HKSAR v. LAU CHUN SHU

CACC 138/2018

[2019] HKCA 821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 138 OF 2018

(ON APPEAL FROM HCCC NO 274 OF 2017)

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REASONS FOR JUDGMENT

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

1.  The applicant stood trial before Andrew Chan J (the judge) and a jury on one count of trafficking in dangerous drugs, namely 725.54 grammes of a mixture of liquid and solid, a crystalline solid, a powder and a solid containing 559.20 grammes of methamphetamine hydrochloride, 87 millilitres of a liquid containing 1.03 grammes of methamphetamine hydrochloride, 52.60 grammes of a powder containing 0.39 gramme of methamphetamine, 5,543 grammes of a mixture containing 3,820 grammes of heroin hydrochloride, 669 grammes of a solid containing 426 grammes of cocaine, 218 grammes of a solid containing 2.08 grammes of methamphetamine and 171 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1) and one count of manufacturing a dangerous drug, namely methamphetamine, contrary to section 6(1)(a) and (2) of the same Ordinance (Count 2).

2.  On 26 April 2018, at the conclusion of the trial, the applicant was convicted of Count 1 and acquitted of Count 2 by a unanimous verdict of the jury.  On 10 May 2018, the judge sentenced the applicant to 28 years’ imprisonment.

3.  The applicant applied for leave to appeal against his conviction and sentence.

4.  Mr Bernard Yuen, who represented the applicant at trial, and in his application for leave to appeal against conviction only, informed the Court at the outset of the hearing that the applicant was no longer pursuing his application for leave to appeal against sentence.  We proceeded to deal with the application for leave to appeal against conviction which we refused, and accordingly dismissed the appeal against conviction and sentence.  We requested Mr Yuen to address us on whether we should order “loss of time”.  We indicated that we would hand down in due course our reasons for our decision in refusing the application for leave to appeal against conviction, and our decision as to whether “loss of time” should be ordered. This we now do.

The prosecution case

5.  On 10 June 2016, a team of seven police officers equipped with a search warrant went to Room 5 on the 5th floor of Cheung Hing Building in Yau Ma Tei.  They arrived there at around 7:15pm and kept the room under observation.  At about 9:35pm, one of the police officers announced their presence and demanded that the door be opened.  The wooden door behind an iron grille was opened by the applicant who then immediately closed it.  The police officer further demanded that the door be opened but there was no response.  They then broke the door open and entered the room.  They found the applicant inside in the company of a female and a baby.  They searched the room and found the drugs as particularised in Count 1, consisting of a total of 3,820 grammes of heroin, 597 grammes of cocaine and 562.7 grammes of methamphetamine hydrochloride (commonly known as Ice).  The drugs were found in various quantities and at different locations in the kitchen, the living room and the bedroom.  The admitted street value of the drugs at the time of the offence was $5,178,711.60. 

6.  The police officers also found an array of other items and related paraphernalia, including chemicals and equipment used in purifying methamphetamine, a process in its production, as well as various books on chemistry.  The police officers also found a black bag inside the bedroom which contained the applicant’s identity card, $62,000 in cash, three mobile telephones and various keys and bills.

7.  The applicant was arrested and under caution he said: “Ah Sir, the three bags of Ice and the Ice hookah on the table are mine. I use them for self-consumption.  As to other stuff in the premises, I don’t know.”

8.  The applicant’s statement was post recorded by the police officer in his notebook which the applicant signed.

9.  In a subsequent video recorded interview, the applicant made no admissions as to his involvement in drug trafficking or manufacturing of drugs.  He stated that he was allowed to use the room by an acquaintance called “Ah Hung” or “Tai Hung”.  He stated that he had been to the flat on a number of occasions since April or May 2016.  On 9 June 2016, he went there shortly after 10 pm for drug consumption and to have sexual relations with his girlfriend. He admitted attempting to close the door on 10 June 2016, but claimed that he did so because the police officers were strangers to him.  When shown the items that were found inside the room, the applicant denied knowledge of most of them but admitted having seen the pots, stove, transparent resealable plastic bags, electronic scale and spoon.  He admitted owning five of the nine mobile telephones that were found inside the room as well as using the glass jug found on the desk in the living room for consuming Ice.  He retracted his admission that he allegedly made at the scene and stated that he had only taken “a very small bag” of Ice from the table for his own consumption.  He stated that the drugs belonged to “Ah Hung”, although he acknowledged that the black bag found in the bedroom belonged to him.  The cash inside the black bag was his, but the keys to the flat, the rental receipts and other items were not.

