HKSAR v. YAU CHUNG MAN

CACC 411/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 411 OF 2015

(ON APPEAL FROM HCCC NO 2 OF 2015)

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REASONS FOR JUDGMENT

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Hon Zervos J (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant applied for leave to appeal against his conviction on 19 November 2015, after trial before Deputy High Court Judge Campbell-Moffat, SC, (as she then was) (the judge) and a jury of unlawfully trafficking in a dangerous drug on 18 August 2014, consisting of 1.07 kilogrammes of cocaine.  The applicant was sentenced to 23 years’ imprisonment.

2.  At the hearing, we allowed the appeal, quashed the applicant’s conviction and ordered a retrial. We said that we would give reasons for our decision in due course.  This, we now do.

The trial

The prosecution case

3.  At trial, most of the prosecution evidence was not in issue and had been agreed, although certain key witnesses gave evidence for the prosecution. 

4.  On 16 August 2014, Customs officers intercepted a UPS parcel from Brazil upon its arrival in Hong Kong.[1]  The Customs officers opened the parcel and found that it contained a carton box.  Affixed to the carton box was a paper on which was handwritten:

“TO: HONG KONG CHINA, MR. LIU KA MAN RM 1021 YUE SHUN HOUSE CHAI WAN HONG KONG CHINA TEL: 62027997”.[2]

5.  Inside the carton box were 23 pieces of clothing, each of which was wrapped around a piece of card paper with an interlayer.  Customs officers cut a small opening in one of the card papers and found white powder which tested positive for cocaine.[3] 

6.  On 18 August 2014, at about 15:40 hours, Customs officer Ng Ka Chun, (Officer Ng), who was designated as PW6 at trial, posing as an UPS staff member, telephoned the number on the dispatch paper affixed to the carton box, 62027997.  At first, the call was diverted to a voice mail box and he left a message.  He made another call almost immediately which was answered by a female who identified herself as being Liu Ka Man.  He told her that he had a parcel which he was going to deliver to her that day.  He asked her whether her address was as stated on the parcel and she answered in the affirmative.  He told her that they were going to deliver the parcel to her soon and asked whether she would be available to receive it.  She said “All right, fine.”  He asked her whether she was going to wait for the receipt of the parcel at the address on the dispatch paper.  Instead, she told him to wait for her downstairs at the ground floor of the lobby of Yue Shun House.  He responded by saying “Fine, all right.  No problem.”  She asked him to give her a call after he had arrived at the lobby.[4]  

7.  Officer Ng said that a few minutes later, at about 15:42 hours, the female rang him back on the same telephone number he had previously called.[5] He testified:

“A. … She claimed herself to be Miss Liu. Miss Liu told me that she was not free because she was working and I was told that for the recipient of the parcel, actually there was another Mr Yau who was also one of the registered recipients for that parcel, and I was told that I should deliver it to him.

Q. And then what, what did you reply to her?

A.  I then said to her, “Sorry, lady, on this piece of paper on our record there was only one name appearing.  That is Liu Ka-man and the registered address is 1021 Yue Shun House, Yue Wan Estate.”

Q. What did she reply?

A. And then Miss Liu said to me …

INTERPRETER: Quote.

A. …”Well, actually this parcel belongs to Mr Yau, so will it be all right if he himself collects the parcel? Can it be arranged?”

INTERPRETER: End quote.

Q. And – yes, what did you reply?

A. And then I replied to the lady …

INTERPRETER: Quote.

A.  … “Sorry, this parcel has got only one name.  That is, ‘Miss Liu’.  So this is supposed to be received by Miss Liu.  If you want somebody else to collect the parcel, then there must be a few documents to be provided, which included authorisation letter from you, your ID card copy, and also the ID card of the person who collects the parcel for you.”

