HKSAR v. WU CHI KI

CACC 39/2020

[2022] HKCA 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 39 OF 2020

(ON APPEAL FROM HCCC NO. 151 OF 2019)

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R E A S O N S  F O R  J U D G M E N T

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

Introduction

1.  The appellant was convicted of one count of trafficking in a dangerous drug[1]after trial before Campbell-Moffat J (“the judge”) and a jury.  He was then sentenced to 28 years’ imprisonment.  He sought leave to appeal against both conviction and sentence. 

2.  With leave obtained from a single judge^[2], the appellant advanced three grounds of appeal against conviction.  In respect of the sentencing application, leave was granted as to the totality of the sentence imposed. 

3.  Before us, Mr Wong Hay Yiu, counsel for the appellant, but not in the proceedings below, argued that the conviction appeal should be allowed based on the grounds in respect of which leave was granted.  In the event that the conviction was to stand, Mr Wong submitted that the judge had adopted the wrong tariff and had excessively enhanced the sentence.  He therefore invited this court to reduce the sentence passed.  

4.  At the conclusion of the hearing, we dismissed the appeal against conviction but allowed the appeal against sentence, substituting the original term with one of 24 years.  These are our reasons. 

The prosecution case

5.  The prosecution alleged that the appellant recruited Cheng San Faat (PW1) and Tjeng Julianto (PW4) as drug couriers and arranged for them to join an organised tour so as to smuggle the Ice in question to New Zealand^[3].  The drugs were concealed in custom-made underwear worn by PW1 and PW4.  On 23 October 2013, the duo were arrested at the Hong Kong airport prior to departure.  Under caution, both admitted smuggling the drugs for a reward and provided information about the appellant’s involvement. 

6.  The appellant was arrested on 3 July 2017.  At trial, the prosecution mainly relied on the testimony of PW1 and PW4, who by then had pleaded guilty to the offence and were serving terms of imprisonment.  They described how they became acquainted with the appellant and how they were tempted by the reward and the opportunity to travel overseas to accept the offer to carry drugs to New Zealand.  In addition, PW1’s and PW4’s telephone records, which showed multiple calls between them and the appellant, were adduced to prove the appellant’s involvement in the drug trafficking. 

7.  The appellant elected to testify and called his girlfriend Ms Tong (DW2) as an alibi witness and another witness (DW3) to testify on the appellant’s tattoos.  The defence case was that while the appellant knew PW1 and PW4, he had nothing to do with the drug trafficking.  It was suggested that the two prosecution witnesses merely named the appellant as the recruiter in order to obtain a reduction in sentence. 

Reasons for Sentence

8.  In sentencing, the judge referred to the tariff in HKSAR v Abdallah Anwar Abbas^[4]and adopted a starting point of 23 years and 6 months.  She then enhanced it by 2 years on account of the international element.  Further, in view of the appellant’s role which the judge considered to be an aggravating factor, the sentence was increased by another 2 years and 6 months, resulting in a term of 28 years. 

Grounds of appeal against conviction

9.  At the hearing before us, Mr Wong sought to argue the following grounds in respect of which leave was granted. 

10.  By ground 1, it was submitted that the judge’s summing-up was unbalanced and unfair in that: (i) it contained strong adverse comments on the appellant and his witnesses which were unnecessary and inappropriate, and (ii) part of the summing-up appeared to be a second speech for the prosecution. 

11.  By ground 2, it was complained that there was material irregularity in the course of the trial in that: (i) at the end of the examination-in-chief of PW1, the judge, despite objection from the defence, wrongly permitted the prosecution to ask the witness how he felt after pleading guilty and being imprisoned to which PW1 gave a “long, self-pity and very emotional answer”, and (ii) the judge failed to direct the jury that they should put aside any sympathy and emotion which they might have for PW1. 