10.  As part of the prosecution case against the applicant, evidence was presented that his DNA was found on some of the exhibits, containing heroin, cocaine and Ice, and his fingerprints were found on plastic bags, containing heroin.

The defence case

11.  The applicant testified in his own defence.  He stated that other than the small packet of Ice on the table and the Ice hookah, he was unaware of the drugs in the room.  He said he had known “Tai Hung” for a few years and had been to the room to consume Ice on a few occasions.  He said that on 9 June 2016, “Tai Hung” had invited him to the room where he stayed until the evening of 10 June 2016.  During this time, his girlfriend and her baby came to the room to join him.  Sometime after 7 pm, “Tai Hung” had left the room and soon afterwards he heard the sound of the door being opened.  When he opened the wooden door, he saw two strangers who simply asked him where was “the stuff”.  They had not identified themselves as police officers.  When he denied any knowledge of “the stuff”, the police officers pushed him to one side, handcuffed him and put him into the toilet. He was later punched to the ribs by one of them.  He admitted that when he was questioned by one of the police officers, he said he had taken Ice and was “fooling around” with his girlfriend in the room.  He added that he believed that this had been accurately recorded in the police officer’s notebook and that was why he signed it.  He said in the subsequent video recorded interview that he was coached as to what to say by one of the police officers.  He denied any knowledge of the drugs and the related items in the room, including the black bag that was found by the police officers in the bedroom.  He said that he did not know why his DNA and fingerprints were found on some of the exhibits.

The applicant’s sentence

12.  When it came to sentencing the applicant, very little, if any, meaningful mitigation was advanced on his behalf.  Although, the judge was invited to take into account that court time had been saved by the reasonable position taken by the defence in admitting certain exhibits and forensic evidence. 

13.  It was confirmed that the applicant had been convicted of two counts of trafficking in a dangerous drug in July 2005 for which he had pleaded guilty and received a sentence of 14 years’ imprisonment. He had been discharged from prison, having served that sentence, in January 2014, which was approximately two and a half years prior to the present offence.

14.  The total quantities of drugs trafficked by the applicant were 3,820 grammes of heroin, 597 grammes of cocaine and 562.7 grammes of Ice.

15.  The judge adopted a starting point of 26 years’ imprisonment for the combined quantities of the heroin and cocaine, which was 4,417 grammes.  This was in line with the sentencing guidelines laid down in HKSAR v Abdallah.[1] As for the 562.7 grammes of Ice, this would have warranted a starting point of 19 years and 5 months’ imprisonment according to the sentencing guidelines laid down in HKSAR v Tam Yi-chun.[2]  The judge enhanced the starting point of 26 years’ imprisonment by 2 years for the quantity of Ice and came to a sentence of 28 years’ imprisonment.

The appeal grounds

16.  The applicant initially advanced two grounds of appeal.  The first ground was that the summing-up by the judge was unbalanced, biased and unfair to the applicant.  The second ground which was abandoned by the applicant during the course of oral submission, was that the judge had erred in preventing defence counsel from cross-examining further the first prosecution witness, who was the arresting officer, about the applicant’s out-of-court statements.

17.  The particulars of the sole ground of appeal, broadly stated, are that the judge in his summing-up to the jury made a number of points for the prosecution in establishing the relevant elements of the offence of trafficking in a dangerous drug, and that such points were substantially initiated by the judge himself, while on the other hand, the judge in referring to the defence challenge to the credibility of the prosecution case on how the police officers had entered the room, made no reference to the point that there was no prosecution evidence showing how the door had been forced open.

The applicant’s submissions

18.  It was the passage of the judge’s summing-up, after he had summarised the prosecution evidence, in which he outlined the prosecution case and listed the evidence in support of the elements of the two offences, that Mr Yuen claimed was “unbalanced, biased and unfair” to the applicant.  He focused his complaint on the judge’s description of the prosecution case in relation to the trafficking offence, because the applicant had been acquitted of the manufacturing offence.

