HKSAR v. CHUA SHIRLEY MASIGLA AND OTHERS

CACC 254 /2018

[2021] HKCA 872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 254 OF 2018

(ON APPEAL FROM HCCC NO 304 OF 2016)

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J U D G M E N T

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1.  The three applicants, who were D1, D3 and D4 at trial, were tried in the High Court before Campbell-Moffat J and a jury. There were originally four defendants on trial; however, D2 was acquitted. All four defendants had been charged with a joint count of conspiracy to traffic in a dangerous drug on or about 25 September 2015, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance Cap 134, and sections 159A and 159C of the Crimes Ordinance Cap 200 (Count 1).

2.  D1 and D2 were each further and respectively charged, in what was particularised as an alternative to the first count, with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, on 25 September 2015, at Hong Kong International Airport: in the case of D1, trafficking in 1,225 grammes of a powder containing 944 grammes of cocaine (Count 2); and in the case of D2, trafficking in 1,203 grammes of a powder containing 923 grammes of cocaine (Count 3).

3.  D1 was acquitted of Count 1, but convicted of the alternative, Count 2.  D2 was acquitted of both Count 1 and the alternative she faced, Count 3.  D3 and D4 were both convicted of Count 1.  On 20 August 2018, D1 was sentenced to 20 years and 11 months’ imprisonment; D3, to 23 years and 11 months’ imprisonment; and D4, to 24 years and 5 months’ imprisonment.

4.  D1, D3 and D4 applied by counsel for leave to appeal against their convictions.  They also applied in person for leave to appeal against their sentences.  Having heard argument from the various parties, including the applicants themselves, I reserved judgment on all applications.  This is my judgment.

The prosecution case

5.  All four of the defendants were women from the Philippines, where their journey to Hong Kong had begun.  The prosecution alleged that, on or about 25 September 2015, D1, D2, D3 and D4 conspired to import cocaine into Hong Kong.  They were said to be acting under the instructions of a woman named Nora Noora (“Nora”).  Flight tickets were issued on 22 September 2015 for D1, D3 and D4 to depart from Manila for Hong Kong on 25 September 2015.  D2’s ticket for the same flight was issued a day later on 23 September 2015.  All were scheduled to return to the Philippines on 27 September 2015.

6.  It was the prosecution case that D1, D2, D3 and D4 had all met up at D3’s house on 25 September 2015 before going on to Manila airport.  They were then driven by Nora to a van, which had four trolley bags inside.  The bags were identical in design but were of different colours. D1 took the green bag, D2 the red, D3 the brown and D4 the black.  They transferred their personal belongings into these bags.  They were then driven in the van to Manila airport, where they were checked in to a flight bound for Hong Kong, on which they hand-carried their respective bags.  The prosecution alleged that the plan was to deliver the bags to Chungking Mansions in Tsim Sha Tsui, Hong Kong.

7.  Later that evening, D1, D2, D3 and D4 all duly arrived at Hong Kong airport.  D3 and D4 proceeded through the “nothing to declare” green channel without being stopped.  However, D1 and D2, who were behind them, were intercepted by Customs officers for examination.  A search was conducted on D1’s green bag and D2’s red bag, which ultimately revealed the drugs particularised in the respective counts against them.  Both defendants were duly arrested^[1].

8.  Meanwhile, D3 and D4 proceeded to Tsim Sha Tsui with their respective brown and black bags, and checked into a hostel in Chungking Mansions.  They continued to communicate with Nora by way of text messages.  In the early hours of 27 September 2015, D4 delivered the brown and black bags to two men inside Chungking Mansions.  This action was captured on closed circuit television (“CCTV”).  At 08:15 hours on 27 September 2015, on their return to the airport, D3 and D4 were both arrested^[2]. The prosecution were never able to seize the brown or black bags in the possession of D3 and D4, and proceeded on the basis that they must have contained a similar quantity of dangerous drugs to those contained in the bags being carried by D1 and D2^[3].

9.  The police seized two mobile telephones from D1 (Exhs P123 and P124), a Samsung mobile telephone from D3 (Exh P77) and a further two mobile telephones from D4^[4]. Contained in these devices were various social media messages, which I shall refer to collectively as “the Telecommunications evidence”.  Counsel for D1 made an application to exclude certain parts^[5] of this evidence.  This application was supported by D3 and D4 (but not D2) and mounted on the basis of the then decision of Au J (as he then was) in Sham Wing Kan v Commissioner of Police[6], concerning the need for “exigent circumstances” to be present to justify warrantless searches of mobile telephones by law enforcement agencies.  In the event, the judge ruled the evidence admissible and declined to exercise her discretion to exclude it^[7].