12.  Ground 3 relates to the judge’s alleged failure to give proper directions on the post-offence conduct relied on by the prosecution to show a consciousness of guilt on the part of the appellant, namely: (i) the appellant changing his mobile telephone number not long after the arrest of PW1 and PW4 and a further change of that number to an unregistered telephone number in mid-2015 to early 2016; and (ii) the appellant’s sending of a letter to PW4 through PW3. 

Grounds of appeal against Sentence

13.  Mr Wong submitted that, whilst the judge adopted an initial starting point of 23 year and 6 months by reference to HKSAR v Abdallah^[5], on the date of the offence, the applicable guidelines were those in AG v Ching Kwok Hung^[6].  In the circumstances, Mr Wong suggested that the appropriate starting point should be one of 20 years. 

14.  Further, Mr Wong contended that the total enhancement of 4 years and 6 months for the international element and the appellant’s role, which represented an enhancement of 19% from the erroneous starting point of 23 years and 6 months, was manifestly excessive and there was no evidence to suggest that the appellant was more than a mere recruiter of couriers. 

Discussion

Appeal against conviction

Ground 1: Unbalanced and Unfair Summing-up

15.  The impugned comments which were said to be adverse and unnecessary arose in the following passages of the summing-up (emphasis supplied by Mr Wong):

“Photographs. You have got photographs. You have got photographs of the drugs, of the underpants, etc. You know there was trafficking in dangerous drugs. It might be quite interesting to know how some people think they can get away with trafficking in dangerous drugs, but it most probably is not going to make any difference whatsoever really to your decision-making, which is, was it the defendant who recruited PW1 and PW4.^[7] (the 1^st impugned comment)

There are other photographs from the defendant, D1 and D5, the ‘Oh My Case’ shop, which is not really helpful one way or the other, but you know what happened in his life, and the tattoos. I am going to say to you, and I will say throughout, I think the whole tattoo - this is purely my view - the whole tattoo issue is a red herring.

What is a red herring? It is something which is not relevant. You, of course, may take a wholly different view, but it may be why I am not going to go there very much on the tattoos. Because the point is they know each other. …”^[8] (the 2^nd impugned comment)

“…that given these two witnesses [PW1 and PW4], there was a setting up of the recruitment of these - I would like to call them ‘idiots’ personally - these two very naïve, stupid and greedy young men who are paying the price for that now.”^[9] (the 3^rd impugned comment)

“… So that part of it, the fact that he is saying ‘Well, I changed my phone number because I didn’t like the number and I changed my actual supplier to this provider because I didn’t think the reception was good.’ I would ask you to remember this is Hutchison. I do not know if your Hutchison phone is rubbish or not. Certainly, my email system does not seem to be particularly brilliant. He cannot give - if he is innocent of this, he cannot give evidence about dates and times if he is innocent, all right. If he is not innocent, he has chosen not to give evidence about dates and times, that is a matter for you. But I am reminding you that if he is actually innocent of this, he would go ‘Well, you can ask me as many questions as you like, I don’t know.’”^[10] (the 4^th impugned comment)

16.  Mr Wong submitted that, given the way in which the comments were made, the jury would have been left with no choice but to adopt what the judge said, thus causing unfairness to the appellant. 

17.  We have said time and again that a judge’s summing-up should be read as a whole^[11].  This important observation was exemplified in the present complaint as Mr Wong sought by ground 1 to highlight the comments and to suggest adverse effect without putting them in context. 

18.  At the time when the judge made the 1^st impugned comment, she was looking at the photographs with the jury.  If one looks at the photographs to which the judge referred, one could see that they were close-ups of the underpants in question and they depicted how several packets of the drug were concealed, which made the underpants rather bulky and awkward-looking.  In the circumstances, and since the judge was correct to say that the jury already knew drug trafficking was involved, the comment, based on what the photographs depicted, was innocuous.  We do not see how unfairness could have been caused to the appellant, although the comment was perhaps unnecessary. 

19.  In respect of the 2^nd impugned comment, it is important to note what defence counsel at trial said about the evidence in his closing speech:

“… And my learned friend was right when he said [DW3’s] evidence is not relevant directly to the issue. … His only purpose was to talk about tattoos. And, again, whether the defendant had tattoos on one arm or two arms is not really relevant in his description or in his identification because we are dealing with people who knew each other.

