be assessed by the sentencing judge: HKSAR v Lo Sze Tung Stephanie [57].  Nonetheless, the discount of 7 percent was accepted by defence counsel as appropriate.[58]

57.  An enhancement of 2 years imposed by the Judge was in keeping with the guideline on enhancement of international element for over 3,000 grammes of ketamine in HKSAR v Chan Ka Yiu and Others [59], which the respondent submits equally applies to ecstasy.  Comparison with a lesser sentence in another unrelated case is of no assistance, not to mention that Fang Gencheng was a first instance case concerning trafficking of Ice to which different sentencing tariff applies.

Conclusion

58.  For the foregoing reasons, the applicant has failed to demonstrate reasonably arguable grounds of appeal against conviction and sentence.  Accordingly, I refuse the applicant leave to appeal against his conviction, and an extension of time to file a leave application against his sentence, for which leave would have also been refused.

59.  The applicant is reminded of his right to renew his applications for leave to appeal against conviction and against sentence out of time to the Court of Appeal, but he is also informed of the consequence of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his applications.