HKSAR v. TSUI CHI WAI

CACC 162/2022 [2026] HKCA 967

On appeal from [2022] HKCFI 3017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 162 OF 2022

(ON APPEAL FROM HCCC NO 290 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The applicant faced two counts of trafficking in a dangerous drug, namely 62.7 grammes of a solid containing 38.7 grammes of cocaine (Count 1) and 19.44 kilogrammes of a crystalline solid containing 1.54 kilogrammes of methamphetamine hydrochloride (commonly known as Ice) and together with 2.83 kilogrammes of a solid containing 1.85 kilogrammes of cocaine (Count 2), both contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134[1].  He pleaded not guilty to both counts but was convicted on 28 September 2017 following his first trial before Toh J and a jury.  In the circumstances of the first trial, and in view of the absence of a Mushtaq direction, the Court of Appeal quashed the original convictions and ordered a retrial[2].  On 29 June 2022, following the retrial before Campbell‑Moffat J (the judge) and a jury, the applicant was again found guilty.  On this occasion, he was convicted of possession of a dangerous drug (as an alternative to Count 1) and trafficking in dangerous drugs (Count 2).  On 14 September 2022, the judge sentenced him to a total of 25 years and 6 months’ imprisonment[3].

2.  The applicant applied for leave to appeal against conviction and sentence.  He obtained a legal aid certificate for his application against conviction, but acted in person in his application against sentence.

The prosecution case

3.  On the morning of 8 October 2016, police officers, DPC 8368 (PW1), DPC 6264 (PW2) and DSGT 34311 (PW3), were briefed together with their colleagues to carry out an anti-narcotics operation at Flat A, 31^st Floor, Riviera Lodge, No 61 Ting Kok Road, Tai Po, New Territories (the flat).  At about 8:30 am, PW1, PW2 and PW3 hid in the stairwell behind a fire door near the flat to maintain observation of it.  They had other colleagues waiting downstairs to provide support if necessary.  The instruction was to stop anyone from coming out of the flat[4]. 

4.  At about 9:12 am, the applicant was seen entering the flat.  Some seven minutes later, he exited the flat, whereupon PW1, PW2 and PW3 rushed out from the stairwell to intercept him, identifying themselves as police officers.  The applicant attempted to flee and struggled with the three policemen for around two or three minutes.  He was eventually subdued and pinned to the floor.  PW2 searched the sling bag the applicant was carrying, which contained two plastic bags of suspected dangerous drugs.  The applicant was arrested and, upon being cautioned, responded “I came up intending to get some Cola for consumption.  I did not know who you people were, so I struggled.”[5]

5.  Using the keys found in the applicant’s bag, the police officers gained entry to the flat pursuant to a search warrant.  PW2 conducted a search and found two suitcases, one yellow and one grey, both of which openly displayed multiple small packets of suspected dangerous drugs.  Drug paraphernalia, including electronic scales and resealable plastic bags, were also found in the flat.  In light of these further findings, the applicant was cautioned again.  This time, he made no comment.  When he was given the police notebook to sign for the purpose of confirming the record of events, including his earlier verbal admission under caution, the applicant refused to do so[6]. 

6.  It was not disputed that the applicant had been the tenant of the flat since February 2016[7]. His DNA was found on three cigarette butts and a water bottle inside the flat. The applicant also admitted that the grey suitcase belonged to him[8].  CCTV footage showed that earlier on the morning of 8 October 2016, before the police arrived, the applicant brought the grey suitcase to the flat at 7:18 am and left it there, as he exited the flat at 7:38 am without carrying anything in his hands[9]. 

7.  A government chemist examined the suspected dangerous drugs seized from the applicant’s sling bag and the two suitcases.  He confirmed that one of the two plastic bags from the sling bag contained 62.7 grammes of a solid containing 38.7 grammes of cocaine, which the prosecution maintained was too much for his own consumption[10].  This formed the basis of Count 1.  The small packets from the two suitcases contained 19.44 kilogrammes of a crystalline solid containing 1.54 kilogrammes of Ice and 2.83 kilogrammes of a solid containing 1.85 kilogrammes of cocaine.  This formed the basis of Count 2.  The estimated street value of the dangerous drugs was HK$6,687,360 in respect of the Ice and HK$3,025,764 in respect of the cocaine, totalling HK$9,713,124[11].

