HKSAR v. WANG ZHI

CACC 232/2018

[2020] HKCA 863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 232 OF 2018

(ON APPEAL FROM HCCC 29 OF 2018)

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REASONS FOR JUDGMENT

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A. Introduction

1.  The applicant was charged with trafficking in a dangerous drug,contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The charge alleged that on 23 May 2017 he trafficked in 1,999 grammes of a crystalline solid containing 1,992 grammes of methamphetamine hydrochloride (“Ice”). 

2.  The applicant pleaded not guilty to the charge and stood trial before Campbell-Moffat J (“the judge”) and a jury in the Court of First Instance.  On 1 August 2018, the applicant was convicted and on 7 August 2018 was sentenced to 25 years and 9 months’ imprisonment. 

3.  By his Form XI, he applied for leave to appeal against both his conviction and sentence. 

4.  At the hearing of the application I granted him leave to appeal against both his conviction and his sentence.  These are my reasons for so deciding.

B.     The trial

B.1    The prosecution case

5.  Immigration records showed that the applicant, who is a Mainlander, had entered Hong Kong through Lo Wu at 1024 hours on 23 May 2017.  There was no dispute that on this day he had checked into the Regal Riverside Hotel, Sha Tin, and that his booking was for only one night.

6.  At around 2000 hours on 23 May 2017 two police officers, PW1 and PW2, were conducting an anti-narcotics patrol at Kong Pui Street Rest Garden, Sha Tin, New Territories.  PW1 saw the applicant walking towards him and became suspicious of him.  At that time the applicant had a black “Coach” brand shoulder bag on him and he was holding a sealed carton box in his left hand.  PW1 intercepted him and identified himself as a police officer.

7.  When PW1 searched the applicant’s shoulder bag he found a plastic bag in which there was a grey bag containing 200 grammes of Ice.  Wrapped around the grey bag was a label bearing the Chinese characters for “Bamboo Charcoal”.  

8.  Inside the carton box that the applicant was holding the police found nine other identical packets, each containing approximately 200 grammes of Ice[1]. In respect of these packets the openings of each grey bag was tied closed with string and all bore similar labels bearing the Chinese characters for “Bamboo Charcoal”.  However, the opening of the grey bag of Ice that was found in the applicant’s shoulder bag was not tied closed and there was no string with it.

9.  When asked by PW1 about the contents of the package found inside his shoulder bag, the applicant replied “Ice drug” in Cantonese.  Thereafter he remained silent after being cautioned for all the Ice found in his shoulder bag and the carton box. 

10.  The Ice was subsequently seized, tested and quantified as particularized in the charge.  The estimated value of the Ice was HK$623,688.  It was an admitted fact that a fingerprint examination was done on the ten outer plastic bags that were used to contain the grey bags of Ice but “no mark of value”[2] could be found on them.      

11.  It was an admitted fact that when the applicant was intercepted he was in possession of HK$5,400, RMB 113 and 2 mobile phones.  It was also admitted that the carton box originated from Shenzhen, China, and was one of five carton boxes that were consigned under the same waybill number.  Records showed that this consignment arrived in Hong Kong on 19 May 2017, and that at or about 1500 hours on the same day an unknown person collected it from the logistics depot. 

12.  A total of three video-recorded interviews (“VRI”) were conducted with the applicant but the prosecution did not seek to rely on any of them in proving their case.  The first VRI took place at Sha Tin Police Station but it was aborted because the equipment was not working.  The applicant was subsequently taken to Ma On Shan Police Station where an interview was conducted from 0137 until 0152 hours on 24 May.  This was the second VRI.  A third VRI took place at the same location later that day, between 1738 to 1835 hours.  The timing of the third VRI assumed importance as a result of an assertion by the applicant when he was being cross-examined in the course of giving evidence.  

