HKSAR v. RAVISHER SINGH

CACC 311/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 311 of 2013

(ON APPEAL FROM HCCC NO. 98 OF 2012)

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court):

1. The applicant sought leave to appeal against his conviction on 22 August 2013, after trial by Toh J and a jury, of a count of conspiracy to traffic unlawfully in dangerous drugs (Count 1), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and section 159A of the Crimes Ordinance, Cap. 200 and against the sentence of 25 years’ imprisonment, imposed on him on 27 August 2013 in consequence of that conviction. At the hearing we dismissed those applications for leave to appeal and said that we would give our reasons in due course. That we do now.

THE TRIAL

2. The applicant stood trial on an indictment containing two counts, albeit that Count 2 was averred in the alternative to Count 1.  The Particulars of Offence of Count 1 averred that the applicant had conspired to traffic unlawfully in cocaine with Sen Santanu (“Sen”) and other persons unknown between a day unknown in May and 2 September 2011.  Count 2 averred that on 2 September 2011 the applicant had trafficked unlawfully together with Sen in 1,490 millilitres of a mixture of a solid and a liquid containing 0.62 kg of cocaine.

The prosecution case

3. It was an admitted fact that on the night of 31 August 2011 Customs officers had intercepted a Speedpost parcel [1] from São Paulo, Brazil which bore the unique identity label EB 042073817BR.  The applicant was stipulated in the Airway bill [2] as the recipient at an address described as “3 Flor, Flat 2, Room D, 25 Ning Po Street, Yau Ma Tei”.  The sender was described as being Maria Fernandes.  The contents were described as dresses and shoes.  However, the parcel was found to contain two wine bottles.  Examination of the contents of the two bottles revealed the liquid and solid mixture of cocaine described in the Particulars of Offence of Count 2. [3]  The parcel and its contents were seized by Customs officers and arrangements made for a “controlled delivery”.  In the afternoon of 1 September 2011 a Speedpost notification card was left in the mailbox of Room 2, 2/F, 25 Ning Po Street, Yau Ma Tei. [4]

2 September 2011

4. In the morning of 2 September 2011 enquiries were made by telephone by a male of a post office worker at Kowloon Central Post Office of the whereabouts of the Speedpost parcel by reference to its unique identity label.  The caller was advised that the parcel was available for collection, but that collection required to production of a copy of the identification document of the stipulated recipient of the parcel. [5]

5. There was no dispute that about 12:15 p.m. that day the applicant and Sen were seen entering the Kowloon Central Post Office together, after which they sat together on the staircase that led from the Ground Floor to the customer counters located on the 1^st Floor.  Soon afterwards Sen went up to the 1^st Floor, approached a post office worker at a customer counter and provided a parcel identity number, which was slightly different from that of the parcel in question. [6]  Sen returned to where the applicant sat on the staircase and was provided by him with a copy of the applicant’s Identification document, namely a Form 8 Reconnaissance [7] issued by the Immigration Department.  It bore the serial number A0193099.  On returning to the customer counter, having provided the post office worker with that document together with his own document of identification, Sen was given the parcel, receipt of which he acknowledged.

6. For his part, the applicant moved away from where he and Sen had been sitting on the staircase and, having left the building, he went and stood at a nearby bus stop.

7. As Sen left the post office building at about 12:33 he was intercepted and detained by a number of Customs officers who were wearing plain clothes. [8]  As those events unfolded, the applicant ran off in the opposite direction.  However, Customs officers ran after him and the applicant was detained.  He was found to be in possession of 3 telephones: an Apple i-Phone, a Sony Ericsson and a Blackberry.

Sen

8. Sen testified that he had come to Hong Kong from India in 2000.  He had made a torture claim and had been permitted to remain in Hong Kong pending the resolution of that claim.  He had been sentenced to 15 months’ imprisonment for the offence of using an identity card belonging to another and for breach of a condition of his stay in Hong Kong.

9. On 30 October 2012, on arraignment, Sen pleaded guilty to Count 2 on the indictment.  However, sentencing was deferred until the conclusion of the trial of the applicant.  Having been given an ‘immunity from prosecution’, Sen testified as a witness for the prosecution at that trial.

10. There was no dispute that the applicant and Sen had known one another since about the end of 2007 and the beginning of 2008.  They were friends and had even lived together for some years prior to the events the subject of the indictment.  They practiced ‘taekwando’ together.

11. Sen testified of occasions in the several months prior to September 2011 on which he had seen other parcels from Brazil in the possession of the applicant.  On the first occasion the applicant had explained that the parcel contained bottles of wine sent by his girlfriend.  On a subsequent occasion he noted that on labels on the parcel the applicant was stipulated as the recipient at an address in the building in which the applicant lived, but one which was slightly different from his actual address.  The parcel had been opened and the wine bottles were empty.

12. On another occasion, at the request of the applicant, he had stood with the applicant in the street outside the applicant’s building for a considerable time awaiting the arrival of a postal delivery.  After a postman had entered the building and was leaving sometime later the applicant had intercepted him in the street and showed him his identity documentation, after which he had been given a parcel on which it was stated that it had been sent from Brazil.  On their return to the applicant’s premises the applicant had opened the parcel and removed two bottles of wine, the contents of which he emptied into a pot to which he then added liquid from numerous small plastic bottles.  Then, he put the resulting mixture on a ceramic plate into a microwave oven.  In due course, the mixture was reduced to a white mud-like solid, which the applicant told him was cocaine.  The applicant explained that his role was to receive the parcel, process the liquid contents of the wine bottles into a solid and deliver it to the owner.

13. At the request of the applicant, Sen accompanied him in the delivery of the solid cocaine which he had seen the applicant put into a cornflakes packet.  Having alighted from a taxi in which they had travelled together to West Kowloon Garden Car Park he saw the applicant place the cornflakes packet on the seat of a parked motor car.  Shortly afterwards two men boarded the car and drove away, exchanging waves with the applicant as they did so.  Then, he accompanied the applicant as they walked to a bench some distance away, which was occupied by three men, of whom one was Chinese and two African.  There, he saw the Chinese man, to whom he was introduced shortly afterwards as Ho, hand the applicant a thick wad of banknotes.  The applicant told him that Ho bought the cocaine and sold it in clubs and bars, whilst the African men were influential in drug trafficking in South America and South Africa.

June 2011

14. It was an admitted fact that on 22 June 2011 a Speedpost parcel, in which the applicant was stipulated to be the recipient at an address described as “Room F, 6/Floor, 25 Ning Po Street, Jordan”, had been collected from Kowloon Central Post Office by a person who had provided a document of identification with the number A0193099. [9]  The Airway Bill described the parcel as having been sent from São Paulo Brazil by Maria Fernandes and was described as containing clothes and shoes. [10]

2 September

15. Sen testified that in response to the applicant’s request, made the previous day at Sen’s home, he had gone to the applicant’s home on the morning of 2 September 2011 at about 10:00 a.m.  On the previous day he had declined the applicant’s request to do some unspecified work for him.  The applicant had reminded him that he owed the applicant money and threatened him with consequences if he failed to repay the money.  On the morning of 2 September 2011 the applicant told him that he wished him to pick up a parcel for him.  The applicant used a telephone, which he put on speakerphone, to make enquiries of the post office in respect of the parcel.  The applicant was told that if the person picking up the parcel was not the stipulated recipient of parcel a photocopy of the identification document of the recipient had to be provided.  The applicant told him that if he picked up the parcel he would rescind the debt owed to him of $1,200 and in addition pay him $1,500.