INTERPRETER: End quote.”[6]

8.  Officer Ng said that the female responded that she would arrange the documents he had requested.[7] 

9.  We should mention at this juncture, that no objection was taken by Mr William Allen, defence counsel, to the admissibility of this evidence.  It is extraordinary that the common law rule against hearsay in relation to Officer Ng’s testimony of the out-of-court statements of Ms Liu was not raised at some stage before, or during the course of, the trial.  We note, however, that another judge presided over the two pre-trial review hearings.  Officer Ng’s testimony as to what Ms Liu said to him was clearly on its face hearsay evidence.  Ms Liu was not jointly charged or named as a co-defendant of the applicant.  Nor was she listed or called as a witness. 

10.  We also observe that the prosecution in opening its case to the jury did not refer to the statement of Ms Liu, as recounted by Officer Ng, that the parcel belonged to Mr Yau.  All that was said was that Officer Ng would testify that a female who said she was Ms Liu could not receive the parcel because she was at work and asked if she could let Mr Yau receive it.[8] However, when examining Officer Ng, Mr Laurence Poots, prosecution counsel, did nothing to prevent Officer Ng from recounting this hearsay statement and no point was taken on it at the time by defence counsel or the judge.

11.  Returning to Officer Ng’s evidence, not long after the call with the female, at about 15:45 hours, he received a call from a male on a different number, 94517997.  The male caller identified himself to Officer Ng as Mr Yau, and a friend of Ms Liu’s.  He said that Ms Liu had authorised him to collect the parcel.  Officer Ng mentioned the documents he required and asked if they were ready.  The male caller said he would see and call him back. 

12.  There was no dispute that the male caller was the applicant and the telephone number belonged to him.[9]

13.  The applicant rang back at about 16:05 hours and told Officer Ng: “Now I’ve got the authorisation letter signed by Miss Liu herself as well as a copy of her ID card.  When will you deliver the parcel to us?”  Arrangements were then made to deliver the parcel to the applicant at the ground floor of Yue Shun House. 

14.  Later on, at about 16:20 hours, Officer Ng together with another Customs officer, both dressed and posing as UPS couriers, went to the ground floor lobby of Yue Shun House.  Officer Ng telephoned the applicant and informed him that he was UPS staff and asked if he was Mr Yau.  He said he was, and Officer Ng informed him that they had arrived at the ground floor lobby.  The applicant said “Fine, all right.  I come immediately.” 

15.  At about 16:30 hours, the applicant walked towards Officer Ng holding a stack of documents.  He introduced himself as Mr Yau and said that he was Ms Liu’s friend.  He also said that Ms Liu had authorised him to come and collect the parcel.  He then handed to Officer Ng the stack of documents.  Officer Ng noticed that the authorisation had not been signed by Ms Liu and mentioned this to the applicant. He added that according to company policy he was not allowed to hand over the parcel without the authorisation letter.  The applicant said he was in a hurry, but Officer Ng insisted that he could not help him.  Officer Ng suggested to him that he telephone their company headquarters to make other arrangements for the collection of the parcel later on.  The applicant asked Officer Ng if he could wait for a bit and told him that he would take the letter to Ms Liu for her signature.  He said that she worked nearby, and told Officer Ng to wait for him as he would be back very soon, in 15 minutes.  Officer Ng agreed but told him that he had to make other deliveries and that he should be quick.   

16.  At about 16:40 hours, the applicant returned with a stack of documents in his hands.  He said “Now it’s okay” and handed over the documents to Officer Ng.  The applicant signed the delivery record and checked the shipping note attached to the parcel.  He confirmed that it was the right parcel.

17.  After the applicant had taken delivery of the parcel, customs officers arrested him.  Under caution, the applicant said that he had been told by a friend to receive the stuff for him.  He said he did not know what was inside the mail, and that he was to deliver it to somebody at a restaurant in the Shun Tak Centre.  He acknowledged that he signed the authorisation letter.  He agreed to cooperate with the customs officers, and take them to find the contact person.  There followed several unsuccessful attempts by him to contact the person he said had arranged for him to deliver the parcel. 