…

But the purpose of [DW3’s] evidence is just this: To prove that what PW1 and PW4 told us, that in 2013 when they met the defendant he had tattoos on both arms, was incorrect. And that goes only to the creditworthiness of PW1 and PW4, no more.”^[12]

20.  Plainly, whether the appellant had tattoos on one or both arms was a peripheral and minor matter. Even if the jury found that PW1 and PW4 were incorrect in their descriptions, the impact such might have on the witnesses’ credibility would be insignificant and the judge was entitled to say so to the jury.  We also note that the judge had, at the same time, reminded the jury that such was “purely my view”.  We do not find anything objectionable about the 2^nd impugned comment. 

21.  In respect of the 3^rd impugned comment, while it was again unnecessary, it would not have done any harm to the appellant.  The jury was aware of the pleas of both witnesses and that both were serving their sentences.  The prosecution case that they were recruited as drug couriers was also not disputed.  The issue before the jury was merely this: was the appellant their recruiter.  In the circumstances, the judge’s descriptions of “idiots” and “naïve, stupid and greedy young men who are paying the price” were not anything new to the jury and the jury’s attention would not have been drawn away from the central issue of whether the appellant was the recruiter.  Further, the comment generally reflected the witnesses’ evidence about themselves. 

22.  Finally, in relation to the 4^th impugned comment, while we agree that the “Hutchison bit” was unnecessary, it was, at the end, beneficial to the appellant for it tended to support the appellant’s claim that the reception was not good.  No criticism could therefore be levelled against the judge on this matter. 

23.  As regards the “not innocent” part, again, the context is important.  In his closing speech, defence counsel had emphasised that:

“… Because, in essence, what the defendant had said in the video-recorded interview and his evidence in court is simply, ‘I was not the recruiter. I don’t know anything about their drug trafficking.’ And when he was asked in July 2017, 3 July, about matters dating back four years, a lot of his replies, as you will see in his video-recorded interview, indeed, in court, were truthfully, ‘I don’t remember.’ He didn’t try to make up as some people do -- or if, for example, he was really the recruiter and he really knew, ‘Oh my God, I was involved’, some people try to make up evidence to show the contrary. But the defendant did nothing like that. He didn’t even try to make up, ‘Oh, on that day I was’ – ‘I’m sure on the 15^th, I didn’t call them. I was here.’ He plainly gave answers that, ‘I really don’t remember.’ And that’s as truthful as one can be. A plain answer, ‘I don’t remember.” ^[13]

24.  It is therefore obvious that the judge’s “not innocent” comments were derived from the defence closing speech and followed the same theme of the defence argument that the appellant would not be able to say anything further other than to give the “truthful” answers, as described by defence counsel, of “I don’t know” or “I don’t remember”. 

25.  In respect of the other aspect of this ground, the parts of the summing-up which Mr Wong said amounted to a second speech for the prosecution were the following (emphasis supplied by Mr Wong):

“… I mean, [DW2] is telling you ‘I think I was window shopping. I think I took a picture of these socks because they were comfy.’ The only difficulty with this, ladies, is if you were with your partner, why would you take a picture of it? Because you can both see. So were they for somebody else? It all just sort of begs the question as to why on earth you would take a picture of a pair of socks. But maybe some of you do, I do not know. Maybe you go around taking pictures so you can look at them later because you do not buy them there and then; there might be all sorts of reasons.”^[14]

“And PW1 and PW4 are, you might think, were being fairly honest with you in saying, ‘You know, it was just tempting and we started to think about it. And of course, once we’d been told we were going to have our expenses paid for and we’re going to get the 50,000’ - most probably the 50,000 was the trigger, you know – ‘okay, now we’re going to balance that against the risk.’