19.  Mr Yuen complained that the impugned passage amounted to a second prosecution closing address to the jury that was far more comprehensive and persuasive than the one that was given by prosecuting counsel.  He submitted that the items of evidence that the judge listed under the elements of the offence for trafficking were substantially initiated by him and were “systematic, clear and effective” in persuading the jury on these matters.  He acknowledged that he was not taking issue with the validity or accuracy of the items listed by the judge, but rather with the impression that he was giving a second and better closing address for the prosecution.  He contended that the prosecution did not make such points effectively or at all.

20.  Mr Yuen also complained that the judge omitted to address one of the points made by the defence in its closing address to the jury in respect of the attack on the credibility of the police officers who testified that they had to break down the door of the room to enter, when there was no sign of damage to the door. 

The respondent’s submissions

21.  In reply, Mr Ira Lui, for the respondent, argued that there was no merit whatsoever in this sole ground of appeal which had previously been the subject of criticism by this Court in HKSAR v Tse Hin Yeung,[3] when Mr Yuen advanced a similar ground of appeal.  He submitted that there was no question that the judge’s summing-up when read in context and in its entirety was anything like making another closing address for the prosecution.  It was analytical and measured, and clearly by its structure and contents was designed to assist the jury in the exercise of its function as the sole arbiter of the facts.

22.  Mr Lui took issue with the applicant’s categorisation that the impugned passage was a second prosecution closing address, the contents of which were substantially initiated by the judge himself.  He pointed out that the judge was merely discharging his duty to assist the jury by making reference to the evidence and relevant arguments in the context of his directions on circumstantial evidence and the drawing of inferences.  He submitted that the judge presented a balanced summing-up, putting to the jury the respective arguments of both sides, as evidenced by the fact that immediately following the impugned passage, where the judge set out the prosecution case, he went on to do the same for the defence case. 

23.  Mr Lui pointed out that there was nothing in law restricting a judge in his analysis of the evidence for the jury to be bound by what had been said in the closing speeches.  He submitted that the judge did not advocate any particular view on the evidence, and in fact made no comment at all.  He further submitted that the judge did not personally associate himself with the prosecution case as alleged, and made it abundantly clear to the jury that he was setting out the evidence that the prosecution was relying on in support of its case.

Discussion

24.  We unhesitatingly rejected the ground of appeal advanced on behalf of the applicant which we found to be totally devoid of merit.

25.  The judge gave the standard directions to the jury, properly reminding them of their role and function as the judges of fact.  He stressed that in the course of his review of the evidence if he expressed a view of the facts or emphasised a particular aspect of the evidence, that they did not have to adopt such a view unless they agree with it. He also stressed that if he did not mention something which they thought was important, they should have regard to it in any event and give it such weight as they thought fit.

26.  Having addressed in detail the elements of the two offences of trafficking in dangerous drugs and manufacturing a dangerous drug, the judge then went on to summarise the prosecution evidence.  At the conclusion of this summary, he listed the evidence that the prosecution relied on to support the elements of each count in turn. 

27.  In respect of Count 1, the judge explained to the jury that the prosecution had to prove that the applicant possessed the drugs in question.  He listed eleven matters he said that the prosecution had submitted to establish that the applicant was in possession of the drugs.  He said to the jury:

“ So he was in possession of dangerous drugs, because the prosecution say:

(1) fingerprints of the defendant were found on the plastic bag containing Exhibit P2, heroin;

(2) fingerprints of the defendant were found on plastic bags containing Exhibit P28, again, heroin;

(3) DNA sample of the defendant was found on one plastic bag containing Exhibit P4, heroin;

(4) DNA sample of the defendant was found on one plastic bag containing Exhibit P5. P5, cocaine plus methamphetamine;

(5) DNA sample of the defendant was found on one plastic wrapping containing Exhibit P28, heroin;

(7) the fingerprints and the DNA samples indicated that the defendant had been handling these dangerous drugs, ie, in his physical custody;

(8) I think I have mentioned it, but insofar as other people’s DNA samples or fingerprints were also found in some of the exhibits, I believe the prosecution’s position is that the involvement of other persons would not make the defendant’s involvement less;

(9) further, all the heroin and cocaine were found from the two blue bags, ie, the blue recycle bag and the blue Watsons bag, which were placed openly in the living room. The prosecution invited you to draw the necessary and irresistible inference that the defendant was in possession of all the heroin and cocaine;

(10) insofar as methamphetamine and methamphetamine hydrochloride were concerned, again, the prosecution invited you to draw the necessary and irresistible inference that the defendant, given his knowledge of methamphetamine, ie, his habit in taking methamphetamine, right? He told you that. He went up there three, four times, to consume ‘Ice’ and the locations where the methamphetamine and methamphetamine hydrochloride were openly put and displayed inside the premises, namely inside the white bowl in the kitchen, in various plastic and glass containers inside the kitchen cabinet and also, inside the refrigerator. And also inside a glass case, a glass cabinet in the middle of the living room.

