HKSAR v. CHAN HON BIU

CACC 465/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 465 OF 2011

(ON APPEAL FROM HCCC 403/2009)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

1. On 14 October 2011, the applicant was convicted after trial before Madam Justice Beeson and a jury on an indictment which charged that on 3 May 2009 inside Room 613 of the Metropark Hotel, Mong Kok, in Hong Kong, he attempted to unlawfully traffic in a dangerous drug, namely 2,077.12 grammes of a powder containing 1,643.63 grammes of heroin, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and section 159G of the Crimes Ordinance, Cap 200. On 18 October 2011, the applicant was sentenced to 25 years’ imprisonment. He subsequently applied for leave to appeal against his conviction and sentence, but abandoned his application for leave to appeal against sentence on 24 January 2013 which was dismissed pursuant to Rule 39 of the Criminal Appeal Rules, Cap 221.

2. The application first came before us on 18 June 2014 and in response to matters raised by him we gave certain directions for the further hearing of the application before adjourning it.  When it came before us again on 19 August 2014 we granted the applicant legal aid and adjourned the appeal for counsel to be briefed.  Perfected Grounds of Appeal were filed on 6 November 2015 whereupon the application was again listed for hearing.

3. At this hearing of the application we reserved our judgment which we said we would hand down at a later date. This we now do. 

The prosecution case

4. The prosecution case was that the applicant was arrested after information was obtained from a drug trafficker who was arrested in Macau.  He was Mazlan bin Zainal Beharain (“Mazlan”), a national of Malaysia.  Mazlan was arrested for trafficking in a dangerous drug upon his arrival in Macau by a flight from Thailand in the morning on 3 May 2009.  He was carrying a suitcase and the Macau Judicial Police (“MJP”) found the dangerous drug that is the subject matter of the present charge concealed in a secret compartment of it.  The retail value of the dangerous drug was about HK$1,823,711.  Mazlan denied trafficking when questioned, but he offered to help the MJP by giving them information about what he had been told to do to take the dangerous drug to Hong Kong for collection. 

5. The MJP contacted the Hong Kong Police and gave them the information provided by Mazlan.  The Hong Kong Police then arranged an undercover operation for the collection of the “drug”[1].  They rented Room 613 of the Metropark Hotel and deployed within it DSPC 51004 (PW1) who was assigned to play the role of Mazlan.  Also present in the room, but concealed from view, were DSPC 50895 (PW2) and DSPC 1260 (PW4). 

6. The police officers were in place in Room 613 of Metropark Hotel by 17.40 hours on 3 May 2009. They had with them a black bag containing a packet of dummy dangerous drug. The police then provided the hotel name, room number and the hotel telephone number to the MJP.  At 17:55 hours the MJP arranged for this information to be sent from Mazlan’s phone to the persons in Thailand who were the organizers of his drug trafficking courier trip.  That same information was subsequently found to have been sent by SMS text message from Bangkok to the applicant’s phone and received by his phone at 18:01 hours.

7. At 18:06 hours the applicant rang the doorbell of Room 613 and was admitted into the room by DSPC 51004.  The applicant showed a quantity of Hong Kong bank notes in a purse that he took from his shoulder‑bag.  PW1, in return, indicated to the applicant the black bag in which the dummy drug, wrapped in black plastic, had been placed.  The applicant unzipped this black bag and placed his right palm on the dummy drug packet.  Almost immediately that he did this, he straightened up and began to move towards the door as though to leave the room.  At that time, DSPC 51004 shouted “Police, don’t move” and the other two officers came out from hiding. 

8. The applicant was restrained and taken to the bed.  He was arrested and cautioned for the offence of trafficking in a dangerous drug.  Under caution, he said “I got $10,000 from someone for taking a case of white powder for someone”.  The oral admission was recorded in the notebook of DSPC 51004, and the applicant signed on it.   

9. At trial the applicant challenged the voluntariness of this oral admission and a voir dire was held to determine its admissibility.  The judge ruled that it was made by the applicant voluntarily and admitted it into evidence.  It became exhibit P12 at trial.

10. A search was also conducted of the applicant’s person and he was found to have on him cash amounts of HK$35,000, HK$8,550 and RMB1,020 and two mobile phones. 

