HKSAR v. WONG CHUN YAU

CACC 118/2019

[2020] HKCA 519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 118 OF 2019

(ON APPEAL FROM HCCC 128 OF 2017)

------------------------

------------------------

__________________________

REASONS FOR JUDGMENT

__________________________

1.  The applicant was charged with a single count of trafficking in a dangerous drug, namely 13.19 grammes of a crystalline solid containing 12.93 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was convicted by the verdict of the jury after trial before Alex Lee J (“the judge”)and sentenced to 6 years and 11 months’ imprisonment. Subsequently he filed a Notice of Application for Leave to Appeal (“Form XI”) against his conviction only.

2.  He was unrepresented at the hearing of the application.  At the hearing of the application I granted leave to appeal and granted the applicant an Appeal Aid Certificate so that he could have legal representation at his appeal.  These are my reasons for so doing.

The Indictment

3.  The count in the indictment pleaded that on 18 September 2016 the applicant unlawfully trafficked in the 12.93 grammes of Ice at Tai Wo Estate Bus Terminus, Po Nga Road, Tai Po.  The Ice was in fact concealed in a cigarette packet that had been placed in the door handle of a car, next to the driver’s seat, which the applicant was driving.  The particulars of the charge made no mention of any other person.  However, it subsequently became known that another person was involved with these drugs.  This person’s name is Mok Shu Ming (“Mok”).

The involvement of Mok Shu Ming

4.  The clerk’s log from the proceedings in the Court of First Instance reveals that on 22 November 2017 Mr Shaun Kelly, counsel on fiat for the prosecution, informed Deputy High Court Judge Lugar-Mawson that the Director of Legal Aid had informed the Department of Justice that a person in Stanley Prison had admitted ownership of the drugs.  Mr Kelly applied for and obtained an adjournment of the applicant’s case.

5.  The applicant’s case was subsequently listed for trial before the judge but in the interim Mok was separately charged with unlawfully trafficking in the Ice which is the subject of the applicant’s count and on 29 November 2018 he pleaded guilty to this charge.  Mok’s charge pleaded that he committed this offence together with the applicant, but this was known only to the judge, not the jury.

Pre-trial discussions concerning Mok

6.  At a pre-trial review held on 8 January 2019, Ms Liza Yip, who appeared for the applicant, informed the judge that Mok would give evidence for the applicant and that the prosecution intended to amend the indictment so that the count would plead that the applicant committed the offence “together with Mok Shu-ming”.  The court noted that the prosecution case was one of joint possession of the Ice by the applicant and Mok.  The court directed that the trial would start on 12 March 2019.

7.  On 4 March 2019 Mr Kelly forwarded to the judge a copy of his amended Prosecution Case and Amended Indictment.  The amended Prosecution Case concluded with the following two paragraphs:

“ The prosecution case is that because of the quantity of dangerous drugs, the number of packages of dangerous drugs, the location at which the drug was found and all other circumstances of the case, the defendant jointly possessed the drug along with Mok Shu Ming for the purpose of trafficking.

     The prosecution will rely on Mok’s plea of guilty in proving the joint enterprise element in the indictment.”

8.  On 11 March 2019 the judge’s clerk wrote to Mr Kelly informing him that the judge queried how Mr Kelly was intending to prove Mok’s involvement and what the attitude of the defence was to whatever he was proposing.

9.  The same day Mr Kelly replied to the judge’s queries informing him that Mok would not be a prosecution witness and that he was now of the view that Mok’s plea was irrelevant and therefore not admissible.  However, he foreshadowed the possibility that the defence may wish Mok’s plea to be adduced before the jury.

10.  On the next day, 12 March 2019, the judge discussed with Mr Kelly how he would be presenting the prosecution case.  At first Mr Kelly said it would be as a joint enterprise between the applicant and Mok but then conceded there was no evidential basis for such a case.  Mr Kelly then agreed that he would have to present a case of the applicant acting on his own with no mention being made of Mok or his guilty plea.