13.  PW1 subsequently made a post-record of the arrest and cautioning of the applicant in his notebook.  However, this post-record did not contain any reference to the interception of the applicant or the admission “Ice Drug” that he was alleged to have made.  It referred only to the search of the shoulder bag and the cardboard carton, and the discovery of the Ice in them.  The applicant refused to sign this post-record and so it was not initially adduced as part of the prosecution case.  What was significant about it was that it was alleged by the prosecution to have been interpreted to the applicant at 2331 hours on 23 May 2017, the day of the applicant’s arrest.

14.  The time at which the applicant became aware of the discovery of the Ice in his shoulder bag assumed importance when in the course of his cross-examination in the defence case the applicant testified that he only became aware of the discovery of Ice in his shoulder bag when he was informed of it in the course of the 3^rd VRI, denying that the post-record was ever interpreted to him.

15.  This, ultimately, led to the prosecution successfully applying, before the conclusion of the applicant’s evidence, to call evidence in rebuttal, on the basis of an issue arising ex improviso. The applicant then completed his evidence before the prosecution called its rebuttal evidence.          

B.2    The defence case

16.  The applicant testified but called no witness.  He said he was a sports coach from Hunan, China with a monthly income of RMB 2,000 to 3,000.  He also traded in Goji berries from which he could earn between RMB 1,000 to 2,000 per month.  Twelve days prior to his arrest he had travelled to Hong Kong and stayed here for six days between 6 and 11 May 2017.  The purpose of this trip was to obtain medicine for his family.  He said he did not speak Cantonese. 

17.  On 23 May 2017, he came to Hong Kong as a tourist and intended to stay around 3 to 4 days.  He checked into the Regal Riverside Hotel on the day of his arrival.  Shortly before this trip, a friend of his who lived in Zhuhai, spoke to him over the telephone and asked him to pick up some Chinese herbal medicine for him.  He agreed to help his friend.  He was also given the name and details of the contact person in Hong Kong from whom he would obtain the medicine.  This person was referred to as “Fei Chai”.  In a subsequent call with “Fei Chai” the applicant asked if he “had the thing prepared” and arranged for it to be delivered to the hotel. Later, at about 8 pm, another person called the applicant and told him that he would drop it off at a nearby bus stop.  He went to the bus stop and collected the sealed carton box from a 7-seater vehicle which pulled over there.  However, at that time he did not notice where the carton came from nor did he open it to check its contents.  As it was light in weight, he intended to carry it to dinner before returning to his hotel room. 

18.  As he was walking to nearby restaurants he suddenly found himself surrounded by at least ten men.  His shoulder bag and the carton box were snatched from him and he was pinned to the ground.   He did not pay attention to all that was taking place at that time, particularly as to what happened to the carton box and his shoulder bag after they were taken from him.  He only became aware of the police identity of these persons when he was handcuffed.   

19.  Whilst the applicant admitted having the carton box in his physical possession, he denied knowledge of the Ice inside it.  He also denied that a separate packet of Ice, which did not have a string tied around its opening, had been in his shoulder bag.  He denied being told by the police at the scene that they had found a packet of Ice in his shoulder bag and he denied saying “Ice drug” in response to a question from PW1 after PW1 had allegedly found a packet of Ice in his shoulder bag.    

20.  The question of when he first became aware of the allegation that Ice had been found in his shoulder bag was asked of him in examination‑in‑chief.  However, the answer he then gave was that he came to know about the finding of Ice in his shoulder bag “at Sha Tin Police Station”.^[3]  In cross-examination, his evidence became more specific and he said that he “came to know about this matter when I was taking the video recording interview at the video recording interview room”.[4] He said that when he was told of this alleged discovery he was shocked and immediately reacted by saying “no such thing”[5].  In re-examination, the relevant part of the 3^rd VRI was played to the jury for them to consider his reaction and demeanour when told of the allegation[6]. 

21.  When cross-examined on the post-record of PW1 being read and interpreted to him by PW3 in Sha Tin Police Station, the applicant asserted that PW3 never read it to him and denied refusing to sign it.