16. Sen said that it was in those circumstances that he and the applicant had arrived at the post office at about 12:15 p.m.  At the applicant’s suggestion he reconnoitred the 1^st floor customer counter area.  Then, he had been provided with a piece of paper on which was written the unique tracking number of the parcel and the telephone number for enquiries at the post office.  Finally, he had been given a copy of the applicant’s Form 8 Reconnaissance, with the identification number A0193099, which was to be used as an identification document of the recipient.

17. Sen accepted that he was in possession of his Apple i-Phone when detained.  He denied that he had given the applicant the Sony Ericsson and Blackberry telephones whilst the applicant was sitting on the staircase leading to the 1^st Floor of the post office on the occasion of his final sortie into that floor.

Defence case

18. The applicant testified in the defence case.  He said that he came to Hong Kong from India in 2005 and had remained here thereafter.  In 2006 he had been convicted of the offence of possession of an identity card relating to another person and breach of a condition of his stay in Hong Kong and sentenced to 18 months’ imprisonment.

19. He testified, in effect, that he was an innocent dupe made use of by Sen.  They were long-standing friends and Sen was his teacher in ‘taekwando’.  He had nothing to do with dangerous drugs and had no idea that the parcel collected by Sen on 2 September 2011 contained dangerous drugs, let alone cocaine.

June 2011

20. He accepted that he had collected the parcel in which he was named as the recipient on 22 June 2011.  He had done so at Sen’s request having been told that by mistake he had been named as the recipient of the parcel, whereas it was intended for Sen.  He was told that it contained ‘taekwando’ equipment.  He had agreed to collect it for Sen, after the latter had explained that he was unable to do so because he was assisting a friend to make house repairs on Lamma Island.  After he had collected the parcel, it had been collected from him within an hour by Sen.

1 and 2 September 2011

21. The applicant testified that on 1 September 2011 Sen had told him that another parcel, which would arrive the following day, had been mistakenly addressed to him.  He asked him to collect it, as he had done on the previous occasion in June 2011.  On 2 September 2011 he had received a telephone call on his Apple i-Phone from Sen asking that he make a copy of his identification document and bring it with him to meet Sen at the Kowloon Central Post Office.  Sen explained that since the applicant was named as the recipient it was necessary to produce a copy of his identification document.  He was in possession of that Apple i-Phone when he was detained later that day.  He did as requested and met Sen in the vicinity of the post office.  Sen had told him to wait on the staircase before he collected the parcel.  Having forgotten to take the photocopy of the applicant’s identification document with him, Sen returned to the staircase and obtained that document from the applicant.  When he did so, he gave the applicant the Sony Ericsson and Blackberry telephones to hold, explaining that his girlfriend was bothering him.  Then, Sen returned to the customer counter area of the post office.

22. For his part, the applicant left the place where he had been seated on the staircase and went outside the building and waited at a place near a bus stop.  A short while later he saw some Chinese men in plain clothes chasing Sen.  He did not know that they were Customs officers.  He became frightened and ran away.

23. In cross-examination, the applicant denied that the Sony Ericsson and Blackberry telephones belonged to him.  He was adamant that he was in possession of them only because they had been given to him by Sen whilst he was seated on the staircase in the post office shortly before his detention.

24. The applicant denied suggestions made to him in cross-examination that various text messages made and received on his Apple i-Phone were his drug transactions in Hong Kong.  He could not remember now the meaning or purpose of the messages.

The applicant’s case: cross examination of Sen

25. Sen denied the suggestions made to him in cross-examination that the multiple text messages made to and from him on the Sony Ericsson and Blackberry telephones evidenced the fact that he, not the applicant, possessed and used those telephones prior to the arrest of Sen and the applicant on 2 September 2011.  Whilst Sen accepted that many of the messages on those telephones were made to and from him, he said that the telephones remained in the possession of the applicant, in whose company he was when those messages were made and received.  He made use of telephones other than his own Apple i-Phone because of the cost of using that telephone.  Further, he denied suggestions that various text messages on the Blackberry telephones evidenced his drug trafficking with retail customers in Hong Kong.

GROUNDS OF APPEAL AGAINST CONVICTION

26. First, it is submitted by Mr McNamara in the ground of appeal against conviction that the applicant did not receive a fair trial because, having opened his case on one basis, Mr McGowan for the prosecution closed on an alternative and different basis without notification to the defence.

27. It was contended that the prosecution opened its case on the basis of importation of dangerous drugs and its distribution thereafter. [11]  Of the other conspirators, the prosecution identified them as the sender (s) in Brazil and those who took the drugs from the applicant in Hong Kong. [12]  Of the latter, the prosecution pointed to the prospective evidence of Sen of the transfer of cocaine to others in Hong Kong. [13]

28. It was submitted that in its closing address, whilst inviting the jury to convict the applicant on the basis that he was involved in the importation and distribution of cocaine, the prosecution invited the jury to find that he was a party to the conspiracy alleged in Count 1 on the basis only of what it contended were individual acts of drug-trafficking evidenced by text messages received and made by the applicant on his Apple i-Phone.  Mr McNamara placed particular reliance on two passages in Mr McGowan’s closing speech: [14]

“ …we do invite you, to look at the SMSs and particularly the SMSs that were received or sent from the defendant’s iPhone in the period leading up to his and Sen’s arrests. We would say that if you look at those messages, the contents of those messages, the only reasonable inference is that people on either end, whoever they may be, were engaging in drug trafficking. And if one of those two people was the defendant there is an inference you can draw against him which would lead you to the conclusion that he was guilty on the 1^st count, the conspiracy to traffic in dangerous drugs, because he was engaged with somebody else in drug trafficking.”

In the second passage, which followed shortly thereafter, Mr McGowan submitted to the jury: [15]

“ …if you are sure those SMSs involved drug deliveries and there was a sender and receiver passing a message, organising and delivering drugs to an address or to a man who was named in the message, or his telephone number is in the message, “one piece”, “two pieces”, etc, then………. both the sender of the message and the recipient of that message are engaging in drug trafficking.”

29. By Ground 2, it was submitted that was the judge’s summing up was biased in favour of the prosecution, in that it did not reflect the applicant’s case adequately.  Contact numbers stored on the Blackberry and Sony Ericsson telephones and text messages to and from Sen and his girlfriend on those telephones were highly relevant to the contentious issue of who was in possession of the telephones at material times.  Complaint was made that the judge dealt with the evidence relevant to that issue only generally.  The judge did not refer to the text messages from Sen’s girlfriend on 2 September 2011 when Sen and the applicant were at the post office.  Further, the judge made reference to only one of the text messages in respect of which it had been suggested to Sen in cross-examination evidenced his drug-trafficking. [16]  Similarly, the judge referred to only one of the text messages with the person described as “Chief”, [17] in respect of whom it had been suggested in cross-examination of Sen that they had dealings with one another in dangerous drugs.

