HKSAR v. MOHAMED HUSSAIN MOHAMED IMRAN AND ANOTHER

CACC 38/2018

[2019] HKCA 1124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2018

(ON APPEAL FROM HCCC NO 55 OF 2017)

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J U D G M E N T

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1.  The 1^st and 2^nd applicants (who will be referred by their trial designations as D1 and D2 respectively) stood trial before Deputy High Court Judge Lee (as he then was) (the judge) and a jury on a charge of trafficking in a dangerous drug, namely 410 grammes of a powder containing 261 grammes of cocaine.

2.  Prior to trial, D1 pleaded guilty to the charge and testified for the prosecution in the trial against D2, who had pleaded not guilty to the charge.  At the conclusion of D2’s trial, D1 was sentenced to 7 years and 1 month’s imprisonment, having had a starting point of 14 years and 2 months’ imprisonment reduced by 50% for his assistance to the authorities.  He now applies for leave to appeal against his sentence.

3.  As for D2, he was convicted after trial and sentenced to 14 years and 2 months’ imprisonment.  He originally applied for leave to appeal against his conviction and sentence but subsequently abandoned his application in respect of his sentence. 

4.  The applications of D1 and D2 were fixed to be heard together but I directed that they be heard separately because D1 had given evidence against D2 and was alleging that he had received threats from D2.  I also took into account that the respective applications of D1 and D2 involved different issues and considerations and did not have a bearing on each other.

D2’s appeal against conviction

The prosecution case

5.  The prosecution case against D2 can be briefly stated as follows.  It was alleged that at the behest of a person referred to as the “black man”, D2 arranged for D1 to prepare false identity documents in order to collect a parcel containing cocaine (the parcel) for the “black man” from the Sham Shui Po Post Office (the Post Office).

6.  It was not in dispute that the parcel was from Panama and was intercepted by the Customs and Excise Department when it arrived in Hong Kong by air on 6 August 2016.  The parcel was addressed to “LAM Kam Sun”, care of an address in Sham Shui Po with the contact telephone number 852 98004832.  It was later discovered that the address was a vacant building in Sham Shui Po which was to be redeveloped.  Upon examination, the parcel was found to contain a thermos flask concealing 410 grammes of a powder, containing 261 grammes of cocaine.

7.  On 26 August 2016, D1 attended the Post Office to collect the parcel but he was told that it had not yet arrived and he was asked if he could leave a contact name and telephone number which he did.  He gave the name “Sir” and the telephone number 5588 9104.

8.  The parcel was arranged to be collected on 29 August 2016, and a controlled delivery was mounted by Customs officers.  A Customs officer posed as a postal employee at the counter of the Post Office and other Customs officers in plain clothes mounted surveillance in and outside the Post Office.  Customs officers observed D1 and D2 walking to the Post Office.  However, only D1 entered the Post Office, while D2 remained outside.  D1 went to the counter and asked for the parcel, presenting false documents bearing the name “Lam Kam Sun” and the delivery address of the parcel.  D1 was given the parcel and upon leaving the Post Office he was intercepted and arrested by Customs officers.  At the same time, D2 was also intercepted and arrested by Customs officers outside the Post Office.

9.  D1 and D2 were searched by the Customs officers.  They found in D1’s possession a Samsung mobile telephone with the number 9013 0241, and in D2’s possession a HTC mobile telephone and a Samsung mobile telephone with the number 9171 5214.  It was an admitted fact that D1’s telephone had received 3 calls from D2’s telephone while D1 was inside the Post Office collecting the parcel; that D1 had saved D2’s telephone number and the parcel number on his mobile telephone; and that on 25 August 2016, D1’s mobile telephone received 2 forwarded text messages from D2’s telephone which originated from telephone numbers 5588 9104 and 5484 8237.

10.  The prosecution case was primarily based on the evidence of D1 and the Customs officers.  The Customs officers testified as to the events surrounding and including the controlled delivery on 29 August 2016.  They also produced CCTV footage from the Post Office and telephonic communications between the defendants.  D1 testified that in July 2016, D2 told him there was a job to collect “a packet from Panama” containing cocaine.  In August 2016, D1 accepted D2’s job and prepared the false identity documents in accordance with instructions sent to him by D2 via mobile telephone messages.  D1 admitted that he was the person who made the inquiry at the Post Office on 26 August 2016, and that he went to the Post Office with D2 on 29 August 2016.  Once he entered the Post Office, he received instructions from D2 on his mobile telephone.  The admitted call records and messages between D1 and D2 supported D1’s evidence against D2.  