11.  Ms Yip then informed the court that she had instructions to call Mok but no final decision had been made to do so.

12.  Mr Kelly decided not to pursue his amendment of the indictment in which Mok was to be particularised as an unindicted co‑accused.

13.  At the conclusion of the hearing the judge directed Ms Yip to inform Mr Kelly by 5 pm that day whether she would be calling Mok in the defence case.  In the morning of the following day Ms Yip informed the court that she would not be calling Mok.  Later that morning, Mr Kelly opened his case to the jury and in doing so made no mention of Mok.

The prosecution case

14.  At about 0230 hours in the morning of 18 September 2016, the applicant was seen sitting on the driver’s seat of a private car which was illegally parked at the bus stop area of Tai Wo Estate on Po Nga Road, which was a restricted area.  It was an admitted fact that this car was registered in the name of the applicant’s mother and was lent to him for his personal use. 

15.  PW1, a police sergeant who was patrolling in the vicinity, approached the car and made some preliminary enquiries with the applicant.  Suspecting that the applicant was in possession of a dangerous drug, PW1 summonsed his colleagues to the scene to provide assistance.

16.  PW2, the exhibits officer in the case, searched the private car and found a cigarette packet that had been placed in the door handle of the car next to the driver seat.  Inside the cigarette packet, there were six transparent resealable plastic bags and also another transparent resealable plastic bag containing six other resealable plastic bags, which contained the Ice particularised in the charge.  The applicant was arrested by PW1 and remained silent under caution.

17.  It was an admitted fact that the estimated value of the Ice in question, if sold at street level, would be about HK$4,788. Amongst all the seized exhibits only the cigarette packet was sent for fingerprint examination but no marks of value could be found on it.

After the prosecution closed its case

18.  The prosecution closed its case in the afternoon of 14 March 2019 and with no contrary submission from the defence the judge ruled that the applicant had a case to answer.  The court then adjourned the case to the following day.

19.  On that day it became clear that Ms Yip was negotiating with Mr Kelly the drafting of a second set of Admitted Facts and these related to Mok’s guilty plea in respect of the drugs that were the subject of the applicant’s count.  Mr Kelly was of the view that Mok’s plea of guilty was irrelevant to the case against the applicant.

20.  The relevance of Mok’s guilty plea then became the subject of submissions by counsel to the judge as Mr Kelly was not willing to agree to the admission of evidence of Mok’s plea without a ruling by the judge.

21.  The judge then ruled that this evidence was admissible for the limited purpose of showing that Mok’s guilty plea was consistent with the defence case that the Ice belonged to somebody else.  The actual ruling was orally delivered and was as follows:

“COURT: All right, and now if counsel do not want to make further submission on this, I formally rule that the fact that Mok has been convicted of trafficking is relevant...

MR KELLY: Yes, all right, my Lord.

COURT: ...in view of the fact that it is the defence case that the drugs actually belong to Mok. I think that is the defence case, and is it correct that it is your case that the drug actually belongs to Mr Mok?

MS YIP: Yes, yes.

COURT: Well, yes. And in that case, the fact that Mr Mok has pleaded guilty to the charge of trafficking would be relevant.

MR KELLY: All right.

COURT: Of course, that doesn’t necessarily mean that this defendant is not guilty of the charge.

MS YIP: And all the...

COURT: But this is a relevant factor, in my view, for the jury to take into account in order to assess the weight of the defence case.”[1]

22.  In view of that ruling Mr Kelly and Mis Yip were given some time to discuss and prepare another set of admitted facts, reflecting Mok’s interaction with the applicant pending his case and his guilty plea.  This was subsequently signed and submitted to the judge. 