10.  The prosecution relied considerably on the Telecommunications evidence, and the messages retrieved from D3 and D4’s mobile telephones in particular, which showed persistent communication between D3, D4 and Nora, whom the prosecution cast as the organiser of the expedition, and another person called Fei Fei, whose identity was unknown.

11.  The prosecution contended that virtually all of the messages were about this particular trip and its logistics^[8].  The messages included such matters as: an expression of thanks by D3 for having been spared as she passed through Customs^[9]; expressions of concern about D1 and D2 still being members of the various message groups and not being further messaged since they had been caught (D1 and D2 were also blocked from the groups)^[10]; complaints by D3 and D4 about not being able to eat or sleep because of worry^[11]; a message from Nora to D3 and D4 telling them to get in touch with D1 and D2 in order to bring back the bags or else they would “be killed”^[12]; and a message warning them not to pass through immigration together and to keep their distance from one another^[13].

12.  The prosecution relied on a message from Nora to D3 and D4 with instructions to meet certain persons in order to effect delivery of the bags, as a statement or declaration by one conspirator to another made in furtherance of the conspiracy^[14]. The prosecution further produced a document entitled “Prosecution’s list of acts and declarations in furtherance of the conspiracy”, which was provided to the jury to assist them with this evidence^[15].  The Telecommunications evidence was eventually summarised by the judge in a series of tables, copies of which were also handed to the jury.  No objection was made by any of the counsel representing the defendants to this course.

The video recorded interviews (VRIs)

13.  Upon arrest, each of the four defendants participated in a video recorded interview (VRI).  Essentially, all of them denied knowing that the substance in the bags was a dangerous drug, and gave what are referred to as “mixed statements”^[16].  The admissibility of all VRIs was not challenged.

14.  D1 said that, on 23 September 2015, she was invited by D3 and Nora to join a trip to Hong Kong.  She said she seen nothing suspicious inside the green bag, but felt it was heavy.  She said she noticed the smell of menthol emanating from it and could hear noises when she knocked the bottom of the bag.

15.  D3 said that Nora instructed her to carry the bag.  She trusted Nora and did not think about what was inside the bag.  However, Nora did tell her the contents were illegal and she also noticed the smell of menthol emanating from the brown bag.

16.  D4 said that she was invited by D3 to join the trip to Hong Kong one week before their departure from the Philippines; and that D3 booked the tickets.  She said she was given the black bag by Nora and told to use it for the trip to Hong Kong.

17.  In the light of D1’s ground of appeal attacking the judge’s use of a “shut eye” direction on the question of knowledge in trafficking dangerous drugs, as well as the ground alleging inconsistent verdicts as between D1 and D2, it is necessary also to summarise what D2 had to say in her VRI; because, of course, the summing-up would have had to deal with the case for and against her as well.  Unlike the other defendants, she had actually inquired of D3, the person who had asked her to go to Hong Kong, whether she was being asked to carry dangerous drugs, since that was risky.  On being told “no” by D3, whom she trusted, she agreed to join the expedition[17].  However, D2 knew she was carrying something because the bag was heavy and she was being given 11,000 pesos to make the trip[18].

D1’s defence

18.  D1’s defence was that she had been tricked into bringing the drugs into Hong Kong^[19]. She was never part of any conspiracy and had been duped^[20].  She was a last minute recruit and was only told about her obligation to carry the bag on the way to the airport to get on the plane.  It was argued that if she were part of a conspiracy, she would have known about it from the beginning^[21]. It was contended that the telephone messages seized had nothing to do with D1. It is worth mentioning that D2’s defence followed a similar line; however, D2 appears to have been recruited even later and was less familiar with the other defendants than they were with each other.

D3’s defence

19.  It was D3’s position that there was no direct evidence of any conspiracy^[22]. It was suggested that when D3 (and D4) gave the bags to the men in the early hours of the morning at Chungking Mansions, they did so because they were scared of what the contents might be, rather than because there was a conspiracy to traffic in a dangerous drug^[23]. It was argued there was no evidence of any real financial reward, and that D3 had a successful business selling rice in the Philippines; therefore, she had no incentive to traffic in drugs^[24]. It was also argued that D3 and D4 must have known that D1 and D2 had been intercepted, and would not in those circumstances have been foolish enough to continue on to Chungking Mansions, but would have found somewhere else to stay instead^[25].

