HKSAR v. LAM WAI KIN AND ANOTHER

CACC 231/2024, [2026] HKCA 988

On Appeal From [2024] HKCFI 3040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 231 OF 2024

(ON APPEAL FROM HCCC NO 208 OF 2022)

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J U D G M E N T

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1.  D1 and D2 faced a joint count of trafficking in a dangerous drug, namely 16,761.3 grammes of a solid containing 13,380.42 grammes of cocaine, contrary to sections 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. After a trial in the High Court before D Yau J (“the judge”)  and a jury, on 23 October 2024, they were each convicted of the count. On 24 October 2024, the judge sentenced D1 to 30 years and 6 months’ imprisonment, and D2 to 29 years and 11 months’ imprisonment. Both applicants have sought leave to appeal against conviction within time. By another Form XI Notice filed on 18 July 2025, D2 has also sought leave to appeal against sentence out of time. During the hearing, D1 too applied before me for leave to appeal against sentence out of time, undertaking to file a Form XI on sentence within 7 days.

The prosecution case

2.  The prosecution case was straightforward.  It was alleged that, on 25 November 2020, at 1:30 pm, D2 was observed driving a white Audi motor car (VD 4886)  to meet D1 in Tai Tung Carpark, between Lamppost Nos AC4619 and AC4621 on Tsing Hung Road, Tsing Yi, New Territories.  D2’s car was parked next to another silver BMW car (LT 2329)  pointing in the same direction.  The two of them were observed by police officers standing behind the BMW car with its boot or trunk open, and their hands moving inside the boot.  After they were intercepted by the officers, there was found in the boot of the BMW car: a purple suitcase containing some 11 kilogrammes of cocaine, which had been left there by a person called “Kam Chai” (金仔)[1], as well as the rest of the cocaine in the count, an electronic scale, a number of transparent re-sealable plastic bags, a spoon, a pair of scissors and a pair of gloves.  Also said to have been found from the trouser pocket of D2 was a piece of paper with alleged drug delivery orders (Exhibit P78), the admissibility of which was contested in a voir dire.

3.  Upon arrest, D1 admitted acting under the instructions of Kam Chai to pass the “coke” in the boot of the BMW car to D2 for distribution, whilst D2 admitted he was there to collect half a kilogramme of “coke” from D1, further maintaining that his girlfriend who came with him had nothing to do with the trafficking.  In their subsequent video recorded interviews (“VRIs”), D1 and D2 made further admissions to trafficking in the dangerous drug concerned.

4.  The prosecution alleged that D1, D2 and Kam Chai were in joint possession of all the dangerous drugs found in the BMW car for the purpose of unlawful trafficking[2].

The defence case

5.  D1 and D2 elected to testify both in voir dire proceedings and the trial proper.  It was their case that they were coached into saying what they said in their VRIs; their admissions were made out of fear and were not true.  They denied knowing there were dangerous drugs inside the boot of the car and had no intention to traffic in them[3]. D1 said he was told that inside the boot were banned medicines or substances for athletes.  D2 also denied agreeing to deliver anything for D1 in accordance with the orders on Exhibit P78, or at all.

6.  In his evidence, D1 said that one hour before his arrest, Kam Chai met him in Hung Hom to talk about the delivery of banned medicines for sportsmen[4]. He also copied down the telephone numbers, names, time and weight of the goods to be delivered into his exercise book[5], before going, as instructed by Kam Chai, to locate a suitcase in the boot of the parked BMW car[6]. He subsequently tore the page with the delivery orders (Exhibit P78)  from his exercise book in order to explain to D2 the details of the deliveries[7]. At that time, police officers showed up, pressed him to the ground, threatened him and assaulted him; accordingly, he might have dropped Exhibit P78 in the chaos of the situation[8].

7.  D1 said that when he hired D2, he told him that the goods to be delivered were banned medicines for sportsmen[9].

The voir dire ruling

8.  The judge found that the applicants voluntarily signed on the police notebooks and the contents of the post-recorded statements were accurate.  He also found that the applicants took part in the VRIs voluntarily. 

9.  Regarding the admissibility of Exhibit P78, the judge said[10]:

“As to the piece of paper, PP78, I find that the prosecution has proved beyond reasonable doubt that PW1 is telling the truth about where it was found. I find that, in any event, given the relevance of the contents of the note, it is a piece of evidence that should be left to the jury to make a finding on what weight to attach to it, having regard to the credibility and reliability of PW1 after they have heard the evidence.”

The summing-up

10.  The judge told the jury at the outset of the summing-up that, although D1 and D2 were tried together, they should consider their cases separately[11]. The judge subsequently repeated the same direction to the jury[12].