23.  The judge anticipated that the admission into evidence of Mok’s guilty pleato trafficking in the same batch of drugs would affect the way the prosecution would present its case and how Mr Kelly would cross-examine the applicant.  Mr Kelly confirmed that this would be so in the following exchange with the judge:

“COURT: Now, the situation arise (arises?) because you are going to introduce a piece of evidence showing that somebody else, Mr Mok, has claimed liability for the same quantity of dangerous drugs.

MS YIP: Yes.

COURT: Then I think naturally, Mr Kelly will seek to cross-examine the defendant on this, and it may well be that Mr Kelly will cross-examine the defendant on the basis of - I don’t know - joint possession...

MR KELLY: Yes, yes.

COURT: ...or in fact the or at least, at the very least that the fact that the same quantity of drugs can be possessed by different person at different stages.

MS YIP: Yes.

COURT: So I think...

MR KELLY: Yes.

COURT: ...so although Mr Kelly has previously made his stand clear in the absence of the jury that he is not going to put forward a case of joint enterprise in view of the state of the evidence then, the situation may change now.

MS YIP: Yes.

MR KELLY: Yes.

COURT: And I think that has to be appreciated.

MS YIP: I know. I’ve -- that’s why I said I needed proper advice given to my client.

COURT: All right.

MS YIP: I have already forewarned giving him that.

COURT: All right.

MS YIP: And -- but because my instruction, of course my instruction is he said, ‘No, I didn’t even know,’ so...

COURT: All right.

MS YIP: ...he elects to give -- he is fully aware of that.

COURT: All right. I raise this...

MS YIP: Yes.

COURT: ...so that nobody is under any misconception and it’s to be fair to the defence so that the defence will know what the prosecution may do, and I think is it in fact what the prosecution is going to do?

MR KELLY: Of course, we will, my Lord, yes, yes.

MS YIP: Sorry. You’re going to say Mok pleaded guilty to a joint enterprise?

MR KELLY: No, what I propose to say, subject to the evidence, is there is either one of two scenarios.

COURT: Yes.

MR KELLY: Either you were both involved in this transaction...

COURT: Joint possession.

MR KELLY: Joint possession. Or at one stage, Mok had it and then he passed it to you.

COURT: Yes, I think that is...

MR KELLY: And those are the two possibilities and I most certainly will, my Lord. That will be...

COURT: Yes, I think Mr Kelly has...

MR KELLY: ...my attack on the defendant.”[2]

24.  The case was then stood down to enable Ms Yip to advise the applicanton how the prosecution case would be conducted, which might have a bearing on his decision whether to give evidence. Ms Yip subsequently confirmed with the judge that the applicant was fully aware of the situation and elected to give evidence.  Accordingly, the second set of Admitted Facts (which became “Exhibit D2”) were formally produced to the court by Ms Yip and explained by the judgeto the jury.  Thereafter, the applicant gave evidence and he did not complete his testimony until Monday 18 March 2019, after which counsel delivered their closing speeches.

The defence case

25.  The defence case commenced with the production of Exhibit D2 and in this document the following admissions were made:

(i)     on 24 September 2016, whilst the applicant was remanded in custody, he was visited by Mok;

(ii)     the applicant was granted court bail on 28 September 2016;

(iii)    on 2 November 2017 the applicant visited Mok who was then in custody.

26.  Exhibit D2 concluded with the following paragraph:

“9. On 25^th May 2018, MOK was charged with a single count of trafficking in dangerous drugs, which are specified in the indictment of the present case. On 29^th November 2018, MOK pleaded guilty to that single count of trafficking and was committed to the High Court for sentence. [HCCC 346/2018, HKSAR v MOK Shu Ming.]”[3]

27.  The applicant then testified.  He said he knew nothing about the Ice and that it actually belonged to his friend, Mok.  He said that in the evening of 17 September 2016, he gave Mok a ride to Tai Wo Estate upon Mok’s request.  He said at that time Mok chose to sit on the back seat of his vehicle rather than on the front seat.  After he pulled over at the bus stop and Mok had alighted from his car, he noticed the cigarette packet lying on the floor of the car in front of the back seat.  Thinking that it belonged to Mok, he picked it up and placed it in the door handle next to the driver’s seat. He did not open the packet to check its contents.

