HKSAR v. LAU FUN

CACC 226/2022

[2024] HKCA 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 226 OF 2022

(ON APPEAL FROM HCCC NO 132 OF 2021)

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REASONS FOR JUDGMENT

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A.  Introduction

1.  The applicant pleaded not guilty to a single count of attempting to traffic in a dangerous drug, namely 21.94 kilogrammes of a solid containing 18.73 kilogrammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and section 159G of the Crimes Ordinance, Cap 200. Following a trial in the High Court before Deputy Judge Woodcock (“the judge”) and a jury, he was, on 29 November 2022, convicted of the offence by a majority verdict of 7:2. Subsequently, on 1 December 2022, the applicant was sentenced to 25 years’ imprisonment.

2.  By way of a Form XI notice filed on 16 December 2022, the applicant sought leave to appeal against his conviction only. At the hearing of the application, I granted leave to appeal against conviction on Grounds 1, 2 and 3 but refused leave on Grounds 4, 5 and 6. I said I would hand down the reasons for my decision in due course. I also raised with the parties the question of sentence, which the applicant had not appealed against; it seems that he has never received any legal advice as to the length of his sentence, which on the face of it, but without the benefit at this stage of the mitigation and judge’s reasons for sentence, seemed to be on the high side. Accordingly, I granted a Legal Aid certificate limited to advising the applicant as to the merits of an appeal against sentence, which if it were to be mounted would have to be made out of time. I said I would give reasons for my decision within 14 days.

B.  The trial

(i)  The prosecution case

3.  At about noon on 27 November 2019, the applicant went to the Howard Factory Building, at 66 Tsun Yip Street, Kwun Tong in Kowloon to collect a consignment of 28 boxes from a logistics company. Having signed the receipt for collection, he was immediately arrested by a Customs officer.

4.  The arrest was the result of a controlled delivery operation. On 26 November 2019, upon examination of incoming airmail, Customs officers had discovered that three of the 28 boxes arriving from France contained a total of 18.73 kilogrammes of ketamine, the street value of which was estimated at HK$12,088,940. The person from whom the applicant subsequently attempted to collect the consignment was a Customs officer disguised as an employee of the logistics company[1].

5.  After his arrest and under caution, the applicant told Customs officers that he believed the goods were ornaments. He did not know to whom they belonged, nor did he know where he was supposed to take them. When asked about the identity of the person who had tasked him with collecting the goods, the applicant said he did not know the person, whom he had only met through online gaming. He had no way to contact this person, since there was no caller display on his telephone. When asked whether he would unlock his two mobile telephones for the officers to check, the applicant declined to do so[2].

6.  Since the applicant was unwilling to reveal the contents of his telephones to the arresting officers, they were unable to carry out a further controlled delivery operation[3]. Meanwhile, the two telephones were seized by Customs officers.

7.  Near the entrance of the storeroom where the applicant was taken after he was apprehended, one of the arresting officers found the consignment receipt earlier signed by the applicant screwed up into a ball and discarded on the floor. The applicant confirmed that he had signed the receipt but said he had accidentally dropped it when he was taken to the storeroom[4].

8.  The contents of the applicant’s telephones were later forensically examined after special equipment was used. They revealed threads of WhatsApp messages between the applicant and a person identified as “chitat” (“Chitat”) on 4 days between 21 November 2019 and 27 November 2019 inclusive. Chitat appeared to be the person who had asked the applicant to collect the consignment. Both of Chitat’s contact numbers were, therefore, known to the applicant[5].

9.  In respect of the messages passing between the applicant and Chitat, although there was no direct reference to dangerous drugs, the prosecution case was that frequent drug slang or jargon was used in the conversation between the two. At trial, Senior Inspector Yip Pak-lun (PW6) gave evidence for the prosecution as an expert witness in respect of the language and terms used.

10.  The gist of PW6’s evidence was as follows:

(i)  People involved with dangerous drugs would use a secret coded language in their communications, without specifically referring to dangerous drugs.

(ii)  If the conversations were read as a whole, the context would show that the applicant knew that he and Chitat were talking about dangerous drugs.

(iii)  On 21 November 2019, the applicant and Chitat talked about “wearing clothes”, which was slang for the packaging of dangerous drugs; Chitat was asking the applicant whether he could help with packaging some drugs. The applicant responded that he could not do it at home. Then they discussed the price for “wearing clothes”, ranging from “800” to “1200” per piece, which was a reference to the price of the drugs per ounce. The applicant then suggested that the packaging should be done in a hotel room.