18.  What the applicant told the Customs officers was later recorded in Officer Ng’s notebook, which the applicant signed as a correct record, and included the following:

“What knowledge do you have regarding the receiver Liu Ka MAN and the registered address, Flat 1021, Yue Shun House, Yue Wan Estate, Chai Wan? You replied me, “I do not know.””[10]

19.  An unusual feature in this case was that even though Liu Ka Man was not involved in these proceedings, her mother, Madam Ma So-lai, (Madam Ma), was called to give evidence for the prosecution.  She was designated as PW20 at trial.  She confirmed that her daughter was Liu Ka Man, and identified her daughter’s identity card.  She confirmed that she was the registered owner of the telephone number, 62027997, which was recorded on the dispatch paper affixed to the carton box,[11] and that her daughter used her telephone number.  She testified that her daughter worked as a sales assistant at a supermarket in Causeway Bay in August 2014.  She said that on 18 August 2014 her daughter had been working all day in Causeway Bay and later that evening she telephoned her daughter on 62027997.[12]

20.  Evidence was also presented at trial that the address recorded on the dispatch paper at Yue Shun House was the address of the applicant’s uncle who lived there together with the applicant’s grandparents; and that the applicant and Ms Liu were well known to each other, a photograph of them together in a party of others was produced.

21.  Admitted into evidence were the telephone records of the telephone numbers used by the applicant, 94517997, and by Ms Liu, 62027997.[13] It was admitted that a WhatsApp message had been retrieved from the applicant’s telephone which was dated 10 August 2014.  It was recorded as a message from “Chung Man Jai” to “Boss Kam” and consisted of a photo display setting out in Chinese and English the name Liu Ka Man and the address at Yue Shun House.[14] This corresponded with the name and address on the dispatch paper affixed to the carton box.  The telephone number of “Boss Kam” was recorded as 64404444.

22.  The telephone records also revealed that during the relevant events of the sending of the WhatsApp message on 10 August 2014 to “Boss Kam”, the shipment of the parcel from Brazil on 12 August 2014, and the delivery of the parcel on 18 August 2014, there was telephonic contact by the applicant with the telephones of “Boss Kam” and Ms Liu. 

The defence case

23.  The applicant neither gave evidence, nor called evidence on his behalf.  The defence case as advanced in cross-examination and in submissions, was that the prosecution evidence could not establish that the applicant knew the contents of the parcel. 

24.  The defence relied on the fact that the applicant was not the registered recipient of the parcel, the contact number did not belong to the applicant and what the applicant said immediately after he was arrested and cautioned, disavowing any knowledge of the contents of the parcel, and stating that he was collecting the parcel for someone else. 

25.  The defence also pointed to the fact that the applicant had no prior criminal record and a search of his home found no incriminating evidence. 

The grounds of appeal

26.  Ultimately, the applicant sought leave to appeal his conviction on three grounds only, which briefly described are as follows. 

27.  First, the judge wrongly permitted hearsay evidence to go before the jury, and wrongly directed them as to the use they could make of such evidence in their deliberations (Ground 1).  Secondly, the judge wrongly directed the jury that there was no evidence to undermine, contradict or even explain the prosecution’s case when the applicant’s mixed statement could be taken into account by them in their deliberations (Ground 2).  Thirdly, the judge wrongly stated a question asked of the applicant that gave it a materially different meaning (Ground 3).

The first ground concerning hearsay evidence

28.  The complaint in respect of Ground 1 concerns the common law rule against hearsay evidence.  The applicant took issue in this ground, although not at trial, with the admission into evidence of the testimony of Officer Ng in relation to what was said to him by a female who purported to be Liu Ka Man (Ms Liu), and the testimony of Madam Ma about her daughter’s whereabouts on 18 August 2014, and the judge’s treatment of both these pieces of evidence in her summing up to the jury. 