11.  D1 stated that the collection of the parcel had been arranged by D2 together with another person, whom D1 referred to as the “black man”.  

12.  D1 testified that he came to Hong Kong in 2005 as an asylum seeker.  Later in 2009, he became acquainted with D2 but it was not until they both moved to Yuen Long that they became close friends. 

13.  In around early July 2016, D2 told D1 that there was a job to collect a parcel of cocaine from Panama which belonged to the “black man”.  D2 asked D1 to prepare false documents to collect the parcel from the Post Office.  D2 promised D1 the sum of $2,000 if he prepared the documents and went to the Post Office to collect the parcel.  Initially, D1 said he did not want to get involved, but later from 16 August 2016 onwards he received messages from D2 urging him to do the job.  He eventually agreed.  On 25 August 2016, D1 received voice and text messages from D2 asking him if he had prepared the documents.  On 26 August 2016, D1 went to the Post Office at about 4:18 pm with the intention to collect the parcel.  He showed the postal officer at the counter the parcel number which was recorded on his mobile telephone. He was told by the postal officer that the parcel had not yet arrived and was asked to leave a contact number.  He gave the number 852 98004832 which was the number mentioned in one of the text messages. 

14.  D1 said that on 26 August 2016 he met D2 at around 2 pm in Hop Yick Plaza in Yuen Long for the purpose of collecting the parcel from the Post Office and arranging a stamp chop and name cards which he designed for D2’s handyman business.  They had something to eat while D2 was waiting for a call from the “black man”.  After receiving a telephone call, D1 and D2 went to Long Ping MTR Station where the “black man” was waiting for them.  The three men then took the MTR to Austin Station where they got off and took a bus to Sham Shui Po.  During the bus journey, the “black man” keyed into the mobile telephones of D1 and D2 the parcel number.  When they arrived at Sham Shui Po, D1 and D2 went to the Post Office.  The CCTV footage from the Post Office depicts D1 inside the Post Office at various times while there is the appearance of another man waiting outside the Post Office.  D2 at trial denied that he was the other man.  D1 said the other man was D2 and they left the Post Office together.  They subsequently met the “black man” and explained to him what had happened.  It was an admitted fact that the contact number left at the Post Office was 55889104, which was mentioned in one of the text messages sent to D1 from D2’s mobile telephone the night before. 

15.  On the morning of 29 August 2016, D1 said that he met D2 at Hop Yick Plaza, and like before D2 waited for a telephone call from the “black man”.  After receiving the call, D1 had to go to his home to retrieve the relevant documents to collect the parcel because he had forgotten to bring them.  D1 and D2 then went to Long Ping MTR station where they met the “black man”.  From there the three men went to Sham Shui Po. D1 went inside the Post Office to collect the parcel, while D2 waited outside. D1 produced the identity documents and collected the parcel.  He received 3 telephone calls from D2 who enquired about the progress of the collection of the parcel.  In the last telephone call, D2 told D1 that after he had collected the parcel he was not to give it to him but instead he would follow D1 after he left the Post Office.  Customs officers arrested D1 upon leaving the Post Office and D2 in the vicinity of the Post Office. 

D2’s case

16.  D2’s case was that he had nothing to do with the parcel and he did not know that it contained drugs. He testified that he came to Hong Kong in 2005 and was a torture claimant. Both his wife and sister-in-law were working in Hong Kong as domestic helpers. He said he had known D1 for about 6 years and they started working together 2 years before the offence. 