11.  The judge also cautioned the jury not to go beyond the available evidence or engage in unwarranted speculation.  He said[13]:

“You must not speculate about what evidence that might have been, or allow yourselves to be drawn into speculation, into guessing. Your role in this case is not to investigate. It is not to investigate. Jurors might, in some cases, feel frustrated by what they think is a lack of evidence or information about some particular aspects of the case. If you were to feel that there is some evidence or information missing then when you come to make your decision you simply take the fact of that gap into account in deciding whether on the evidence, that is in fact before you, presented in this courtroom, the prosecution has proved to you, so that you are sure the guilt of each of the two defendants. I repeat, there is no more evidence to be placed before you in this case.”

12.  In relation to the dispute over the applicants’ admissions, the judge reminded the jury that[14]:

“In relation to D1, 1^st defendant, his case is that he never made any confessions in this case. He signed in the various documents involuntarily, not of his own will, in a sense that he is so out of fear for getting his family into trouble if he did not cooperate with the police, and out of fear of his money at home being taken away by the police. He never said what the police claim he had said, and most of the admissions made in his VRI, video-recorded interview, were coached out of him by police officers. If you find what D1 told you is true, or may be true, then obviously he must be acquitted.

In relation to D2, his case is he never made any confessions at scene.  Whatever admissions he might have made in the VRI were done out of fear for the safety of his girlfriend and made involuntarily, against his will.  If you find what D2 told you is true, or may be true, then obviously he must also be acquitted.”

13.  In respect of the issue of knowledge, the judge told the jury that[15]:

“It is D1’s case that he was told by 金仔 that in the boot were banned medicines for athletes. It would follow that if you find that the account put forward by D1, that he was told it was banned medicine for athletes, and that he believed that it was banned medicine for athletes, if you believe that is true, or may be true, then you must decide your verdict on this factual basis, in which case D1 would not have been in possession of the drugs, in the legal sense, nor would he have had the knowledge required to convict because he did not know that there was some kind of dangerous drugs in the boot, and so you must then acquit D1.

As for D2, his case is that he did not know what was inside the boot of LT 2329 at all, and so he was not in possession of the drugs, and he did not have any knowledge that they were some kind of dangerous drugs.  If you find the account put forward by D2 is true, or may be true, then you must acquit D2.”

14.  As to how Exhibit P78 was found and seized by the police officer, the judge summarised the relevant evidence of PW2[16], and the cross-examination on the issue by counsel, for the jury[17].

15.  Having instructed the jury that if the applicants’ evidence is or may be true they should acquit them[18], the judge summarised the cases of D1[19] and D2[20], as well as the respective closing speeches of counsel[21], at length.

16.  It is also worth pointing out that the judge specifically instructed the jury not to convict D2 unless they were sure that he had trafficked in all, not just some, of the drugs in the count[22]. I would observe that that was a generous direction, about which D2 could make no complaint.

Sentencing

17.  D1 was 39 years of age at the time of sentence. He had had 10 court appearances involving 33 previous convictions, none of which is similar or drug-related.  His most recent convictions were using a motor vehicle without third party insurance and driving without a licence, for which he was sentenced to 4 months and 3 weeks’ imprisonment on 7 May 2019.

18.  D2 was 49 years of age at the time of sentence. He had had 11 court appearances involving 39 previous convictions, two of which are related to possession of drugs and drug equipment respectively, although they dated back to 2006.  His most recent convictions were driving while disqualified and using a motor vehicle without third party insurance, for which he was sentenced to 6 months’ imprisonment on 12 October 2022.

19.  The judge said that, for 13,380 grammes of cocaine narcotic, the applicable tariff band was 4,000-15,000 grammes, which would attract under the guidelines prevailing at the time, a starting point of 26 to 30 years’ imprisonment after trial. 

20.  The judge noted that, according to what he had said in his VRI, D1 was paid a substantial reward of $20,000 per kilogramme for the cocaine to be distributed and that he was able to decide how much to pay to the courier of the drugs[23]. The judge stated that, whilst D1 played the role of a manager or organiser[24], D2 was a courier employed by D1 to make deliveries of the drugs to other wholesalers[25].

21.  In the case of D2, the judge adopted a starting point of 29 years and 5 months’ imprisonment.  In the case of D1, the judge noted his more culpable role and enhanced the starting point to 30 years’ imprisonment[26].

22.  The judge took into account the fact that both D1 and D2 committed the offence within a short time of their last discharge from prison[27]. Accordingly, he enhanced each of their starting points by 6 months[28].