So the prosecution say that the defendant was also in possession of all the methamphetamine and methamphetamine hydrochloride in question.

Now, the next point, point 11 I believe, is that the defendant was present inside the premises from 9 to 10 June 2016. He was present for an extended period of time inside the premises.”[4]

28.  The judge then explained to the jury that the prosecution had to prove that the applicant knew that the substances were dangerous drugs.  He listed six matters which he said the prosecution submitted to establish that the applicant knew the substances were dangerous drugs.  He said to the jury:

“ Now, the second matter that the prosecution must prove in relation to the 1st count is that the defendant knew they were dangerous drugs. Now, the prosecution say the defendant knew they were dangerous drugs because:

(1) the defendant put up resistance when the police were trying to gain entry into the premises;

(2) the defendant went up to the premises for consuming ‘Ice’, methamphetamine, so he knew about dangerous drugs, in particular, members of the jury, he knew that methamphetamine hydrochloride or methamphetamine, ‘Ice’, was in crystallised form. You remember, do you not remember -- I am sure you do, members of the jury, that the defendant and Mr Hingorani had a brief exchange in the course of his questioning, as to whether ‘Ice’, methamphetamine, exists in powder form or in crystalline form. Right?

(3) the fingerprints and the DNA on the plastic bags and the wrappings, indicating that the defendant took part in handling those substances. So, the defendant must have known what he was handling, packing or wrapping at the time;

(4) various chemicals and chemistry books were found inside the premises;

(5) different sizes of resealable bags, together with electronic scale, were found inside the premises;

Members of the jury, you may want to have a look at the resealable bags. Now, I do not know when they were presented to you, whether you had a closer looks. In fact, they came in different sizes. Some of the resealable bags were tiny, tiny, little. Right?

(6) the defendant was also found in possession of multiple mobile telephones.”[5]

29.  The judge finally explained to the jury that the prosecution had to prove that the applicant possessed the dangerous drugs for the purpose of dealing with or in them.  He listed four matters which he said the prosecution submitted established that this was the case.  He said to the jury:

“ The third matter is that the defendant possessed the dangerous drugs for the purpose of dealing with them, dealing in them. The prosecution say that must be the case because:

(1) the quantities of the dangerous drugs were large;

(2) the street value of the dangerous drugs was substantial. Right? You can check that in the Admitted Facts;

(3) again, different sizes of resealable bags, together with the electronic scale were found;

(4) the defendant had possessed multiple mobile telephones.”[6]

30.  Having explained to the jury that they were to consider each count separately, the judge pointed out that the circumstances that he had outlined were not binding on them, nor exhaustive.  He went on to remind them of what he had informed them previously that they could take into account these matters if they found them agreeable:

“ So the circumstances outlined above are by no means binding on you, members of the jury. They are also non-exhaustive. As I said to you yesterday, you can take them into account if you find them agreeable.

If you do not agree with any of them, you are perfectly entitled to ignore any of them. And if there are circumstances you think are relevant, which I have not mentioned, you must take those circumstances into account. Right? …”[7]

31.  The judge went on to similarly address the prosecution evidence in relation to Count 2.

32.  Immediately after addressing the prosecution case, the judge turned to deal with the defence case.  He outlined in detail the defence challenge to the prosecution evidence, particularly in relation to the two main police officers whose credibility had been attacked. He listed eight matters that he said the defence submitted to show that the prosecution evidence was full of discrepancies.  He emphasised that the defence challenged the credibility and reliability of the police officers’ evidence.  He reminded the jury that even though he had highlighted some of the inconsistencies and discrepancies, they were not intended to be exhaustive.  He also mentioned to the jury the defence case in relation to the DNA and fingerprint evidence and the finding of the rental receipt and an electricity bill which were in the name of someone else other than the applicant.  He said to the jury:

“ The defence on the other hand say that there is simply insufficient evidence for you to come to the conclusion that the defendant was in possession of any of those dangerous drugs and was manufacturing a dangerous drug.