11. The applicant was taken to police headquarters for further investigation.  Between 20:28 hours and 21:00 hours on the same day, he participated in a video record of interview, the voluntariness of which was an admitted fact[2]. In this interview he gave an exculpatory account of what had happened. 

12. As to how it was that he came to attend at Room 613 of the Metropark Hotel, he said that a friend Sampson had called him when he was in the Mainland.  Sampson said he had a friend called Paklah, whom the applicant did not know, and Paklah had a friend who was coming to Hong Kong to buy watches, clothes and telephones. 

13. The applicant said that around 5:00 pm on 3 May he received a telephone call from Paklah who asked him to give HK$35,000 to his friend and to take this friend shopping.  Paklah told him to go to Room 613 of the Metropark Hotel where his friend was staying.

14. He said that the $35,000 in cash that was seized from him was to be lent to Paklah’s friend to use for shopping in Hong Kong and that Paklah had promised to repay him this money by posting it to him.

15. When shown the black bag in which the dummy packet of drugs had been placed he said that he had not seen either the black bag or the dummy packet before.

16. The only other evidence in the prosecution case were exhibits and depositions obtained from a Letter of Request hearing that took place in Macau.  This evidence proved the background to the offence and the SMS mobile phone messages that were on Mazlan’s phone.

The Macau Letters of Request

17. On 26 April 2010 the Secretary for Justice made an ex parte application for an order pursuant to s 77E of the Evidence Ordinance, Cap 8, for the issue of a Letter of Request to the appropriate court of the Macau Special Administrative Region (“Macau”).  The Letter of Request sought the assistance of the Macau Court in taking evidence in Macau for the purpose of the criminal proceedings against the applicant.  It was heard by Beeson J who, on 4 May 2010, ordered that a Letter of Request be issued.  On 21 June 2010, the Secretary of Justice made a supplementary ex parte application for the issue of another Letter of Request and on 6 July 2010, Beeson J granted this application. 

18. As a consequence, court proceedings took place in Macau on 5 and 8 November 2011 in which Mazlan and officers of the MJP testified.  The evidence that was obtained in Macau included the depositions of 10 witnesses, who were either police officers or forensic investigation workers, who testified on what they did in respect of the investigation of the trafficking of dangerous drugs in which Mazlan was involved. 

19. Mazlan also testified at the Macau hearing and he related what he was required to do to transport the drug from Macau to Hong Kong for collection by somebody else.  By the time he testified Mazlan had been convicted of trafficking in 1,643.63 grammes of heroin and sentenced to 9 years and 6 months’ imprisonment.  He had appealed his conviction but his appeal had been dismissed. 

20. At trial, objection was taken to the admissibility of the evidence obtained in Macau by Mr Kamlesh Sadhwani leading Mr Felix Hoe who represented the applicant in the court below.  On 26 September 2011, the judge, having heard arguments and having considered the written submissions of counsel, gave brief reasons for her ruling allowing the prosecution to lead this evidence. 

The defence case

21. The applicant elected to testify but called no defence witnesses.  He said that on 3 May 2009 by chance he was in the vicinity of the Metropark Hotel.  He carried some money with him for shopping for watches, phones and clothing.  He received a text message to his mobile phone and he went to Room 613 of Metropark Hotel.  Once there, he was dragged in, pressed down, hit on the head and back and handcuffed.  He said the police ignored the account he gave about his coming to meet a friend of a friend of a friend from Thailand. 

22. In respect of the hotel room admission he denied having made any oral admission at the scene of his arrest or having signed the notebook entry relating to the oral admission. 

23. He was then taken to the police headquarters where he claimed he was further assaulted.  In respect of his video record of interview, he complained about being very tired.  He said he was a diabetic and because he was refused food and water, he became dizzy and his memory was affected and this accounted for some of the errors he made when answering questions.

The applicant’s grounds of appeal against conviction

24. At the hearing on 18 June 2014 the applicant addressed us in respect of his complaints as set out in attachments to his Form XI of the Criminal Appeal Rules, Cap 221.  As we have mentioned, at the hearing on 19 August 2014 we granted legal aid to the applicant to assist him in pursuing his application for leave to appeal.  Perfected Grounds of Appeal were subsequently filed by his appointed counsel, Mr Albert Poon, on 6 November 2015.