…

But again the impression of their evidence you might think was that it was not until the day they were sentenced that it hit home how much of their lives they were going to give up because of what they had agreed to do. And that was the overriding motivation, they said, for why they decided they were not going to sit back and take this. Along with other things, you know, ‘I had the time to talk to my parents.’ No doubt, their parents shamed them about what they had done. ‘And I was looking at the people involved in prison and I was looking at people who were drug addicts and the state of drug addicts’, etc ‘and guilt got the better of me.’ That is what both of them said in different ways in their evidence. That they were feeling truly guilty.

But at the end of the day I think if we were going to be fair, a little bit of revenge was coming in there once they realised how long they were getting in prison. And they pointed the finger at the person they say was the person that put them there and they fought back so to speak. Whether that is right or wrong, I do not know, but that is certainly the impression I got from putting all of their evidence together. … Which is why you would look at their motivation for doing it in the first place because they are criminals. You know, they are convicted criminals. I have said that more than once and I think it is very important to say, so you have to take special care with their evidence. But you need to understand it. And you need to understand what they said and decide whether you believe that that is why they find themselves before you in this trial. And that is why again I gave you that chronology so you can see the way things happened to them as well as the way things have happened to the defendant to try and understand their thinking from the perspective of the prosecution and from the perspective of the defendant who is still saying, ‘Okay, maybe there wasn’t a grudge match here because of some fight we had, but nevertheless they’ve picked on me and it’s not me.’ But we do not know why else they picked on him.”^[15]

26.  With respect, we fail to see how the above could be termed a second prosecution speech.  Not only did the judge repeatedly remind the jury that PW1 and PW4 were “convicted criminals” and urged the jury to take special care in assessing their evidence, she also told the jury that the witnesses might have testified against the appellant because of “a little bit of revenge”. 

27.  In relation to the comment “But we do not know why else they picked on him”, it is important to note that defence counsel, in his closing speech, had suggested to the jury that there could be other reasons for PW1 and PW4 to lie about the appellant’s involvement apart from getting a reduction in sentence:

“Motive is not important in criminal cases. We don’t always understand why A killed B or why A deceived somebody else or why PW1 and PW4 are lying. Why are they fabricating against the defendant? Is the defendant an easy target? He fits into something they can fabricate. Is he less dangerous than the real Kyle and Jeff and all those dangerous drug traffickers? So easy target. Why? Sometimes we never understand in a case why. And in this case is discount the only reason, more discount the only reason? To be frank, I don’t know. And I think we will never know. There could be other reasons for them to lie. But you’ve got to be careful when dealing with their evidence, especially them, they have a clear motive to lie and they have proven, they have told you ‘we have lied in the VRI’. They are people who know how to lie.” ^[16] (emphasis added)

28.  When put in context, what the judge did in the quoted passages above was merely to set out the background for the jury to properly understand the evidence and the arguments for both sides, issuing the necessary caution, and concluding with the defence’s own observation that there could be other reasons for the witnesses to lie but “we will never know”. 

29.  Therefore, there is nothing objectionable about the comments made and in any event, the jury had been repeatedly reminded that they were not required to adopt the judge’s views of the evidence.^[17]

30.  In short, using the words in HKSAR v Punsalany Elmer Umali^[18] relied on by Mr Wong, when assessing whether a summing-up is unbalanced and unfair, “Ultimately, it is a question of context, degree and “feel” of the summing-up as a whole”.  In addition, as in the present case, regard should also be had to counsel’s closing speeches when considering whether the summing-up is unbalanced.  If things are taken out of context without reference to what has already been submitted to the jury in counsel’s speeches, it may result in unjustified criticism or an unwarranted attack on a summing-up which, when examined in context, is in fact entirely proper and balanced. 

Ground 2: PW1’s “self-pity” account

31.  In relation to ground 2, Mr Wong submitted that it was a material irregularity for the judge to permit the prosecution, despite the defence objection, to ask how PW1 felt having pleaded guilty and been imprisoned. 

32.  The relevant questions and answers are:

“Q: Now, did you bear any grudges against the defendant?