B.3    The re-opening of the prosecution case

22.  The judge considered the applicant’s assertion that no one had ever read or interpreted the post-record that was made of him being cautioned on arrest, as a matter that had arisen ex improviso.  The prosecution, represented by Mr Sean Kelly, made an application to the court to re-open the prosecution case in order to call rebuttal evidence from PW1, PW3 and PW4 concerning the reading of PW1’s post-record notebook entry to the applicant when he was in Sha Tin Police Station on the evening of his arrest.  The applicant was represented by Mr David Chu at trial and his immediate reaction was that he could not see any objection to this course and confirmed that position after an adjournment had been granted for him to consider his position.[7]  

23.  The issue then arose of when the rebuttal evidence should be called.  Mr Chu asked for it to be done after the applicant had finished his evidence[8]. The judge agreed that was the normal course but indicated that a consequence of doing it that way would be that the applicant could not then be recalled saying:

“Unless something amazing happened and exceptionally in my discretion I allowed that. …”[9]

24.  In response to Mr Chu indicated that his preferred option was to proceed in the way he first requested, namely finish the applicant’s evidence, as opposed to interposing the rebuttal witnesses, and then allowing the prosecutor to call his rebuttal evidence.  Mr Kelly agreed to this course.   

25.  After the prosecution re-opened its case on this ex improviso basis, PW1, PW3 and PW4 testified and confirmed that the post-record statement accurately recorded what had taken place in the interview room at that time.  The following exchange then took place between the judge and counsel:

“COURT: … Right, that is all of the evidence arising ex improviso as a result of the defence case.

MR KELLY: That’s correct, my Lady.

COURT: So you don’t wish to call any other evidence on that basis.

MR KELLY: We’re not calling any other witnesses on that.

COURT: Right. And Mr Chu has already closed his case.

MR CHU: Yes.

COURT: So that is the end of the evidence, gentlemen. …”[10]

C.     The sentencing of the applicant

C.1    The mitigation

26.  The applicant had a previous conviction of “assaulting a police officer”, contrary to section 63 of the Police Force Ordinance, Cap 232, for which he had been sentenced to 8 weeks’ imprisonment on 9 October 2017.  The prosecution confirmed that the incident took place in Sha Tin Police Station when the applicant was being subdued by the officers whilst in custody for the present offence. 

27.  The judge raised the issue of importation, saying to Mr Chu:

“… your client, in Hong Kong when he shouldn’t be, picking it up sounds to me like he is part of the importation … unless I’m wrong he doesn’t have to be the person physically bringing it over but it sounds to me like I could infer that he is somehow or other involved with both sides of the border.”[11]

28.  In response to this, Mr Chu submitted to the judge that there was no evidence to link the applicant to the importation of the Ice from China into Hong Kong, and in any event there was no evidence that he knew the shipment came from China. 

C.2    The judge’s Reasons for Sentence

29.  After setting out the applicant’s personal background the judge said that she would not take into account in sentencing him for the present offence, his conviction for assaulting a police officer. 

30.  The judge then referred to the decision of the Court of Appeal in HKSAR v. Abdallah[12] which suggested that the applicable starting point would fall somewhere between 23 and 26 years and adopted a starting point of 23 years and 9 months. 

31.  On the aggravating feature of importation, the judge said:

“… There is a further aggravating feature and that is from all the circumstances of the evidence before me, this was part of a plan to import ‘Ice’ from China. There is no other reason that has been put before the court as to why you would be here in Hong Kong in possession of that 2 kilogrammes of ‘Ice’ that have only just been couriered into Hong Kong from Shenzhen. In accordance with HKSAR v Abdallah, the appropriate aggravating sentence which I intend to add to the starting point I have mentioned is one of 2 years.”[13]

32.  In the absence of any mitigating factor, the judge then sentenced the applicant to 25 years and 9 months’ imprisonment.

D.     The applications for leave to appeal

D.1    The applicant’s grounds of appeal: conviction

33.  The applicant was represented by Mr Whitehouse in this application and in his Perfected Grounds of Appeal Against Conviction he raised four grounds of appeal. 

34.  The first ground of appeal complains that the applicant was deprived of a fair trial by the judge’s inappropriate interventions throughout the trial in four aspects.