8.  On the evening of 8 October 2016, the applicant participated in a video recorded interview (VRI) in the presence of his legal representative.[12] In this interview, the applicant said he rented the flat to sleep.  He allowed his friends, both male and female, whom he met at bars, to live in the flat, but he did not know their names, nor was he able to contact them by telephone.  Contrary to his earlier oral admission, the applicant said he had returned to the flat that morning at 9:12 am to sleep.  He denied knowledge of the drug paraphernalia and the suspected dangerous drugs, including those found in his sling bag.  He said the items were not his and he had no idea how they had appeared the way they did.  He further alleged that the police had framed him and planted the drugs.  He admitted that the five telephones found in the sling bag were his and that he was the registered owner of their SIM cards.  However, he was unable to remember any of his telephone numbers.  Towards the end of the interview, the applicant alleged that he had been beaten up by the police that morning and therefore could not remember anything.  The prosecution case was that the applicant’s answers were “unbelievable”[13].

9.  It was admitted that the applicant made a complaint at 2:51 pm on 8 October 2016 to a police sergeant at the police station, alleging that PW1 and three other police officers had beaten him and fabricated evidence against him.  The applicant was taken to hospital twice for medical examination, which revealed that he had (1) redness on both sides of the head; (2) swelling on the right forehead; (3) redness on the right eyebrow; and (4) bruising and redness on the back and chest.  On 11 October 2016, a duty medical officer examined him and reported the following physical injuries found on him: (1) a 1 cm linear redness and a 0.5 cm linear redness over the right upper neck; and (2) a 0.5 cm bruise on the right side and back of the knee[14].

The defence case

10.  The applicant elected not to give evidence.  In presenting his case, he relied on the allegations of assault and fabrication by the police, particularly regarding his statements in his VRI (the VRI allegations).  Mr Newman Wong, counsel for the applicant at trial, made various assertions on the applicant’s behalf, including:

(1)     that the entire police operation was a set-up and “too good to be true”[15];

(2)     that the applicant never made the alleged admission of coming to get “Cola” for his own consumption, and hence he refused to sign the police notebook[16];

(3)     that the struggle which took place during the applicant’s arrest was more extensive and oppressive than alleged[17];

(4)     that after arresting the applicant, the police officers assaulted him in a bedroom of the flat and planted all the drugs[18]; and

(5)     that when the applicant was taken to the police station for processing, he was assaulted again, this time in a police interview room by PW2[19].

11.  All these matters were denied by the police officers.  

The verdict, mitigation and sentence

12.  The jury, by its verdict, rejected the defence case.  As for Count 1, by a majority verdict, the jury convicted the applicant of the alternative count of possession of the cocaine found in his sling bag. In respect of Count 2, the jury unanimously found the applicant guilty of trafficking in the Ice and the cocaine found in the suitcases in the flat.

13.  The applicant was 43 years old at the time of sentencing.  He had previous criminal convictions, but none were drug related.  Although unmarried, he had three children with his partner, who was serving a term of 14 years’ imprisonment for drug trafficking and was expected to complete her sentence in 2023.  The children had been separated from both parents since the applicant was remanded in 2016.  However, defence counsel accepted that personal circumstances counted little when facing such a serious charge of drug trafficking[20].

14.  The judge considered the applicant to be a storekeeper and dealer, in the nature of a middleman.  His culpability was higher than that of a courier but lower than that of a mastermind or another party who profited from the dealing.  In respect of Count 2, applying HKSAR v Abdallah Anwar Abbas[21], the judge adopted a starting point of 25 years and 3 months’ imprisonment, for trafficking 3.35 kilogrammes of Ice and cocaine combined, and enhanced it by 3 months for the applicant’s role.[22]

15.  For possessing 38.7 grammes of cocaine (Count 1 alternative), the applicant was sentenced to 4 years’ imprisonment, to be served concurrently with the sentence on Count 2.  The total sentence was 25 years and 6 months’ imprisonment.[23]

The appeal against conviction

16.  Mr Simon Young, for the applicant, advances the following two grounds of appeal against conviction:[24]

Ground 1:    The judge erred in (a) failing to deliver the message that the jury could not convict if the applicant raised a reasonable doubt about his guilt; and (b) not giving the jury a reframed Liberato direction[25] in respect of the applicant’s VRI allegations, thereby rendering the conviction neither safe nor satisfactory.

Ground 2:    The judge erred in telling the jury that there was “no evidence” of some of the suggestions made by the defence counsel whereas circumstantial evidence did exist, resulting in the jury being wrongly influenced.