(iv)  On 26 November 2019 and in the early hours of 27 November 2019, Chitat told the applicant that someone would call him on 27 November to “take the stuff”. In the next message, at 00:35 hours on 27 November, Chitat said “that means Yum Cha”. PW6 explained that “Yum Cha” in the context of dangerous drugs meant a drugs transaction; in other words one person handing over drugs to another.

(v)  The terms “wearing clothes” and “Yum Cha”, in the exchanges between Chitat and the applicant, would not make any sense, unless they were understood as the language of dangerous drug slang or jargon[6].

11.  Mr Raffell, for the prosecution at trial, also pointed out the following facts, from which he invited the jury to draw an inference as to the applicant’s guilt:

(i)  When the applicant signed the receipt, he did so very quickly without checking the goods, which indicated that the applicant already knew what the goods contained and he wanted to get away quickly[7].

(ii)  The applicant never asked Chitat what he meant by “wearing clothes” or “Yum Cha”, when usage of those phrases in their ordinary meanings in the conversation would not otherwise have made any sense[8].

(iii)  The applicant asked a person named Ah Wing, whom the applicant sometimes worked for, to drive him on 27 November to various places for collecting and passing over the consignment. The applicant promised to pay Ah Wing for doing so. This was unusual as, normally, the applicant was the one who got paid for working for Ah Wing. Further, what the applicant was doing on 27 November was out of the ordinary for the everyday work of a logistics worker[9].

(iv)  Most importantly, Chitat kept asking the applicant not to tell anybody, especially Ah Wing, about what he was doing. If the applicant thought he was collecting ornaments, prosecuting counsel asked whether he would not find Chitat’s insistence about not telling Ah Wing very strange and, accordingly, question him about it[10]?

12.  The prosecution case was that there could only be one inference to be drawn from the above facts: the applicant knew he was not collecting innocuous ornaments, but rather a consignment of dangerous drugs.

(ii)  The defence case

13.  The applicant did not give evidence himself but called his father as a witness (DW1). The defence was a denial of knowledge of the presence of dangerous drugs. Even on the prosecution facts, which were not substantially disputed by the defence, it was contended that an innocent inference could still be drawn.

14.  DW1 testified that he was self-employed in the goods delivery business. He paid the applicant $15,000 per month to help him deliver goods whenever he had orders. When there was no work to do for his son, the applicant would help Ah Wing deliver goods. As far as DW1 knew, the applicant had never been involved with dangerous drugs before.

15.  During cross-examination, Mr Raffell showed DW1 messages between the applicant and Ah Wing regarding the events and activities of 27 November. DW1 eventually agreed that it was highly unusual for the applicant to be paying Ah Wing. In re-examination, DW1 said on 27 November, the applicant had told him he was going to help Ah Wing with some work[11].

16.  Ms Crebbin, the applicant’s counsel at trial, submitted the following facts, from which the jury could draw an innocent inference:

(a)  The applicant had a clear record.

(b)  There was no direct evidence of knowledge, which knowledge the applicant had specifically denied in his cautioned statement[12].

(c)  There was nothing abnormal or suspicious about the applicant’s manner in collecting the goods[13].

(d)  There was no legal requirement for anyone to show Customs officers the contents of his mobile telephone[14].

(e)  The applicant’s position was the same as any other transportation worker; the consignment of goods was not for the applicant himself, who was simply the middleman there to pick up the goods for onward delivery to someone else[15].

(f)  Chitat would not have mentioned dangerous drugs because it would have been too risky for him to do so. The applicant, who was young and of good character, might have reported the matter to the police or told Ah Wing what was going on. Furthermore, Chitat would not have asked the applicant to get help from Ah Wing, if the applicant knew there were dangerous drugs involved[16].

(g)  Although the expertise of PW6 was not challenged, his reading of the messages between the applicant and Chitat was not the only available interpretation. Besides, all the slang phrases had been initiated by Chitat. There was no evidence showing the applicant was connected with the drugs underworld, in order for him to have been in a position to understand the messages. The applicant could well have taken the terms, “to wear clothes”, “one piece” and “Yum Cha” at their face value, in which case he would not have asked Chitat what the phrases meant[17].