35.  Firstly, it was submitted that there were numerous interruptions and interventions by her during the testimonies of PW1, PW2 and the applicant most of which were unnecessary, and she had repeatedly referred the applicant as “the gentleman” in a sardonic way.  Secondly, it was said that the judge lacked impartiality and made adverse comments to Mr Chu.  Thirdly, Mr Whitehouse said the judge misunderstood the defence case as alleging “planting” of a packet of Ice in the applicant’s bag by the police when in fact the defence case was that the police lied about finding a packet of Ice in his shoulder bag after opening the carton box.  And fourthly, Mr Whitehouse complained that the judge gave a long, introductory speech to the jury before the prosecution opened its case, and in doing so erroneously informed them that the defence case was about “planting of drugs” by the police.   

36.  The second ground of appeal complains that the judge erred in allowing the prosecution to re-open its case.  Mr Whitehouse submitted that the new allegation by the applicant, on which the ex improviso basis for re-opening the prosecution was founded, was not, in fact, new and the applicant had always denied making any admission at the scene. The allegation stemmed from PW1’s post-record entry in his police notebook which had always been available in the committal bundle.  As such, the allegation of the applicant did not amount to an ex improviso situation, as the judge found.  Mr Whitehouse in his submission further complained that the judge should have offered the defence the opportunity to recall the applicant so that he could reply to anything arising from the re-opening of the prosecution case, but she did not do so, thereby resulting in unfairness.     

37.  The third ground of appeal complains that the judge erred in ruling that parts of the applicant’s testimony concerning what he was told by his friend in China about the contents of the carton being herbal medicine were inadmissible hearsay when in fact they were not.  It was further argued that as a consequence of the judge’s erroneous ruling it was very difficult for the applicant to explain properly this vital part of his defence.   

38.  The fourth ground of appeal complains of four specific aspects of the summing-up.  The first aspect is that the judge erred by unnecessarily making references to the applicant being “in custody”; a fact which was irrelevant but was likely to prejudice him in the eyes of the jury.    

39.  The second aspect of the summing-up of which complaint is made was the judge’s directions on inferences.  It was argued that in the circumstances of this case there was no need for an inference direction to be given.  It was submitted that the jury were not invited to find knowledge proven by a process of the inferential reasoning as the prosecution was relying on an admission made by the applicant.  It was also submitted that the judge’s direction was unhelpful and confusing.  When the judge came to refer the jury to circumstantial evidence relevant to the drawing of an inference of knowledge she referred to ten matters, none of which, Mr Whitehouse argued, were able to assist the jury in drawing an inference of knowledge.     

40.  The third aspect of the summing-up in respect of which complaint is made was the failure of the judge to give a lies direction.  The need, for such a direction arose, it is argued, when the prosecution, in its closing speech, clearly suggested the applicant was lying.

41.  The final aspect of the summing-up of which complaint is made is the judge’s direction to the jury on the testimony of PW1 and his post-record statement concerning the arrest and caution on the applicant.  It was said that the effect of her direction was to create the risk that the jury would treat the post-record notebook entry by PW1 as rendering more credible the allegation that the applicant had made the oral admission. 

42.  The applicant’s last ground of appeal, the fifth ground of appeal is a general ground that, by reasons of the preceding grounds of appeal, the applicant’s conviction is unsafe and unsatisfactory. 

D.2    The grounds of appeal: sentence

43.  The applicant was unrepresented in respect of this application.  In his homemade grounds of appeal he complained that the judge erred in enhancing his sentence for the international element.

E.     Discussion: Leave to appeal against conviction

E.1    Interventions by the judge

44.  In respect of the first ground of appeal I agree with the submissions of Ms Parwani, who appeared for the respondent.  The interventions by the judge were made either for the purpose of clarifying the evidence, or were made in the proper exercise of a case management function. 

45.  The complaint that the judge misused the word “planting” ignores the fact that this expression was the way Mr Chu described, and put, his instructions, and all parties conducted the trial on this understanding of the defence case.  Furthermore, in my view the concept of evidence being planted on a person encompassed not just physically placing the evidence in the location claimed but also merely making a false allegation to the same effect. 