17.  D2 denied he had been to the Post Office with D1 on 26 August 2016.  He said that he had given his sister-in-law’s HTC mobile telephone to him to repair but he was unable to do so.  He said he met up with D1 on 29 August 2016 to retrieve the HTC mobile telephone.  He intended to go with D1 to Sham Shui Po to have the HTC mobile telephone repaired and then to Jordan to obtain a stamp chop and name cards for his handyman business.  After that they were to go to Sai Kung to collect payment for a building job.  He said that D1 had an interest in his handyman business and D1 would use D2’s mobile telephone for that purpose because he spoke better English than he did.  He said that before they set off they had something to eat and during this time D1 used D2’s mobile telephone.  They then went to Long Ping station and during the journey D1 asked to use D2’s mobile telephone in order to check if there were any messages.  He said that at the station they saw D1’s friend who was a “black man”.  D1 and the “black man” chatted together for one or two minutes.  He and D1 then took the train to Sham Shui Po but did not notice if the “black man” also got on the train.  When they arrived there he said he saw the “black man” again who gave something to D1.  The black man left them and D1 told him that he had something to do at the Post Office.  He said he waited for D1 but did not see him entering the Post Office.  He said that he telephoned D1 to inform him that he had located a mobile telephone repair shop and to ask him why he was taking so long.  

18.  D2 said because he was an illegal worker he sensed the presence of police in the vicinity, but did not leave as he was not doing anything illegal at the time.  

19.  When D2 was arrested, Customs officers brought D1 to him but he denied knowing him.  He said he did so because D1 was moving his head from side to side and he thought D1 was indicating that he should not acknowledge him.

D2’s submissions

20.  In his Form XI, filed on 7 February 2018, D2 advanced no grounds of appeal, claiming that he would set out his grounds once he had received the Appeal Bundle.  The Court eventually received an affirmation from D2 dated 2 August 2019, advancing nine purported grounds of appeal.  They are as follows:

Ground 1:   D2 has suffered grave and substantial injustice and had not received a fair trial.

Ground 2:   The judge was barely audible during the summing-up and it was doubtful whether the jurors could fully understand what was being said, and the summing-up was unfair and in favour of the prosecution.

Ground 3:   The judge in his summing-up repeated on many occasions the prosecutor’s points and was wrong to refer to D1 as an important witness.

Ground 4:   The judge said in the summing-up that D2’s evidence was true or may be true which was an incorrect direction in law.

Ground 5:   The judge had been unfair to D2 in his summing-up by failing to refer to D2 with a short name, instead referring to him as the “defendant” in the summing-up, and telling the jury that if they “did not follow his direction your verdict will be set aside by the appeal court and your effort will be wasted.”

Ground 6:   The judge noted in the summing-up that D2’s counsel never objected to or asked questions of several witnesses and that D2’s counsel failed to follow D2’s instructions and therefore D2’s counsel may have colluded with the prosecution, leading to the judge supporting the prosecution points, and D2 failing to secure a fair trial.

Ground 7:   On the first day of the trial a juror said to the judge he had no experience in “drugs cases” and his English was not good so he did not wish to serve as a juror but the judge compelled him to sit on the jury.

Ground 8:   The judge failed to pay attention to the jury during the trial, because on occasions two or three jurors fell asleep, but the judge did not ask them to wake up.

Ground 9:   The police had not arrested a third person who was referred to in the evidence of D1 and D2 and the judge had failed to raise this matter with the prosecution.

21.  The Court directed that these grounds should stand as D2’s perfected grounds of appeal.  The Court also noted that D2 in Ground 6 made allegations of incompetence against his trial counsel and solicitors.  However, despite numerous directions to D2 to file an affirmation waiving legal professional privilege, he has not done so.  This meant that trial counsel and the solicitors have not had an opportunity to respond to D2’s allegations.  In order to have an appreciation of the non-compliance by D2 of the Court’s directions, a chronology of the procedural history of this case is delineated in an annexure to this judgment.

22.  No further submissions have been submitted by D2 to support the grounds of appeal that he has advanced.  He submitted another affirmation dated 28 August 2019, in which he complains about his past legal representation and the lack of current legal representation, without referring to the other matters he has raised in the present application.  He said he had strong evidence “from his wife, his sister and his sister’s employer” without saying what that evidence entailed.

23.  At the hearing, D2 applied for an adjournment because a solicitor, Mr Simon Cleves, whom he wished to represent him was away overseas.  No notice to act has been filed by the solicitor on behalf of D2.

Respondent’s submissions

24.  The respondent has filed written submissions dated 4 July and 10 October 2019.

25.  The respondent’s submissions contend that the judge had properly directed the jury on all salient issues.  The jury had reached a unanimous verdict rejecting D2’s evidence and accepting the prosecution evidence.  It was submitted that there was nothing to show that the conviction was unsafe or unsatisfactory.