(iii)  The summing-up

17.  The judge reminded the jury, on multiple occasions throughout her summing-up, of the burden and standard of proof and the issue at trial[18]. She took the jury through the evidence[19] and said in respect of PW6[20]:

“PW6’s opinion is that the messages were evidence that the defendant was involved in drug packing and well aware of the drug slang used for both packaging or disguising drugs, as well as delivering drugs.

…

So members of the jury, you have to decide whether you accept PW6’s evidence and his opinions of the conversation between the defendant and Chitat. You have to decide whether you accept his evidence that the defendant was knowingly participating in conversations using drug slang and jargon and understanding that they were talking about drugs. The prosecution are suggesting that if you accept his opinion then you should have no difficulty in finding the defendant had the knowledge that when he was asked to, ‘Take the stuff, that means Yum Cha,’ he knew he was involved in a drug delivery transaction.”

18.  At the end of recapitulating the evidence, the judge directed the jury that[21]:

“It is not part of the prosecution’s case that the defendant was a triad or part of the dangerous drug community because the only issue relevant here which you are to resolve is whether the defendant had knowledge of the drugs in the boxes that he was trying to collect that day, 27 November.

…

So members of the jury, to conclude, the defence case is that he did not know.”

C.  The grounds of appeal

19.  Mr Mughal, for the applicant, has advanced essentially three complaints against the judge’s directions to the jury, which all amount to criticisms of what the judge did not say, rather than what she did say:

(i)  The judge failed to give the jury any directions as to how they should deal with uncharged acts (Grounds 1 to 3);

(ii)  The judge erred in not directing the jury that the applicant’s failure to inspect the goods was not to be equated with knowledge of drugs (Ground 4); and

(iii)  The judge did not direct the jury that there was no obligation on the applicant to help the Customs officers with a controlled delivery operation and the applicant’s refusal to take part should not be used against him (Ground 5).

A sixth general ground was that there was insufficient circumstantial evidence against the applicant, and/or a lurking doubt as to the applicant’s knowledge (Ground 6).

C.1.1.  The uncharged acts (Grounds 1 to 3)

20.  The essence of Mr Mughal’s complaint was that since PW6’s evidence touched upon events prior to the offence in question, the judge should have given the jury directions as to how to deal with such prejudicial information of uncharged acts. The applicant was charged with attempting to collect drugs on 27 November 2019, yet the messages between the applicant and Chitat, which the prosecution relied on to infer the applicant’s guilt, included the period from 21 November 2019 to 24 November 2019. During this earlier period, and in particular on 21 November 2019, according to PW6, the applicant and Chitat had also talked, inter alia, about “wearing clothes” (drug packaging)[22].

21.  Mr Mughal submitted that PW6’s evidence on the earlier discussions about drug packaging was evidence of uncharged acts. He argued that the failure of the judge to direct the jury on how to deal with such evidence led to the following consequences[23]:

(i)  Since the jury were not warned that in order to act on evidence of uncharged acts they must be sure that such acts had actually occurred, they might have formed the impression that the uncharged acts evidence were not controversial and/or that the applicant had a propensity to commit the offence.

(ii)  Without the judge’s direction to obviate the risk of prejudice caused by the uncharged acts evidence, the summing-up was not fair or balanced. Accordingly, this was a material irregularity in the trial.

(iii)  The conviction of the applicant was accordingly unsafe and unsatisfactory.

22.  To support his submission on the evidence as to uncharged acts, Mr Mughal relied on the authorities of HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769[24]; and HKSAR v Lam Hing Chit (No 2) [2021] 6 HKC 547[25].

23.  He further made reference to the exchanges, in the absence of the jury, between the judge and counsel following closing addresses but before her summing-up, in order to make the point that the judge had herself seen the drug packaging messages of 21 November, and the drug transaction messages of 26 and 27 November 2019, as two separate matters[26].

C.1.2.  The respondent’s reply on uncharged acts (Grounds 1-3)

24.  Mr Winston Chan, for the respondent, submitted that the real issue for the appeal Court would be whether the judge’s directions concerning PW6’s evidence were or were not sufficient to prevent the jury from adopting an impermissible line of reasoning. Mr Chan contended that the directions were sufficient[27]:

(i)  PW6’s evidence on the contents of the messages between Chitat and the applicant in the period from 21 November 2019 to 26 November 2019 (that is before 27 November 2019) were not uncharged acts at all, for which he relied on what was said by the Court in HKSAR v Chow Ching Yin [2021] HKCA 157.