30. By contrast, the judge referred to all of the text messages on the applicant’s Apple i-Phone, which it was suggested in cross-examination evidenced his drug-trafficking. [18]

GROUNDS OF APPEAL AGAINST SENTENCE

31. In his grounds of appeal against sentence, Mr McNamara submitted that the sentence of 25 years’ imprisonment imposed upon the applicant was manifestly excessive, in particular having regard to the possibility that the applicant’s conviction was founded only on the jury’s acceptance that the text messages to and from the applicant in the period leading up to 2 September 2011 evidenced retail trafficking in dangerous drugs in Hong Kong and the possibility that the jury had not accepted the prosecution case that the applicant was involved in the conspiracy which involved the importation of cocaine into Hong Kong and its subsequent distribution.

32. In his oral submissions, Mr McNamara accepted that if his primary submission in respect of conviction failed, namely that in closing the prosecution had changed its case and had invited the jury to convict the applicant on Count 1 if the jury was satisfied only that the SMS text messages on the applicant’s i-Phone evidenced his involvement in unlawful trafficking in dangerous drugs, the application for leave to appeal in respect of sentence fell away.

A CONSIDERATION OF THE SUBMISSIONS

The Prosecution Opening

33. In his opening speech for the prosecution, Mr McGowan described the role of the applicant as being that of: [19]

“ ……. a willing participant, a knowing participant in the importation of dangerous drugs into Hong Kong and their distribution thereafter, with Sen, the man named Sen Santanu, and other people. The drugs, having been received in Hong Kong, he was involved in collecting it and that is sufficient for trafficking.”

34. Of the nature of the conspiracy, the subject of Count 1, Mr McGowan said: [20]

“ …it’s dangerous drug trafficking, so that’s including importing into Hong Kong, including dealing with the drug in Hong Kong, and they agree with the intention of playing some part in that trafficking; ie, they are doing things, they agreed to play some part to further the course of the conspiracy to carry out the trafficking and achieving the intended crime.”

“ Just to sum up on this, we say that a number of people must obviously have been involved in this conspiracy; Maria Fernandez, or what his or her real name was in Brazil and perhaps other people unknown in Brazil, those involved in the collection of the package, ie, Mr Sen and the defendant and those who take the cocaine on and distribute it in Hong Kong.”

35. Of the ambit of the conspiracy, Mr McGowan concluded: [21]

“ Just to sum up on this, we say that a number of people must obviously have been involved in this conspiracy; Maria Fernandez, or what his or her real name was in Brazil and perhaps other people unknown in Brazil, those involved in the collection of the package, ie, Mr Sen and the defendant and those who take the cocaine on and distribute it in Hong Kong.”

36. Of the anticipated evidence on which the prosecution relied in proof of Count 1, Mr McGowan pointed to the fact that the parcel containing the wine bottles, in which in turn was contained the cocaine, was addressed to the applicant, albeit at a different address in the building in which he resided.  Next, he said that although Sen had collected the parcel using a copy of the applicant’s identification document, the applicant had been observed in his company inside and outside the post office at the material time.  The applicant had been found in possession of a Blackberry telephone, which had been used to contact the post office number on which the tracking of the parcel could be accessed. [22]  The jury was told that the prosecution relied on Sen’s evidence not only in respect of the applicant’s role in causing Sen to collect the parcel but also in respect of earlier dealings with another such parcel.  Of the earlier transaction, Sen would say that he had witnessed the applicant processing cocaine from its liquid form into a solid form which he had witnessed being delivered by the applicant to 2 young Chinese men in Kowloon Park, after which the applicant had received payment from an older Chinese man to whom, together with two African men who were in the company of the latter, the applicant had introduced him.  Of that anticipated evidence, Mr McGowan said: [23]

“ that’s evidence of the participation of other people in the conspiracy.”

Mobile phone records

37. There is no dispute that the prosecution did not refer to the use by the applicant of his Apple i-Phone or, in particular, that it had been used to make and receive text messages that evidenced retail drug-trafficking in Hong Kong.  On the other hand, at the outset of his opening speech Mr McGowan drew the jury’s attention to a bundle of documents marked ‘Trial Bundle’, which had been made available to them for use in the trial and informed them that they would receive another two bundles of documents during the trial in respect of “mobile phone records”. [24]  The Trial bundle contained excerpts from the records of the use of the two Apple i-Phones, the Sony Ericsson telephone and the Blackberry telephone.  The mobile telephone records contained in the two bundles contained more extensive records of the use of those 4 telephones and in respect of the other Sim cards found in the possession of the applicant and Sen respectively at the time of their arrest on 2 September 2011. [25]  Those records were adduced into evidence pursuant to Admitted Facts, [26] which were read to the jury immediately after the prosecution’s opening speech.

Use of the telephone records in oral testimony

Cross-examination of Sen

38. Relevant parts of the text message records were used in the respective cross-examination of the two men to support suggestions, which they each denied, that they were involved in retail drug-trafficking in Hong Kong during the period of the conspiracy in Count 1.

39. Mr McNamara cross-examined Sen at length to establish that, contrary to his initial evidence that he had never used it [27], he had in fact used the Blackberry telephone to make and receive numerous text messages.  Sen accepted that his girlfriend’s mobile telephone number was in the contact pages of not only his Apple i-Phone but also the Blackberry and the Sony Ericsson telephones. [28] Although Sen accepted that the message on the Blackberry telephone, to which a reply was made, was addressed to him by his name at 18:43 (UTC) on 14 August 2011, he said that he did not know how those messages came to be on his phone.  He did not know anything about it.  The sequence and content of the incoming and outgoing messages was:

    Incoming: 18:43:09 (UTC)

“Hi Sen. Its Bianca here. Know ur busy but could you possible come to apartment and drop 1 off. Thanks b”

    Outgoing: 18:46:04 (UTC)

“Sorry sis I’m. Out somewhere far away, may be letter I can see u”

    Incoming: 18:46:59 (UTC)

“Ok. Let me know. Is RV around?”

40. He denied a suggestion made to him by Mr McNamara that an exchange of text messages the following day evidenced his involvement in an arrangement to supply dangerous drugs. [29]  The sequence and content of the incoming and outgoing messages to the Blackberry was:

    Incoming: 22:00:39 (UTC)

“Hey I’m a friend of hannah’s she said you might be able to help me out”

    Outgoing: 22:01:57 (UTC)

“Sure, what can I do for u?”

    Outgoing: 22:05:32 (UTC)

“How many? And plz txt me proper address?”

    Incoming: 22:07:32 (UTC)

“ 2g and we are at upper house pacific place”

    Outgoing: 22:08:31 (UTC)

“Ok see u in 25 mints”

    Incoming: 22:09:24 (UTC)

“Ok how much?”

    Outgoing: 2209:59 (UTC)

“2000 hkd”

    Incoming: 22:11:20 (UTC)

“Awesome text me when close three tall aussie guys!”

    Outgoing: 22:11:34 (UTC)

“Ok”

41. Similarly, he denied that an exchange of text messages on the Blackberry telephone on 25 August 2011 evidenced his involvement in a deal to sell dangerous drugs. [30]  The sequence and content of the incoming and outgoing messages to the Blackberry telephone was:

    Incoming: 12:54:18 (UTC)

“Hi Sen. I got your number from a friend of Jez, said you might be able to help me out? Is there a time we can talk or meet? Thanks, pete”

    Outgoing: 14:18:49 (UTC)

“Hi sorry for late reply, what can I do for u?”