26.  In respect of the grounds of appeal the respondent makes the following submissions.  As for Grounds 1, 3, 4 and 5 that allege that the judge’s summing-up was unfair, the respondent submits there is no substance to the complaint.  There was nothing wrong for the judge to tell the jury that if D2’s evidence was true or might be true he should be acquitted.  There was nothing improper by the judge referring to D2 as “the defendant” and using the first name of D1 in his summing-up to the jury. The judge explained to the jury that he did this for ease of reference.  The judge did not say to the jury “if the juries not follow his direction your verdict will be set aside by the appeal court and your effort will be wasted”.

27.  As for Ground 2 that the judge was inaudible when summing-up to the jury, the respondent submits that there is no substance to this complaint.  At no time was any complaint made during the course of the summing-up that the judge could not be heard.

28.  As for Ground 6 that defence counsel had failed to cross-examine witnesses in accordance with the defence case, the respondent submits that no particulars have been provided and in any event the defence case was presented to the jury and put to witnesses when appropriate.

29.  As for Grounds 7 and 8 that a juror was reluctant to sit on the jury and during the course of the trial jurors were sometimes asleep, the respondent submits that there is no substance to these complaints.  It is pointed out that upon the empanelling of the jury each juror took an oath and was appropriately directed by the judge as to their role and responsibilities.  There is nothing to suggest that jurors were asleep during the course of the trial.  No complaint was made to the court about such a matter.

30.  As for Ground 9 that the “black man” had not been arrested and the judge had failed to raise this matter with the prosecution, the respondent submits that the absence of this person did not in any way affect the fairness of the trial of D2.  Ultimately, the issue the jury had to decide was whether, on the evidence, D2 was involved in the collection of the parcel of drugs as alleged against him.  That was made abundantly clear to the jury by the judge’s directions to them.

Discussion

31.  I agree with the respondent’s submissions rejecting the litany of complaints by D2 on the basis that they are without substance or foundation.  They are clearly not reasonably arguable. 

32.  Of D2’s complaint that his trial counsel and solicitors were flagrantly incompetent, I am also of the view, on the material submitted (or lack of material), that this ground is not reasonably arguable. 

33.  In his affirmation dated 2 August 2019, D2 makes a number of points under Ground 6.  He alleges that the judge said to his counsel that he never objected or asked any question of several witnesses, but because he was not allowed to talk to his counsel during the trial he could not give him instructions.  He also alleges that he told his counsel many things for him to say but he did not do so and he believes that there was collusion between his counsel and prosecuting counsel.  He complains that the judge always supported the prosecution case and his summing-up to the jury was unbalanced and unfair. 

34.  In his affirmation dated 28 August 2019, D2 complains that he gave a number of documents to his solicitor to produce at trial but he did not do so.  He provides no particulars in relation to these documents and how they were relevant to his case.  He further complains that he had “three strong evidence”, his wife, his sister and his sister’s employer. He claims that he instructed his lawyers to call these persons as witnesses but they did not do so.  Again, he provides no particulars in relation to the relevance of these witnesses to his case.

35.  At the hearing of D2’s application, it was clarified with D2 that his complaint was essentially against defence counsel for not addressing matters at his trial as instructed.  When asked to particularise the matters, D2 stated that: (1) counsel did not raise as a defence that he was not the person on the CCTV footage of 26 August 2016; (2) counsel did not submit his record of interview in order to reveal that Customs officers showed him a different quantity of drugs from the quantity particularised in the charge; and (3) counsel did not call the three witnesses to give evidence on his behalf.

36.  D2’s complaint that counsel did not raise in his defence that he was not the person on the CCTV footage in the Post Office on 26 August 2016 is not correct.  It is apparent from the judge’s summing-up to the jury that the defence case presented by counsel was that D2 had not been to the Post Office on that day, and he was not the person, whom D1 claimed was depicted in the CCTV footage.  D1 testified that a man carrying a shoulder bag in the CCTV footage was D2. 

37.  The judge in summarising the defence case noted that there was no close-up shot of the man’s face and also that D1 and the man did not acknowledge each other inside the Post Office.  The judge directed the jury’s attention to whether they could believe the evidence of D1 that the other person was D2 in the Post Office.  It is clear that this matter was very much a part of the defence case as presented on D2’s behalf by his counsel, which was reflected in the judge’s summing-up to the jury.  There is no substance to this complaint.