(ii)  Instead, such evidence went to the heart of the issue at trial: whether the applicant knew there were dangerous drugs in the consignment he was asked to collect on the day in question. PW6’s evidence on the use of drug slang or jargon was evidence of the applicant’s knowledge of the presence of dangerous drugs. The evidence was not used to show that the applicant had a propensity to engage in previous drug trafficking.

(iii)  The judge had repeated for the jury the burden and standard of proof, as well as the issue at trial, which was whether he knew there were dangerous drugs in the boxes he was collecting. She had correctly directed the jury on the purpose of PW6’s evidence[28].

(iv)  The judge also reminded the jury to take the applicant’s clear record as a matter in his favour on propensity[29].

(v)  PW6’s evidence formed part of the entire circumstantial evidence for the jury to draw an irresistible inference against the applicant[30].

25.  Mr Chan relied on the decision of Zervos JA, sitting as a Single Judge, in HKSAR v Okafor Joe Kingsley [2020] HKCA 549[31].

C.2.1.  Failure to inspect and knowledge (Ground 4)

26.  Under this ground, Mr Mughal complained that the judge should have reminded the jury that the applicant’s failure to inspect the goods was not to be equated with knowledge of the presence of dangerous drugs. The defence case was that the applicant was a transportation worker and he had acted perfectly normally, consistent with that role, when collecting the goods. Even prosecuting counsel had suggested in his closing address that the applicant had signed too quickly on the receipt without checking the goods, showing the applicant did not care what the goods were[32].

27.  Although he accepts that constructive knowledge is in most cases irrelevant in dangerous drugs cases, Mr Mughal submitted that fairness dictated that the direction contended for should have been given[33]. He invited me to consider the decision in HKSAR v Yang Yulan [2013] 4 HKLRD 170.

C.2.2.  Ground 4: the respondent’s reply

28.  In response to Ground 4, Mr Chan pointed out, firstly, that the judge had said of the manner in which the applicant had collected the goods, “this alone would not be enough”[34]. He further submitted that the jury would not have mistaken the applicant’s failure to inspect for knowledge of the drugs because the judge had given proper directions, including as to the standard of proof and the importance of not speculating[35].

29.  Mr Chan said that Yang Yulan did not assist the applicant’s complaint: rather, it fortified the respondent’s position. In that case, the Court had rejected a similar complaint and found that because the trial judge gave sufficient directions on the onus and standard of proof, and reminded the jury that mere suspicion was not enough, the jury would not have misunderstood that failure to inspect was tantamount to having the requisite knowledge[36].

C.3.  The applicant’s non-participation in a controlled delivery (Ground 5)

30.  Mr Mughal submitted the judge should have given the jury a clear direction that the applicant was under no obligation to assist in any controlled delivery. Otherwise, the jury might think such an obligation existed and have drawn an adverse inference from the applicant’s non-participation[37].

C.4.  Ground 5: the respondent’s reply

31.  In response, Mr Chan argued that the judge had already dealt with the relevant evidence fairly and properly. No further direction was required. In particular, the judge reminded the jury that the applicant did not say “no” to take part in controlled delivery. The applicant had claimed that he could not reach the person because there was no caller display on his telephone[38].

C.5.  Ground 6

32.  Ground 6 is a catch-all ground to the effect that Grounds 1, 2, 3, 4 and 5, either individually or collectively, render the applicant’s conviction unsafe and unsatisfactory.

33.  Mr Chan submits that none of the grounds is reasonably arguable and thus invites me to dismiss the leave application.

D.  Consideration

D.1.  ‘Uncharged acts’ (Grounds 1-3)

34.  The Court in Chow Ching Yin at [45] spoke of an ‘uncharged act’ being a distinct criminal offence:

“Nor can it be said that just because the planning for the crime commenced before the dates particularised in the indictment that any offence committed as part of that planning process constitutes an uncharged act. If bank robbers steal a car two days before a robbery in order to use it as their getaway vehicle, that theft does not become an uncharged act. An uncharged act is a criminal offence that is quite independent of the offence for which the accused is being tried and which could lure the jury into impermissible propensity reasoning.” (Emphasis supplied)

In the earlier case of HKSAR v Ma Sin Chi & Another (Unrep., CACC 424/2013, 17 June 2016), the Court said at [128]:

“The decision of this court in HKSAR v Kwok Hing Tony, on which the 1^st appellant solely relies, does not contain any definition of uncharged acts evidence, but by its very nature such evidence must be composed of acts which could themselves be the subject of charges.” (Emphasis supplied)

35.  It is these two references in the authorities, which caused me to ask Mr Mughal what was the independent criminal offence that could have been the subject of a separate charge in the text messages of 21 and 24 November 2019 (in particular, 21 November). As I read the evidence of these text and voice messages, and if one accepts PW6’s interpretation of the conversation, it is of two men talking in covert terms about the packaging of dangerous drugs, unconnected with the events of 27 November collection of dangerous drugs, which seem to have been sent from France. My interpretation was evidently the same as the judge’s, for after both counsel had delivered their respective speeches to the jury, there was the following exchange between the court and prosecuting counsel about PW6’s evidence[39]:

“COURT: There are – a reading of the messages shows that …

Mr Raffell: Yes

COURT: … both parties understood and I think that’s – that is …

Mr Raffell: Right.

COURT: … if the jury accept his evidence and accept on a reading of the context of the messages, his evidence is that the context indicates both parties are discussing drug packaging separately to this drug transaction.

Mr Raffell: Yes.

COURT: On the drug packaging discussions on the 21^st, that’s not related to the – that’s not related to the pick-up of the 27^th.

Mr Raffell: No. But it’s – the whole picture is one of …

COURT: Yes.

Mr Raffell: … Chitat and the defendant being involved with drugs in some way.

COURT: So it’s up to the jury if they believe his …

Mr Raffell: Yes.

Court: That’s – that’s what his evidence is, so it’s up to the jury to believe – believe it or not believe it.”

(Emphasis supplied)

36.  Although Mr Mughal’s answer to my question was that the conversation between the two men could suggest some vague possibility of a conspiracy to package dangerous drugs, I am very doubtful that these conversations between the applicant and Chitat go that far, or amount to any independent criminal offence at all. Nor, as the judge said and prosecuting counsel acknowledged, do they appear to be connected with the events of 27 November 2019. As prosecuting counsel put it, the text exchanges and conversations, whilst not related to the collection on 27 November, were adduced simply because they revealed a picture of “…Chitat and the defendant being involved with drugs in some way”. If that is so, it sounds suspiciously like propensity evidence and the question then becomes one of the admissibility of the evidence, and for what purpose it was admitted.

37.  If PW6 had been called to deal with the text and voice messages of 26 and 27 November only, it would clearly have been permissible for him to explain what “Yum Cha” meant at Entry 170 on 27 November, in the context of the conversation on 26 November 2019. That evidence was clearly admissible. However, I think it is reasonably arguable that the evidence of the previous days, namely 21 and 24 November 2019 (in particular, 21 November) concerning, inter alia, the packaging of dangerous drugs was not admissible, if it was introduced simply to prove that the applicant was somehow mixed up in dangerous drugs. However, if it was admissible for some reason connected with the events on 27 November, such as knowledge, then it is also arguable that the judge should have limited the way the jury regarded such evidence so that they did not use it in an impermissible way, for example, as evidence of propensity.

38.  For these reasons, I shall grant leave to appeal on Grounds 1 to 3, although the applicant needs to consider and articulate more particularly what the complaint actually is. Is it one of inadmissibility (either intrinsic or on the basis that the evidence was more prejudicial than probative), or is it one of uncharged acts? I appreciate that the respondent’s argument will be that whatever the complaint about the evidence of the text and voice messages on 21 and 24 November, the judge repeatedly emphasised that it was the applicant’s knowledge at the time he picked up the dangerous drugs on 27 November 2019, which was the critical issue. However, whether the evidence was admissible and for what purpose and how the judge dealt with it, or should have dealt with it, are matters for the Court of Appeal to assess. I merely have to be satisfied that the appeal on this point is reasonably arguable.

39.  In advancing the argument, however, the applicant will have to deal with the fact that the WhatsApp and voice messages were formally agreed by defence counsel at trial by way of Admitted Fact evidence[40]. If the argument now is that the evidence of the messages on 21 and 24 November 2019 was inadmissible because it was more prejudicial than probative, Mr Mughal will have to explain why it was agreed to in the first place. There may, for all I know, have been a reason why defence counsel at trial wanted the evidence to be admitted. Given its admission and agreement, it may be that the only argument available to the applicant on appeal is that there should have been a direction from the judge warning the jury of the limited use of such prejudicial evidence, and how they must not use it.