D4’s defence

20.  Counsel for D4 emphasised that there were no admissions from D4 that she had agreed to carry drugs, or that she knew there were drugs inside her bag.  It was explained that D4 was single and a dentist, which meant that she had an income and did not need to traffic in dangerous drugs^[26]. The fact that D4 remained at the airport after D1 and D2 had been apprehended, and then still proceeded on to Chungking Mansions, was inconsistent with D4 knowing that she was carrying dangerous drugs in her bag^[27]. Furthermore, D4 knew Nora, who sometimes lent her money, since Nora was her patient, and she was simply doing her a favour^[28].

The grounds of appeal against conviction

D1’s submissions: Ground 1

21.  Mr Bullett, for D1, complained that the judge erroneously directed the jury as to the burden and standard of proof.  He identified three occasions when he maintained this had happened.  First, it is said that the judge suggested that a defendant’s answers in a VRI were evidence only “if you accept those answers”^[29]. Secondly, the judge stated “you have what each one of them says about her understanding of her agreement to carry the bag.  Do you find that to be true?”^[30]. Thirdly, she directed the jury to take into account D1’s good character in considering “whether she is telling you the truth”^[31].

Respondent’s reply: D1’s Ground 1

22.  Mr Jonathan Man, leading Ms Hermina Ng and Mr Justin Ma, for the respondent, countered that the judge never suggested a shift in the burden of proof.  He cited the judge’s important and overarching initial directions on the burden and standard of proof, in which she also emphasised that if the jury found what a defendant said was true or may be true, then they must acquit^[32]. Mr Man suggested the directions needed to be viewed in their proper context.  For instance, when the judge spoke of accepting the answers in the VRI, she was speaking in the context of there being no duty on an accused to give evidence, not on how the evidence should be approached.

D1’s submissions: Ground 2

23.  Mr Bullett complained that the jury’s verdicts were inconsistent and relied for this submission on the acquittal of D2.  He submitted the circumstances in which D1 and D2 were given the drugs, and arrested, were broadly the same; as were the instructions they were given.  Accordingly, no reasonable jury properly applying themselves to the facts of this case could have arrived at different verdicts in respect of D1 and D2.

Respondent’s reply: D1’s Ground 2

24.  Mr Man’s answer was that the verdicts were not logically inconsistent.  The accounts given by D1 and D2 in their VRIs were different.  D2 claimed that she questioned D3 about what was in the bag.  She asked specifically whether there were drugs in the bag and D3 denied this.  By contrast, D1 did nothing to reassure herself as to the true nature of what was in her bag.  Her questions were focussed on the smell from the bag and not its contents^[33].

D1’s submissions: Ground 3

25.  This ground complains about the undesirability of having the conspiracy count (Count 1) proceed in tandem with the trafficking count (Count 2).  Mr Bullett noted that the prosecution was not put to the election of proceeding with a conspiracy or a substantive count in accordance with Practice Direction 9.1; however, he also recognised that none of the highly experienced defence counsel at trial sought an election either.  He cited the Telecommunications evidence, which mainly concerned D3 and D4 and argued that most of the messages were only admissible against the parties to the particular communication and were all inadmissible against D1 and D3.  As such, any admissions by them were irrelevant and/or prejudicial as against D1.

Respondent’s reply: D1’s Ground 3

26.  Mr Man argued Counts 1 and 2 were not related in the sense used in Practice Direction 9.1: firstly, Count 1 lay against all four defendants, whereas the Count 2 was against D1 alone.  Secondly, unlike Count 1, the quantity alleged to be trafficked in Count 2 was specified.  Thirdly, Count 2 was specifically particularised as an alternative to Count 1.

27.  Furthermore, there was nothing wrong with the judge providing her own tables summarising the Telecommunications, and none of the defence counsel made any objection to this course at trial.

28.  Mr Man pointed out that the evidence which came out of the Telecommunications evidence, which is now said to have been unfairly used against D1, was either in D1’s VRI or was provided for in the admitted facts.

D1’s submissions: Ground 4

29.  This was really an extension of the previous ground and focussed on the supposed prejudice to D1 as a result of the conspiracy count and the Telecommunications evidence.  Mr Bullett submitted that the judge, whilst giving several directions that certain messages were not evidence against any defendant who was not a party to them, nonetheless failed to give such directions when mentioning many highly prejudicial exchanges (in the Telecommunications evidence) between D3 and D4 which referred to D1 and D2.

