HKSAR v. OKUYAMA YOSHIHIRO

CACC 181/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 181 OF 2016

(ON APPEAL FROM HCCC NO 181 OF 2015)

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REASONS FOR JUDGMENT

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

1.  The applicant was convicted before Deputy Judge Woo (“the judge”) and a jury in the High Court on 15 June 2016 of one count of trafficking in a dangerous drug, namely 5.91 kilogrammes of a crystalline solid containing 5.79 kilogrammes of methamphetamine hydrochloride, commonly known as ‘Ice’, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, he was sentenced to 26 years’ imprisonment.

2.  The applicant applied for leave to appeal against conviction only.  On 20 June 2017, we refused his application and dismissed his appeal, saying that we would hand down the reasons for our decision in due course.  These are our reasons.

The prosecution case

3.  It was not disputed that at 00:10 hours on 22 March 2013 Customs Officers stopped and searched two Japanese Nationals, the applicant and one Yamaguchi Masaki (“Yamaguchi”), who was PW6 at trial, at the Korean Air check-in counter of Hong Kong International Airport.  According to Immigration records, the applicant and Yamaguchi had each arrived in Hong Kong three days earlier, on 19 March 2013; their entry arrival times being 23.16.14 hours and 23.16.28 hours respectively.

4.  Customs Officer 98352 (“PW1”) handled the search of the applicant, while another officer, Customs Officer 98419, handled Yamaguchi.  Having revealed his identity, PW1 took the applicant to a search room at Aisle F in the departure Hall of the Airport.  Since the applicant’s luggage had just been checked in, airline staff were able to retrieve his suitcase with the luggage tag already attached to it.  The applicant was then asked to place his luggage in an X-ray machine inside the search room.

5.  PW1 then requested the applicant to unlock the suitcase.  The applicant produced a bunch of keys and opened the suitcase with one of them.  In the lid, or flap, of the suitcase were clothing and personal items.  In the main well of the suitcase was a black travel bag, under which was some dark blue mesh with yellow stripes.  Some diving equipment[1] and a diving suit were found under the dark blue mesh.  PW1 squeezed the diving suit with his fingers and felt some granular material inside.  He asked the applicant what was inside, but received no response.  PW1 therefore cut open the nylon material and found what was described as a “semi-transparent crystalline solid” inside.  A ‘narco-test’ was immediately conducted and the result tested positive for methamphetamine.  The applicant was cautioned in Punti and arrested.  The dangerous drugs were subsequently analysed and found to be ‘Ice’ in the quantities particularised in the indictment, the retail value of which was over HK$4.6 million.

6.  It was not disputed at trial that a search of Yamaguchi’s suitcase yielded further suspected dangerous drugs inside another diving suit, which was also subsequently analysed and found to be 5.8 kilogrammes of ‘Ice’ narcotic.

7.  The Exhibits Officer, who gave evidence as PW4, examined both suitcases and testified that the dangerous drugs had been secreted in the same way in each suitcase.

8.  On the same day, between 21:05 and 22:50 hours, a video recorded interview was conducted at the airport with the applicant. The applicant disclaimed ownership or knowledge of the dangerous drugs.  In gist, he told his interviewers that:

(a) He was unemployed, with no income and debts of about ¥600,000;

(b) He had known Yamaguchi for about half a year.  Having lived in Yamaguchi’s house and taken care of his dog, the two men had become close friends with each other;

(c) As a result, Yamaguchi had brought the applicant along on this trip, given him some money for shopping and arranged for the air tickets and accommodation;

(d) the applicant had agreed to come with Yamaguchi, since the trip was free of charge;

(e) He had obtained a passport for the purpose of going on this particular trip;

(f) He and Yamaguchi had both left Japan, transited in South Korea and arrived in Hong Kong on the 19 March, where they had both stayed in the same room of a hotel.  On 22 March, they were proposing to fly from Hong Kong to Busan in South Korea;

(g) the applicant had borrowed a suitcase from Yamaguchi, who had helped him to lock it and given him a key.  His own clothes were packed in one side of the suitcase. He had seen the diving equipment already packed inside the suitcase, but had never touched it;

(h) The two men had not done any diving on the trip and the applicant did not know how to dive; and

(i) He had no idea of the presence of dangerous drugs, otherwise he would never have agreed to go on the journey.

9.  The prosecution relied principally on Yamaguchi’s live testimony, which contained direct evidence of the applicant’s knowledge of the presence of dangerous drugs and his involvement in trafficking.  Yamaguchi’s evidence was to the following effect.