28.  At trial, it was in dispute as to whether the applicant in fact witnessed the car search being done and was shown with P1 and its contents.  It was his case that he did not realise Ice had been found in his car until he appeared before the duty officer at Tai Po Police Station.  As soon as he realised this he immediately informed PW3, the investigating officer of the case, that the Ice might belong to Mok.

The judge’s discussions with counsel before closing speeches

29.  Mr Kelly’s cross-examination of the applicant prompted the judge to confirm with Mr Kelly that one of the bases of liability on which he was inviting the jury to convict was joint enterprise.  Ms Yip queried if that could be done in light of the fact that the count was not pleaded as a joint enterprise crime with Mok.  The judge responded by saying to Ms Yip that the prosecution could not originally name Mok in the count because, at the beginning of the trial, there was no evidence of his involvement.  The judge continued:  

“… But now that we have the Admitted Facts, the situation may be different.”[4]

30.  However, he said he would want to hear from counsel on whether there was a sufficient evidential basis for joint enterprise.  In this respect he noted that there was evidence from the applicant that Mok was with him the evening of his arrest and that the package belonged to Mok so that:

“… there seems to be some basis to say that they were acting together. …”[5]

31.  Ms Yip then queried the fairness of the prosecution now being allowed to change its case to one of joint enterprise. This led to the judge wondering whether the prosecution could present a case of joint possession rather than joint enterprise.  Mr Kelly indicated his agreement with this approach.  Because this became the way the judge directed the jury it is important to set out the judge’s exchange with counsel as illuminating his thinking on the matter:

“MS YIP: My Lord, I may have run in a bit of difficulty with that. Then if that was the case, had it been a joint enterprise all along, my client’s decision may be that he would call Mr Mok directly...

COURT: Yes, yes, the...

MS YIP: ...rather than doing it this way.

COURT: I appreciate that. Another thing is that may not be necessary. I think I’m just thinking aloud about the basis of -- I’m just thinking aloud because Mr Kelly has cross-examined the defendant on the basis of a joint enterprise.

MS YIP: Yes.

COURT: Of course, the defendant denied that but there is now before the jury some evidence that if the jury accept that Mr Mok had been in the car and the defendant was giving Mr Mok a ride, so there may be some evidence of a joint enterprise.

MS YIP: That’s why I said I need to do a bit of research on that now that the defendant is only facing this one, and all along, throughout the entire case, the prosecution produced nothing to say that there was another person there. And in fact, at the start of this case, they knew that we kept saying all along that there was another person there, and in fact the beginning of the conversation with the sergeant - my client didn’t lie about it - the sergeant said, ‘What are you doing here?’ ‘I’m waiting for a friend.’

So the prosecution knew their case all along and it appears that, you know, now that my client presented Mr Mok, Mr Mok has, you know, admitted to everything, they are trying to -- having a second bite of the cherry.

COURT: But if your case -- but in case you were right, then that would mean that the only basis for them is -- then the basis of joint enterprise would not be available to them.

MS YIP: Yes, that’s what I’m...

COURT: But that would be a different issue about joint possession because they can still run the case of joint possession.

MS YIP: Yes, of course.

COURT: So it very much depends on the...

MS YIP: They could still run the fact that my client knew all along or even that mistake...

COURT: So it very much depends on Mr Kelly will hold onto the basis of joint possession and not proceeding with joint enterprise, and in which case then if he has limited himself to either joint possession or successive possession...

MS YIP: Yes.

MR KELLY: Yes.

COURT: ...namely that he got it from Mok and kept it...

MS YIP: Yes.

COURT: ...and that would -- if it is a case of either successive possession or joint possession, then that would do away with joint enterprise.