A: No.

Q: Can you tell the members of the jury now that you have pleaded guilty to the charge of trafficking in dangerous drugs and found yourself being imprisoned, how did you feel about the whole thing?

A: In fact, right at the very beginning when I arrived at Lai Chi Kok, I saw that many people were having -- many people had all their teeth gone and injured legs and also when they urinated, their urine was red, so at that time I reckoned that I myself trafficked in dangerous drugs -- I reckoned that if I traffic in dangerous drugs, I would cause people to be like that, and in fact, the people who were hurt most would be my family members. In fact, regarding my family, every time when I had to appear in court, they would come to the court to see me. That is, I have done something wrong and then they had to pay so much and that means I have guilty conscience, and I also was very angry with myself for that moment of being so foolish, and also I believed other people so easily and to engage in such a serious matter. In fact, after I had been imprisoned, every day I had to look back to what I had done and regarding those memories, every day when I got back to my room, they would come back to me…

MR KHOSA: My Lady, can I address you in the absence of the defendant [witness] and the jury?

COURT: Yes, of course you can. Yes, ladies, I’m going to write it here so that I use it. Would you mind very much giving us five minutes?

MR CHAN: My Lady, it seems that this witness is -- haven't finished.

COURT: No, no, no, but Mr…

MR KHOSA: No, I don’t want him to finish.

MR CHAN: All right.

COURT: …no, we’ll stop. I think it suits everybody to stop. Five minutes.

JURY LEAVES COURT – 4.08 PM”^[19]

33.  First of all, it is not entirely correct for Mr Wong to say that this part of the evidence was led “despite the defence objection” because although it is true that defence counsel did ask to address the judge in the absence of the jury, what transpired from the relevant audio recording was that after the jury had left the courtroom, defence counsel merely raised with the judge that he did not know where the evidence was taking them to which the judge said it went to “motivation” and PW1 was explaining why he was giving the evidence.  Further, the judge said that there was nothing improper in what was being asked for otherwise she would have said so.  Defence counsel, after hearing what the judge said, did not raise any more objection or proffer any other views but simply replied that he would deal with it. 

34.  We should also mention that while Mr Wong criticised prosecuting counsel for repeating PW1’s “emotive answer” in the closing speech to elicit sympathy, what prosecuting counsel said was:

“Why agree to assist the police? Well, Fat Chai [PW1] said he agreed to assist the police and testify because right at the beginning of being detained in Lai Chi Kok, he saw many people with missing teeth, injured legs and red urine. He reckoned that if he trafficked in dangerous drugs, it would cause people to be like that. He had done something wrong, he said. He has a guilty conscience, he said. Every day in prison he has to look back to what he had done, he said. The memories of what he had done come -- came back to him every day, he said. A few weeks after his arrest, after discussion with his family about his worries, his family thought that he should be frank to tell the police everything and show them his own responsibility.”^[20]

35.  Given that PW1 was said to have testified against the appellant possibly because of wishing to get a reduction in sentence, we consider the above submission to be relevant to the issue of PW1’s motive of giving evidence and that the judge was quite entitled to have allowed the question. 

36.  Mr Wong’s other complaint relating to this ground was that the judge failed to direct the jury to ignore any sympathy they might have for PW1.  It is, however, noted that the following exchange took place when the judge invited comments from counsel after she had dealt with the bulk of her summing-up:

“COURT: Is there anything else you’d like me -- that I didn’t mention, Mr Khosa, that you think is not fair or unbalanced, or?

MR KHOSA: There are two points. …”^[21]

37.  However, those two matters had nothing to do with the complaint now made by Mr Wong.  Further, on the following morning before the jury was brought back to the courtroom, there were these exchanges:

“MR CHAN: And just one last point and perhaps if I may…

COURT: Yes.

MR CHAN: …hand up a case. Just a paragraph about demeanour. I get this from other summing-ups and hopefully we did not…

COURT: Yes, yes, but there’s some Court of Appeal authority on it.