46.  I am not persuaded that the first ground of appeal is reasonably arguable. 

E.2    The re-opening of the prosecution case

47.  There are two issues in respect of the second ground of appeal.  The first issue is whether the judge was right in taking the view that the applicant’s evidence, namely that he was first told of the discovery of the Ice in his shoulder bag in the course of the 3^rd VRI and that the post-record of the discovery in PW1’s notebook was never shown or translated to him, were matters arising ex improviso, entitling the judge to, in the exercise of her discretion, grant leave to the prosecution to re-open its case for the purpose of adducing rebuttal evidence from PW1, PW3 and PW4. 

48.  Before the trial commenced, the judge had spoken to Mr Chu and ascertained that the defence case was that no Ice had been found in the shoulder bag, the applicant did not make any admission at the scene and that the applicant had refused to sign the police officer’s post-record of the caution that he wrote in his notebook.      

49.  It was not until the applicant was cross-examined that he first claimed he was told about the finding of the Ice in his shoulder bag in the 3^rd VRI.  Ms Parwani made the valid point that whilst the defence had, from the outset, indicated they were going to dispute the alleged admission and how the arrest was effected, they never actually put to the prosecution witnesses that the applicant only came to be aware of the Ice in his shoulder bag in the 3^rd VRI.  This was a matter, she argued, that clearly arose ex improviso and this was not disputed by the applicant’s counsel.   

50.  If this claim was part of the applicant’s instructions then it should have been put to PW1.  A failure by a defence counsel to put an important part of his instructions is recognized in the case law as potentially giving rise to a right to the prosecution to call evidence in rebuttal.[14]  

51.  In the present case, the rebuttal evidence was clearly relevant to the jury’s assessment of the defence that the police planted the Ice in the bag.  Since the post-record entry contained no admission and the question of whether it was shown to the applicant was not known to be in issue, it initially had no relevance to an issue in the case and no basis to make it admissible.  It was no more than an arguably contemporaneous record of what had transpired earlier that evening, albeit one that was astoundingly incomplete in that it failed to record the admission of the applicant prior to being cautioned.  However, with the new allegation of the applicant the post-record now became relevant and admissible in its own right as being the document whose contents the interpreter testified he interpreted to the applicant.

52.  I am not persuaded, therefore, that it is reasonably arguable that the applicant’s claim during cross-examination that he was only informed of the finding in the 3^rd VRI, and that the notebook was never read to him, was a matter that did not arise ex improviso.

53.  The second issue is whether the procedure the judge adopted was unfair or unjust to the defence.  In respect of this issue it is pertinent to note that as soon as the judge considered that an ex improviso matter had arisen she consulted with Mr Chu about the way forward. From the exchanges she had with counsel it is apparent that she was conscious of the need to ensure that the fairness of the applicant’s trial was not affected by the calling of rebuttal evidence.  She allowed Mr Chu to express his preferred option and in fact adopted the course he proposed. 

54.  It was contended by Ms Parwani that the defence team had made an informed choice when they indicated they preferred having the rebuttal evidence called after the close of the applicant’s evidence notwithstanding that they appreciated this may have the consequence that they would not be able to recall the applicant.  I agree.  Additionally, it is clear that Mr Chu did have an opportunity at the close of the rebuttal evidence to apply to reopen the defence case but he chose to not make any such application. I am of the view that this ground of appeal is not reasonably arguable.

E.3    Hearsay evidence

55.  The third ground of appeal complains that the applicant was denied the opportunity to properly testify about his defence as the judge erroneously thought that his testimony was hearsay.  I note that in her summing-up the judge appears to have retreated from this view and fully placed the defence before the jury.  Nevertheless, there was a clear error by the judge during the applicant’s testimony and so I grant leave in respect of this ground of appeal.

E.4    Unfair summing-up

56.  The fourth ground of appeal has four sub-grounds to it.  The first concerns the judge’s references to the applicant being a prisoner. 