30.  In an altogether separate complaint, Mr Bullett submitted the judge was wrong to have contrasted one defendant’s out of court statement with another.

Respondent’s reply: D1’s Ground 4

31.  Mr Man submitted that the judge clearly brought home to the jury the point that things said and/or done by conspirators in furtherance of a conspiracy, was evidence against everybody else in the conspiracy.  The judge appropriately reminded the jury which parts of the Telecommunications evidence adduced was, and which parts were not, acts in furtherance of the conspiracy; for example, conversations concerning D3 and D4 and Nora being worried about D1 and D2 and what they were going to tell the police were clearly not acts in furtherance of a conspiracy and the jury were told as much.  It was not feasible, given the voluminous nature of the Telecommunications evidence, for the judge to have directed the jury about each and every message. The exchanges between D3 and D4 did not shed light on the state of mind of D1. The Telecommunications evidence was relied on to support the conspiracy count, which lay against all the defendants, hence it was immaterial whether the participation of D1 was mentioned.

32.  Mr Man submitted that at no point did the judge invite the jury to use what one defendant said against another defendant for the purpose of undermining the latter’s case.

D1’s submissions: Ground 5

33.  This ground is an overarching complaint that the directions as to knowledge were very confusing for the jury.  Mr Bullett submitted that the effect of the judge’s directions was to imply that suspicion would suffice for trafficking.  He referred in this regard to the decision in R v Law Wai Choi [1997] HKLRD 555, at 559 A-E, 561 D-F.  He singled out the following directions for complaint^[34]:

“If you are sure that the defendant was in possession of a dangerous drug, but not sure that she knew that what she was carrying was dangerous drugs then you must acquit. But because we had raised before you the question of suspicion and turning a blind eye, if you have heard that phrase before, in the case of the substantive offence where the 1^st defendant and the 2^nd defendant are charged individually with importing dangerous drugs, mere suspicion is not enough for the offence of trafficking in dangerous drugs. But there is a difference between suspicion and turning a blind eye.”

34.  Later, the judge directed the jury^[35]:

“We have this issue again about knowledge and mere suspicion. So can I remind you – and I am going to do it again right at the end anyway – but can I remind you, please, that mere suspicion is not enough. But equally, you cannot turn a blind eye – do you remember going back to the admiral Mr Adams helped us with – if you think all it amounts to is somebody getting – she is being asked to do something illegal, but not going further than that, then that is one thing, mere suspicion.

But if you think it amounts to knowledge, if you think that in all the circumstances of this it must have been the case that she did indeed know, but she didn’t seek confirmation, that is turning a blind eye, that does amount to knowledge.”

35.  It is argued that these erroneous directions were later compounded by confusing directions suggestive of three states of knowledge[36]:

“But did she know that what she possessed was dangerous drugs or was it mere suspicion. And if it was suspicion, you say, was it suspicion or was it turning a blind eye? So you have got three really: direct knowledge, mere suspicion, turning a blind eye, in the same way”.

36.  The judge returned to the same theme again later, in a passage on which Mr Bullett placed particular reliance[37]:

“However, if you come to consider either the 1st defendant or the 2nd defendant in respect of Counts 2 or 3, you will need to consider whether the defendant had only mere suspicion or whether that defendant in fact deliberately turned a blind eye. You cannot turn a blind eye to conspiracy to traffic in dangerous drugs because you must have knowledge of what it is you are agreeing to do and intend to do it.

But in the substantive offence you can carry out an act even though you are only suspicious of the contents of the bag and not knowing what the contents are. Or, you can turn a blind eye to where in fact and in truth you know what is in the bag, but you do not obtain confirmation of what is in the back because you neither need or require confirmation.

If you are sure that a defendant has deliberately turned a blind eye to what was in the bag she was asked to carry and leave in Hong Kong, then that would amount to knowledge for the purpose of this offence, but mere suspicion is not enough.”

37.  Finally, Mr Bullett submitted that the directions on inferences were only confined to the conspiracy count and what was lacking was any direction on how to infer knowledge on the trafficking counts.

Respondent’s reply: D1’s Ground 5

38.  Mr Man’s response to this ground was that the judge had particularly emphasised that the “shut eye” direction only had application to the trafficking counts and not the conspiracy count.  Only if the defendant in fact and in truth knew that the bag contained dangerous drugs could she be said to be turning a blind eye to what she knew.  In respect of the argument as to inferences, no exceptional circumstances arose warranting a special direction on the drawing of inferences, for which proposition he relied on Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209, at 218 G-H.