You have heard the submission made by Mr Yuen. The defence urge you not to accept what the police officers said in respect of their entry into the premises. The defence say, in particular PW1 and PW2, were not credible witnesses. Their evidence was full of discrepancies:

(1) the defence say, apart from PW1, heard the movement and noise emanating from the premises, no other police officers mentioned that. Yet, the whole team was at the staircase at the time;

(2) PW1 did not check if the iron grill was locked, nor did he check if he had sufficient manpower behind him, before he rushed out to the premises;

Well, Mr Yuen did not suggest to you, but perhaps you can think, members of the jury, at the time the police did not know how many persons inside the premises. Right? So there may be one or there may be a gang, so you know, PW1 ought to check, but he did not;

(3) had both PW1 and PW2 had in mind that the defendant might have destroyed dangerous drugs inside the premises, it was highly unlikely that so many warnings would have been given;

(4) had PW1 and PW2 given their warnings and that the defendant was trafficking and manufacturing in dangerous drugs, he simply would not open the door, he would try to block the door as long as possible, so that he can -- I do not know, you may think, members of the jury, so that he can destroy, flush out, you know, flush some of the dangerous drugs down the toilet;

(5) PW1 stated that because of the resistance put up by the defendant, he had to resort to the transport wrist lock technique. Whereas PW2 however, stated that PW1 just put his hand on the shoulder of the defendant;

(6) upon entry, the defence say it was unusual for the inspector to explain and show the search warrant immediately before the identities of the people inside the premises had been ascertained;

(7) during the search, PW1 and PW2 testified that no conversation had been taken place between the Exhibit Officer PW2 and the defendant, yet PW3, the woman PC who also took part in the search, stated otherwise;

(8) regarding the seizure of the black bag, PW1 changed his evidence regarding the location of the black bag being found, from sofa to bed.

Mr Yuen told you in detail yesterday about all the discrepancies and inconsistencies to be found in this case. The main point I believe Mr Yuen wishes to emphasise is that the police officers, of course, would not openly in court, admit that they were making up stories regarding the entry, the search and the items found inside the premises, but members of the jury, you should have strong reservation about the evidence given by the police officers, hence the reliabilities of their evidence. Right? First, are they credible? And second, the evidence they give, whether the evidence they give is reliable.

Now, those are just some of the inconsistencies and discrepancies highlighted by me. Again, they are by no means exhaustive, right?

Now, the defence also suggest to you that even though DNA samples and fingerprints of the defendant have been found, there was no evidence to suggest when and how they came into existence. There were other people’s fingerprints and DNA samples as well, so one cannot rule out the possibility that the defendant simply went up to the premises, just to have fun.

The defence also suggest to you that the rental receipt and the electricity bill indicated that the defendant was not the tenant to the premises and a customer registered with the electricity company, and as such, the defendant could not possibly be in control, hence possession of all the chemicals and equipment inside the premises.”[8]

33.  The judge similarly went on to address the defence case in relation to Count 2.

34.  After addressing the defence criticisms of the prosecution case, the judge then summarised the defence case by going through the applicant’s evidence.

35.  As seen from the text and context of the judge’s summing-up, there is no substance whatsoever to the suggestion that it was unfair and unbalanced.  The way the judge summed up the prosecution case, he did the same for the defence case.  There is also no substance to the suggestion that the judge by listing the eleven points in relation to Count 1 was improving the prosecution case.  There were actually only ten points as the judge got the numbering wrong and did not list a Point (6).

36.  The judge made it clear to the jury that this part of the summing-up was what the prosecution was saying in support of its case that the applicant was in possession of the drugs. 