    Incoming: 14:25:07 (UTC)

“magic beans!: ) Can meet tonight, I live in soho, near stauntons bar”

    Outgoing: 14:27:05 (UTC)

“Whites ticket, or black bullets?”

    Outgoing: 14:27:29 (UTC)

“And what time?”

    Incoming: 14:29:28 (UTC)

“bullets. How much for ten? Probably about 8 pm I can let you know later.”

    Outgoing: 14:31:58 (UTC)

“U need 10 pices? or I pic ten g?”

    Incoming: 14:38:27 (UTC)

“Ten E”

    Incoming: 14:42:47 (UTC)

“You understand? Is ok??”

    Incoming: 16:36:08 (UTC)

“You have a price my friend? You understand? Is ok??”

    Incoming: 17:03:12 (UTC)

“Sorry, my friend told me you get pills?”

    Outgoing: 17:04:27 (UTC)

“Oh no sorry for it”

42. In cross-examination, Sen accepted that the records of incoming and outgoing records, which had not been deleted, evidenced his use of the Sony Ericsson telephone in 2010 and in early 2011.  Moreover, he accepted that as late as 25 August 2011 there were messages he had exchanged with his girlfriend, who was then in the Philippines. [31]  He explained his use of the Sony Ericsson telephone in 2011 on the basis that he received and sent messages only when he was in the company of the applicant.  Whilst he accepted that a call had been received on the Sony Ericsson telephone from his girlfriend in the Philippines and 09:40 a.m. on 2 September 2011 he said that he did not remember such a call. [32]  He denied making telephone calls on the Sony Ericsson telephone to enquiry numbers of Hong Kong Post Office later that morning.  Similarly, he denied making a telephone call at 11:50 a.m. that morning to the applicant’s Apple i-Phone.  He did not know anything about a call made from the applicant’s Apple i-Phone to the Sony Ericsson at 12:01 p.m. [33]

Cross-examination of the applicant

43. In cross-examination of the applicant, it was suggested that various text messages created by incoming and outgoing messages on the applicant’s i-Phone evidenced his involvement in drug trafficking in Hong Kong.

44. The applicant accepted that he had sent three text messages from his i-Phone to the Sony Ericsson telephone on 25 August 2011, but denied that they had anything to do with dealing in drugs.  He could not remember the meaning of anything in the messages. [34]  The sequence and content of those messages was:

    20:46:22 (+8:00)

“Cd Aron need I boss 61694925 at Yumla bar”

    21:48:08 (+8:00)

“93304410 Wyndham Street 1”

    22:11:19 (+8:00)

“9833 5077 tin hau boss”

45. The applicant accepted that he had received and sent various text messages on his Apple i-Phone to which his attention was drawn in cross-examination, but denied that they had anything to do with his involvement in dealing in drugs. [35]  The sequence and content of those messages was:

   (i)  Incoming: 30 July 2011-03:34:59 (UTC)

“Cheese Mate-90701163, coast bar, one ticket”

   (ii)  Incoming: 3 August 2011-12:17:26 (UTC)

“Piers wana meet at old mandarin oriental for 1”

    Outgoing: 3 August 2011-14:27:21 (UTC)

“Im here waiting 4u, at exit-A..”

    Outgoing: 6 August 2011-18:17:26 (UTC)

“I’m watig for pears here let’s c if he can pic my call”

(iii)  Inbox: 9 August 2011: 16:04:29 (UTC)

“9733 6932”

    Sentbox: 9 August 2011: 16:46:31 (UTC)

“His nt picking my call Plz call him I’m, at Silas”

    Sentbox: 9 August 2011: 16:46:38 (UTC)

“Solas”

    Sentbox: 9 August 2011: 16: 49: 09 (UTC)

“Did u call?”

    Sentbox: 9 August 2011: 16:58:57 (UTC)

“I have one more on me Suld I stay here or wht els?”

    Sentbox: 16:59:13 (UTC)

“Nd I gave him”

   (iv)  (text messages received from / to the Sony Ericsson telephone)

    Inbox: 14 August 2011: 12:39:34 (UTC)

“Saggy-91690534”

    Inbox: 14 August 2011: 13:17:31 (UTC)

“6119 2070”

    Inbox: 16 August 2011: 13:55:19 (UTC)

“Jake-92228583”

    Inbox: 17 August 2011: 07:04:37 (UTC)

“Pears frnd-9136 5752, 60 whyndam strt”

    Inbox: 17 August 2011: 12:56:19 (UTC)

“Andru-6323 0355”

    Inbox: 18 August 2011: 04:01:01 (UTC)

“Stcot-5369 942, 2 pc at cain road supermarket”

    Inbox: 18 August 2011: 04:23:17 (UTC)

“Bro, 1 more to piers at his home, n he will pay extra 2200”

    Sentbox: 18 August 2011: 04:31:11 (UTC)

“cool boss”

    Inbox: 19 August 2011: 14:15:32 (UTC)

“9575 3677, need 2”

    Inbox: 25 August 2011: 10:17:54 (UTC)

“Dude, 1pc andru at Magzine gap road, n 7pm 1 at 34 robinson road, 5/f”

46. The applicant denied the suggestions made in cross-examination by Mr McGowan that the text messages evidence drug trafficking in Hong Kong that he conducted together with Sen from May until the time of his arrest.

47. It is to be noted, as Mr Martin Hui reminded the court in his written submissions, that no objection was taken to the cross-examination of the applicant on those telephone records nor to the suggestions made to the applicant by Mr McGowan that they evidenced his involvement in drug trafficking in Hong Kong.  In his oral submissions, Mr McNamara said that he accepted that the evidence was relevant and admissible insofar as it went to the credit of the applicant only.  That is why no objection was made.  However, he contended that it was not relevant to consideration of the applicant’s knowledge, in particular whether or not he knew that the parcel that he and Sen were collecting on to September 2011 contained cocaine.

Closing speeches

Prosecution speech

48. In his closing speech Mr McGowan suggested to the jury that the evidence led at trial comprised the direct evidence of Sen and the applicant together with circumstantial evidence.  Of the latter, he said, as noted earlier: [36]

“ I will give you an example of the inferences that we say you can draw in this particular case and we will invite you, and we do invite you, to look at the SMSs and particularly the SMSs that were received or sent from the defendant’s iPhone in the period leading up to his and Sen’s arrests. We would say that if you look at those messages, the contents of those messages, the only reasonable inference is that people on either end, whoever they may be, were engaging in drug trafficking. And if one of those two people was the defendant there is an inference you can draw against him which would lead you to the conclusion that he was guilty on the 1^st count, the conspiracy to traffic in dangerous drugs, because he was engaged with somebody else in drug trafficking.”

However, he went on to add:

“ Also it would assist you in deciding whether he had the knowledge, the necessary knowledge, that there was dangerous drugs in the parcel that he received, that was addressed to him and he went to the post office to help collect on 2 September, which is the 2^nd count. We would say that there is no other reasonable conclusion as to what those messages are about, they are about drug trafficking. You can infer that and you can infer that against the defendant.”

49. Soon thereafter, he returned to the inferences the prosecution invited the jury to draw from the text messages: [37]

“ So ….if you are sure those SMSs involved drug deliveries and there was a sender and a receiver passing a message, organising a delivery of drugs to an address or to a man who is named in the message, or his telephone number is in the message, “one piece”, “two pieces”, etc, then under the law, I would suggest, and again her Ladyship will confirm this in due course, that both the sender of that message and the recipient of that message are engaging in drug trafficking.