The hearsay rule

29.  The essence of hearsay evidence is that it is essentially a second hand account of relevant matters that cannot be tested and is therefore evidence of an inferior quality that should generally not be admitted.  It is for this reason that at common law the rule is that hearsay evidence is inadmissible in criminal proceedings, unless it falls within the exceptions provided under common law or statute.[15] 

30.  In Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, McHugh NPJ in his judgment, with whom the other judges agreed, provided a working definition of the hearsay rule in the following terms: “an oral or written assertion, express or implied, other than one made by a person in giving oral evidence in court proceedings is inadmissible as evidence of any fact or opinion so asserted.”[16] 

31.  McHugh NPJ went on to explain that in establishing whether the hearsay rule had been breached, it was necessary to determine the purpose for which evidence of an out-of-court statement was tendered.  He emphasised that an out-of-court statement, made in the absence of a party, was not necessarily inadmissible, as long as its contents were not relied on to prove a fact recited or asserted.  Such statement would be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue.  He noted that the hearsay rule does not forbid the proof of what somebody said out of court.  What is forbidden is the proof of a fact by telling what somebody said about the fact out of court.[17] 

32.  Whether evidence in any particular instance is admissible depends on what fact it tends to prove.  In general terms, if it tends to prove what somebody said out of court, it would be admissible.  If, on the other hand, it tends to prove the fact of what someone said out of court (or the truth of it), it would inadmissible.  Thus, evidence as to what is said by a person out of court will be admissible to prove the person’s state of mind where it is a relevant issue.[18] 

The judge’s summing up

33.  The judge in her summing up described in detail Officer Ng’s testimony.  She mentioned Officer Ng’s evidence that Ms Liu said that the parcel belonged to the applicant.  It is this aspect of what Ms Liu allegedly said which lies at the heart of this ground. 

34.  The judge in her summing up to the jury directed them that “the issue” in the case was whether the applicant knew what was in the parcel.[19] She then described how the prosecution sought to prove knowledge by primarily focussing on Officer Ng’s evidence as to what Ms Liu had told him.  She said:

“… So at 15:40, there is a call in which she is identified.  Then she comes back two minutes later and says, “No, I’m not free, but I would like the other registered recipient to contact it,” (sic) That is someone else who should have been on the documentation to collect it, and that’s Mr Yau.  It is Liu Ka-man who is introducing Mr Yau’s name into the picture. 

The prosecution say then that she was told by PW6 that he was not a registered recipient, so that was not going to work, because it had to be to somebody who was registered as being a person who could receive it.  PW6 said in response to him telling her, “No, he is not a registered recipient,” she said, “Well, actually, this parcel belongs to him.  Would it be all right if he himself collects the parcel?  Can it be arranged?”  Now, that was PW6’s evidence and the prosecution rely on it.”[20] (Emphasis added)

35.  After highlighting to the jury Officer Ng’s testimony of the out-of-court statements of Ms Liu, and noting that the prosecution relied on the evidence, the judge then directed the jury:

“Be careful of that evidence, members of the jury, because you do not know if what she said, as opposed to what PW6 is telling you, if what she said is true, because if I tell you something Miss Wong has told me, I say, “Miss Wong told me this morning the buses were running late,” I do not know if that is true.  I only know that Miss Wong has told me that the buses are running late, you see, so there is difficulty with that evidence.  That evidence was before you because eventually Mr Yau came to collect and PW6 expected him to come to collect.  So he is giving you that evidence to tell you the story of why it was that something else happened.  But you do not know if it is true firstly, that he was to be a registered recipient and, secondly, that the parcel belonged to him.

You must be careful with that evidence, not least of all because you do not know whether, in an attempt to get delivery of the parcel, she might have thought, ‘If I say it’s his maybe they will give it to him.’  You do not know what was happening there, so be very careful, with that evidence because that evidence is not – you cannot be sure of the fact that what she said is true, that it did belong to him.”[21] (Emphasis added)

36.  Further into her summing up, the judge when reviewing the defence case, by her added remark, left it open for the jury to treat the assertion that the parcel belonged to the applicant as true.  She said:

“…it is only when it appears that she cannot simply get it delivered to Mr Yau when she says, “He is the other recipient. Please give it to him.” It is only when UPS said, “No, no, he is not the other recipient,” but she then says, “Oh, it belongs to him.” That is the first time she says that, so does that necessarily mean that it belongs to him or is that just her reaction to try and get the parcel delivered to him?”[22] (Emphasis added)