MR CHAN: Yes, that’s right. It’s just a sample; a sample see if you would like to say something about that.

COURT: Yes. I’m not going to say any more about it. I have gone over this time and again in other cases and the difficulty with it is that the balance of the authorities, both here and abroad, is that whilst demeanour is a point you should take into account, too much reliance on it is dangerous.

MR CHAN: Yes, that’s right. That’s exactly right.

COURT: Yes. Yes, that’s why I only mentioned it momentarily.

MR CHAN: Right.

COURT: Thank you very much, Mr Chan. Let’s have the jury in.”^[22]

38.  In other words, defence counsel was effectively given two chances to ask for a specific direction from the judge in relation to PW1’s “emotive answer” as described by Mr Wong but he saw no need to do so.  We do not see anything improper or objectionable about counsel’s decision so made, and in any event, it was not suggested by Mr Wong that there was any flagrant incompetence on the part of trial counsel in not seeking the direction now said to be so necessary. 

Ground 3: post-offence conduct

39.  As for ground 3, Mr Wong, relying on HKSAR v Wang Jinwei^[23], sought to argue that the judge erred in allowing the prosecution to adduce evidence relating to two post-offence matters: (1) the changing of mobile telephone numbers by the appellant; and (2) the appellant’s contact with PW3, and through him, the mailing of a letter to PW4.  

40.  Firstly, in respect of the mobile telephone matter, there was extensive discussion between the judge and the parties^[24] but at no stage did defence counsel raise with the judge that such records should not be admitted.  Nor did counsel seek any specific direction on this matter from the judge. 

41.  That is so perhaps because, unlike the case of Wang Jinwei^[25], the mobile telephone matter was not about any propensity to commit an offence but was directly relevant to an issue at trial – whether the number 6805 4627 was used by the appellant to call PW1 and PW4 on 23 October 2013, the day of the offence. 

42.  The evidence at trial was this: on the one hand, both PW1 and PW4 told the jury that on 23 October 2013, the appellant did not use his personal telephone number but instead, used the number 6805 4627, to call them.  The records also showed that 23 October 2013 was the only day during the relevant period when the appellant’s personal telephone number was not used.  On the other hand, the appellant denied that he had used the number 6805 4627. 

43.  In his closing speech, prosecuting counsel said:

“Both Fat Chai and Yeung Chung told you in court that it was the defendant who called them on 68054627 on 23 October. Is it just a coincidence that the defendant could not be reached on his personal phone number on 23 October or the situation was that the defendant had switched from using his personal phone number to 68054627 just as what he had intended to do and what he had told Fat Chai and Yeung Chung before? That’s a matter for you to decide, members of the jury.

… It was revealed during cross-examination of the defendant that he changed his phone number, 67527922 to another number starting with the digits 5-9-0, and he said that that took place between mid-2013 and beginning of 2014. But, of course, since the phone record of 67527922 showed that the number was still in operation on 23 October the defendant must have changed his phone number to 590 between 24 October, that is the day after the D-Day, and early 2014.

Why did he change? … The changing of the defendant’s phone number to a new number subscribed by his friend, Ah Ping, 590, not long after the arrest of Fat Chai and Yeung Chung, is it just another coincidence or is it the case that the defendant was trying to cut himself off and not to be traced by the police following Yeung Chung and Fat Chai’s arrest?

In mid-2015 to early 2016, the defendant again changed his phone number, 590, to another number, 63123435, until his arrest in July 2017. 63123435, of course, was an unregistered phone card. We don’t know why the defendant chose to use an unregistered phone card for so long, one and a half to two years. But we do know that he knew the owner of an unregistered phone card cannot be traced and, more importantly, he knew that back in 2013. Now, members of the jury, this knowledge alone does not allow you to infer that the defendant had used 68054627 on 23 October, which is also an unregistered phone card. But it is something that you can take into account when you consider the evidence of Fat Chai and Yeung Chung and consider why an unregistered phone card was used on 23 October to communicate with Fat Chai and Yeung Chung’s new SIM card.”^[26]

44.  It is clear from the above that although prosecuting counsel referred to the appellant’s subsequent changes of telephone numbers, he was not relying on the mere change (the post-offence conduct) to show that the appellant was guilty of the offence.  Instead, his focus remained this: given the appellant’s pattern of changing mobile telephone numbers and his use of unregistered SIM cards, was he the one who used 6805 4627 to communicate with PW1 and PW4 on the day in question as testified by the witnesses. 