25. Mr Poon advanced five grounds of appeal addressing specific complaints followed by a general ground that in all the circumstances, the conviction was unsafe and unsatisfactory. These grounds of appeal also encapsulate the complaints raised by the applicant in the course of the hearing on 18 June 2014 and 19 August 2014.  In addition, is the issue that particularly concerned the court when deciding to grant the applicant legal aid and that was whether the applicant’s legal representatives could be said to have had a proper opportunity to cross-examine Mazlan at the Macau Letter of Request hearing.  This issue arose because not all the SMS messages on Mazlan’s phone were in English and those that were not had not been translated into English and consequently English translations were not provided to the applicant’s legal representatives prior to the Macau hearing.

26. The first ground of appeal in the Perfected Grounds of Appeal is that the judge had erred in law in not excluding the applicant’s alleged hotel room admission; alternatively, the judge erred in not directing the jury sufficiently or at all that the police had failed to put to the applicant in his video record of interview the hotel room admission and as a consequence the jury may have given undue weight to it.

27. In support of this ground, Mr Poon relied on the authority of HKSAR v Chan Yuk Ling [2013] 1 HKLRD 1093 to submit that the fact that the police had not questioned the applicant during his video interview about his previous hotel room admission should have rendered that admission highly suspect and thus inadmissible or at least should have required that the judge give a specific direction to the jury that they should exercise special care in respect of it.

28. The second ground of appeal is that the judge erred in speculating as to the reasons why the applicant had walked away from the drugs after placing his palm on the dummy packet.  Mr Poon was here referring to a passage in the summing-up where the judge said:

“It is not clear why he did that. It may have been because he heard some sound or felt suspicious of PW1; perhaps the washing powder did not feel right. Whatever it was, it seemed he decided against continuing the transaction.”

29. The applicant’s desistence, so Mr Poon argued, was equally consistent with the possibility that the applicant had no prior intention to traffic and was not attempting to traffic in a dangerous drug at all.

30. The third ground of appeal is that the judge had failed to direct the jury properly or at all on the evidence of knowledge should the jury find that they could not rely on the hotel room admission.  In the same ground Mr Poon asserted that there was no evidence that the applicant received the text message and so the judge should have directed the jury that the applicant may not have knowledge at all of the text message and thus may not have known that he was going to deal with dangerous drugs.

31. In his submissionon this ground, Mr Poon said the judge had wrongly directed the jury that the applicant had received the 6:01 pm text message. The judge directed the jury as follows:

“So you may convict the accused of attempting to traffic in a dangerous drug if you are sure that he intended to traffic in dangerous drugs and, in that context, you would have to be sure that he knew the significance of the text message that he received at 6.01 pm on 3 May, that he believed that dangerous drugs had been brought to Hong Kong and awaited collection in Room 613 of the Metropark Hotel, and with that belief and the intention to traffic, he took action that was more than merely preparatory, and the transaction was effectively complete on that day, except for the removal of the drugs from the room by the defendant.” (Mr Poon’s emphasis.)

32. The fourth ground of appeal is that the applicant had not received a fair trial in that in relation to the Macau Letter of Request hearing in that:

(i)    no instructions had been obtained from the applicant in preparation for the Macau hearing; and

(ii)   his legal advisers had been negligent and had failed to properly discharge their professional duties.

33. In arguing this ground, Mr Poon placed weight on the fact that Mazlan was a self-evident liar and therefore his evidence that Hong Kong was the destination of the dangerous drug was a matter on which issue should have been taken in cross-examination of him. Mr Poon also pointed to a list of suggested questions which trial counsel had prepared for use by the court appointed Macanese defence counsel and alleged that many important issues had not been dealt with.

34. In accordance with directions by this court, the previous legal representatives filed affirmations in response to the allegations raised by the applicant.

35. The fifth ground of appeal was that the judge had failed to direct the jury properly, or at all, that Mazlan was disbelieved by the Macau court and, in consequence, the jury may have given undue weight to his evidence.  Mr Poon complained that since Mazlan was obviously disbelieved by the Macau court, the judge should have reminded the jury of this fact.