Ground 1

17.  Mr Young contends that the following directions (Directions 1 to 5) did not tell the jury, in clear terms and without the danger of dilution, confusion or contradiction[26], that if they considered the applicant’s VRI allegations might be true, then they must acquit the applicant[27].

18.  Direction 1 consisted of introductory remarks by the judge to the jury after they had been empanelled and before they heard the evidence[28]:

“So at the end of the trial and before you have to make a decision, I will tell you what the law is and you must take the law from me. You must apply that law to the facts as you decide they are, to the facts that you are sure of. Anything less than sure, you will reject, but you will apply the law to the facts at the end… So the prosecution have to prove their case, all of the responsibility in this trial is with Mr Wong. Defendant has to do nothing. It’s not the way our criminal system works. Our criminal system says, ‘You bring the charge, you prove it so that the jury are sure.’ A defendant can sit back and remain completely silent.” (Emphasis added)

Mr Young submits that this direction was wrong in that it only applied to the prosecution evidence and not the defence case.  If the jury were unsure of the facts suggested by the defence case, and if there nonetheless remained a reasonable doubt in the prosecution case, the applicant should be acquitted.  It is incorrect, he submits, for the judge to ask the jury to reject any facts of which they were less than sure.  He contends that similar misdirections have been criticised by the Court of Appeal[29] and the Court of Final Appeal[30].  He also complains that the judge omitted to direct the jury as to how to approach the defence evidence in her introductory remarks[31].

19.  Direction 2 was given by the judge to the jury at the beginning of her summing-up[32]:

“The first and most important is this: in all criminal cases the prosecution must prove that the defendant is guilty. A defendant does not have to prove his innocence. In a criminal trial, the burden, the responsibility of proving a defendant’s guilt lies squarely on the prosecution. How does the prosecution prove the defendant’s guilty? Well, they do that by making you sure of it. And that is the same as, you will have heard perhaps, proving the case so that you are satisfied beyond reasonable doubt. We find nowadays it is easier to say to you, you must be sure of guilt. Nothing less than that will do.

If, after considering all of the evidence in the case, you are sure that the defendant is guilty, then you must return a verdict of guilty. If you are not sure, your verdict must be not guilty.[33] If the defence put forward by the defendant is or may be correct, then the defendant is entitled to be acquitted. You do not have to positively believe the evidence relied upon by the defence. You cannot find an issue against the defendant contrary to the evidence if that evidence gives rise to a reasonable doubt about the issue.” (Emphasis added)

Mr Young complains that, in relation to the wording of the italicised passage, the judge should have followed Specimen Direction 2 and used the words “that evidence” instead of “the evidence”.  The phrase was intended to refer to “the evidence” in the previous sentence, namely the evidence relied on by the defence, which the jury had not accepted.  Using “the evidence” instead of “that evidence” in the following sentence might lead the jury to think that “the evidence” in that new sentence referred to the evidence they had accepted[34].

20.  As for Directions 3 and 5, which are set out below, they were given by the judge to the jury during the summing-up[35].  Mr Young submits that, although these directions were correct statements of law, they failed to direct the jury on the proper approach to the defence evidence[36]:

“So, in this case still considering the indictment, the prosecution allege that the defendant possessed dangerous drugs under Count 1, cocaine, and under Count 2, cocaine and ‘Ice’, for the purpose of trafficking in it, dealing in it. You may not convict the defendant unless you are sure the prosecution have proven that on 8 October 2016 at Flat A, Riviera Lodge, under each count individually the defendant possessed the dangerous drugs which have been produced to you, he knew they were dangerous drugs at the time he possessed them and he possessed them for the purpose of dealing with them. And they have to prove every single one of those. You cannot have three out of four or two out of four. They must prove it all.”[37] (Emphasis added) (Direction 3)

“…

He has chosen to answer questions. Please look at them. Please make what you can of them, but if something is missing, please think about the fact he may not have been asked about it. Put it into a sensible context, but always remember the rule is, it is for the prosecution to prove the case so that you are sure.”[38] (Emphasis added) (Direction 5)

21.  The direction that received the most criticism under this ground was Direction 4, when the judge addressed inferential reasoning in her summing-up to the jury[39]:

“If you accept what the defendant has said within his VRI is true, Mr Wong would ask you to draw the other reasonable inference that someone else may have been responsible for the drugs in the flat under Count 2 and that the drugs under Count 1 were planted, because the defendant mentions being asked to admit P4 and P5 and because he says, you will remember from his argument, that there might be other access to the flat. Somebody does not have to come up in the lift, they might be able to come up by the stairwell with the yellow suitcase. In essence, he is suggesting to you that you cannot believe anything that PW1 to 3 have said to you because they beat up the defendant and they planted the drugs.” (Emphasis added)

22.  It is submitted that Direction 4 is a misdirection because it only referred to the situation where, if what was said by the applicant in his VRI is “true”, he should be acquitted, but made no reference to this being the result if what he said “may be” true.