You will recollect that some of those messages actually confirmed that the delivery has been done afterwards.  On the SMSs taken from the defendant’s iPhone, and you will recollect his evidence was that no one else ever used that iPhone, he is both the sender and the receiver of those messages at different times and those, we say, are both matters of drug trafficking and clear evidence of drug trafficking.”

50. Then, Mr McGowan addressed the ingredients and ambit of the offence alleged in Count 1, namely conspiracy to traffic unlawfully in cocaine, noting that it was alleged that it involved “the defendant, Mr Sen, and a number of unknown persons” and that it was constituted by an agreement to carry out that unlawful act, together with an intention to do so.  He went on to suggest that there was evidence that the agreement had been carried out, namely by: [38]

“ …the sending of the parcels from Brazil, the unpacking of those parcels, the treatment of the liquid inside to turn it into a marketable form of cocaine, the passing on of that cocaine to other people. Indeed, the evidence of the marketing of that cocaine which we have from the SMSs.”

51. Having submitted that the evidence of the participation of Sen in the conspiracy was established beyond reasonable doubt, Mr McGowan suggested that obviously there were others who were involved: [39]

“ the person who sent the SMSs with the parcel numbers, and their identity has never been established. But they are sent from Hong Kong telephones, so clearly there were -- it appears to indicate that those people were unknown people in Hong Kong. And also the people who were delivering the cocaine, whether they were the defendant, Mr Sen, or other people.”

52. Of the crucial issue in respect of the applicant, he said: [40]

“ But the question is, was the defendant participating knowing that the parcel contained dangerous drugs in its collection, the importation of those drugs, on 2 September? Did he know what it contained? We say there are clear indications that he did.”

53. The evidence of the text messages was amongst the panoply of evidence to which Mr McGowan invited the jury’s attention and suggesting an affirmative answer to his rhetorical question.  He said: [41]

“ …other things we say that you can use to support the evidence of knowledge are the iPhone records in the defendant’s own iPhone.”

54. Then, Mr McGowan reminded the jury of the salient features of the various messages, for example “Cheese Mate, 90701168, coast bar, one ticket”; “Cd Aron need I boss 61694925 at Yumla bar”; and “Dude, 1pc andru at Magzine gap road, n 7pm 1 at 34 robinson road, 5/f”. [42]  Of those, and the other text messages, Mr McGowan said: [43]

“ What do these messages mean? The defendant can’t explain them (.) They are on his phone and he was either receiving them or sending them. As I say these, we say, you can use as evidence that the defendant knew there were drugs in the parcel on to September.”

55. Noting that the applicant disputed that he had possession of the Blackberry or Sony Ericsson during the material period, Mr McGowan suggested that it did not matter: [44]

“ .. because what you have got in the defendant’s own iPhone which only he used is sufficient to demonstrate knowledge and demonstrate trafficking and you can safely rely on.”

Defence speech

56. At the outset of his closing speech, Mr McNamara took issue with the basis upon which the prosecution had opened its case, in contrast to how it put its case in closing: [45]

“ when Mr McGowan got up and opened his case to you, he based his case on the evidence that Sen was going to give you about that incident on 2 September and about some previous alleged deliveries of the same sort of parcel before that. That was the conspiracy that the prosecution were relying on, they were the facts that they were relying on, that was the case that we were asked to meet, the case which was raised by the evidence of Sen in respect of the importation of cocaine into Hong Kong.

Mr McGowan now seems to be saying to you that if you think that the SMS messages show that the accused was perhaps selling a few pills in Lan Kwai Fong, that he is guilty of the 1^st count, well, he is not, that is not what he is here for.”

57. The luncheon adjournment was taken during Mr McNamara’s closing speech.  In the absence of the jury, Mr McNamara voiced his concerns to the judge in respect of the manner in which the prosecution closed its case:

“ Mr McNAMARA: Mr McGowan raised this morning about the invitation to the jury to convict him of the 1^st count, if they found that he was selling pills in Lan Kwai Fong. That’s not part of the prosecution case.

COURT: It wasn’t pills, there was no evidence that they were pills.

Mr McNAMARA: well, whatever it was, we don’t know what it was, it was never part of their case and I am going to say to the jury, as I understand it, the law is that the prosecution are bound by what they say in their opening and they can’t go beyond it….. Falconer-Atlee…

COURT: Yes, that may be but I think, in this situation, I don’t think I can fully agree with you on that.

Mr McNAMARA: well, maybe we agreed to disagree but I..

COURT: Yes, certainly that is your argument and there is no problem with that. Yes, all right.

Mr McNAMARA: all right, thank you.  As long as your ladyship is aware that that’s what I’m going to do..”

58. For his part, Mr McGowan explained the position of the prosecution:

“ I didn’t open the case because the evidence really came out in cross-examination.”

59. As he had informed the judge, at the end of his closing speech Mr McNamara revisited the twin issues, first of the submission made by the prosecution that the text messages evidenced unlawful drug trafficking in Hong Kong by the applicant and, second his contention that the issue was outwith the prosecution case described in the opening.  First, he submitted of that alleged unlawful drug trafficking: [46]

“ …he is not charged with….. selling drugs if he was in Central and Wyndham Street, or whatever, we don’t know what sort of drugs, we don’t know to whom he was selling, we don’t know anything about it all, there’s no evidence about it at all.”

60. Addressing the second issue, namely the alleged constraints imposed in consequence of the ambit of the prosecution opening, he said: [47]

“ But even if you thought that he might be involved in some sort of illegal trade well, in my submission, that’s not going to help you. Because when Mr McGowan, I said this before, opened the case to you, he made no mention of this before at all. No mention of this at all, probably because he didn’t know about them at that stage, but that is beside the point. Now, when the prosecution open their case they are informing you of the features of the case and the evidence that they are going to call to support that case, so there was no question of any evidence being called to support this, and there hasn’t been any evidence called to support this.

The opening is also an assertion of the boundaries that surround their case.  So the boundaries that surrounded their case after Mr McGowan had opened it, was in relation to the importation of drugs into Hong Kong and the distribution of that -- of cocaine into Hong Kong and the distribution of that cocaine, you know, to Ah Ho or the chief or whoever it was later on.  That was what the prosecution case is, that is what the prosecution have got to prove and, in my submission, any suggestion that you can draw an inference in respect of those texts about which there is no other evidence at all, cannot help you at all in this case.”  [Italics added.]

Summing up

61. Having reminded the jury in her summing up that the period of the conspiracy alleged in Count 1 encompassed an unknown date in May to 2 September 2011, the judge said that the prosecution alleged that in that period “the defendant and Sen and others were conspiring or agreed to traffic in dangerous drugs”. [48]  Of the evidence relevant to that issue, the judge said: [49]

“ There is direct evidence of the conspiracy from Sen’s evidence and the prosecution also has brought before you documentary evidence and they say that taking all the evidence together that it would give you the only reasonable conclusion that the defendant was conspiring with Sen and others traffic in dangerous drugs.”

Shortly afterwards, the judge said: [50]

“ So consider all the evidence, members of the jury, the evidence of Sen, the evidence of the text messages that Mr McNamara so diligently cross-examined Sen on, and also the text messages that Mr McGowan so diligently cross-examined the defendant on.”