Discussion

36. In respect of the first ground of appeal the applicant relies on the case of HKSAR v Chan Yuk Ling [2013] 1 HKLRD 1093.  In this case the Court of Appeal criticised the police’s conduct of a record of interview during which no mention was made by the interviewing officer of an admission allegedly made by the defendant at the time of her arrest and which admission had not been mentioned in the post-record of the response to caution.  The concern of the Court of Appeal is encapsulated in holding no (3) of the headnote:

“Convictions based on alleged oral admissions, which were not recorded in writing and shown to the suspect for his acknowledgement or repeated by him in a properly recorded interview conducted shortly thereafter and, which for no good reason, were not put to the interviewee, called for rigorous scrutiny.”

37. That is not the position with this applicant.  Here, on the police case, albeit denied by the applicant, the hotel room admission was documented by means of a post record being made of it which record was adopted by the applicant.  Furthermore, very soon after commencing the subsequent video record of interview, the interviewing officer referred to what had taken place in Room 613, as is evident from the following excerpts from the interview.  “A” is the interviewing officer and “B” is the applicant:

“23. A: Understand. Alright today -- it’s at 6:07 p.m. today, I arrested you inside Room 613, Metro Park, Mongkok, offence being tra-er-trafficking in dangerous drugs, isn’t it? Well, at that --

24. B: Not trafficking in dangerous drugs, is it?

25. A: The offence is called trafficking in dangerous drug. Well, at that time I -- you told me about receiving from someone ten thousand dollars, right?

26. B: No, didn’t receive ten thousand dollars, didn’t say er -- saying to you, er -- receiving ten thousand dollars from others. I said it’s er -- a Thai friend --

27.  A:   A Thai friend, you wait.”

And, at the end of the interview, the interviewing officer again referred to the hotel room admission as is evident from the following exchange:

“427. A: There is a bag of stuff wrapped in black paper in the briefcase. Have you seen it before or do (you) have any impression?

428. B: No.

429. A: No?

430. B: Mm.

431. A: Well, you have said, you said that he gave you $10,000, right?

432. B: No, he said that when the time came -- [A: Uh.] that is, when the time came, he would repay $45,000 to me, that is, like I had taken him to shop.

433. A: I see. The $10,000 is, that is, when the time came -- who said that, who said that?

434. B: Ah -- Ah Sam, Ah Sam -- Sampson.

435. A: Ah Samson said that (he) would [B: Uh, uh] repay you $45,000?

436.   B:   That is, I gave him $35,000 first [A: Yes.].  After he finished shopping – finished shopping [A: Yes.] I took him to shop, when the time came, that is, I (sic) would repay $45,000 to me [A: Yes.], repay $45,000 to me.”

It is clear that on both these occasions the interviewing officer was putting to the applicant the hotel room admission. 

38. Furthermore, by his answers at counter numbers 26 and 431 the applicant was implicitly admitting that a conversation had previously taken place in which he had said he would receive a quantity of money from another.  His answer at counter 26 puts the matter beyond doubt.  There he said:

“No, didn’t receive ten thousand dollars, didn’t say er -- saying to you, er -- receiving ten thousand dollars from others. I said it’s er -- a Thai friend.” (Emphasis added.)

The clear meaning of this answer is that the applicant did say something earlier about receiving ten thousand dollars but not “from others”; he said he received it from a Thai friend.

39. Both limbs of this first ground of appeal rely on a factual foundation that has simply not been made out and for this reason the first ground fails.

40. The second ground of appeal complains about the judge’s comment on the applicant’s conduct in walking away from the suitcase, which could be taken as an intention to terminate the transaction.  The relevant passage of the judge’s summing-up is as follows:

“… the doorbell rang in Room 613 at about 1806.

By this time, PW1, PW2 and PW4 were in place in Room 613 but only PW1 was visible. He was the one who had been tasked to act as the Malaysian. The other two were hidden. PW1 opened the door; the defendant was outside and entered the room after being gestured in. According to the police evidence, the defendant showed a quantity of Hongkong Bank notes in a purse that he took from his shoulder-bag. PW1, in return, indicated the black bag which contained the dummy dangerous drugs.

The defendant picked up the bag, unzipped it and placed his right palm on the packet which was wrapped in black plastic and placed in the suitcase. Almost immediately, he straightened up and began to walk the short distance to the door. It is not clear why he did that. It may have been because he heard some sound or felt suspicious of PW1; perhaps the washing powder did not feel right. Whatever it was, it seemed he decided against continuing the transaction.