D.2.  Ground 4 (failure to inspect)

40.  This was not a constructive knowledge case. In Yang Yulan, the defendant had brought from Singapore a rucksack containing a bag of heroin and was arrested by Customs officers at the border. She denied knowledge of the possession of dangerous drugs. The complaint at appeal was that the trial judge’s direction (see [12] of the judgment) might have led the jury to misunderstand that a failure to inspect was equivalent to knowledge. The Court of Appeal disagreed and found nothing wrong with the trial judge’s impugned direction:

“25. Since ‘constructive knowledge’ is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to suspicious circumstances, it is not appropriate for judges to give general directions to the jury on ‘constructive knowledge’.”

41.  With respect, it is hard to see how Yang Yulan supports Mr Mughal’s position. In any event, the judge’s direction was in compliance with Specimen Direction 61.3 (2013):

“Where there is an issue about knowledge of the contents of a container, the jury must be told that suspicion does not suffice and that knowledge must be proved. In such cases, judges must be very careful not to suggest that, by itself, failure to take an opportunity to inspect is to be, or may be, equated with knowledge of the contents. In appropriate cases, it is a fact that may be taken into account and from which, with all the other circumstances, guilty knowledge may be inferred.”

D.3.  Ground 5 (controlled delivery)

42.  It was never the prosecution’s position that the applicant was obliged to participate in a controlled delivery: in fact, this whole area of evidence emerged during cross-examination by defence counsel and the judge merely recited it when dealing with PW5. Besides, the applicant had not exercised his right of silence upon arrest, so the answers he gave were admissible. As Mr Chan points out, PW5 conceded that the applicant had not in fact said “No” when asked if he would take part in a controlled delivery. No point was ever made by prosecuting counsel in his closing address that the applicant was somehow obliged to participate in a controlled delivery. Nor did defence counsel raise any such concern with the judge. This ground is not reasonably arguable.

D.4.  General ground (Ground 6)

43.  I do not regard Ground 6 as a freestanding ground of appeal that is reasonably arguable. Nor is this a case where there might be a lurking doubt about the safety of the conviction. If the Court rejects Grounds 1 to 3 (in their present or amended form), the evidence and inferences from the evidence were compelling. PW6’s evidence, if accepted, provided direct evidence of the applicant knowingly participating in a drugs trafficking offence, certainly on 26 and 27 November 2019.

44.  If the Court accepts Grounds 1 to 3 (in their present or amended form), the appeal is not strengthened by an argument that the circumstantial evidence was insufficient or that this was a lurking doubt case. The applicant collected and signed for a consignment of nearly 22 kilogrammes of dangerous drugs contained in 28 boxes worth over HK$12 million on behalf of someone he did not know and had never met, otherwise than through playing online video games with him. The WhatsApp messages of 26 and 27 November 2019, which plainly were admissible, were cogent evidence that the applicant had knowingly embarked on a dangerous drugs transaction.

45.  I would not grant leave to appeal on Ground 6.

E.  Sentence

46.  Although this case involved a sizable narcotic quantity of 18.73 kilogrammes, the drug concerned was ketamine rather than “Ice”, heroin or cocaine. In HKSAR v Chan Ka Yiu & Others [2018] 4 HKC 591, the Court declined to issue guidelines for trafficking in quantities greater than 1 kilogramme of ketamine narcotic and said that sentencing courts should continue to adopt the approach set out in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627. There, the Court had held, at [28]:

“…if more than 3,000 g of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity. The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case”.

47.  I do not know how the judge arrived at 25 years’ imprisonment after trial, which may or may not be on the high side, given the applicant’s role and culpability as the person who was simply to collect the consignment and hand it over to someone else. There seems to be a suggestion that the judge may have been influenced by the ‘international element’ of the goods arriving from France. Whether that is correct or not will be made clear by ordering a transcript of mitigation and sentence; accordingly, I make that order.

48.  I shall grant Legal Aid for counsel to advise his client whether there should be an application for leave to appeal against sentence out of time. To that end, the transcript I have ordered will be made available to the parties. If there is to be an application for leave to appeal out of time, the relevant transcript can then be added to the existing Appeal Bundle.