The evidence of Officer Ng

37.  Mr Christopher Grounds, for the applicant, submitted that the judge failed to expressly direct the jury that they could not use Ms Liu’s statement that the parcel belonged to the applicant to prove that fact and prove the applicant’s knowledge of the dangerous drugs.  He argued that the judge by her direction left it open to the jury to use the statements of Ms Liu to Officer Ng to prove knowledge even though she told them that they should be careful with the evidence.  He further argued that the judge should have limited the evidence of Officer Ng to the fact that he had called the number 62027997, spoken with a female purporting to be Liu Ka Man and following that the applicant called Officer Ng to collect the parcel on behalf of Ms Liu. 

38.  In oral submissions, Mr Grounds also noted that the judge had earlier directed the jury that they should ignore any view that she may express on the evidence and therefore there was a risk that the jury may have treated her statement that they should be careful about the impugned evidence as merely her view which they could choose to ignore, rather than a legal direction that they were obliged to follow.  We do not agree with this submission, as it is clear when viewed in context, that the judge in her earlier directions was saying no more than it was a matter for the jury as to whether they agreed or not with any views that she may express about the evidence.[23]

39.  Mr Grounds pointed to the fact that the prosecution, having elicited the impugned evidence from Officer Ng during examination-in-chief, then went on to stress the importance of it in its closing address to the jury.  Whilst he acknowledged that the defence did not object to the evidence, he argued that the judge should have nevertheless properly addressed the evidence in her directions to the jury.

40.  Ms Vinci Lam, for the respondent, argued that it was not the prosecution case that what Ms Liu said about the parcel belonging to the applicant was true, but rather it was the defence that relied upon the conversations between Officer Ng and Ms Liu to show that Ms Liu had “duped” the applicant into collecting and delivering the parcel.  She submitted that in light of the defence’s reliance on the conversations, it would be unfair on the defence to direct the jury to disregard as hearsay the conversations altogether.  She further submitted that the judge by her directions to the jury about general evidential issues and treating the impugned evidence with care was sufficient in the circumstances of this case to ensure that the jury would not use Ms Liu’s statements in an impermissible way. 

41.  Ms Lam in oral submissions, contended that when the judge said in her directions to the jury that “you cannot be sure of the fact that what she said is true, that it did belong to him”,[24] together with her directions as to the standard of proof, this sufficed to convey to the jury that they could not rely on this evidence of the truth of the fact asserted.  A consideration of the judge’s quoted comments in the context of the passage of her summing up does not support this contention.  In any event, Ms Lam properly conceded that the later remark of the judge “so does that necessarily mean that it belongs to him”[25] in respect of Ms Liu’s statement that the parcel belonged to the applicant, left it open to the jury to use the hearsay statement as evidence of its truth.

42.  We do not agree with Ms Lam’s general submissions which are unsupported by any authority.  First, it is clear that the prosecution, by eliciting the evidence from Officer Ng of his conversations with Ms Liu and by the contents of its closing address, was relying on the out-of-court statements of Ms Liu to prove the facts recited or asserted. Secondly, Ms Liu’s statement that the parcel belonged to the applicant went to the critical issue of the applicant’s knowledge that the contents of the parcel were dangerous drugs.  It was hearsay evidence of a kind that required a consideration as to the purpose for which it was being adduced and a direction to the jury in clear terms that it could not be relied upon to prove the fact asserted. 

43.  Even though the judge told the jury to be careful with the impugned evidence, she did not specifically direct them that they could not use it as to its truth.  The judge’s directions left open the possibility that the jury could accept this evidence as a fact that the parcel belonged to the applicant and use it to prove that the applicant knew that the parcel contained dangerous drugs.