D3’s submissions: Ground 1

39.  Ms Nisha Mohamed and Ms Zoe McCoy, on behalf of D3, complained by Ground 1 that the summing-up was “extremely confusing”.   The ground is in fact a mixture of disparate complaints in respect of both law and fact, which it is more convenient to recite than explain seriatim^[38]:

“The structure and the order of the summing up was extremely confusing. The trial judge:

1.1 commenced her summing up in a most unorthodox way by making sudden reference to the contents of the telecommunications between the parties, and stated that she intends this to just be an overview, and that she will go into more detail later (23F-24T). Immediately after this, she informs the jury of her role as the judge and their role as the jury, and followed by the evidence relied on by the prosecution (24T-26L);

1.2 she then decided to wrongly sum up to the jury as to what is the substantive offence and the alternative offence (27Q-29I) – she manages to successfully repeat this error throughout her summing up;

1.3 she told the jury not to speculate, but herself spent considerable time speculating when referring to the telecommunication evidence which at one stage she admitted was “guesswork” (91S-U);

1.4 she wrongly stated that there were different tests for knowledge when the jury considers the law of trafficking in dangerous drugs and conspiracy to traffic (34J);

1.5 she wrongly stated the law in relation to the Blind Eye Direction (32H-J);

1.6 she failed to properly direct the jury on how to consider the video recorded interview in light of the evidence of the telecommunications evidence;

1.7 she decided to start with the video recorded interview of the 4^th defendant “because poor old 1^st defendant always gets used as an example because they are the 1^st defendant, so I am going to take the 4^th defendant” (37O-Q);

1.8 the use of language and choice of words for example “build up” (29E) “bit of a mouthful” (33F); “upfront at the beginning” (34K), “fallback position” (34T); “going to end this talk” (46M-Q); “so that you can have a proper drink” (39M-N); “very special rule of evidence that we have” (50R); “so you can see in your mind’s eye the chronology” (64H); “then there is a little interesting bit that sort of leads you astray” (66H-J) – caused unnecessary confusion and lacked precision; and

1.9     she gave the impression, if not the actuality, of an unbalanced summing up strongly in favour of the prosecution, which was in effect a second speech for the prosecution.”

It is argued that the combined effect of these failings resulted in a summing-up which was neither clear or effective.

Respondent’s reply: D3’s Ground 1

40.  The respondent took strong issue with Ms Mohamed’s somewhat pejorative characterisation of the summing-up, contending that the judge’s directions were neither unorthodox nor unfair.  

D3’s submissions: Ground 3

41.  This ground takes issue with the directions on conspiracy, which were rendered confusing by the judge’s erroneous “shut eye” directions.  It is argued that the judge made two attempts in her oral directions to direct on the law on conspiracy, both of which attempts were erroneous. It is further complained that the accompanying written directions were also in error.

Respondent’s reply: D3’s Ground 3

42.  The respondent accepted the direction that “suspicion and turning a blind eye do not apply to Count 1, only to Count 2 and Count 3, all right”[39], may not have been entirely satisfactory.  However, the jury were specifically directed that knowledge of what had been agreed must have been proved in respect of Count 1.  The respondent relied, amongst other things, on the direction at the end of MFI 25, namely, “You cannot turn a blind eye to conspiracy to TDD because you must have knowledge of what it is you are agreeing to do and intend to do it but in the substantive offence you can carry out an act even though you are only suspicious of the contents of the bag and not knowing what the contents are, or you can turn a blind eye to it where in fact and in truth, you know what is in the bag but you do not obtain confirmation of what is in the bag because you neither need or require confirmation”^[40].

D3’s submissions: Ground 4

43.  Ms Mohamed submitted that the effect of Specimen Direction 5 is that the judge should have first told the jury to consider Count 1, and if they found the defendant guilty on that count, then they did not need to go on to consider Counts 2 and 3.  It is complained that the judge adopted the wrong order “because in this case as you know we have got this mixture, we have got trafficking in dangerous drugs and conspiracy”^[41]; and “I am going to start with the trafficking first and then we will build up from there”^[42].

Respondent’s reply: D3’s Ground 4

44.  The respondent countered that the judge, in explaining the law in relation to Count 1, would, as a matter of course, have had to explain the law in respect of the elements constituting the offence of trafficking in a dangerous drug, namely Counts 2 and 3.  