At that stage, PW1 shouted, ‘Police, don’t move’ and the other two officers came out from hiding. The defendant was restrained and taken to the bed. …” (Emphasis added.)

The passage in italics is the comment of the judge of which complaint is made.

41. The complaint that is made, as we understand it, is that if the facts did not allow of any inference to be drawn then the judge was just speculating and, even worse, she was speculating in a one-sided way, advancing only speculative reasons adverse to the applicant.  If she was to say anything at all she should have made a balanced statement by containing speculative reasons favourable to the applicant.

42. Alternatively, the facts as set out by the judge did allow of a number of reasonable inferences favourable to the applicant, namely that on touching the packet the applicant realized that its contents were not what he was expecting, or he realized they were drugs but of a much greater quantity than he was expecting. 

43. The complaint that the judge’s comments invited the jury to speculate and to do so adversely to the applicant has no merit.  On the assumption that the facts, as the judge set them out, were insufficient as primary facts from which to draw any inference, then the judge was correct to tell the jury: “It is not clear why he did that.”  It was not incumbent on the judge to list out every possible explanation for what might have motivated his conduct as it could have been anything and the jury was not in a position to reach a conclusion on what it was that caused him to behave in the way he did. On the assumption that no inference could be drawn then all the judge had to do was convey to the jury the message that the evidence did not allow a conclusion to be reached and the jury must not speculate because the underlying motive for the applicant’s conduct could not be ascertained and could be anything at all. There is nothing in this aspect of the applicant’s second ground of appeal.

44. The alternative basis for this ground is more relevant to the third ground of appeal.  The third ground of appeal complains that once the applicant’s hotel room admission, which was the only direct evidence of his knowledge and intent, is removed from the prosecution case, the evidence the applicant knew the suitcase contained drugs and that he intended to take delivery of these drugs was very weak.

45. Of course, lack of knowledge and lack of an intent to traffic were at the heart of the applicant’s testimony and hotly denied by him.  If those claims were accepted then clearly he would have to be acquitted.  But, assuming that the applicant was not believed then the jury would have to turn to the evidence adduced by the prosecution and determine whether, on that evidence, it had been proven beyond reasonable doubt that the applicant had gone to the hotel room intending to take delivery of a large quantity of dangerous drugs.  Should the jury not feel able to rely on his hotel room admission then there was no direct evidence of the applicant’s intent and the prosecution case became, in terms of proof of this element of the offence, a wholly inferential one.

46. Relevant to whether the only reasonable inference that could be drawn was that the applicant went to Room 613 with the intent alleged by the prosecution, was the applicant’s conduct within the room.  Here, the argument of the applicant is that his conduct was relevant to whether that inference could be drawn and was also relevant in that it allowed of other favourable inferences to be drawn.

47. Determining the probative value of this part of the applicant’s conduct requires a very close examination of it.  In this respect it must be borne in mind that there is only one source of this evidence, namely the police officers, as the applicant, in his evidence, denied ever acting in the way the police described.  The sequence of events, as set out in the quoted passage from the judge’s summing-up, was as follows:

(i) the doorbell rang and the police officer posing as Mazlan opened the door;

(ii) on opening the door no words were spoken by either person and the police officer gestured to the applicant to enter the room, and he then did so;

(iii) the applicant took a purse from his handbag and showed a quantity of Hong Kong banknotes to the police officer;

(iv) the police officer then indicated the black bag which contained the dummy dangerous drugs;

(v) the applicant walked to the bag, unzipped it and placed his right palm on the dummy packet of drugs; and

(vi) almost immediately, he straightened up and began to walk the short distance to the door.  

48. The first, and obvious, point that should be made is that this conduct is wholly inconsistent with the applicant’s testimony of a person who was going to a hotel room to meet a friend of a friend of a friend, whom he had never met before, for the purpose of giving that person some spending money.  There is no greeting, no introduction, no mention of the reason the applicant is appearing at this hotel room and no offer of the money, merely a display of it prior to checking the dummy packet of drugs.