44.  As noted earlier, no objection was raised by Mr Allen, defence counsel, when the evidence of Officer Ng was led in relation to his conversations with Ms Liu.  In fact, Mr Allen extensively cross-examined Officer Ng as to what was said to him by Ms Liu,[26] highlighting at one stage, apparently in support of the defence case, that she asked Officer Ng whether Mr Yau could sign the receipt “on her behalf”.[27] However, the defence naturally did not seek to highlight or rely on the truth of Ms Liu’s statement that the parcel belonged to the applicant.  This statement if accepted as true went to the critical issue of the applicant’s knowledge. 

45.  The issue in relation to Ms Liu’s hearsay statements was compounded when Mr Poots, prosecution counsel, in his brief closing address to the jury reminded them of Officer Ng’s evidence as to the contents of the phone calls with Ms Liu.  He said to the jury:  

“The officer also told you of the contents of the phone calls with Miss Liu, and you may find it of importance that she told the officer there was another registered recipient for the parcel, Mr Yau, and that he should deliver the parcel to him. Now, of course, the officer said, “Well, no, that’s not right. There’s only Miss Liu’s name on the parcel,” and she then further told him that actually, actually, the parcel belongs to Mr Yau, and asked, “Would it be all right for him to collect the parcel and can it be arranged?”

And, of course, we know that it was, and the accused turned up and picked up the parcel. At the ground floor lobby, you’ll recall, he picked up the parcel from the officers who were pretending to be UPS.”[28] (Emphasis added)

46.  After his review of the evidence and the case against the applicant, Mr Poots went on to conclude:

“This case comes down to one crucial point: did the accused know the parcel contained the drugs? I say that your common sense and your knowledge of the world will no doubt assist you to draw what I say is the only reasonable inference from all of the evidence which is before you, and return a verdict of guilty.”[29]

47.  Prosecution counsel in his closing address was inviting the jury to treat the hearsay statements of Ms Liu as evidence of the truth of the facts asserted by her.  This was impermissible.  See Kissel v HKSAR (2010) 13 HKCFAR 27, at paragraphs 128 to 130. 

48.  Prosecution counsel’s comments in his closing address were not corrected by the judge.  She did not direct the jury not to treat the hearsay statements as evidence of the facts asserted by Ms Liu.  The failure by the judge to give a clear direction to the jury in this regard was a material misdirection.  Such directions as she gave were either insufficient or inappropriate to convey the requisite message to the jury.  This was illustrated by the judge’s further remark inviting the jury to consider whether Ms Liu’s statement that the parcel belonged to the applicant was true or just her reaction to try and get the parcel delivered to him. 

49.  We also point out that the judge did invite counsel to raise any issues or matters that should be addressed in the summing up to the jury.  Neither counsel mentioned to the judge that she should direct the jury in relation to the hearsay statements of Ms Liu.

The evidence of Madam Ma

50.  The evidence of Madam Ma was also not objected to by defence counsel.  Madam Ma in her evidence confirmed that her daughter was working in August 2014, and it was in the course of cross-examination by defence counsel, although the judge asked the question, that she said that her daughter was working in Causeway Bay on 18 August 2014, the day the parcel was delivered.[30]

51.  Whilst this evidence should not have been admitted to prove the fact recited or asserted, it did not have any significant bearing on the case.  It was not in dispute that the applicant collected the parcel; that he knew Liu Ka Man; that there had been an exchange of calls between the applicant’s telephone and 62027997 at relevant times when the parcel was collected; and that Liu Ka Man used her mother’s telephone 62027997.   The whereabouts of Liu Ka Man on the day in question was not a material issue at trial.  

The other grounds of appeal

52.  The remaining grounds of appeal can be dealt with briefly.  Grounds 2 and 3, are, in our view, without substance. 

53.  The complaint under Ground 2 was that the judge did not direct the jury correctly in relation to the applicant’s mixed statement.  We do not agree.  The judge made it abundantly clear that they should consider the mixed statement and emphasised its significance by reference to the applicant’s good character.

54.  The complaint under Ground 3 was that the judge wrongly stated in her summing up the question asked of the applicant in his caution statement about knowing the name and address as recorded on the parcel. 