62. Of Mr McGowan’s cross-examination of the applicant, the judge reminded the jury of the applicant’s acceptance that he had sent the three text messages found on the Sony Ericsson telephone to which his attention was drawn, including the message “need 1 at Yumla bar” and of his testimony that he did not remember what the messages were about. [51]

63. Similarly, she reminded the jury of the series of messages sent from/to his Apple i-Phone from 30 July to 26 August 2011, beginning with the message “Coast bar, one ticket” and ending with the message “Dude, 1pc andru at Magzine gap road, n 7pm 1 at 34 robinson road, 5/f.”[52]  Of the latter message, she reminded the jury that the applicant had said that it “had nothing to do with the case of the parcel but he cannot remember what it meant”. [53]  By contrast, she said that the prosecution case was that: [54]

“ …obviously the defendant was trafficking in a dangerous drug together with Sen. They were together in a conspiracy to trafficking in dangerous drugs over that period…..”

64. Towards the end of her summing up the judge addressed the issue raised by Mr McNamara of the ambit of the prosecution case as articulated in its opening in the context of the cross-examination of the applicant to the effect that the text messages evidenced his involvement in trafficking unlawfully in dangerous drugs in Hong Kong in the period of the conspiracy. [55]

“ It has been said by Mr McNamara yesterday -- he seemed to have said to you that Mr McGowan had gone outside what was in his opening in relation to the offence by using the defendant’s iPhone records as part of his case because he did not open to you on it. He did not refer to the iPhone records in his opening when he opened the case to you. But refer, members of the jury, (to) what I told you about opening speeches. Opening speeches are merely an outline of the evidence that the prosecution hopes to put before you. You will remember that the telephone records, particularly the telephone record of the defendant’s iPhone, is included in the trial bundle which was given to you, so it is not correct to say that the iPhone records were never a part of the prosecution’s case. The trial bundle evidence is all part of the prosecution’s case and it would have been no surprise at all to the defendant that the telephone records of his iPhone is included in the trial bundle. If it was not relevant to the present case before you, you can be sure that it would not be included in the trial bundle. So it is evidence which you should consider.” [Italics added.]

65. The judge went on to reiterate that direction: [56]

“ As far as the iPhone records are concerned, the defendant’s iPhone records, it is part of the prosecution’s case and it is to be considered together with all the other evidence which you have before you, and at the end of the day it is for you to consider, upon all the evidence before you, whether you are satisfied so that you are sure of the defendant’s guilt in Count 1.”

An issue of law

66. The complaint made by Mr McNamara at the outset of his opening speech, and repeated to the judge in the absence of the jury, that the suggestions made to the applicant in cross-examination by the prosecution in respect of text messages on his Apple i-Phone and other telephones, lay outside the case identified in the prosecution’s opening and were to be ignored by the jury, raised an issue of law.  As such, Mr McNamara ought to have raised it with the judge in the absence of the jury: first, if not during the cross-examination of the applicant, at least at the conclusion of evidence and before the commencement of closing speeches of the parties; secondly, at the latest after the prosecution’s closing speech.  Then, the judge ought to have received submissions from the parties and ruled on the matter in the absence of the jury.  In any event, the matter ought to have been addressed in that way whenever the matter was raised first by Mr McNamara.  With respect to the judge she ought not to have permitted it to have been canvassed before the jury as a live issue, as it was by Mr McNamara in his closing speech, after which she contradicted the submissions at the end of her summing up.

67. There is no dispute that a defendant at trial is entitled to know at the outset how the prosecution puts its case against him and, after the prosecution has articulated its case, the prosecution is not permitted to shift “their ground during the course of the case without the leave of the trial judge”. [57]

68. As noted earlier, in the instant case the prosecution had opened its case before the jury on the basis that the defendant was: [58]

“ a willing participant, a knowing participant in the importation of dangerous drugs into Hong Kong and their distribution thereafter, with Sen, the man named Sen Santanu, and other people.”

69. Moreover, from the outset the jury had been informed that they were to receive the records reflecting the use of the various mobile telephones and Sim cards seized from the applicant and Sen.  Further, all of that evidence had been placed before the jury by way of Admitted Facts before any oral evidence was called on trial.  On the other hand, as Mr McGowan admitted frankly, in the exchange between counsel and the judge in the absence of the jury in the middle of Mr McNamara’s closing speech, he had not opened on that evidence because it “..really came out in cross-examination”.  Obviously, that was a reference to the use made by Mr McNamara of the telephone records in cross-examination of Sen.

70. In his oral submissions, Mr McNamara explained the fact that he did not object to the cross-examination by Mr McGowan of the applicant on the text messages, in particular in respect of those on the applicant’s own Apple i-Phone, on the basis that he accepted that it was relevant to the issue of the applicant’s credibility.  We are satisfied that concession was made correctly.  In that respect, the evidence of the text messages was clearly relevant to the applicant’s denial of knowledge that the parcel which he and Sen collected on 2 September 2011 contained cocaine.

71. We are satisfied, having regard to the closing speech in its entirety, that Mr McGowan sought to use the cross-examination of the applicant in respect of the text messages that he accepted having made and received on various telephones, in particular on his own Apple i-Phone, on the basis that it evidenced his drug-trafficking in the period of the conspiracy and, therefore, was relevant to the issue of his knowledge that the parcel contained cocaine, which issue was central to whether or not the applicant was a conspirator in the conspiracy alleged in Count 1.  That was the basis on which the matter was left to the jury by the judge in her summing up.  We are satisfied that she was correct to do so.

An unfair summing up

72. There is no dispute that a judge has a duty to deliver a fair and balanced summing up to the jury.  What is fair and balanced is context specific.  In the context of her review of the evidence the judge gave the jury the standard direction [59] as to their approach to the matters to which she referred and to those to which she did not: [60]

“ …if I appear to express any views concerning the facts or emphasise a particular aspect of the evidence which you do not agree with, then please do not adopt my view. In the course of my summing-up if I do not mention any part of the evidence you consider important you should have regard to it and if I mention anything which you think is not important then disregard it because, at the end of the day, you and you alone are the sole judges of the facts.”

She revisited that direction specifically in the context of her summary of Sen’s evidence. [61]

73. Of the issue of the ownership/possession of the Sony Ericsson and Blackberry telephones the judge said: [62]

“ Sen claimed that the defendant had given the Sony telephone to him but that he had returned the Sony telephone to the defendant at the end of 2010 or the beginning of 2011. He said he only had it for six to seven months in 2010 and he did not use the BlackBerry. You will recall from the cross-examination of Mr McNamara of the records of the Sony and the BlackBerry it would appear that there were texts which were addressed to Sen, particularly in the Sony after Sen said he had returned the phone to the defendant. He said he had never used the BlackBerry but the texts show otherwise.” [Italics added.]

74. Shortly afterwards, the judge added:

“ He said that although the BlackBerry belongs to the defendant he did use it, which is different from what he originally said which was that he did not use the BlackBerry. The text which was in the BlackBerry, P79, part 1 at tab 573-5, showed in the contact list the defendant’s phone numbers and also Sherry-Loo, Sen’s girlfriend’s number which was in Sen’s iPhone, was also in the contact list in the Sony and the BlackBerry.