10.  Yamaguchi’s girlfriend was the applicant’s ex-wife.  The applicant lived in a room in Yamaguchi’s house in Japan, for which he paid a discounted rent.  In December 2012, a man called Kobayashi Katsuya (“Kobayashi”), who was a diving instructor, suggested carrying dangerous drugs to South Korea, on the pretext of repairing diving suits.  Yamaguchi and the applicant had another meeting with Kobayashi in January 2013, when a reward of ¥10 million was proposed.  Yamaguchi and the applicant agreed to traffic dangerous drugs and to split the reward “half-half”.

11.  Yamaguchi made all the travel arrangements, since the applicant had never travelled abroad before, and said that he would obtain the reimbursement from Kobayashi.  PW6 and the applicant came to Hong Kong to receive the dangerous drugs.  The plan was to go on to South Korea on 23 March 2013, where someone would collect the drugs from Yamaguchi.

12.  Yamaguchi and the applicant came to Hong Kong where they stayed in the same room of a hotel.  He then contacted Kobayashi and told him the room number.  On 21 March 2013, a man who looked Chinese came to their hotel room, bringing with him 12 packets of crystalline substance.  Both Yamaguchi and the applicant placed six packets in each of the two diving suits they had brought with them, packing their own clothes in the other part of each suitcase.  The applicant used the suitcase and diving suit which Yamaguchi had given him, each of them retaining a key to that suitcase.

13.  When Yamaguchi was arrested, he initially denied any knowledge of the presence of the dangerous drugs.  However, he subsequently expressed his willingness to give evidence in the present case.  Prior to the trial, Yamaguchi pleaded guilty to unlawfully trafficking in the 5.8 kilogrammes of ‘Ice’ found in his own suitcase, for which he was sentenced to 17 years and 4 months’ imprisonment.

The defence case

14.  The applicant elected not to give evidence.  He adopted what he had said in the video recorded interview.  The defence case did not deny possession of the suitcase, but denied knowledge and possession of the dangerous drugs inside.  It was said that Yamaguchi had selected the applicant, who was gullible, to carry another suitcase for him, so as to double his reward by trafficking in twice the amount of ‘Ice’.

15.  Yamaguchi was cross-examined by defence counsel about his Yakuza gangster connections and his previous travels.  He did not accept that he had previously trafficked in dangerous drugs.  He gave explanations for each of the trips, some of which he claimed were for business, others for pleasure.  He did not accept that he had preyed on the gullibility of the applicant to increase his profit from drug trafficking.

16.  Yamaguchi accepted that he was a member of the Yakuza organisation, that he had previously lied when necessary and had caused a miscarriage of justice, although he did not explain how he had caused such a miscarriage.  He had previously been prosecuted for two murders and an attempted murder.  As a result, he was sent to prison for 12 years but released in December 2009.

17.  Yamaguchi was questioned about his motive for giving evidence for the prosecution.  In the light of the grounds of appeal advanced before us, it is necessary to set out the cross-examination on this matter in detail.  Defence counsel began by referring the witness to his sentence of 17 years and 4 months’ imprisonment, which had been discounted from 26 years’ imprisonment.  He then asked:

“Q. If, by giving evidence against (the applicant) you can get a reduction in your term of imprisonment, you will give evidence against him.

A. Yes.

Q. And that is your hope, is that somehow after this trial you will get a reduction in the term of imprisonment.

A. No, it’s not the case.

Q. All right. Well, how do you intend to achieve a reduction?

A. I’m not trying to reduce my term.

Q. You’re not trying to reduce your term?

A. If I do something and then as a result the term become shorter, I will be happy.

Q. So you might petition the Chief Executive after this case and say, “Look, I’ve done a wonderful job giving evidence, reduce my term”.

A. I made my statement while knowing that I don’t get any benefit from it.

Q. But you hope to get a benefit from giving evidence, don’t you?

A. I don’t think I’ll be happy to get benefit from my statement. …. I’m not thinking to get benefit from my statement. I’m not making a statement for my benefit.

Q. What, you’re motivated by a keen sense of justice, are you? Are you?

A. So the thing is that I – it’s not only me, the person who accepted the drug trafficking is – is not only me. So if the other person is acquitted and I don’t understand why I – only I have to get all the sentences.