MS YIP: We’re still talking about only possession, yes.

MR KELLY: I can agree with that, my Lord, and I’m happy to use that formula.

COURT: And in which case then I think you’ll have to tailor your closing speeches to just joint possession...

MR KELLY: Yes, yes, I...

COURT: ...or successive possession, whatever you may...

MR KELLY: Yes, one or the other which is I think the basis I indicated. This really only arose from the point that the defence put in the mention of Mok...

COURT: All right.

MR KELLY: ...being trafficked. So I think it’s only fair to prosecution to explore that aspect.

COURT: So would you still need time to do your research in which case, Ms Mok -- Ms Yip?

MS YIP: Yes, I would be grateful if I could. No, my Lord. I think I’m quite happy with it.

COURT: All right. Now, Mr Kelly, if you are restricting yourself...

MS YIP: I don’t know what...

COURT: ...to joint possession or successive possession, then perhaps given the indication of Ms Yip that she is not objecting to those, then I think we can ask the jury back and you can respond.

MR KELLY: Yes, I’m happy enough to use -- to do that, my Lord.

COURT: All right. Thank you.

MR KELLY: Yes.

COURT: Yes.

MS YIP: All right. Sorry, sorry, sorry. My Lord, in fact if he is -- my learned friend is saying joint possession or successive possession, he is still saying that there seems to be a certain amount of joint enterprise, my Lord.

COURT: But it very much depends on how I direct the jury.

MS YIP: Yes.

COURT: If I direct them only on the possession for unlawful trafficking, then that will do away with...

MS YIP: Yes, okay, yes.

COURT: Then -- and I would emphasise to the jury...

MS YIP: But with...

COURT: ...that that would be the only basis for them to convict the defendant if they...

MS YIP: Yes.

MR KELLY: Right.

COURT: ...are sure that the defendant was in possession of the drug...

MS YIP: Yes.

COURT: ...and...

MS YIP: ...and then the defence is all along, although he is in physical possession, he didn’t know right from the beginning till the end anyway.

COURT: Yes.

MS YIP: That’s our case, yes.

COURT: All right. Okay.”[6]

(Emphasis added)

The prosecution’s closing speech

32.  In his closing speech Mr Kelly presented the prosecution speech in the following way:

“And the prosecution presents its case in this way, that at that time the defendant either had joint possession of the drugs with Mr Mok whom you have heard has pleaded guilty to trafficking in this quantity of drugs, whether they had joint possession or what might be described as successive possession. In other words, that the drugs have been passed on to the defendant and that they were his sole -- he was in sole possession of them knowing, of course, that they had -- that they contained drugs. …”[7]

and later he said:

“Now, we know that Mok has pleaded -- we know from the Admitted Facts that Mok has pleaded guilty to trafficking in dangerous drugs, the drugs which are the subject matter of this charge, P1, P2, P3. But the situation is -- and again his Lordship will explain to you -- that two people can possess an object. Even though Mok has pleaded guilty, there is nothing in that guilty plea that precludes the defendant from having had joint possession at the time. Of course, his Lordship will explain it’s a matter you take into account. But what the prosecution says is that either it was joint possession, in other words Mok and the defendant, and Mok has admitted his guilt, or successive possession in the sense that Mok had the drugs and Mok says, ‘Well, I’m pleading guilty,’ and then he hands it over to this defendant who then takes possession of it and possession knowing -- knowing that it contains drugs.”[8]

33.  He then returned to the two alternative forms of the applicant’s possession of the Ice when he discussed what was meant by trafficking in a dangerous drug.  He said:

“Now, the issue of trafficking, again, you have been told a definition of trafficking, but again his Lordship will tell you exactly what trafficking is. But as I say, what the prosecution here says is that the defendant either jointly with Mok or after Mok had given away possession of the drugs, that he possessed -- that the defendant possessed those drugs for trafficking. And what we say is that he had them for dealing in or dealing with. …”[9]