38.  D2’s complaint about his counsel not putting into evidence his record of interview is without merit.  He seems to be suggesting that Customs officers showed him a different quantity of drugs and therefore this reflected on their credibility.  He said he was shown 200 grammes of drugs but the charge stated there were 465 grammes of drugs.  As specified in the charge, the total quantity of powder was 410 grammes and the total quantity of cocaine narcotic was 261 grammes.  In any event, the nature and quantity of the drugs, and that they had not been tampered with or altered, were admitted facts and not in issue at trial.  The post record of D2’s arrest and caution was produced as exhibit P35 as an admitted fact.  D2’s record of interview was not put into evidence as he exercised his right of silence and did not answer any of the questions asked of him.  There is no substance to this complaint. 

39.  D2’s final complaint is that he had three witnesses to testify as to his whereabouts on 26 August 2016, but they were not called in his defence.  He claims that the judge refused his wife to give evidence on his behalf and that the other two witnesses were not called by his counsel.  No particulars have been provided about the nature and relevance of their evidence to his case.  In addition to the testimony of D1, evidence of significance against D2 was his attendance at the Post Office on 29 August 2016 and the telephonic contact between he and D1 while D1 was inside the Post Office collecting the parcel as well as other calls and messages recorded on his mobile telephone.

40.  The non-compliance of court directions by D2 has unnecessarily occupied court resources and seriously delayed these proceedings.  He was specifically requested on numerous occasions to waive legal professional privilege in order to address his complaint against his trial counsel and solicitors but has failed to do so.  I do not consider that this is a reasonably arguable ground in light of the nature of the complaint, and his failure to properly particularise and address the complaint as required.  See HKSAR v Apelette Kokou Afla, unreported, CACC 176/2017.

41.  I am of the view that D2 does not have any reasonably arguable grounds of appeal against his conviction.  I therefore refuse his application to adjourn the leave application, and refuse him leave to appeal against his conviction.

D1’s appeal against sentence

42.  In pleading guilty to the drug trafficking charge, D1 agreed a summary of facts consistent with the evidence that he gave at the trial of D2. 

43.  In mitigation, counsel for D1 submitted, amongst other things, that D1 had assisted in Father John Wotherspoon’s campaign by submitting a letter for publication warning others not to be involved in the drug trade; that he had assisted the authorities by providing information and giving evidence against D2 at his trial which led to his conviction; and that he entered a timely plea in the circumstances. 

44.  Counsel acknowledged that D1’s status as an asylum seeker did not help his case.  However, he noted that D1 had prior to the commission of the offence withdrawn his non-refoulement claim because he wished to return to Sri Lanka.  As a consequence, he argued that D1’s immigration status should not be treated as an aggravating factor. 

45.  Counsel further acknowledged that there was no objective evidence that D1 was subject to substantial personal risk for having testified against D2, noting that they were segregated in prison custody. 

Reasons for sentence

46.  The judge applied the tariff case of R v Lau Tak Ming & Others [1990] 2 HKLR 370 and adopted a starting point of 12 years and 11 months’ imprisonment for trafficking in 261 grammes of cocaine narcotic.

47.  The judge noted that the culpability of D1 and D2 in this case was similar.

48.  The judge rejected D1’s contention that the withdrawal of his non-refoulement claim prior to the offence meant it was not an aggravating factor.  He relied on Court of Appeal decisions in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 and HKSAR v Mahabul Alam Kham, unreported, CACC 116/2016, 8 September 2017, and considered the sentence should be enhanced by 15 months for the fact that “D1 committed a serious offence which strikes at the social fabric and tarnishes the reputation of the very place which extended hospitality to him by permitting him to stay and to remain in liberty.”  This resulted in a sentence of 14 years and 2 months’ imprisonment.

49.  The judge considered the revised discount regime for guilty pleas in HKSAR v Ngo Van Lam [2016] 5 HKLRD 1 and noted that it did not address the situation where the accused pleaded guilty after committal and also assisted the prosecution by testifying against a co-accused.  He took into account that D1 had given crucial evidence in the trial against D2 which led to his conviction, as well as other mitigating factors that had been advanced on his behalf.

50.  The judge decided to “temper justice with mercy” in giving a 50% discount to D1 for all the factors in his favour and sentenced him to 7 years and 1 months’ imprisonment.