23.  The judge found no mitigating factors and passed on D1 a final sentence of 30 years and 6 months’ imprisonment, and on D2 a final sentence of 29 years and 11 months’ imprisonment. 

Grounds of appeal against conviction (D1)

24.  In his Form XI, D1 has advanced five homemade grounds of appeal against conviction.  They may be summarised as follows:

(i)  Ground 1: The judge wrongly ruled that his admissions were admissible;

(ii)  Ground 2: The judge failed to sufficiently direct the jury on the issue of knowledge;

(iii)  Ground 3: The judge failed to analyse the evidence or highlight the fact that this was a case or mere suspicion, which is said to have arisen from a lack of evidence.  In particular, it was asserted that other vehicles in the carpark were installed with dash cameras which could have shown what happened at the time of the offence and should therefore have been produced in evidence;

(iv)  Ground 4: The prosecution had failed to prove the chain of exhibits or evidence; and

(v)  Ground 5: The legal representatives at trial failed to handle the defence case in accordance with D1’s instructions.  In particular, he criticised his defence counsel at trial for (1)  not submitting a relevant case authority to the Court, (2)  not mentioning some facts pertaining to Kam Chai, and (3)  not calling his girlfriend as a defence witness. (I should here note that the court has, on 5 February and 18 March 2025, directed D1 to file an affirmation in support of his complaint in relation to counsel’s alleged incompetence but he has not complied with any of the court’s directions.)

Grounds of appeal against conviction (D2)

25.  D2 himself has produced before me a homemade submission in his Form XI and a further homemade submission dated 7 May 2025. All his complaints revolve around Exhibit P78 and are a repeat of the arguments made on his behalf at trial.  He claims his trousers had no pocket and it was a lie told by PW2 that Exhibit P78 was found in his trouser pocket.  He points out that, PW2 did not seize or take any photograph of his trousers.  Nor did PW2 hand Exhibit P78 to the exhibit officer[29] immediately.  The judge, however, wrongly refused to exclude Exhibit P78 from the jury’s consideration and failed to remind them to pay attention to the credibility of PW2.  D1 in evidence also admitted holding Exhibit P78 in his hand.  D2 submits that there is a risk that he was convicted because he stood trial together with D1.

Ground of appeal against sentence

26.  Mr Wong, who acts in the sentencing application only, argues that D2 is entitled to a lower starting point in accordance with the revised sentencing guidelines in Huang Ruifang (No 3)[30]. He does not, however, take issue with the enhancement of 6 months on the basis that D2 committed the present offence shortly after his release from prison.  I am assuming that D1, who is currently acting in person, would adopt similar arguments as to starting point.

The respondent’s submissions

27.  Mr Lee, for the respondent, submits that the judge’s ruling on the voir dire involved a careful assessment of the credibility of witnesses and cannot be impugned[31]. Furthermore, the judge’s summing-up provided a fair and balanced summary of the evidence in respect of points taken by the defence including the issue of knowledge[32]. He states that D1’s criticism of the chain of evidence is essentially one against the credibility of the police witnesses, which was again a matter considered and assessed by the jury[33]. Mr Lee points out that the complaint of counsel’s incompetence is premised on tactical decisions made by defence counsel and D1 has failed to elaborate upon such complaint by way of the filing any affirmation evidence[34].

28.  In response to D2’s argument, Mr Lee submits that the judge has in the summing-up referred to D2’s counsel’s criticisms against the credibility of PW2 as well as the handling of Exhibit P78 by the police officer.  He points out that the seizure of Exhibit P78 was a matter argued and considered in the voir dire and the judge’s ruling on the matter cannot be impugned.  Moreover, it was a matter properly left to the jury to consider.

29.  Mr Lee indicates that he does not oppose leave being granted to D1 and D2’s application for leave to appeal against sentence out of time.

Consideration

30.  I shall first deal with the arguments in respect of conviction.  Having examined the papers in this case, I would make the following points.

31.  Firstly,a judge sitting on a voir dire performs the functions of judge and jury.  It is his duty to make findings of fact and determinations in respect of the credibility of witnesses in order to decide whether the admissions were made voluntarily, and are admissible.  As a trier of fact, he is entitled to accept the evidence of the prosecution witnesses and reject that of a defendant.  On the other hand, the Court of Appeal does not conduct a re-hearing of the evidence in the voir dire.  Nor does it interfere with the findings of fact by the judge unless it can be demonstrated that he fell into obvious and appealable error.  There is however nothing before me to suggest that the judge erred in fact, or in law, in his determination.