23.  Since the jury were faced with contrasting versions of the facts, and in light of the allegedly problematic Directions 1, 2 and 4, Mr Young submits that there was a material irregularity because of the judge’s failure to give a direction on the proper approach to the defence evidence (namely a reframed Liberato direction, as adopted by the Court of Appeal in HKSAR v Kwan Tat Yee[40]) in the following terms[41]:

(1)     If you believe the defendant’s account in his interview with the police, you must acquit him of both charges.

(2)     If you do not accept that account but you consider that it might be true, you must still acquit him.

(3)     If you do not believe the defendant’s account in his interview with the police, you should put that aside and still consider the question: whether the prosecution has, on the basis of the evidence that you do accept, proved the defendant’s guilt beyond reasonable doubt.

24.  In the circumstances, the conviction is said to be unsafe because the jury might have thought that a reasonable doubt would not arise unless they believed the VRI allegations[42].

25.  The respondent submits that there is nothing wrong with Direction 1, given its context.  This direction, which was given by the judge during her opening remarks before the presentation of the evidence, would be subject to the summing-up at the end of the trial.  It correctly gave the jury a general overview of the burden and standard of proof.  The respondent argues that it is understandable that the direction did not deal with how to approach the defence evidence because, at that stage, it was unknown whether there would be any defence evidence besides the VRI allegations[43].

26.  It is submitted that the alleged risk of the jury misunderstanding “the evidence” in Direction 2 is overstated and non-existent.  So long as the message was conveyed, there was no need for the judge to follow the exact wording of the relevant specimen direction.  The respondent contends that the impugned phrase, “the evidence”, would plainly be understood by the jury as referring to “the evidence” in the preceding sentence, i.e. the evidence which the jury did not positively believe[44].

27.  Similar to the respondent’s argument in relation to Direction 1, the context did not call for the judge to direct the jury on the approach to defence evidence in Directions 3 and 5.  Direction 3 is sufficient, as it was given when the judge was commenting on what the prosecution alleged in the indictment.  Direction 5 is a reminder that the burden was on the prosecution, which operates in the applicant’s favour[45].  

28.  The respondent accepts that Direction 4 does not include the phrase “or may be true”.  However, it is submitted that this was inconsequential, by its context and by Direction 2, which the respondent regards as having already contained the proper approach to the defence evidence.  Direction 4 was given as part of the judge’s directions on inferential reasoning.  Since the judge had earlier directed the jury that they must not draw any inference against the applicant unless such inference was the only reasonable inference, the jury would not draw the adverse inference if they thought that the VRI allegations might be true[46].

29.  Referring to the comments of the Court of Appeal in HKSAR v Kwan Tat Yee[47] and what the Court of Final Appeal later said in HKSAR v Kwan Tat Yee[48], the respondent submits that a Liberato direction is unnecessary in this case as the judge had given repeated and correct directions on the onus and standard of proof[49].

Discussion

30.  This Court in HKSAR v Chand Gill[50] stated that, when the Liberato principle applies, it is important to convey the message to the jury, “without any danger of dilution, confusion or contradiction”, that they cannot convict if the defendant has raised a reasonable doubt about his guilt.  It has also been observed that the message must be conveyed to the jury “whether by one form of words or another and whether in one way or another” (Sze Kwan Lung and Others v HKSAR[51]), and that “such directions cannot be considered in isolation from the general body of the summing-up” (Lee Fuk Hing v HKSAR[52]).

31.  On the applicant’s behalf, it is contended that the judge failed to convey to the jury, in a manner free from the dangers identified in Chand Gill, that they could not convict if the applicant’s VRI account raised a reasonable doubt about his guilt, and that she should have given a reframed Liberato direction.  In particular, it is said that none of the impugned directions made clear that, even if the jury did not accept the applicant’s VRI account but considered that it might be true, they had to acquit him of both charges.  We do not accept this submission.  As explained below, that message was clearly conveyed when the summing-up is read as a whole.