It was also pointed out in cross-examination that the text messages in the BlackBerry were addressed to Sen. When he was asked about the text at page 203 Sen says he did not know why; he said maybe the defendant using his name. Then he was shown the text at page 205 where someone asked, “Is RV around?” and then Sen said he could not explain that. Then he said that he used the Sony and BlackBerry because his iPhone text messages and calls were more expensive.”

75. The judge returned to the issue of text messages found on the Blackberry addressed to Sen: [63]

“ In the BlackBerry texts in P79, part 1, at tab 573-5, there are messages where Sen was actually named. For example, at page 205 it says, “Hi Sen” and then, “Is Ravi around?” So perhaps you may think that it gives the lie to Sen’s original evidence that he never used the BlackBerry.” [Italics added.]

76. Of the evidence supportive of the suggestion made in cross-examination of Sen that he was involved in drug trafficking in Hong Kong, the judge cited an example: [64]

“    Then at page 207 and 208 someone wanted to buy 2 grammes for $2,000 at Upper House, Pacific Place for three tall Australian guys.  He was asked by Mr McNamara if that was arranging the supply of dangerous drugs and Sen said, “No” ”.

77. Of the evidence of the use by Sen of the Sony Ericsson telephone the judge reminded the jury: [65]

“ Sen agreed that between 13 July 2010 to 1 November, there were 150 pages of texts between him and his girlfriend. Sen’s explanation was that period he was with the defendant all day and all night and therefore it was not unusual that he would get texts from texts from his girlfriend because the phone would just be passed to him.”

78. In the context of Sen’s use of the Sony Ericsson in 2010, the judge reminded the jury of the point made on behalf of the applicant of the juxtaposition of text messages on 12 August 2010 exchanged between Sen and his girlfriend, in the middle of which was a text message to the person described as ‘Chief’: [66]

“ It was put to Sen that if you look at page 245 of the Sony Ericsson text on 12 August 2010, the text to the “Chief” confirming the Western Union transfer which he said is from the defendant, was before the texts to and from his girlfriend, so the text to the “Chief” was between texts to his girlfriend and so what Mr McNamara’s point was why was that if it was not Sen texting the “Chief”. So Sen’s explanation was, well, they were together, so when he got the text from his girlfriend the defendant would pass him the phone. After that he would pass the phone back to the defendant and then the defendant would text the “Chief” and then the text comes from his girlfriend who would pass the phone back. So that is his evidence, members of the jury. Consider this when you are going through his evidence.”

‘Chief’

79. The text messages sent to “Chief” referred to a sum of money, namely “Naira 143,037.38”.  Earlier, the judge had put that fact into context by his reference to Sen’s evidence, after he had been shown that the Western Union records of a transfer of that money to Damien Okolo: [67]

“ Sen explained this by saying the defendant had asked him to send the money to Okolo for his girlfriend’s friend.

  However, Sen agreed that on 30 July 2013 he had told the Customs officers that none of the transactions in P81 were connected to the defendant.  His explanation was that he could not remember when he was asked about this on 30 July 2013 but later remembered it was the defendant.  That is a matter for you, members of the jury.”

80. Of the evidence of Sen’s use of the Sony Ericsson in 2011, the judge reminded the jury: [68]

“ Sen claimed that he had returned to the defendant the Sony Ericsson in February 2011 but yet, after that time, in March, he got a text from his girlfriend. Then on 28 May there was a person called Alma(?) who texted Sen to borrow money. You will remember she said she was willing to give the passport. That was at page 364, in the Sony text record.”

81. Although the judge did not advert to the evidence there was no dispute that Sen had accepted that there were text messages on the Sony Ericsson of exchanges between him and his girlfriend up to the time of his arrest. [69]  In her summary of the incoming and outgoing telephone calls made to/from the Sony Ericsson telephone on 2 September 2011 the judge did not commence, as did Mr McNamara in his closing speech, with the phone call, which Sen accepted the records showed was received, from his girlfriend at 09:40 a.m.  Sen testified that he did not remember such a telephone call.  However, the judge did draw attention to the obvious significance of the phone calls made to and from the Sony Ericsson and the applicant’s Apple i-Phone:

“ Then at P79, part 2, on the Sony Ericsson texts, Mr McNamara had also pointed out on 2 September the telephone call at 11.50 am from the Sony Ericsson to 94404115, which is the defendant’s iPhone which was found on the defendant at the time of his arrest……….. this was the time that was shortly before they were seen at the post office together. At 12.01 at page 55, again there was a telephone call on 2 September from the Sony Ericsson to the defendant’s iPhone. So, members of the jury, was Sen with the defendant on the morning of 2 September or did they meet up later near the vicinity of the post office as the defendant said? So, look at all this, members of the jury, when you are assessing the evidence.” [Italics added.]

82. Earlier in her summing up, in the context of Sen’s evidence that he was together with the applicant at his home on the morning of 2 September 2011, the judge invited the jury to consider the same point: [70]

“ ..you should also consider what has been pointed out to you that the phone records show that the Sony phone was used to ring the defendant’s iPhone some time around 12 noon on 2 September. So if Sen was in the defendant’s home on 2 September why was it necessary for there to be a phone communication.”

83. Although the judge did remind the jury of the evidence in respect of text messages to and from the persons described as ‘Chief’ in 2010, she did not do so in respect of the evidence to which Mr McNamara referred in his closing speech of such text messages in August and September 2011.  The sequence and content of those messages was:

    Incoming: 12 August 2011: 19:20:22 (+8:00)

“9084 7109. CALL HIM AND HANDOVER THE WINE TO HIM. HE IS WAITING NW.”

    Incoming: 21 August 2011: 22:24:02 (+8:00)

“953 4790”

    Sent:

“Ravi sher singh

Phon no-9883 6424, room c, 4/f

129 PARKES STREET

YAU MA TEI

KOWLOON

HONG KONG”

    Incoming: 1 September 2011: 1:41:48 (+8:00)

“EB 042073817BR”

84. Given that the latter message contained the alphanumeric tracking code of the parcel of cocaine which the applicant and Sen collected on 2 September 2011 and in light of the earlier reference to the onward delivery of bottles of wine the messages were relevant to Count 1.  Nevertheless, the crucial issue remained: who was the recipient and sender of those messages?  In that context, having reminded the jury of Sen’s denial that he received or sent any messages to ‘Chief’ [71] and his explanation that he was only given possession of the Sony Ericsson by the applicant when he was in his company when there was an incoming message from his girlfriend, after which he returned the telephone to the applicant, the judge had directed the jury that was a matter for them to consider. [72]

85. At the conclusion of her summary of the evidence of Sen, the judge told the jury:[73]

“ I have highlighted certain parts of the cross-examination and the evidence of Sen and if those parts that I have highlighted you do not think are important, please take no notice of them and those parts that I have not mentioned and you think are important, please do consider them. Also, remember and consider what both counsel, Mr McGowan and Mr McNamara, have said in their final addresses to you.”

86. In the context of the complaint made to this Court that the summing up was unfair and unbalanced, it is to be noted that at the end of the summing up Mr McNamara did not raise any concern with the judge that she had failed to remind the jury of any matter significant to the defence case.

87. The judge’s duty in delivering a fair and balanced summing up requires that the jury is reminded of the significant elements of the defence case as established through cross-examination of prosecution witnesses and witnesses called on the defence case.  It does not require that the judge enumerate and repeat each and every point made by counsel for the defendant in his closing speech, let alone all those made in evidence.  We are satisfied that in that respect the judge’s summing up was fair and balanced.  There is no merit whatsoever in the criticism made by Mr McNamara.