45.  In his closing speech, defence counsel also made reference to the changes of telephone numbers:

“Now, it was suggested that the defendant had used an unregistered SIM 63123435 and that was because he wanted to cut himself off and not be tracked. … If the defendant really was the one who recruited PW1 and 4, then the critical time for him to do something useful to protect himself would be immediately after 23 October because that is the most dangerous time. … Them saying it’s Dick Wu and the police coming to arrest you. What could Dick Wu have done after they were arrested to protect himself? Nothing.

Because he -- they knew his phone number which was registered in his father’s name giving the address Tuen Mun. … To find Dick Wu was not difficult. So whether he liked it or not, at some point the police would have found him. But we talking about these numbers changed quite a while after the immediate danger area -- period.

So my submission is it is his personal choice, people do change numbers. There are many reasons people change phone numbers. … So just because he changed numbers or that he was using an unregistered SIM number, in my respectful submission, it’s neither here nor there, bearing in mind we are trying to find out what happened in October 2013, whether it was the defendant who had recruited PW1 and PW4. If in 2016, he changes a phone number, how does it matter? …”^[27]

46.  The issue was then crystallised by the judge when she addressed the jury:

“… You do not know who is on the end of the ‘6805’. The defendant says it is not him. What Mr Chan is saying is nevertheless you can infer it is him because -- and then lots of other reasons that he gives. Do you see how that happens?”^[28]

47.  In view of the way the matter was dealt with, we do not see any irregularity in adducing this piece of evidence before the jury.  Nor could it be suggested that the judge had handled the matter inappropriately resulting in unfairness to the appellant. 

48.  The second post-offence matter relates to the appellant asking PW3 to mail for him a letter to PW4.  According to PW3, he remembered that the letter had these words, “the matter was not meant to be like that”, and also words to the effect that the appellant would treat PW4 as a younger brother and would give money to PW4 to learn how to perform tattoos.  In this connection, prosecuting counsel addressed the jury as follows:

“Members of the jury, do you believe the defendant wrote a letter out of his good intention to help Fat Chai and Yeung Chung? Or he wrote the letter because he felt bad about having recruited Yeung Chung for trafficking in dangerous drugs and about Yeung Chung’s imprisonment? If he is simply making a kind offer to help Fat Chai and Yeung Chung after their release from prison, why did he have to go through all the troubles, all the troubles to avoid using his own address as return address?”^[29]

49.  As for the defence, counsel said to the jury:

“… PW3 said he read the letter. So I think we can take it that nobody would be stupid enough to write anything stupid in a letter which somebody will read.

…

But whatever he was talking about, in my respectful submission, it does not assist the issue of this case. And he had said more than once that he couldn’t remember much. …”^[30]

50.  In her summing-up, after indicating that the evidence concerning PW3’s posting of the letter would seem a bit unclear, the judge said:

“Obviously, Mr Chan wants to rely on it. For ‘he is just feeling guilty about this’ and this is why he is doing it, he is saying ‘I’m terribly sorry you got caught’. Basically, that is what Mr Chan is trying to hint at. Whereas the defendant was quite clear in saying, ‘No, that’s not it. I just felt sorry for them and because I felt sorry for them, I wanted to do something about it and that’s why I offered to do the things I did.’”^[31]

51.  If PW3’s evidence was accepted, the utterances might be viewed as the appellant admitting his role in bringing about the state of affairs which led to the witnesses’ imprisonment and was conduct which was “capable of constituting evidence of his guilt”^[32].  Therefore, it would appear that prosecuting counsel was quite entitled to so address the jury. 