32.  The criticism of Direction 1 focuses on the sentence stating that anything less than being sure should be rejected.  However, it was given as part of the judge’s introductory explanation that the prosecution bore the burden of proving the case so that the jury were sure of the charge.  In that context, it appropriately directed the jury that they could only convict if they were sure of the prosecution case.[53]

33.  This was an appropriate direction, as it formed part of the judge’s introductory remarks emphasising the standard to which the prosecution had to prove its case.

34.  As for Direction 2, it is said that it does not follow the guidance in the Specimen Directions in Jury Trials (2013) because the judge used “the evidence” instead of “that evidence”, where, in the notes, it is stated:

“The message that has always to be imparted is that even if the jury does not positively believe the evidence for the defence, they cannot find an issue against the defendant contrary to that evidence if that evidence gives rise to a reasonable doubt about the issue” (Emphasis added).

In the same passage, however, the judge made clear that if the defence put forward “is or may be correct”, the applicant was entitled to be acquitted, and that the jury could not find an issue against him contrary to the evidence if that evidence gave rise to “a reasonable doubt” about the issue.  There is no realistic prospect that the jury understood “the evidence” as anything other than a reference to the defence evidence mentioned in the previous sentence.

35.  Mr Young accepts that Directions 3 and 5 were correct statements of law.  They were confined to proving the elements of the offence, but he complains that there was no direction as to the proper approach to be taken in respect of the defence evidence.  However, as these directions were concerned with the burden and standard of proof on the prosecution in proving its case, there is no basis for complaint.  In both directions, the judge stressed to the jury that they could not convict the applicant unless they were sure of the prosecution case.

36.  The complaint in respect of Direction 4 is threefold.

37.  First, Mr Young contends that the judge erred in using the words “is true” (underlined) because the jury would have to acquit if they thought the VRI allegations “may be true”[54]. A Liberato direction was not required in the circumstances of this case and, in any event, the judge repeatedly conveyed to the jury that, if they had a doubt or were not sure as to the applicant’s guilt, they must acquit.  Direction 2 contained the following sentence:

“If the defence put forward by the defendant is or may be correct, then the defendant is entitled to be acquitted.”

38.  Secondly, Mr Young argues that it was a serious error to “direct the jury to go on to consider whether to infer” that other people were instead responsible for the drugs in the flat and that the drug found in the sling bag had been planted.  He submits that the applicant did not have the burden of proving any of these matters[55]. 

39.  Thirdly, Mr Young contends that this should not have been about drawing inferences of innocence, as the VRI allegations were direct evidence of innocence[56]. The judge had explained to the jury[57] about direct evidence and inferential reasoning, and in the context of the defence case, it was appropriate for her to remind them that defence counsel had asked them to draw the reasonable inference that someone else was responsible for the drugs in the flat[58].

40.  In our view, the judge was simply conveying to the jury that defence counsel was inviting them to draw an exculpatory inference, countering the inculpatory inference the prosecution was asking them to draw.  This is clear when Direction 4 is read in its full and proper context.[59]

41.  The substance of Mr Young’s complaint is that the jury were not explicitly reminded, in terms, that even if they rejected the defence evidence, they still had to consider whether the prosecution had proved guilt beyond reasonable doubt[60].

42.  A Liberato direction is not invariably required; it depends on the nature of the evidence and what is in issue.  It is only needed if there is a real risk that the jury may think that the defence evidence must be believed before it can raise a reasonable doubt, or that a preference for the evidence of the prosecution suffices to establish guilt (De Silva v R[61]; HKSAR v Kwan Tat Yee[62]). In our judgment, there was no such risk in the present case.

43.  We accept that, unlike the position in Kwan Tat Yee, the conflicting accounts in this case were between the testimony of prosecution witnesses and the applicant’s answers in the VRI, which were not given on oath.  This is a scenario where the Liberato direction may be found suitable to operate.  However, it is noted that the Australian jurisprudence has suggested that the risk of misunderstanding is higher when the defence account is given on oath (i.e. when the defendant, or a defence witness, gives evidence in court).  As observed by Gleeson NPJ in Kwan Tat Yee[63], the very purpose of the Liberato direction is to ensure that the jury is not deflected from the real issue: whether the prosecution has proved guilt beyond reasonable doubt.  The judge did, on various occasions, remind the jury of the burden and standard of proof, in both her opening directions[64] and her summing‑up[65].