49. Instead, the applicant behaved entirely in the manner of a person who had a specific purpose in going to the hotel room, namely, to take delivery of something and, in exchange, to hand over a quantity of money.  Furthermore, and very importantly, he must have expected the person in the hotel room to know all of this.  It is only because they have such a clear mutual understanding of what is to take place that no spoken words are necessary.

50. In this context, what inference can be drawn from the final event in the sequence, that is, from the action of the applicant straightening up and beginning to walk towards the door?  In our view the only inference available is that which is identified by the judge in her summing‑up, namely that the applicant decided to terminate the transaction.  Mr Poon, for the applicant, submits that inferences as to why the applicant decided to terminate the transaction can also be drawn.  We do not agree.  The primary facts do not allow of any inference, whether the inference is favourable or unfavourable to the applicant.  The judge was correct to say that the reason for the applicant’s conduct was unclear.  In these circumstances the judge did not err in not directing the jury that they could draw an inference favourable to the applicant from his conduct in withdrawing from the transaction.

51. The primary complaint in the third ground of appeal is that the judge failed to direct the jury on the evidence available to them to prove the element of knowledge that the packet contained dangerous drugs should the jury reject both the applicant’s testimony and the evidence of the hotel room admission.

52. Mr Poon does not dispute that the judge adequately described the evidence to the jury and that she correctly directed the jury both as to:

(i) the need for them to be satisfied of the applicant’s guilt on the basis of the prosecution case should they reject the applicant’s evidence; and

(ii) the need, in considering the prosecution case, to ignore the hotel room admission if they were satisfied it was or may have been obtained in circumstances of impropriety.

53. Mr Poon does not go so far as to say that in the event the jury rejected the applicant’s evidence and the hotel room admission, the evidence was insufficient to sustain a conviction.  Had that been the case then a specific direction would clearly have been necessary.  In our view Mr Poon was right in not advancing such an argument.  The prosecution case was undoubtedly weaker without the admission, but the primary facts were still sufficient to allow an inference of knowledge.  The applicant’s conduct from the moment the door of the hotel room was opened up until the time he decided to withdraw from the transaction was, in the way we have earlier analysed it, wholly consistent with the way a person who was tasked with taking delivery of an illicit substance in a criminal transaction, would behave.

54. In the circumstances of this particular case where there was other evidence sufficient to sustain a conviction we are not persuaded that it was incumbent upon the judge to give the further directions sought by Mr Poon.

55. The judge’s directions to the jury were legally and factually correct.  The claim made by Mr Poon that it was not proven that the applicant received the text message at 18:01 hours is simply not consistent with the evidence.  The applicant’s phone was seized and its contents downloaded.  These contents established that the applicant had received a SMS text message from a phone number in Thailand which said “Room 613. Hotel Tel. 23976682.”  It was proven that this phone number was of the Metropark Hotel.  The applicant admitted that he had received this message.  Indeed, receipt of it was an important element of his own case as it explained why he went to Room 613.  What could not be proven was the source of this message.

56. But it could be proven that the information in relation to the hotel room was sent to Thailand at 17:55, that the applicant received it at 18:01 and at 18:06 the applicant appeared at the hotel room door.  The message did not identify the hotel by name but only by phone number.  This fact together with the fact that the applicant was able to arrive at the hotel room so quickly after receiving the SMS message allows of the following inferences:

(i) he already knew the hotel where the courier would be staying;

(ii) he was on standby in the hotel or very close to it; and

(iii) he was waiting to receive information which would enable him to know the particular room of the hotel from which he was to retrieve the drugs.

57. There is no merit in the third ground of appeal.

58. The fourth and fifth grounds of appeal deal with the Macau hearing and the evidence it generated.  The fourth ground deals with the fairness of the process and specifically with the adequacy of the applicant’s representation at the hearing.

59. Under the fourth ground of appeal the applicant complains that he was not kept informed by his lawyers about the Macau hearing, that he was not provided with copies of the documents relating to the Macau hearing and that his lawyers did not obtain from him his instructions in respect of that hearing.  He also complains that his lawyers did not properly cross-examine Mazlan.