Q. So it is you have a keen sense of justice about this case.

A.  Yes.”

18.  Although defence counsel at trial did not make much of the matter in his closing address to the jury, he did say:

“I put it to him, to Yamaguchi, that he wants to get his sentence reduced somehow. It’s a very long sentence, 17½ years, and for that reason he’s prepared to continue his dishonesty in this court.

Well, he denied that of course.  He denied that.  You’re going to have to, as I said, decide on his credibility whether you believe him or not.”

The judge’s summing-up

19.  The judge summed up the evidence in respect of Yamaguchi’s motive for giving evidence.  Since these passages have a direct bearing on the first ground of appeal before us, we set them out in full[2]:

“In the present incident, … (Yamaguchi) was sentenced in the High Court on 14 May last year for 17 years and 4 months which was discounted from 26 years. … Discounted from 26 years, that means a one-third discount for his pleading guilty to 17 years and 4 months.

He agrees that he is anxious of getting out of prison as soon as he can. He agrees that he will get a reduction if he gives evidence against the (applicant), but he does not agree that he somehow hopes to get a reduction of sentence. He says he is not trying to reduce his term of imprisonment, but if he does something as a result of which he gets the reduction he would be happy. Now that is his attitude towards his giving evidence and his involvement and his purpose of coming to give evidence.

He says he does not hope for a reduction. He was not told that he will be given a reduction, but he gives evidence as a result of which if he gets a reduction he would be happy. That is his attitude.

Now he says he made a statement while knowing that he did not get a benefit, and he was not thinking of getting any benefit from his statement. He says - this is crux of his explanation of his giving evidence here. He says, “The thing is that it was not only me. The person who accepted the trafficking was not only me. So if the other person is acquitted, I don’t know why I have to shoulder all the responsibility.” That’s what he says. That is his explanation of his giving evidence. You may accept it; you may not accept it, but that is his way of putting it.”

20.  Later in his summing-up, the judge returned to Yamaguchi’s possible motive[3]:

“It has been suggested that he gave false evidence against the (applicant) in order to obtain a reduction of sentence for his providing assistance to the Hong Kong authorities. He has denied the suggestion.

He agrees that he is anxious of getting out of prison as soon as he can. He agrees that he will get a reduction if he gives evidence against the (applicant), but he does not agree that he somehow hopes to get a reduction of sentence. He says he is not trying to reduce his term of imprisonment, but if he does something as a result of which he gets a reduction, he would be happy. I will repeat this for you.

He says he made a statement while knowing that he did not get any benefit.  He was not thinking of getting any benefit from his statement.  He says, “The thing is that, it was not only me, the person who accepted the trafficking was not only me, so if the other person is acquitted, I do not know how, I do not know why I have to shoulder all the responsibility.”

And I also repeat the reason that he gave. It was put to him that, “You come to court to tell lies about the (applicant) and his involvement in your activities.” His answer was, “I am not lying.” He says, “So I admitted guilt for this incident. This (applicant) is saying that he is not guilty, so I am trying to explain what happened in this incident, I am not denying, I am not dishonest.”

Now you have to consider his evidence very carefully. Would he lie to tell a false story against the (applicant), a person whom he had known since around September 2012 and with whom he travelled for three to four days from 19 March to 22 March for the alleged purposes? Or was he telling the truth since he has got nothing to hide after having pleaded guilty? It was not suggested to him that he had an axe to grind with the (applicant). It was suggested that he chose the (applicant) because the (applicant) was somewhat stupid or gullible. This Yamaguchi denies.

He has admitted his part in the transaction, not trying to shift his responsibility to the (applicant) for the suitcase that he carried himself. You see, he is not trying to shift responsibility because he has pleaded guilty.

Now consider his evidence with great caution and reach your own decision.  What Yamaguchi tells us about the involvement of the (applicant), if you accept it shows the (applicant’s) knowledge in carrying the dangerous drug in the suitcase, that is Exhibit 50, if you accept Yamaguchi’s evidence there is direct evidence of the (applicant’s) knowledge that he carried the drugs in the suitcase.”

On the second day of the summing-up, the judge reiterated:

“Yesterday I talked about Yamaguchi’s evidence. I asked you to take care, to view, to examine his evidence with great caution because he said that he was an accomplice of the (applicant) …”

21.  The judge also gave the jury a direction on circumstantial evidence, and the drawing of inferences from circumstantial evidence.  This direction engages the second ground of appeal advanced before us.  The judge’s directions were as follows[4]:

“Now when I am talking about circumstantial evidence, you can use the circumstantial evidence to draw inferences. You are entitled to draw inferences. In other words, if you find certain facts proved, you are entitled to infer the existence of other facts.