The defence closing speech

34.  Ms Yip highlighted the issue for the defence in the following way:

“The main issue in this case, as my learned friend already highlighted, is at the time when the defendant was found inside that car in the physical proximity of that packet of cigarette package inside contained dangerous drugs did he have knowledge of what was inside, be it in the beginning at the back. His evidence is that it belongs to Mok. He didn’t know anything about it -- anything about it. In fact, he went as far as he didn’t have any reason to suspect that Mok was, in fact, involved in dangerous drugs.”[10]

The judge’s discussions with counsel after closing speeches

35.  In this discussion Mr Kelly expressed the hope that he had put his case in a way which limited the allegation against the applicant to one of joint possession without engaging joint enterprise as a basis of liability.[11] The judge then disclosed how he proposed to direct the jury and both counsel agreed with his intended directions.[12]

The judge’s summing-up

36.  In the course of his summing-up the judge directed the jury as follows:

“ In the present case the prosecution put its case on the sole basis that the defendant was at the material time in possession of the ‘Ice’ for the purpose of trafficking. Therefore, you can only convict the defendant of the charge if you are sure that the prosecution has proven that at the time and place as stated in the indictment that:

(1) the defendant was in possession of the dangerous drugs, P2 and P3, which were inside the cigarette box, P1;

(2) he knew that the things inside P1 were a kind of dangerous drug;

(3) he possessed P2 and P3 for the purpose of trafficking.

The prosecution must prove all of the above three matters before you can convict the defendant of the charge.”[13]

After explaining the concept of possession, the judge said:

“ In the present case, the prosecution says that it was either that Mr Mok had at some stage passed the possession of the ‘Ice’ to the defendant or that the defendant and Mr Mok had been in joint possession of the ‘Ice’.

…

… In the present case, however, if you are sure that the defendant was in possession of the ‘Ice’ at the material time then it would matter not whether he got it from Mok or he was in joint possession of it with Mok.”[14] (Emphasis added)

When dealing with the Admitted Facts relating to Mok, he said:

“ As to (c) the fact that Mr Mok has pleaded guilty to trafficking in the ‘Ice’, which is the subject matter of the charge, is made known to you. I have already directed you on the elements of the offence of trafficking; in particular, the concept of successive possession and joint possession. Now, the prosecution is saying that the defendant and Mok were either in successive possession or joint possession of the ‘Ice’ for the purpose of trafficking. The defence case is that Mr Mok was acting on his own and the defendant knew nothing about it.

Now, you must concentrate upon the case of the defendant alone and decide whether the evidence before you makes you sure of his guilt. If the prosecution were right that the defendant was either in successive possession or joint possession of the ‘Ice’ with Mr Mok, then the fact that Mr Mok had pleaded guilty can have no bearing on your decision in the case of this defendant.

On the other hand, if you consider that having taken into account all the evidence including Mr Mok’s guilty plea you cannot be sure of the defendant’s guilt, in that, what the defendant has said in his evidence about his not having possession or knowledge of the ‘Ice’ is true or may be true, then you must return a verdict of not guilty.”[15]

The applicant’s grounds of appeal

37.  The applicant was unpresented in the present hearing.  In his Form XI filed on 16 April 2019, he made eight complaints and in his affirmation dated 21 May 2020, he made eleven complaints, none of which, in my view, provided a reasonably arguable ground of appeal.

Consideration

38.  Although I found none of the applicant’s complaints provided a reasonably arguable ground of appeal, I was concerned that it was recognised by the judge and the prosecutor that the prosecution case could not be run on the basis of joint enterprise and that a conviction on this basis was not available as there was no evidence to support it.  To meet this situation the judge then introduced the concept of joint possession, with the agreement by both counsel, and directed the jury that this was one of the bases on which they could convict the applicant. 