Conclusion

88. Accordingly, the application for leave to appeal against conviction was dismissed.

SENTENCE

89. The judge imposed sentence on the applicant and Sen on the same occasion.  For his conviction in respect of Count 2, namely trafficking unlawfully in 0.62 kilograms of cocaine on 2 September 2011, the judge imposed a sentence of 10½ years’ imprisonment on Sen.  Having said that she had regard to the guidelines for unlawful trafficking in cocaine as articulated in the judgment of this Court in R v Pedro Nel Rojas [74], she stipulated an initial starting point for sentence of 20 years’ imprisonment.  For the aggravating factor of importation of the cocaine into Hong Kong she increased the sentence by one year’s imprisonment, so that the starting point taken for sentence for Sen was 21 years’ imprisonment.  For his plea of guilty and his cooperation with the authorities, including the evidence that he had given for the prosecution in the trial of the applicant, Sen was afforded a discount of 50% from that taken as the starting point.

90. In sentencing the applicant, whom she described as the 2^nd defendant, for his conviction in respect of Count 1, namely as a conspirator in the conspiracy to import cocaine into Hong Kong in the period from a date in May to 2 September 2011, the judge described his role: [75]

“ … it is clear that the 2^nd defendant was not only a courier but was heavily involved in this whole operation. According to the evidence of the 1^st defendant, the parcel was received from Brazil in the form of a solution which is put into bottles and declared to be wine, but in effect it is a solution into which cocaine is dissolved in, and as the Government Chemist report had stated, it is very easy to separate the cocaine from the liquid by putting the whole thing in a microwave oven at home and then it becomes solid and the cocaine therefore becomes lumps of cocaine which can then be bashed into powder, and this is exactly the type of operation that the 1st defendant described as having seen the 2^nd defendant do at his home, and it is also what the 1^st defendant describes is that the 2^nd defendant then puts this powder at one stage in a cornflakes box and delivers it.

It is also clear from the 2^nd defendant’s mobile phone texts that not only was the 2^nd defendant involved in the receipt of the parcel and making the solution -- extracting the cocaine from the liquid, he was also involved in distributing some of these drugs to others in the Lan Kwai Fong area, in Caine Road and Robinson Road.”

91. In the result, having determined that there were no mitigating factors and having stated that she had regard to the “defendant’s role in this conspiracy”, the judge imposed a sentence of 25 years’ imprisonment.

92. Mr McNamara’s acceptance in his oral submissions that, if his submissions in respect of the application for leave to appeal against conviction on the basis that the jury had been invited to convict the applicant on the basis of his retail trafficking in dangerous drugs alone failed, the application for leave to appeal against sentence fell away was realistic.  Having regard to the judge’s accurate description in her reasons for sentence of the applicant’s role in the conspiracy there is no doubt that the sentence of 25 years’ imprisonment was entirely justified.

93. For those reasons, we dismissed the application for leave to appeal against sentence.

[1] Exhibit P13.

[2] Exhibit P14.

[3] Appeal Bundle, pages v-vi.

[4] Appeal Bundle, page vi.

[5] Appeal Bundle, page vi.

[6] Appeal Bundle, page vii.

[7] Exhibit P 28.

[8] Appeal Bundle, page vii.

[9] Appeal Bundle, pages xv-xvi.

[10] Exhibit P 75.

[11] Transcript, page 3 H-J: “..the prosecution say that the defendant was a willing participant, a knowing participant in the importation of dangerous drugs into Hong Kong and their distribution thereafter, with Sen, the man named Sen Santanu, and other people.”

[12] Transcript, page 6 I-K: “.. the defendant was involved, not just with Sen, but with other people; the sender in Brazil and people who would then take the drug on from the defendant in Hong Kong, but they are people unknown.”

[13] Transcript, page 9 D-F: “And if you accept Mr Sen’s evidence about processing in the defendant’s home and the passing of the drugs onto others, again, that’s evidence of the participation of other people in the conspiracy.”

[14] Transcript, page 273 G-K.

[15] Transcript, page 274 R-U.

[16] Appeal Bundle, page 27 E-J.

[17] Appeal Bundle, page 26 H.

[18] Appeal Bundle, page 35 D - 36 C.

[19] Transcript, page 3 H-J.

[20] Transcript, page 6 Q-S.

[21] Transcript, page 7 F-H.

[22] Transcript, page 4 H-I.

[23] Transcript, page 9 E.

[24] Transcript, page 2 B-H.

[25] Exhibit P 79 ‘Forensic Examination Reports’.

[26] Appeal Bundle; pages v-xvii, at ix-xi; Exhibit P 80, paragraph 20.

[27] Transcript, page 55 H-I.

[28] Transcript, page 80 J-N.

[29] Transcript, page 123 G-P.

[30] Transcript, pages 83 M - 84 C.

[31] Transcript, page 119 D-I.

[32] Transcript, page 124 B-D.

[33] Transcript, pages 124-5.

[34] Transcript, pages 250-3.

[35] Transcript, pages 260-7.

[36] Transcript, page 273 G-M.

[37] Transcript, pages 274 R - 275 P.

[38] Transcript, page 275 J-L.

[39] Transcript, page 276 C-F.

[40] Transcript, page 276 O-P.

[41] Transcript, page 279 J-K.

[42] Transcript, pages 279 T - 280 K.

[43] Transcript, page 280 K-M.

[44] Transcript, page 280 Q-R.

[45] Transcript, page 289 K-P.

[46] Transcript, page 312 T-U.

[47] Transcript, page 313 B-K.

[48] Appeal Bundle, page 6 Q-R.

[49] Appeal Bundle, page 7 B-E.

[50] Appeal Bundle, page 8 J-M.

[51] Appeal Bundle, page 35 D-G.

[52] Appeal Bundle, pages 35 H - 36 C.

[53] Appeal Bundle, page 36 B-C.

[54] Appeal Bundle, page 36 F-G.

[55] Appeal Bundle, pages 37 T - 38 J.

[56] Appeal Bundle, page 40 I-L.

[57]  R v Landy 72 Cr App R 237 at 244 in the judgment of the Court of Appeal of England and Wales delivered by Lawton LJ.

[58] Transcript, page 3 H-J.

[59] Judicial Institute, Specimen Direction 1.

[60] Appeal Bundle, pages 4 S - 5 C.

[61] Appeal Bundle, page 29 F-I.

[62] Appeal Bundle, page 24 D-I

[63] Appeal Bundle, page 27 E-I.

[64] Appeal Bundle, page 27 G-I.

[65] Appeal Bundle, page 26 M-Q

[66] Appeal Bundle, pages 26 R - 27 D.

[67] Appeal Bundle, page 26 I.

[68] Transcript, page 25 J-M.

[69] Transcript, page 119 in respect of messages exchanged on 23 August 2011.

[70] Appeal Bundle, page 22 D-F.

[71] Transcript, pages 118-9.

[72] Appeal Bundle, page 27 D.

[73] Appeal Bundle, page 29 F-I.

[74] R v Pedro Nel Rojas [1994] 2 HKCLR 69.

[75] Appeal Bundle, page 47 F-N.