For example, lawyers always do this sort of thing. How do you prove an intention, an intention in the (applicant’s) mind? You can never tell his mind, right? You use circumstantial evidence to draw the only reasonable inference that he must know, he must have intended this. You see, that is what we call “inferences”.

Inferences can be drawn, but you may only do so if the inference - that inference - is the only reasonable inference to draw from the proved facts.  So if from a set of facts which you find proved there is a reasonable inference to draw against the (applicant), as well as one in his favour, if two reasonable inferences can be drawn, one in his favour, one against him, then you must not draw the adverse inference.  You see?  That is why we call it you are only allowed to draw the only reasonable inference against him if that is the only reasonable inference.  If there are two equally reasonable inferences, do not draw that against him, you draw the one in his favour.  You see, that is why we call it the only reasonable inference.”

22.  The judge then identified five pieces of evidence, from which an inference as to the applicant’s knowledge of the presence of dangerous drugs might be drawn, if the jury accepted that evidence[5]:

“Now in this particular case, apart from the direct evidence of the (applicant’s) knowledge, that is according to the evidence of Yamaguchi, if you accept it after careful consideration, there is other evidence from which an inference can be drawn of his knowledge, of the (applicant’s) knowledge.

Now these items of evidence, if you accept them, are: (1) the suitcase also contained the (applicant’s) own clothing and personal belongings. The suitcase contained the drugs, but it also contained his own personal clothing and personal belongings; (2) he checked-in the suitcase. The baggage tag was in his name. He checked-in the suitcase, the baggage tag was in his name; (3) the contents were bulky. That is his own admission in the VRI - the contents were bulky; (4) he carried the suitcase; and (5) he had a key to open the suitcase.

The five pieces of evidence which are put to you in this case - are given to you in this case, or accepted by the (applicant), right, you have to decide whether the only reasonable inference to draw from these facts is that the (applicant) knew that the suitcase contained dangerous drugs, and the decision is yours and yours alone.

That is, of course, when you do not accept Yamaguchi’s direct evidence, then you can resort to this circumstantial evidence, or you can consider - you should consider all the evidence together, direct evidence; circumstantial evidence, and the fact that Yamaguchi is an admitted liar, he has admitted dishonesty, he used to be a Yakuza member, and so on, and he committed crimes in Japan.”

The applicant’s grounds of appeal

23.  Mr Andrew Bullett has argued two grounds of appeal on behalf of the applicant.  First, it is said that the judge failed to give proper directions to the jury as to how to approach Yamaguchi’s evidence in respect of the reduction in sentence he could expect by testifying against the applicant (Ground 1).  Secondly, it is argued that a direction on inferences was unnecessary and might have confused rather than assisted the jury (Ground 2).

24.  In respect of Ground 1, Mr Bullett referred to the decision of this Court in HKSAR v Ngie Hon Miu[6], submitting that where a witness asserted that he had no expectation of receiving a further discount on sentence for giving evidence as a prosecution witness, the jury should be told by the judge, in the absence of evidence to that effect, about the practice or policy of the courts in awarding such discounts.  He further relied upon the statement in a judgment from the appellate committee of the Court of Final Appeal in HKSAR v Wong Lin Hung[7] that the judge must warn the jury that “they must bear in mind the possibility that the witness may lie in order to obtain a sentence discount”[8].

25.  As for the direction on inferences (Ground 2), Mr Bullett submitted that such direction was inappropriate, since the five items of evidence were undisputed and added nothing to the direct evidence that the dangerous drugs were found in the suitcase used by the applicant nor could they make Yamaguchi’s evidence more persuasive; yet, the judge’s directions invested the five items of evidence with a significance they did not have.  He further submitted that the combined effect of the judge’s directions, including the part that directed the jury to consider all the evidence (direct and circumstantial) together, would have confused the jury, for which proposition he relied on the judgment of Sir Anthony Mason NPJ in Tang Kwok Wah v HKSAR[9].