37.  The points that the judge listed were matters supported by evidence that were relevant to the prosecution case. It can hardly be said that they were new, or even contentious.  In Points (1) to (5) and (7) the judge repeated the fingerprint and DNA evidence which had been admitted.  In other words, these points related to evidence that was not in dispute.  Point (8) was a matter that the judge had previously mentioned, concerning the fact that other people’s fingerprints and DNA were also found. He stated that the prosecution’s position was that this would not lessen the applicant’s involvement in the offence.  In Point (9) the judge stated that the heroin and cocaine inside the two blue bags were found in the living room and that the prosecution were inviting the jury to draw the irresistible inference that the applicant was in possession of the drugs.  None of this was new because where the drugs were found was an admitted fact, and the prosecution had always asserted as part of its case that the applicant was in possession of the drugs.  In a similar fashion, in Point (10) the judge addressed where the Ice was found in the room.  In the last point, Point (11), the judge stated that the applicant was in the room from 9 to 10 June 2016.  This fact was not in dispute.

38.  In a similar manner, the judge went on to list six matters that the prosecution were saying supported its case that the applicant knew the substances were dangerous drugs. 

39.  These points were not initiated by the judge, as they were always the basis of the prosecution’s case against the applicant and supported by evidence presented by the prosecution that, for the most part, were either admitted or not in dispute.  The futility of this ground is evidenced by the fact that Mr Yuen made no criticism as to the validity and accuracy of the matters listed, nor could he do so because they were matters of fact supported by the prosecution evidence.

40.  What we also found extraordinary in Mr Yuen’s submissions was that he totally ignored how the judge had treated the defence case.  He complained that the judge had not mentioned that the police officers claimed they forced the door open, and yet there was no damage to the door.  However, the judge did remind the jury of what Mr Yuen had said to them about this matter, namely that Mr Yuen told them “not to accept what the police officers said in respect of their entry into the premises.”[9] The judge went on to highlight the defence challenge to the credibility of the two police officers, listing eight points in the same fashion as he did when presenting the prosecution case.

41.  We were unable to see how the judge could be criticised for the way he summed up the cases for the prosecution and the defence.

42.  It behoves us to remind counsel that a trial judge has a duty to summarise the issues and the evidence to the jury when summing up the case to them, and is even entitled, in appropriate circumstances, to express his view on the evidence.[10]  The judge’s task is to give fair and balanced guidance to the jury and provide an overview of the case for the prosecution as well as for the defence.  The nature and manner of the summing up will be largely dependent upon how the evidence has unfolded during the course of the trial, and how the parties have presented their respective cases and what is in issue between them.  With this in mind, counsel should be very careful before resorting to the serious allegation that a trial judge displayed bias to the defendant and favouritism to the prosecution.  In Tse Hin Yeung, Macrae JA (as Macrae VP then was), giving the judgment of the Court, criticised Mr Yuen for advancing a similar ground of appeal to the one he has relied on in this case, and went on to say:

20.     In HKSAR v Wiwik Lestari,[11] this Court expressed its concern about a prevailing culture amongst certain appeal counsel of averring that there was an unfair and unbalanced summing-up almost as a matter of routine in any set of grounds of appeal against conviction, regardless of its merits.  The Court reminded counsel that they ‘are expected to bring professionalism, realism and common sense to the performance of their duty[12] in settling and conducting appeals.’”

Conclusion

43.  It follows from what we have said that we found that the sole ground of appeal that remained after the other ground had been abandoned was totally devoid of merit and accordingly we refused leave and dismissed the appeal. 

Loss of time

44.  As we have already indicated, we invited Mr Yuen to address us on whether a loss of time order should be made because of the unmeritorious nature of this appeal.  In response, he submitted that the ground of appeal was premised on legal principles and evidence, and was therefore reasonably arguable and not devoid of merit. 

45.  The principles applicable to a loss of time order under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 were comprehensively discussed by the Court of Final Appeal in Chau Ching Kay v HKSAR.[13]  The purpose of a loss of time order is to discourage unmeritorious appeals, so that valuable judicial time and resources can be spent on meritorious ones.[14] A court may exercise its discretion to make a loss of time order where it is plain that the appeal is totally devoid of merit.  A loss of time order can be made even though the applicant has acted under legal advice. [15]

46.  Macrae VP in HKSAR v Yik Siu Hung,[16] having set out the principles applicable to a loss of time order, explained that:

“48. This Court can, and will, make full use of section 83W(1) of the Criminal Procedure Ordinance to order ‘loss of time’ in applications to this Court for renewal of leave to appeal when they are considered wholly without merit, provided that due warning as to its power is deemed to have been given to the applicant concerned.”