55.  The question and answer as contained in the translated notebook entry read: “I asked you, “What knowledge do you have regarding the receiver LIU KA Man and the registered address, Flat 1021, Yue Shun House, Yue Wan Estate, Chai Wan?”  You replied me, “I do not know.””[31]

56.  The judge in her summing up to the jury framed the question by using the word “or” instead of “and”. 

57.  Mr Grounds submitted that the judge misstated the question, and thereby presented a materially different question where the use of “or” created two independent questions where the use of “and” contained a single question linking the person and the premises. 

58.  Mr Grounds argued that it would be strange for the applicant to say that he knew nothing about Liu Ka Man when he had just told Officer Ng that she was his friend, and the address when he would have known that his uncle and grandparents lived there.  He argued that the applicant’s answer is uncontroversial if the questions are conjunctive and are conjoined in that the applicant may not know how Liu Ka Man is linked to that address. 

59.  It is of relevance that both prosecution and defence counsel when examining Officer Ng on the issue and in their closing addresses to the jury treated the question disjunctively.[32] 

60.  We fail to see any material significance in this ground.  Whether the question was asked in the conjunctive or disjunctive is of minor consequence given the way the matter was canvassed during Officer Ng’s evidence and dealt with during the trial. 

Conclusion

61.  In the result, for the reasons set out above in respect of Ground 1, we allowed the application for leave to appeal against conviction, and treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the conviction. 

62.  There being no opposition to an application that the applicant be retried, we made such an order and further directed that his retrial take place before another judge on a fresh indictment which is to be filed with the Court within 14 days.  We directed that the case be fixed before the Listing Judge for the fixing of hearing dates within 28 days hereof and that expedited dates be fixed for the hearing of the retrial. 

63.  There being no application for bail, the applicant was remanded in custody pending his retrial.  

Costs

64.  The applicant was privately represented, and there being no objection from the respondent, we ordered that the applicant be awarded his costs on appeal, to be taxed if not agreed.

[1]  Appeal Bundle,7, Admitted Facts, [1].

[2]  Appeal Bundle, 8, Admitted Facts, [4].  The paper was produced as exhibit P17 and P17A at trial.

[3]  Appeal Bundle, 8, Admitted Facts, [5].

[4]  Appeal Bundle, 65M-67C.

[5]  Appeal Bundle, 67D-F.

[6]  Appeal Bundle, 67G-U. 

[7]  Appeal Bundle, 68A-G.

[8]  Appeal Bundle, 61K-M.

[9]  Appeal Bundle, 68M-Q.  See also Appeal Bundle, 9, Admitted Facts, [12] and [14].

[10]  Appeal Bundle, 231.

[11]  Appeal Bundle, 9, Admitted Facts, [13].

[12]  Appeal Bundle, 126C-129P.

[13]  Appeal Bundle, 9, Admitted Facts, [12] and [13].

[14]  Appeal Bundle, 9, Admitted Facts, [14].

[15]  HKSAR v Lau Shing Chung Simon (2015) 18 HKCFAR 50, [28]-[30] (Stock NPJ).

[16]  At [35].

[17]  At [39].

[18]  At [42] and [43].

[19]  Appeal Bundle, 18M-19A.

[20]  Appeal Bundle, 19P-20C. 

[21]  Appeal Bundle, 20D-N.

[22]  Appeal Bundle, 25L-O.

[23]  Appeal Bundle, 14S-15G.  Compared with the judge’s direction at 20D-N.

[24]  Appeal Bundle, 20N.  See paragraph 35 of this judgment.

[25]  Appeal Bundle, 25N.  See paragraph 36 of this judgment. 

[26]  Appeal Bundle, 89U-97J. 

[27]  Appeal Bundle, 97A-E.

[28]  Appeal Bundle, 131B-G.

[29]  Appeal Bundle, 132C-E

[30]  Appeal Bundle, 128I-129S.

[31]  Appeal Bundle, 39.

[32]  Appeal Bundle, 131O-T (Prosecution closing address). Appeal Bundle, 146T-147F (Defence closing address).