The respondent’s submissions

26.  Mr Eddie Sean, on behalf of the respondent, submitted in respect of Ground 1 that the judge had warned the jury to consider Yamaguchi’s evidence very carefully and with great caution.  The present case was different from the circumstances in Ngie Hon Miu,where the accomplice testified that no one had ever told him that he could obtain a further discount of his sentence for giving evidence, and nor was he expecting to receive one.  Yamaguchi, on the other hand, had testified that he would give evidence against the applicant if he could get a reduction of sentence and that he would be happy if, as a result of giving evidence, he was given a further reduction of his sentence.  He had never denied knowing that he would get a reduction for testifying and obviously expected that he would.  The witness’s evidence as to his knowledge and expectation was before the jury and it was not appropriate for the judge to go further and indicate the range of possible discounts that might be open to the appellate court in such circumstances.  As the appellate committee in Wong Lin Hung had said, at para 7, in distinguishing the facts in Ngie Hon Miu:

“… it would be speculative for the judge to indicate what range of discount or other advantage to the witness might be applicable in any given case since this would be highly dependent on the facts of the individual case which the judge would not then be apprised of”.

27.  In relation to Ground 2, Mr Sean submitted that the directions on circumstantial evidence and the drawing of inferences were entirely in conformity with the standard specimen directions.  They were also appropriate in the circumstances, particularly if the jury felt unable to rely upon the direct evidence of Yamaguchi.  The other facts and circumstances of the case were capable of leading to the inference that the applicant had the requisite knowledge of the dangerous drugs in the suitcase he had just checked in.  The directions were neither confusing nor inappropriate.

Consideration

(Ground 1)

28.  It is clear that, whatever reduction of sentence the witness Yamaguchi might or might not have “hoped” for, he was clearly giving evidence against the applicant in order to get a reduction.  He confirmed in terms defence counsel’s question that “if, by giving evidence against (the applicant) you can get a reduction in your term of imprisonment, you will give evidence against him”[10]. He later repeated, when asked if he was not trying to obtain a reduction in his term of imprisonment, “If I do something and then as a result the term become(s) shorter, I will be happy”[11]. Accordingly, the applicant’s own counsel in his closing address to the jury had suggested that Yamaguchi was prepared to “continue his dishonesty in this court” in order to get a reduction of sentence[12].

29.  When the judge came to sum up, apart from reminding the jury of Yamaguchi’s evidence in cross-examination[13], he specifically referred to defence counsel’s suggestion “that he gave evidence against the (applicant) in order to obtain a reduction of sentence for his providing assistance to the Hong Kong authorities”[14]. Although the witness had denied the suggestion, it is clear from the scheme and structure of the summing-up that the judge immediately went on to warn the jury, in the light of his answers, to consider Yamaguchi’s evidence very carefully and ask themselves whether the witness would make up a false story against the applicant.

30.  The jury would have well understood from the witness’s own mouth that he was indeed giving evidence in order to obtain a reduction of sentence.  The jury were repeatedly reminded in the summing-up of Yamaguchi’s evidence in this regard: indeed, the judge said of Yamaguchi that “he agrees that he will get a reduction if he gives evidence against the (applicant)”.  Mr Bullett argues that this is going further than the terms the witness had actually used.  With respect, we do not agree.  Looking at the passage and the summing-up as a whole, it is clear what the witness meant and what he would have been understood to have meant: he was giving evidence in order to obtain a further discount on his sentence.  And, as we have just pointed out, the jury were specifically warned to consider his evidence very carefully and to ask themselves, in the light of points made in cross-examination, whether he would tell a false story against the applicant.

31.  Looking at the directions in the summing-up as a whole, we do not consider that they involve the mischief present in Ngie Hon Miu, where the accomplice witness had denied that he was motivated to give evidence against the appellant in order to obtain a reduction in his sentence, where he had denied knowing from any source at all anything about any possible reductions of sentence, and where the jury were effectively told they could not go behind the witness’s denials; when in truth, the witness could expect as a matter of the practice and policy of the courts in appropriate circumstances to receive a further reduction for giving evidence.

32.  Furthermore, as is clear from material which was before the Court at the appeal of Ngie Hon Miu, but of which the parties and the judge at the original trial were wholly unaware, the witness in that case clearly must have realised that he would obtain a reduction for assisting the authorities[15], whatever his claims to the contrary.  Yet the jury were ignorant of all these matters and obliged to proceed in accordance with directions from the judge on the basis that there was nothing to contradict the witness’s claim that he would not get a discount for giving evidence.  In our judgment, the circumstances in Ngie Hon Miu are quite different.