32.  It is to be noted that, having ruled the applicants’ admissions to be admissible, the judge also reminded the jury of the defence contention that no admission was made under caution and most, if not all, of the admissions in the VRIs were made involuntarily: see [12] supra.  It was a matter for the jury as to the weight to be attached to the admissible admissions.  The judge correctly instructed the jury that if they found the applicants’ allegations regarding their admissions were or may be true, they must acquit them.  In my judgment, Ground 1 is not reasonably arguable.

33.  Secondly, the judge correctly directed the jury to focus on the evidence and not to speculate on what the evidence might have been: see [11] supra. There is no reason to assume that the jury would not have followed those directions.  In my view, Ground 3 is likewise not reasonably arguable.

34.  Thirdly, the chain of evidence in relation to the seizure of the dangerous drugs was agreed between the prosecution and the defence by way of admitted fact evidence.  The jury also had the opportunity to listen to, and was entitled to accept, the testimony of where the dangerous drugs were found and how they were seized.  Indeed,D1’s defence was simply that he was misled by Kam Chai into believing that he was dealing in banned medicines for athletes only.  Such defence, or argument, was made clear throughout the judge’s summing-up and must have been appreciated by the jury.  The same would apply to D2’s argument in respect of the finding of Exhibit P78 from his trousers pocket, which was also a matter fully argued before the judge in the voir dire, and placed before the judge and jury in the trial proper.  In any event, the above arguments essentially come down to whose evidence is to be believed, in relation to which, the judge has told the jury that if it was or may be true that D1 and D2 did not know there were dangerous drugs, they should be acquitted: see [13] supra.  I do not find Grounds 2 and 4 of D1’s application for leave, or the complaint of D2 in his application for leave, to be reasonably arguable.

35.  Fourthly, none of the complaints against trial counsel is supported by the required and necessary affirmation evidence.  At the end of the day, D1 was represented at trial by an experienced criminal advocate.  According to D1, his girlfriend knew nothing about the trafficking in any event, whilst the only relevant issue at trial was knowledge.  Although Kam Chai is named in the indictment, the trial did not involve him, but was concerned with D1 and D2 only.  It follows that the judge directed the jury, and correctly so, at the beginning of his summing-up in these terms[35]:

“You are not trying 金仔. Do not concern yourselves in any way with what has happened in his case. Do not speculate about that. You must concentrate upon the case of each of the defendants, that is D1 and D2, alone, and separately, and decide whether the evidence before you makes you sure (of)  each individual defendants’ guilt separately.”

36.  In my judgment, there is no proper or reasonably arguable basis for Ground 5 of D1’s application, in relation to which I should also cite the Practice Note (Crime: Sentence: Loss of time), issued by the Court of Appeal on 9 October 2013, in particular[36]:

“10.  The Court has also become concerned at the frequency with which unmeritorious allegations of incompetence are made against counsel and solicitors.  Such an allegation causes the practitioner whose reputation is thus impugned to expend considerable effort in the preparation of affidavits or affirmations and, often, in attending the hearing of the application …

11.  In the case of applicants who are unrepresented and whose application first comes before a single judge, the single judge has himself the power to order loss of time.  Where an application has been refused by a single judge and the application is nonetheless renewed and the court before which the renewed application is made also takes the view that the application is wholly without merit, an order for loss of time will ordinarily be made.”

37.  Accordingly, I refuse to grant D1 and D2 leave to appeal against conviction.

38.  As for the sentencing application, it was lodged slightly less than 8 months out of time by D2, and slightly less than 1½ years out of time by D1.  Recently, in HKSAR v Lam Man Tak[37], the Court of Appeal clarified the commencement date of the ‘state of affairs’ leading to the revised sentencing guidelines in Huang Ruifang (No 3), as well as the date from which such revised sentencing guidelines should be applied.  Bearing in mind their date of sentence (which was 24 October 2024), the role played in the trafficking, and the very large quantity of cocaine being trafficked, which falls within the bracket to which the revised sentencing guidelines apply, I shall grant them leave to appeal against sentence out of time, for which I also grant D1 a Legal Aid Certificate.

Loss of time warning

39.  I must advise D1 and D2 that, while they have the right to renew their applications for leave to appeal against conviction to the Court of Appeal, that Court has the power to order the loss of any time spent pending their appeals, if it were to come to the view that their renewal applications were wholly without merit and should not have been made.  Since D1 has also made serious allegations against counsel, the Court will ordinarily make such an order for ‘loss of time’ in accordance with Practice Note (Crime: Sentence: Loss of time), if it were to come to the view that such allegations are wholly without merit and should not have been made and persisted with.