57.  I do not agree that the remarks made by the judge concerning the applicant being in custody prejudiced the applicant. In fact the jury was told about his clear record and accordingly received a good character direction, notwithstanding at the time of the trial he actually had a conviction for assaulting a police officer.  This sub-ground is not reasonably arguable.

58.  The next sub-ground complains of the judge’s directions on inferences. 

59.  Originally the judge took the view that no inference direction was required.[15] But the prosecutor in his closing address invited the jury to draw the inference of trafficking.[16]  The judge then changed her mind and considered that an inference direction had become necessary.[17] 

60.  The prosecution case was that there was direct evidence of knowledge in the form of the applicant’s admission.  If the jury did not accept that this admission was made then the jury could infer knowledge from the circumstantial evidence.  Arguably, this required the jury to be directed on how they should approach their consideration of the admission, and, should they find that they could not be sure it was made, how they would then have to consider whether they could be sure, through a process of inferential reasoning, that the applicant knew of the drugs in the shoulder bag and carton box.

61.  Given the unusual circumstances of this case full and clear directions on the admission needed to be made.  On the prosecution case the only other person present at the making of the admission, PW2, did not hear the admission being made.  The person to whom the admission was made, PW1, did not make a post-record of it.  The post-record that he made was a record of only the arrest and caution and made no mention of the interception of the applicant, the search of his shoulder bag and the admission in response to the discovery in it of the Ice.  It was, therefore, not put to the applicant when the post-record was later read back to him.  The admission was only a verbal one relying on the assertion of a single police officer.  A not dissimilar situation arose in HKSAR v Chan Yuk Ling[18]where the Court of Appeal said that such verbal admissions required rigorous scrutiny.

62.  To say that there are doubts about the admission is something of an understatement.  Those doubts are compounded by the unfortunate circumstance that PW1 was not effectively cross-examined on it because Mr Chu was distracted from his questioning when he pursued a non-point which then became the subject of a lengthy exchange between he and the judge.  The problems associated with the admission were, arguably, not adequately directed on by the judge.  Indeed the post-record seems to have assumed greater significance as rebuttal evidence for the prosecution and its significance to the defence case, in terms of throwing doubt on the question of whether the admission was actually made, appears to have been somewhat lost. 

63.  Given the violence the applicant alleged was involved in the interception, search and arrest of him it is reasonably arguable that Specimen Direction 39.1 should have been given in its entirety so that the jury were instructed that they not only had to be sure the admission was made but also that it was true.

64.  Mr Whitehouse indicated at the hearing that he wished to amend his grounds of appeal to include lack of adequate directions on the admission as a separate ground of appeal and I grant him leave to do so and leave to appeal on this ground.

65.  In directing the jury on inferences the judge made no mention of the admission and actually erroneously informed the jury that there was no direct evidence of knowledge.  I am of the view that it is reasonably arguable that the judge’s directions on inferences may have confused and misled the jury and I grant leave to appeal on this ground.  

66.  The next sub-ground complains of the failure of the judge to give a lies direction.  I am not persuaded that it is reasonably arguable that a lies direction was called for in the present case.  The prosecutor’s comments in his closing speech on the applicant’s evidence were no more than criticisms of the incredulity of various aspects of the applicant’s evidence.  He did not invite the jury to find the applicant lied and then to use his lies to support the prosecution case and convict him.  In Yuen Kwai Choi v HKSAR[19]the Court of Final Appeal said that in these circumstances a lies direction was not necessary.

67.  The final sub-ground of the fourth ground of appeal complains of the judge’s directions on the rebuttal evidence of PW1’s record of his arrest and caution of the applicant.  This is the record which contains reference to the discovery of the Ice in the shoulder bag but fails to record the applicant’s admission in respect of it.  The post-record had a very specific and limited basis for admissibility; namely as the document which was translated by the interpreter to the applicant in the late evening on the day of his arrest.  What was relevant about it was when it was read to him, namely well before the 3^rd VRI, and what it contained, namely reference to the fact that a packet of Ice had been discovered in the applicant’s shoulder bag.  This was relevant to the credibility of the applicant’s claim that he first became aware of the discovery of Ice in his shoulder bag during the 3^rd VRI.  The post-record could not be used as evidence independent of its author, PW1, to support the oral evidence of PW1 that such a discovery had in fact been made.