39.  It is, in my view, reasonably arguable that, in the circumstances of this case, the distinction between joint possession and joint enterprise is an artificial one and is, in reality, a distinction without a difference.  Here, there was not just an allegation of joint possession but also an allegation of joint mens rea ie Mok and the applicant both intended to possess the Ice for the purpose of trafficking in it.  If there was insufficient evidence to justify leaving joint enterprise as a basis for conviction then it is reasonably arguable that there was insufficient evidence for this alternative form of liability, described as “joint possession”, to be left to the jury as it could be said that it is just joint enterprise under another name.  If that is so then the consequence is that the prosecution was able to get in by the back door, what it could not get in through the front door.

40.  On the assumption that joint possession was available on the evidence then the question arises of whether the jury was correctly directed on what they must find.  In this respect the judgment of the Court of Appeal in HKSAR v Li Jin[16] is relevant.  The passage setting out the relevant legal principles can be found at paragraph 18 of the judgment where Line J, in giving the judgment of the court, said:

“18. We would suggest that judges in cases where joint possession is an issue add to the standard directions that ability to control is not the same as exercising control and that proof of the exercise of control requires proof of more than knowledge and acquiescence. In practical terms it must be pointed out that someone in the position of, as in this case, a wife must be proved to have done something to advance or promote or encourage her husband’s possession if she is to be found in joint possession.”[17]

41.  I am also concerned whether there was evidence of successive possession.  My concern stems from the bare nature of the admitted fact in respect of Mok’s plea.  This admitted fact makes no mention of when Mok was trafficking in this Ice, when he had possession of it, the circumstances surrounding his possession of it or how he had passed it to the applicant before the applicant’s arrest that evening.

42.  In order for the prosecution to rely on either joint or successive possession they would inevitably have to ask the jury to disbelieve the applicant in his denials of complicity but to accept that part of his evidence concerning the presence of Mok in the car earlier in the evening. This would require careful direction from the judge on how they could reach such a verdict and such directions are not obviously apparent from the judge’s summing-up. 

43.  I do note that the judge did explain to the jury that what they had to be sure of was that the applicant possessed the Ice and intended to traffic in it.  However, whether these other directions of the judge can overcome the difficulties posed by him leaving to the jury the two alternative forms of possession as a basis for conviction, is something that only the Court of Appeal can address.

44.  In a nutshell my concerns can be summarised as:      

(a) whether the distinction drawn by the judge between joint possession and joint enterprise was a valid one in the circumstances of this case;

(b) if this was, in reality, a distinction without a difference, whether the evidence allowed of an inference of joint enterprise;

(c) whether the evidence allowed of an inference of successive possession; and

(d) whether the judge’s directions on the law were correct and whether his directions on the evidence were sufficient to enable a jury to know how they might reason a conviction on the basis of joint possession or successive possession.

Disposition

45.  For these reasons I granted the applicant leave to appeal his conviction and an Appeal Aid Certificate, in order to assist him in arguing his appeal before the Court of Appeal.  However, I do not intend to limit the grounds his future counsel may wish to advance on his behalf, in addition to the matters I have identified.

[1] Appeal Bundle, page 153F-P.

[2] Appeal Bundle, pages 155E-156P.

[3] Appeal Bundle, page 9 at [9].

[4] Appeal Bundle, page 159L-M.

[5] Appeal Bundle, page 160N.

[6] Appeal Bundle, page 162C-164U.

[7] Appeal Bundle, page 96Q-T.

[8] Appeal Bundle, page 99O-U.

[9] Appeal Bundle, page 102B-E.

[10] Appeal Bundle, page 104K-N.

[11] Appeal Bundle, page 116E-H.

[12] Appeal Bundle, pages 116I-118C.

[13] Appeal Bundle, page 17K-S.

[14] Appeal Bundle, pages 19I-J, 20C-E.

[15] Appeal Bundle, pages 26Q-27I.

[16] [2010] 4 HKLRD 614

[17] Ibid, 619 at [18].