47.  He then listed the occasions when a loss of time had been ordered and the particular circumstances such an order was made:

“51. Consistent with the above statements of principle, we should point out that this Court has previously made orders for ‘loss of time’ where the applicant has been legally represented following a refusal of leave by the Single Judge: see, for example, HKSAR v Chan Ka Chun^[17]; HKSAR v Tam Tak Keung Sammy^[18]; and HKSAR v Cheong Man Kit^[19]. And it has also made ‘loss of time’ orders against legally represented applicants in cases where the applications for leave have been dealt with at the same time as the hearing of the appeal: see, for example, HKSAR v Cheung Siu Hung^[20], HKSAR v Chan Chun Fung Vincent^[21]; and HKSAR v Yeung See Man^[22].”

48.  As we have already pointed out, this is not the first time that Mr Yuen has advanced a ground of appeal against conviction, alleging that a trial judge gave an unfair and unbalanced summing-up to the jury, which was totally devoid of merit, and for which he was criticised by this Court for having done so.  In Tse Hin Yeung, Macrae JA, having soundly rejected a complaint that the judge’s summing-up to the jury was unfair and unbalanced, criticised Mr Yuen for taking parts of “the summing-up completely out of context and treated them in isolation.”[23] We regret to say that this has been repeated by Mr Yuen in this appeal.

49.  The fact that an applicant is represented by counsel at his appeal is a matter that needs to be taken into account as explained by the Court in Chau Ching Kay:

“69. … While the fact that an applicant has acted under legal advice in pursuing his application should and would be given careful consideration, this is not necessarily a bar to the exercise of the court’s discretion. It would be wrong in principle to say that the court should not as a matter of course consider ordering loss of time in such a case. For the court would then be delegating its discretion and subjecting it to the decision of counsel. This cannot be right. In appropriate cases where it is plain that the application is totally unmeritorious, it is the duty of the court to consider directing loss of time even though the application is made pursuant to legal advice. How much weight should be given to this fact is a matter for the court having regard to all the circumstances of the case.”

50.  The Court stressed that in considering making a loss of time order, a court should have regard to all the circumstances of the case:

“71. … The matter must be looked at in the light of the whole appellate procedure. The starting point must be the purpose of having the power to order loss of time - to deter unmeritorious application so that meritorious cases can be dealt with without delay. Judicial time should not be unnecessarily wasted. Hence, the main criterion in deciding whether to order loss of time is the total lack of merit in the application. There are, of course, other relevant factors to be considered, including the fact that he is acting under legal advice, the conduct of the applicant in presenting his case to the court, the seriousness of the matter and the importance of the appeal to the applicant. Each case has to depend on its own facts. The circumstances of each case can so vary that it is difficult to lay down any general guideline as to when the court should make an order for loss of time and if so, how much loss of time should be ordered.”

51.  The Court went on to say:

“73. … In considering the amount of time to be discounted, the court should take into account the lack of merit in the application, the length of the sentence, the maximum period to be discounted - the time from the lodging of the application to the hearing of the application, and any peculiar or extraneous circumstances. …”

52.  When considering making a loss of time order, the starting point will naturally be whether the appeal was totally devoid of merit.  As we have explained this was a totally unmeritorious appeal.  It is recognised that such an order can be made even where the application for leave has been dealt with at the same time as the hearing of the appeal and the appeal has been advanced on legal advice. An aspect in the present appeal is that this is not the first time that Mr Yuen has advanced such an unmeritorious ground of appeal and been warned by this Court for having done so.  Mr Yuen would have advanced this ground of appeal on the instructions of the applicant and the applicant would have been aware of the risk that the Court could make a loss of time order as the power to do so is specifically referred to in the notice of application for leave to appeal.

53.  Taking into account the relevant principles, and all the circumstances, we have decided for the above reasons to order that 2 months of the time the applicant has spent in custody pending the determination of his appeal shall not be reckoned as part of the term of imprisonment to which he is subject.

54.  This is a legal aid case and we feel that in the circumstances the Legal Aid Department should bear part of the responsibility for having advanced a totally unmeritorious appeal.  Whilst we appreciate the volume of work that is undertaken by the Department and the reliance it places on the advice of counsel, it should nevertheless ensure that in the future proper care and evaluation is conducted in relation to appeals brought before this Court.