68.  This sub-ground complains that the judge did not make sufficiently clear to the jury the limited use they could made of the post-record.     

69.  In my view this sub-ground is reasonably arguable and I grant the applicant leave in respect of it.

E.5    Unsafe and unsatisfactory

70.  In view of what I have said in relation to those matters on which I granted leave, I am of the view that I should also grant leave to appeal on this ground.

E.6    The failure to give a “lifestyle” direction

71.  At the hearing of the application I expressed my concern at comments of the judge which, arguably, suggested to the jury that the applicant’s holiday in Hong Kong could not have been funded from the sources of income which he testified were available to him.  These comments were not accompanied by a lifestyle direction.  Arguably, the cross-examination of the applicant by the prosecution was done in a way to suggest that the applicant’s lifestyle at the time of his arrest was not commensurate with his limited monthly income.[20]  There was also the evidence, emerging only in cross-examination, that the applicant had visited Hong Kong just a week before his arrest.  This point was not lost on the prosecutor who, in his closing address, said to the jury:

“… And you might wonder was he deliberately trying to hide the fact that he had been here previously, the same month, and why would you want to come back and have a holiday when you have already been here on the -- from 6 to 11 May and it’s now 23 May.”[21]

72.  What makes the lifestyle evidence especially problematic in the present case is that the judge took it upon herself in the summing-up to remind the jury of the evidence and to expressly invite the jury to make whatever use of it they liked.  She said:

“… So you can look at the financial side of things and take that into account in whatever way you feel is necessary.” [22]

73.  When directing the jury on drawing an inference of knowledge, she again highlighted to them the limited means of the applicant.  She cited as circumstantial evidence relevant to an inference of knowledge a number of different pieces of evidence amongst which were the cost of the hotel room and “the money he had on him compared to his income.”^[23]

74.  Without directions on the proper use of this evidence it is reasonably arguable that there existed the risk that the jury might engage in the impermissible line of reasoning that is expressly prohibited by Specimen Direction 36.1.[24]

75.  Mr Whitehouse sought leave to amend his grounds of appeal so that he could incorporate the judge’s failure to give a lifestyle direction as an additional ground of appeal.  I granted him leave to do so and grant him leave to appeal in respect of this ground. 

E.7    Absence of fingerprint on the outer packaging of P1

76.  In reading the summing-up I also became concerned at the judge’s direction on the lack of a fingerprint on the packaging for the Ice found in the applicant’s shoulder bag.  The judge directed the jury as follows:

“ That reference to the fingerprint examination of P11A to 20A, all of the outside plastic bags containing the grey bags which had the ‘Ice’ inside, you will see that it has been agreed that there was no mark of value or marks of value were found. That evidence, ladies and gentlemen, has a neutral effect. It does not go one way or the other. It neither confirms nor rebuts the suggestion that the defendant was in possession of the dangerous drugs. I perhaps refer you then to Mr Chu’s comments in his closing speech where he is saying one answer might be that he had not touched them, but there are many other answers for why there may not be a mark on a plastic bag. So that evidence does not assist you one way or the other.”[25] (Emphasis added.)

77.  Of significance to the prosecution case was the evidence that the bag of Ice that was recovered from the applicant’s shoulder bag was lacking any string to tie the opening of the bag together.  This was a piece of circumstantial evidence from which an inference could be drawn that the applicant had at one point opened the bag, perhaps to check its contents, and through so doing would have obtained knowledge of the presence of Ice in it.  The judge specifically directed the jury on how the missing string could be relevant to the prosecution case.[26] The absence of any fingerprint on the bag was potentially helpful to the defence as it was consistent with the defence case that the applicant had no association with this packet of Ice. 

78.  Arguably, in the absence of any expert evidence on why a fingerprint might not be deposited on a particular surface, the judge was not entitled to give the directions she gave and, in effect, give evidence that there were other explanations for why the applicant’s fingerprints might not be on the bag.