44.  As this Court said in HKSAR v Kwan Tat Yee[66], the omission of the words “may be true” from a direction does not of itself amount to a misdirection.  At the outset of her summing-up, the judge had already emphasised that, if the defence put forward “is or may be correct”, the applicant was entitled to be acquitted.[67] Read as a whole, the summing-up left no room for the jury to think that anything short of being sure of the prosecution case would suffice, or that they could ignore a reasonable doubt arising from the possibility that the applicant’s VRI account might be true.

45.  We do not find merit in this ground of appeal.

Ground 2

46.  Ground 2 concerns a series of directions in which the judge said there was no evidence of certain suggestions made by defence counsel during cross-examination of prosecution witnesses.  The relevant suggestions mainly concerned a denial that the applicant had admitted getting “Cola” for consumption.  The last suggestion related to the circumstances of the applicant’s arrest.  The impugned directions are as follows[68]:

“The defendant’s case through Mr Newman Wong is, there is no evidence, but this is the case that was put, that none of those admissions happened.

…

So there is not any evidence before you that this did not happen. But out of fairness to the defendant, I want to remind you of what Mr Wong suggested for the defence.

…

Now, in this regard, defence counsel has suggested that the defendant never made such an admission. We do not have evidence of that, but this is what he is suggesting.

…

Defence counsel suggested that none of this was true, that the officers did not identify themselves. 8368 did not arrest or caution the defendant and the defendant never made any of those admissions of any sort. You know that that is the suggestion. Unfortunately, we do not have any evidence of this particular bit from the defence, but that is the suggestion put and it is only fair to the defendant that I mention that.

…

All of that, except for the very last bit, was denied. There was no struggle in the stairwell, there were not extra officers. Each officer repeated the same scenario… [H]e was handcuffed and yes, he was pinned down to the floor and very firmly pinned down to the floor because he had been struggling. Again, those are suggestions, that is what was put and denied, so there is no actual evidence of that happening.” (Emphasis added)

47.  All of these directions are said to be erroneous. Although the relevant facts suggested by the defence lacked direct evidence, they were said to be supported by the following circumstantial evidence[69]:

(1)     the applicant’s refusal to sign the police notebook, and the VRI allegations, could be used to infer that the applicant did not make the oral admission; and

(2)     the VRI allegations and the medical and injury reports were indirect evidence of the defence version of the arrest.

48.  Mr Young argues that, because of these impugned directions, the judge went too far and usurped the jury’s position by directing them to ignore existing evidence.  As a result, the jury might have been unduly influenced on whether the applicant had made the oral admission, which not only led them to convict the applicant of possession, but also had a strong implication for Count 2.  Thus, the conviction is said to be neither safe nor satisfactory[70].

49.  Despite the impugned directions, the respondent argues that the judge, in her summing-up, in fact extensively and repeatedly referred the jury to the relevant circumstantial evidence, including the applicant’s refusal to sign the police notebook, the VRI allegations, and the medical and injury reports[71]. It was improbable that the jury would ignore these.  This case, it is submitted, is distinguishable from HKSAR v Chu Kin Shan Christopher[72].  Ultimately, the jury convicted the applicant because they accepted the credibility of the prosecution witnesses.  Hence, there was no such usurpation of the jury’s function by the impugned directions[73].

Discussion

50.  The impugned directions were given when the judge was addressing defence suggestions put to the police witnesses in cross-examination and denied by them.  In that context, she reminded the jury that suggestions are not evidence unless accepted by the witness.  On other occasions, however, she did refer expressly to the defence case and to the circumstantial evidence relied upon in support of it.

51.  Given that defence counsel had made many suggestions without calling the applicant, it was legitimate for the judge to tell the jury that, where such suggestions were denied, there was no evidence of the suggested facts.  She explained the position in clear terms:[74]

“If they are denied, there is no evidence. If they are accepted by a witness, then that becomes evidence. But if they are denied, there is no evidence.”

52.  Although defence counsel did not in his closing speech advance a positive case of assault and fabrication by the police, the judge, in her summing-up[75], expressly reminded the jury of the VRI allegations and the medical and injury reports, and directed them that these matters assisted the defence case.[76]  Elsewhere in the summing-up, she set out in detail the defence case, including the applicant’s out-of-court statements that the drugs in the two bags were not his, that he had been framed by “Ah Sir”, and that he had struggled with the police.

