HKSAR v. LAM MEI CHING BET

CACC 24/2015
[2018] HKCA 105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 24 OF 2015

(ON APPEAL FROM HCCC NO 264 OF 2014)

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D E C I S I O N

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1.  I shall give short reasons for my decision, given that we are on the eve of the Chinese New Year holiday and more detailed reasons would necessitate my delivering judgment after the holiday.

2.  There is a difference between an argument which is reasonable for the purposes of an appeal and an argument which is likely to succeed on appeal.  Only if an applicant can bring him/herself within the latter test will bail be granted on the merits, given that bail for a convicted person is the exception rather than the rule.

3.  I am not persuaded that the arguments advanced today, in conjunction with the matters referred to by the Single Judge in his judgment on the application for a Legal Aid certificate[1], satisfy the test for bail pending appeal.  Mr Cheung’s analysis of the witness statements of the prosecution witnesses, which Ms Ko termed a “microscopic” analysis, must be looked at in the light of the actual evidence at trial, the live issues at that trial and the admitted fact that, from 1:30 am on 24 January 2014 onwards, the “7 packets of suspected dangerous drugs were kept in secure conditions.  This included transportation to and from the Forensic Science Laboratory”[2]. It is clear from the summing-up that the chain of evidence was not a live issue at trial at all.

4.  In the light of that evidence, Mr Cheung is necessarily driven to complaining of flagrant incompetence on the part of defence counsel in making the admissions he did - with, it must be said, the apparent consent of his lay client -, which incompetence undermined the fair trial of the applicant.

5.  I am not persuaded that such an argument is likely to succeed on appeal.  The respondent will argue with some force that whether counsel took the point on the chain of evidence (assuming there is merit to the point, which the respondent does not accept) did not affect the fundamental defence of police “frame up”, which was clearly and ably put on the applicant’s behalf at trial, albeit without the benefit of the applicant’s evidence.  Indeed, it could be argued that an attack on the chain of evidence which failed might have undermined the general attack on the integrity of the police witnesses in respect of her defence of “frame up”.  In other words, the fairness of the trial was not compromised by the decision not to attack the chain of evidence.

6.  I accept that it is Mr Cheung’s point that, by not attacking the chain of evidence, the applicant may have lost a chance of acquittal.  But he is faced, whatever his lay client’s original instructions, with her acceptance at the trial of the Admitted Facts to which I have just referred.  There is a high burden on the applicant to establish flagrant incompetence of counsel.

7.  Nor am I persuaded that the time element has any significant impact on this application for bail.  This was a serious case with a sentence of 11 years’ imprisonment being passed after trial.  Although Legal Aid has been granted by the Single Judge to argue the appeal against sentence on the basis that an arithmetical calculation would yield a sentence of 10 years and 5 months’ imprisonment for the quantity concerned rather than 11 years’ imprisonment, I note that the applicant has a previous conviction in the High Court for trafficking in dangerous drugs, for which she was sentenced to 6 years’ imprisonment in 2009.  That was plainly a potential aggravating feature of sentence, even though the trial judge appears to have found that there was none.

8.  Finally, I should say that even were the appeal to succeed against conviction, I consider that there would be a very high likelihood, given the seriousness of the offence and the unserved part of the sentence that would remain, that a retrial would be ordered.  It is difficult to accept the argument that no retrial would be ordered.

9.  The application for bail pending appeal is accordingly refused.

10.  Given the length of time which the applicant has already served of her sentence, and at the request of Mr Cheung, I shall order that the hearing of the applicant’s appeal be expedited.