52.  In respect of Mr Wong’s complaint that the judge did not specifically deal with the matter, we would make two observations. 

53.  Firstly, the present case was one centred on the two accomplice witnesses and the prosecution case stood or fell on their credibility.  To this end, the judge had, at an early stage of the summing-up, reminded the jury that:

“Because the witnesses, PW1 and PW4, were unequivocal in their identification of who it was that recruited them, obviously there is an issue about whether they were clear and unequivocal about the rest of their evidence, but in terms of identification, they did not waiver. Then their truthfulness, their creditworthiness, their credibility, whatever word you want, is obviously central to the prosecution’s case.”^[33]

54.  Hence, the jury could have been left in no doubt that their major, if not the only, consideration would be the credibility of the accomplice witnesses, and not any other matters.  When viewed in the round, PW3’s evidence was just a small and peripheral part of the prosecution case.  Further, no objection was taken by the defence to the admissibility of PW3’s evidence. 

55.  Secondly, while Mr Wong contended that something similar to a lies direction should have been given in respect of the post-offence matters, we doubt what use it would serve as the jury was aware that the appellant had jumped bail and that he had a previous conviction for possession of a dangerous drug.  In this context, the giving of a further specific direction about making use of the post-offence conduct to support the prosecution case might actually work to the disadvantage of the appellant.

56.  Therefore, while it is true that the judge did not specifically deal with the matter, we do not consider that any unfairness had resulted given the relative insignificance of PW3’s evidence and that the arguments for both sides had been brought home to the jury by counsel and the judge. 

57.  For the reasons set out above, we dismissed the appellant’s appeal against conviction. 

Appeal against sentence

58.  The respondent accepted that the judge had deployed the incorrect guidelines.  The ones in force at the time were those in Ching Kwok Hung[34], wherein it was said that for trafficking in over 600 grammes of Ice, an appropriate starting point, after trial, should be 18 years and upwards but the court has to bear in mind the danger of causing injustice if a strict mathematical approach is adopted. 

59.  In HKSAR v Stojanovic Milka[35]which involved 1,484 grammes of Ice carried from Malaysia to Hong Kong by the applicant who was stopped at the customs arrival hall, the court was presented with a plethora of cases in respect of the sentences passed where the quantities were large.  When giving the judgment of the court, Stock VP, as he then was, said:

“14. For reasons which we have provided, we would not go so far as to say that in this category of offence a court is unconcerned with sentences in other cases but, as we have earlier intimated, the exercise in comparison cannot sensibly be taken to the degree of fine tuning to which the submissions in these cases are tending.

15. That said, we are of the opinion that the 24-year point reached by the judge in this case before reduction for mitigation was too high and sits uncomfortably with the range of sentences imposed for this quantity and for facts akin to these facts. In our judgment, the appropriate starting point before taking into account aggravating features was one of 20 years’ imprisonment; and that the international element warranted an additional two years, which takes one to 22 years’ imprisonment before mitigation. The mitigation was constituted in this case solely by the plea of guilty, which should take the sentence down to one of 14 years 8 months’ imprisonment.”[36]

60.  The present case involved 1,558 grammes of Ice.  The appellant’s role, as accepted by Mr Wong, was not a mere courier but the “manager or organiser”.  The fact that the appellant played a more culpable part in the drug trade is, as considered in HKSAR v Herry Jane Yusuph[37], a relevant factor in determining the starting point from the applicable brand.  

61.  Making reference to the then applicable sentencing guidelines in Ching Kwok Hung[38] and having approached the sentence in this case afresh, we take the view that with regard to the quantity of Ice involved and the appellant’s role and culpability, the appropriate starting point should be 22 years.  Since the appellant recruited PW1 and PW4 to join a tour to bring the drugs abroad, there should be an enhancement of 2 years for this international element[39]. 

62.  As a result, the appellant’s appeal against sentence was allowed and we substituted the original term of 28 years with one of 24 years.