33.  When the judge in the present case reminded the jury of defence counsel’s suggestion that Yamaguchi “gave evidence against the (applicant) in order to obtain a reduction of sentence for his providing assistance to the Hong Kong authorities”, as a result of which, among other reasons, the jury were to consider “very carefully” whether he would tell a “false story against the (applicant)”, we consider that he was directing them in conformity with the judgment of the appellate committee in Wong Lin Hung, at para 6, namely:

“… there is no hard and fast rule as to how a judge should direct a jury in this regard. What the jury must be told is that, when considering the truthfulness and reliability of the evidence of an accomplice witness, they must bear in mind the possibility that the witness may lie in order to obtain a sentence discount”.

34.  Given that we think the essential message was conveyed in appropriate language to the jury, we do not accept that this ground of appeal can be made out.

35.  We might also comment that defence counsel at trial did not make as much of the matter in either his cross-examination or his closing address to the jury as the judge did in his summing-up, perhaps for sound tactical reasons.  No doubt wary of the telling point made by Yamaguchi that he did not intend to be the only one to take the blame, given that both he and the applicant had agreed to traffic in dangerous drugs, it seems to us that counsel concentrated his attack on the more vulnerable aspects of Yamaguchi’s character, antecedents and previous travel history.

(Ground 2)

36.  In respect of Ground 2, there clearly was direct evidence before the jury from Yamaguchi himself, which, if believed, made the applicant guilty of trafficking in dangerous drugs.  But there was also evidence of the applicant’s possession of the suitcase containing his personal belongings, as well as almost 6 kilogrammes of dangerous drugs secreted in a diving suit, while travelling together with Yamaguchi, whose suitcase was packed in a similar fashion.  If the jury accepted the direct evidence of Yamaguchi, they could have concluded that the applicant plainly knew what was in his own suitcase.  Whilst Yamaguchi was closely cross-examined by defence counsel as to his claims of the applicant’s involvement, there was no evidence forthcoming from the applicant himself to undermine, contradict or explain the evidence called by the prosecution.

37.  Even without Yamaguchi’s evidence, there remained the evidence of the applicant’s possession and control of a locked suitcase containing his personal belongings, as well as almost 6 kilogrammes of ‘Ice’ hidden in a diving suit; his possession of a key to the suitcase; and the circuitous route both men were taking from Japan through South Korea to Hong Kong and then to South Korea again, carrying almost identical and very valuable consignments of dangerous drugs secreted in similar fashion in their respective suitcases.  If there was another reasonable inference to account for these compelling facts, it did not come on oath from the applicant.  Moreover, notwithstanding that the applicant did not give evidence, the judge gave a perfectly fair and correct direction that they should acquit the applicant if the account in his record of interview “may be true”[16]. He went on to say[17]:

“You have to be sure of his guilt. If the account that he gave in the VRI may be true, then there is a doubt. If you can’t be sure, then you must acquit him as well.”

38.  We do not agree that the judge’s decision to give special directions in respect of circumstantial evidence or inferences would have confused the jury in the context of this case.  He was evidently concerned that, if the jury rejected the direct evidence of Yamaguchi as a witness of truth, they could still look at the objective (and undisputed) facts and determine, in conformity with his standard direction on inferences (about which Mr Bullett makes no complaint), the issues of possession and knowledge of the dangerous drugs in his suitcase.

39.  We should add here that the directions on circumstantial evidence and inferences were never the subject of complaint from very experienced defence counsel at trial.  The judge had indicated to both counsel well before their closing addresses that he proposed to give directions as to circumstantial evidence and inferences.  Prosecuting counsel agreed with the judge: defence counsel did not demur, either at that stage or during the summing-up.

40.  There is no substance in this ground of appeal.

Conclusion

41.  For the above reasons, the application for leave to appeal against conviction was refused and the appeal dismissed.

[1] Fins, diving mask/goggles and plastic snorkel.

[2] AB, p 37A-P.

[3] AB, pp 49J-50D-O.

[4] AB, pp 52N-53G.

[5] AB, pp 53G-54B.

[6] [2012] 1 HKLRD 137, paras 15-17.

[7] (unrep., FAMC 26/2014, 23 December 2013).

[8] Ibid., at para 6.

[9] [2002] 1 HKLRD 286, at para’s 68-69.

[10] AB, p 268K-L.

[11] AB, p 268O.

[12] AB, p 402O-Q.

[13] Para 19 supra.

[14] Para 20 supra.

[15] HKSAR v Ngie Hon Miu, at para’s 18-20.

[16] AB, p 16R.

[17] AB, pp 16S-17A.