53.  This ground of appeal fails.

The appeal against sentence

54.  No substantive grounds of appeal against sentence have been advanced by the applicant.

55.  The respondent agrees with the judge’s approach to sentencing.  It considers that the starting point and enhancement were appropriate, and that the sentence was neither wrong in principle nor manifestly excessive[77].

Discussion

56.  The sentencing guidelines for trafficking in cocaine and Ice have been revised in HKSAR v Huang Ruifang (No 3)[78].  Under the revised guidelines, the arithmetic starting point for trafficking in 3.39 kilogrammes of the narcotics in question, being 1.54 kilogrammes of Ice and 1.85 kilogrammes of cocaine (the guidelines for these two drugs converge at quantities at or over 1.5 kilogrammes), is 22 years and 4 months’ imprisonment (as opposed to 25 years and 4 months[79] under the former guidelines). 

57.  The judge calculated that the starting point was 25 years and 3 months’ imprisonment under the former guidelines and then enhanced the sentence for the applicant’s role by 3 months to 25 years and 6 months’ imprisonment.  She made no allowance for the fact that the trafficking involved two types of drugs, and ordered that the sentence for the possession count should run concurrently with the sentence for the trafficking count because it was substantial. 

58.  It is apparent that, under the revised guidelines, the applicant would receive a substantial reduction in his sentence. He was sentenced on 14 September 2022, approximately four years after 18 September 2018, the cut-off date for any consideration of an application of the revised guidelines.  He applied for leave to appeal his sentence on 30 September 2022, and is therefore still “in the system”, as explained in HKSAR v Lam Man Tak[80]. In the circumstances, we grant him leave to appeal his sentence. 

59.  In sentencing the applicant afresh, we adopt a starting point of 22 years and 4 months’ imprisonment, which we enhance by a total of 8 months for his role and for dealing in two types of dangerous drugs, bringing it to 23 years’ imprisonment.

60.  We accordingly allow the applicant’s appeal against sentence, set aside the sentence of 25 years and 6 months’ imprisonment, and substitute for it a sentence of 23 years’ imprisonment.

Conclusion

61.  For the reasons given, we refuse the application for leave to appeal against conviction and dismiss the appeal, but grant the application for leave to appeal against sentence, set aside the sentence of 25 years and 6 months’ imprisonment, and substitute for it a sentence of 23 years’ imprisonment.

[1]     Appeal Bundle (AB), pp 1-2.

[2]     HKSAR v Tsui Chi Wai [2021] 1 HKLRD 164.

[3]     AB, p 8.

[4]     AB, pp 121N-122I.

[5]     AB, pp 122J-123P.

[6]     AB, pp 123Q-124E; Summing-up, AB, pp 53B-54J.

[7]     Admitted Facts, AB, p 10, at [1].

[8]     Video Recorded Interview (VRI), AB, p 77.

[9]     AB, pp 123S-124G; Admitted Facts, at [15], AB, p 15. 

[10]   AB, p 123J-K.

[11]   Admitted Facts, AB, pp 11-13, at [5]-[8].

[12]   VRI, AB, pp 65-80.

[13]   AB, pp 125O-128N.

[14]   Admitted Facts, AB, pp 13-15; at [9]-[11], [13]-[14], Medical Reports and Injury Report, AB, pp 105-109.  

[15]   AB, pp 134-146; Summing-up, AB, p 44M-P.

[16]   AB, pp 139B-140H; Summing-up, AB, pp 38B-H, 39J-K and 47C-K.

[17]   AB, p 137G-T; Summing-up, AB, pp 44K-Q and 47C-48T.

[18]   Summing-up, AB, pp 51C-54I.

[19]   Summing-up, AB, pp 54I-55Q.

[20]   Mitigation, AB, pp 84-85.

[21]   HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 (CA).

[22]   Sentence, AB, pp 81L-82S.

[23]   Sentence, AB, pp 82T-83B.

[24]   The third ground in the Perfected Grounds of Appeal was abandoned (see the Applicant’s Written Submission, at [10]).

[25]   See the dissenting judgments of Brennan and Deane JJ in the Australian case of Liberato v R [1985] HCA 66, 159 CLR 507.  In another later Australian case, De Silva v R (2019) 268 CLR 57, the plurality of the High Court of Australia proposed additional wording to the Liberato direction to make it clearer.  As observed by the Court of Final Appeal in HKSAR v Kwan Tat Yee (2024) 27 HKCFAR 6, at [23], the reframed version is the standard form of the Liberato direction adopted in Hong Kong cases.