60. As we have already mentioned we obtained responses to these allegations from all those involved in representing the applicant.  That material clearly establishes that the applicant, through his solicitors, was served with materials relating to the Macau hearing and that his solicitors forwarded copies of these materials to him.  Furthermore, his legal representatives did confer with the applicant before the Macau hearing and he authorized them to appear at the hearing, on his behalf and in his absence, and to cause questions to be asked of the witnesses. There is nothing in the applicant’s complaints that he was not kept informed about the Macau hearing or provided with an opportunity to give instructions in respect of it. 

61. As to the cross-examination of Mazlan it is clear from the affirmations filed that the legal representatives took the view that the evidence of Mazlan was not particularly crucial to the defence case as he had no knowledge of the applicant and could not say anything to incriminate him.  This was an entirely reasonable view to take and in so far as it informed their forensic strategy in the cross-examination of the Macau witnesses there was nothing incompetent about it.  In support of his argument to the contrary Mr Poon says that the applicant’s legal representatives should have done more to attack Mazlan’s credibility so that they could raise a doubt as to the final destination of the drugs.  Mr Poon submits that Mazlan was a convicted drug trafficker, a liar whose word was worthless, and that greater effort should have been made to demonstrate the untrustworthiness of his word with a view to arguing that it was not proven to the requisite standard that the final destination of the drugs was in fact Hong Kong.

62. We do not agree.  It may well be that the cross‑examination of Mazlan could have been more effective.  But the question remains of how that could benefit the applicant.  Mazlan clearly lied on occasions in order to reduce his culpability in this offence.  However, even if Mazlan was shown to be a lying drug trafficker who would say anything to help himself, we do not see how that would help the applicant in respect of whom he was not saying anything incriminatory.

63. Mazlan’s claim that the final destination of the drugs was Hong Kong was not dependant just on his evidence.  The series of SMS messages between his phone and the drug syndicate in Thailand clearly established that the drugs were to be couriered to Hong Kong.  Mr Poon accepts that a claim that the drugs were not destined for Hong Kong is contradicted by the SMS messages.  There is nothing in this ground of appeal.

64. As mentioned earlier in this judgment, when granting the applicant legal aid, this court was concerned as to whether it could be said that the applicant had been denied an opportunity to properly cross-examine Mazlan given that some of the SMS messages were in a foreign language.  However, in view of the strategy adopted by the defence lawyers to Mazlan, a strategy which we have found was a competent and reasonable one in the circumstances of this case, this issue falls away. But before leaving it we should observe that in our view the respondent should have had translated into English prior to the Macau hearing those documents which it was going to have adduced at that hearing. 

65. The fifth ground of appeal complains that the judge failed to adequately direct the jury that question marks surrounded the credibility of Mazlan who had lied in the Macau proceedings.  In her summing-up the judge made the following comments about Mazlan:

“… The content of those depositions is evidence in the case that you can consider and it is for you to decide what weight you attach to that evidence. Because those witnesses did not come to court, the evidence has certain limitations which I must draw to your attention. First of all, you have not had the opportunity of seeing and hearing those witnesses in the witness-box and sometimes when you do see and hear a witness, you have a much clearer idea of whether their evidence is honest or accurate. …

In respect of Mazlan himself, you will note the content of his deposition. He was cross-examined as to whether he received any special benefit for giving assistance and says that he was not. You will recall that he is a convicted trafficker, he is doing 9½ years in prison in Macau and his appeal has been dismissed. He denies, in his deposition, committing the offence and gives a fairly ludicrous explanation as to why he pleaded guilty, given that he was innocent. The fact that he is a convicted prisoner does not mean that he cannot tell the truth but it would make you cautious about relying on his evidence. …

If you are satisfied that the evidence given was reliable and accurate, you can place what weight you see fit on that material when you are considering the link between Macau and Hong Kong and, in particular, the link between the trafficker of the drugs and the proposed collector of the drugs whom the prosecution says is the defendant.”

66. This is a perfectly adequate warning to the jury that they should treat the evidence of Mazlan with care as he was a convicted drug trafficker who had pleaded guilty on the one hand but who, in his deposition, had, on the other hand, sought to deny his knowing involvement in the trafficking of drugs – a denial which the judge characterized to the jury as ludicrous.  This ground of appeal is without merit.   

Conclusion

67. For these reasons we refuse the application for leave to appeal against conviction.

On 26 April 2016

On 18 June and 19 August 2014