F.     Discussion: Leave to appeal against sentence

79.  It was an admitted fact in the trial that the carton box in question was part of a consignment of five boxes that originated from Shenzhen.  There was no evidence as to who had actually picked up the five carton boxes and what had happened to them until the carton box in question reached the hands of the applicant. Also, there was no evidence as to what was going to happen with the drugs after the applicant collected it.  Nevertheless there was a label on the carton which indicated that it originated from China.  In returning the guilty verdict, it is clear that the jury must have rejected the applicant’s testimony that he came to Hong Kong as a tourist.  Given that he had arrived on the same day of his arrest and that his hotel booking was made only for one night, the judge was entitled to draw the inference that he came to Hong Kong for the purpose of taking possession of the Ice and of then subsequently dealing with it. 

80.  However, it is reasonably arguable that the evidence did not allow of an inferential finding that the applicant was “part of a plan to import Ice from China”.[27] It is reasonably arguable that when an unknown person collected the consignment of five cartons at the logistics depot four days previously, it could be inferred that the act of importation then came to an end.  Clearly, the applicant was associated with the post-importation distribution of the drug, in a way which is not clear, but, arguably, it does not follow that he had to have been a party to the importation of the drug into Hong Kong.  Does the mere receipt by the applicant of the Ice in the circumstances underlying his conviction, including that he may be inferred as knowing from the label on the carton that it came from the Mainland, provide a sufficient evidential basis to link him to the initial act of importation?[28]  In my view it is reasonably arguable that it does not and I granted the applicantleave to appeal his sentence on this ground and an Appeal Aid Certificate so that he could have the benefit of legal representation in arguing it.

G.     Disposition

81.  For these reasons I granted the applicant leave to appeal against his conviction and sentence.

[1] They were packed underneath 51 packets of real charcoal that were similarly packaged but in black bags within a plastic bag.

[2] Appeal Bundle, page 14, [1]. 

[3] Appeal Bundle, page 227 K-L.     

[4] Appeal Bundle, page 256 N.

[5] Appeal Bundle, page 319 Q. 

[6] Appeal Bundle, pages 325 O – 327 N.  Only counter 173 – 180 at 17:55:02 – 17:55:40 was played.    

[7] Appeal Bundle, page 287 H.  Mr Chu informed the judge:

“We did put our heads together and the defence has no objection for the rebuttal application.”  

[8] Appeal Bundle, pages 287 J – 288F. 

[9] Appeal Bundle, page 287 Q.

[10] Appeal Bundle, pages 381 R – 382 C.

[11] Appeal Bundle, page 79 D – F.

[12] [2009] 2 HKLRD 437

[13] Appeal Bundle, page 73 M – P.

[14] See HKSAR v Wong Wang Sang Stephen & Another, CACC 310/2006, unreported, 3 September 2008, at [56].

[15] Appeal Bundle, page 360 M – T.

[16] Appeal Bundle, pages 391 U – 393A.

[17] Appeal Bundle, pages 398 H – 400B.

[18] [2013] 1 HKLRD 1093

[19] (2003) 6 HKCFAR 113, [37].

[20] Appeal Bundle, pages 290 C – 291 G.

[21] Appeal Bundle, pages 389 T – 390 A.

[22] Appeal Bundle, page 39 L – M

[23] Appeal Bundle, page 56 C – J.

[24] The issue of lifestyle direction has been the subject of discussion by the Court of Appeal in HKSAR v Muramova Anna,CACC 420/2014, unreported, 31 August 2016; HKSAR v Chu Pak Cheong [2006] 3 HKC 330 and more recently in HKSAR v Siti Handayani [2020] 1 HKLRD 496. 

[25] Appeal Bundle, pages 27 Q – 28C.

[26] Appeal Bundle, page 33 M – P.

[27] Appeal Bundle, page 73 M.

[28] See the discussion by the Court of Appeal in HKSAR v SK Wasim [2020] 2 HKLRD 1139.