D1’s submissions

51.  In his Form XI, filed on 6 February 2018, D1 advanced two grounds of appeal against sentence.

52.  In the first ground, D1 submitted that as a result of his testimony against D2, D1’s family in Sri Lanka were in danger because D2 comes from an influential and prominent family and that D2’s family members could easily locate his family and cause them harm.  He argues that he should be categorised as a “supergrass” for which he should be awarded the maximum discount of two thirds.  He elaborated upon this ground in a letter dated 24 May 2019 in which he submitted that D2, through two prison inmates, had conveyed threats of killing him and harming his family because of his betrayal.  He referred to the case authorities of R v Chan Fu Kui [1976] HKLR 967 and R v Suen Shek [1998] 1 HKLR 524.

53.  In the second ground, D1 submitted that his sentence should not be enhanced due to his immigration status as a non-refoulement claimant, arguing that it did not apply to anyone else with a different immigration status and was therefore unfair.  However, at the hearing of the leave application, D1 abandoned this ground of appeal.

Respondent’s submissions

54.  The respondent in its submissions notes that the starting point adopted by the judge of 12 years and 11 months’ imprisonment was in accordance with the sentencing guidelines for the quantity of cocaine narcotic involved in the present case. 

55.  It is submitted that the discount of 50% for the assistance D1 rendered to the authorities and other mitigating factors was generous in the circumstances of the case. 

56.  It was further submitted that D1 did not fall into the category of a “supergrass” and that it had not been shown as claimed by D1 that he and his family were placed in considerable personal risk because of him having testified against D2.

Discussion

57.  The sole ground of appeal against his sentence is that he should have been categorised as a “supergrass” and that his sentence should have been discounted by more than the 50% the judge gave him.

58.  D1 claims that he and his family are at personal risk because he testified against D2 who was a close family friend in Sri Lanka until the time of this offence.  He claims that D2 comes from a prominent family, and as they know the whereabouts of his family they will harm them as a form of reprisal against him.  The connection between their families is not quite clear because D1 said in his evidence that he became acquainted with D2 in Hong Kong in 2009 and it was when they moved to Yuen Long that they became close friends.  It is also to be noted that both D1 and D2 left Sri Lanka in 2005 and have been residing in Hong Kong ever since.  D1 said at the hearing of this application that he had seen D2 in prison without incident, although he claims that others had made threats to him on D2’s behalf.  He confirmed that there has been no incident of reprisal either here or abroad. 

59.  The applicant does not fall in the category of a “supergrass” which is normally designated to a person in exceptional circumstances where the nature and level of the assistance is substantial and the risk to himself and to his family is considerable.  As observed by this Court in R v Chiu Pak Wing [1995] 2 HKC 819 at 821 and R v Suen Shek and others [1988] 1 HKLR 524 at 526, a “supergrass” is a person who has given substantial assistance or placed himself at considerable risk for doing so. 

60.  It is usually the case that an accused who has given evidence against a co-accused at trial would receive a 50% reduction to his sentence (incorporating the one third discount for a plea of guilty).  See Z v HKSAR (2017) HKCFAR 183 and HKSAR v Lo Sze Tung Stephanie, unreported, CACC 190/2017. 

61.  It was noted by the judge that in accordance with Ngo Van Nam, D1 would be entitled to a 25% discount for his guilty plea after committal but before the case was listed, although there was the added circumstance that he rendered assistance to the authorities soon after committal.  The judge nevertheless gave D1 the benefit of the 50% reduction to his sentence, which incorporated a one third discount that is usually given for a timely guilty plea.  In the circumstances, D1 has no cause for complaint for the 50% reduction that he received to his sentence.  Accordingly, I am of the view that this ground is not reasonably arguable.

Conclusion

62.  In light of the foregoing, I do not consider that D1’s sole ground of appeal against sentence is reasonably arguable and therefore leave to appeal is refused.  I also do not consider D2’s grounds of appeal against conviction are reasonably arguable and therefore leave to appeal is refused.

63.  D1 and D2 are reminded of their right to renew their respective applications for leave to the Court of Appeal, but they are also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending their respective appeals, if the Court were to come to the view that there was no justification for the renewal of their respective applications.

Chronology of D2’s appeal