[26]   As required by the Court of Appeal in HKSAR v Chand Gill, unrep., CACC 219/2014, 11 January 2016 (CA), at [11], which was affirmed by the Appeal Committee in HKSAR v Chand Gill,unrep., FAMC 17/2016, 19 August 2016 (CFA), at [6].

[27]   Applicant’s Written Submission, at [12]-[13].

[28]   AB, pp 114U-115B and 117H-K.

[29]   HKSAR v Wong Wai Man and Others (No 2) [2003] 4 HKC 517 (CA), 524A.

[30]   Sze Kwan Lung and Others v HKSAR (2004) 7 HKCFAR 475 (CFA), at [24]-[27].

[31]   Applicant’s Written Submission, at [14].

[32]   Summing-up, AB, p 23J-U.

[33]   This sentence was omitted from the quoted direction in the Applicant’s Written Submission, at [13].

[34]   Applicant’s Written Submission, at [15].

[35]   Summing-up, AB, pp 29Q-30C and 56T-57C.

[36]   Applicant’s Written Submission, at [16].

[37]   Summing-up, AB, pp 29Q-30C.

[38]   Summing-up, AB, pp 56T-57C.

[39]   Summing-up, AB, p 36O-U.

[40]   HKSAR v Kwan Tat Yee [2023] 1 HKLRD 289, at [111].

[41]   Perfected Grounds of Appeal, at [1].

[42]   Applicant’s Written Submission, at [19].

[43]   Respondent’s Skeleton Submission, at [13].

[44]   Respondent’s Skeleton Submission, at [14]-[15].

[45]   Respondent’s Skeleton Submission, at [16]-[17].

[46]   Respondent’s Skeleton Submission, at [18] and [21].

[47]   HKSAR v Kwan Tat Yee (CA), at [116] and [117].

[48]   HKSAR v Kwan Tat Yee (2024) 27 HKCFAR 6 (CFA), at [18].

[49]   Respondent’s Skeleton Submission, at [19]-[21].

[50]   HKSAR v Chand Gill, unrep., CACC 219/2014, 11 January 2016 (CA), at [11].

[51]   Sze Kwan Lung and Others v HKSAR (2004) 7 HKCFAR 475, at [24]-[28].

[52]   Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, at [26], [29]-[30].

[53]   AB, p 117I-K.

[54]   Applicant’s Written Submission, at [17].

[55]   Applicant’s Written Submission, at [17].

[56]   Applicant’s Written Submission, at [18].

[57]   AB, pp 32F-34L.

[58]   AB, p 36O-U.

[59]   AB, p 36C-U.

[60]   Liberato v R [1985] HCA 66, 159 CLR 507, 515.

[61]   De Silva v R [2019] HCA 48, 268 CLR 57, at [10].

[62]   HKSAR v Kwan Tat Yee (CA), at [110].

[63]   HKSAR v Kwan Tat Yee (CFA), at [12].

[64]   AB, pp 114S-115B, 117I-117K, and 117T-118C.

[65]   AB, pp 23J-24H, 26A-F, 26N-P, 26S-U, 27T-28B, 29S-30C, 30Q-31C, 38K-39E, 40I-41G, and 56Q-57C.

[66]   HKSAR v Kwan Tat Yee (CA), at [116].

[67]   AB, p 23J-T (Direction 2). 

[68]   AB, pp 38B, 38F-G, 39J-K, 47C-F and 48A-E.

[69]   Applicant’s Written Submission, at [22]-[23].

[70]   Applicant’s Written Submission, at [24].

[71]   Summing-up, AB, pp 22C-D, 28O-P, 32H-I, 52F-53A, 53M-T and 54R-56M.

[72]   HKSAR v Chu Kin Shan Christopher, unrep., CACC 285/2013, 20 Nov 2014 (CA).

[73]   Respondent’s Skeleton Submission, at [22]-[29].

[74]   AB, p 52J-K.

[75]   AB, pp 52F-53A.

[76]   AB, p 52K-L.

[77]   Respondent’s Skeleton Submission, at [31]-[35].

[78]   HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138 (CA).

[79]   The arithmetic starting point adopted by the judge was 25 years and 3 months’ imprisonment for 3.35 kilogrammes (not 3.39 kilogrammes) of the dangerous drugs.

[80]   HKSAR v Lam Man Tak [2026] 2 HKLRD 199, at [29], [30], [47] and [50].