D3’s submissions: Ground 5

45.  The judge produced a 58-page document, entitled “Table of some of Telecoms ‒ Chronology”[43], which she explained was an aide memoire to assist the jury.  It was devised with a view to assisting the jury in relation to a Forensic Examination Report, which contained all the communications between the Viajeros group (D1, D3, D4), Viber messages (D3, D4, Fei Fei/Madam) and Apple/Facebook messenger (Nora, D3, D4).  And it went before the jury in conjunction with the “Prosecution’s list of acts and declarations in furtherance of the conspiracy”, referred to earlier[44].

46.  Ms Mohamed argued that the course adopted by the judge in having condensed and editorialized parts of the Forensic Examination Report would have had an impermissible impact on D3’s case.  This was because a disproportionate amount of time was spent in going through the Telecommunications evidence, which would have caused the jury to conclude that this evidence was extremely important, notwithstanding the judge’s directions that it was for the jury to decide what they made of this evidence^[45]. The resulting summing-up thereby favoured the prosecution.  Ms Mohamed noted there was no similar judicial handout for the defence when dealing with any part of the defence case.

47.  A second complaint, although made under the same ground, was that the judge’s hand out (MFI 12) was wrong and extremely confusing. Specifically, the judge failed to identify with care which category the evidence of acts and declarations made in the furtherance of a conspiracy fell into, in accordance with Specimen Direction 12; the judge failed to direct there must be “reasonable independent evidence” that a defendant was a party to the conspiracy.

48.  Ms Mohamed argued that the judge initially attempted to provide her own interpretation of the Telecommunication evidence; but this came to an end about half way through[46], and there is no reference thereafter to whether the messages were in furtherance of the conspiracy.

49.  Ms Mohamed argued that the judge’s analysis was speculative rather than providing an overview.  She listed a number of the judge’s expressions in support of her contention, for example:

“I don’t know whether that is “get in” or just get communication – “madam… so one presumes she has not been able to call Urak up to that stage”^[47]

“I suspect that really means room, yes?”^[48]

“one would imagine that these people actually got to sleep at some time”^[49]

“and that is why I am saying that there may be some shift in communications going through because you have seen that they are obviously in the lobby at some stage and then moving”^[50]

“so there you see they appear to have two rooms at once. Perhaps they do not have to leave one room before they have picked up the other one…”^[51]

“… and again, you do not know who “them” is – at the moment who that is… but it is a matter for you, ladies and gentlemen”^[52]

“… Nora to D3, “later you and Doc go somewhere way past CK” – which I presume means Chungking…”^[53]

“That is total guesswork on my part and we should not speculate but I am trying to make sense of it for you”^[54]

“… now a lot of that could be also because they have got no Wi-Fi etc. I don’t know. But the pattern of the telecommunications does also speak for itself. So look at it, ladies and gentlemen”^[55]

“she said she shouldn’t have been hired – presumably she is talking about Madam…”^[56]

50.  Ms Mohamed further complained that the judge’s ensuing warning was insufficient, namely[57]:

“That took a while. I am sorry, but it certainly puts it in better context, I think, by going through that and trying to put that together out of all those various messages. But I do want to remind you that it is for you to decide what you make of that. I put an overview on it simply to try and make sense of, but you, it is for you to make sense of it in the way you think appropriate because you are the judges of the facts here.”

The danger of these directions was said to be that the jury may simply have adopted the judge’s analysis of the Telecommunications evidence.  Ms Mohamed went so far as to compare the judge’s actions with making a second speech for the prosecution.

Respondent’s reply: D3’s Ground 5

51.  The respondent submitted there is nothing unusual about a judge providing a jury with handouts and, in this instance, a table.  He maintained that it was necessary to assist the jury, and it did not contain anything new.  It could not be said to be a second prosecution speech.  The judge properly identified the various parts of the text messages contained in the chronology which might have assisted the jury in respect of acts and declarations in furtherance of the conspiracy.

D3’s submissions: Ground 6

52.  It was argued that the judge did not impress upon the jury that the statements of one defendant not made on oath in the course of a trial were not evidence against another.  The way the judge had summarised D4’s evidence would have suggested to the jury that the video recorded interviews could be used against all the defendants.  For instance, the judge said “Now, Mr Chau told you she made no admissions in her interview that she had agreed to carry dangerous drugs, or that she knew there were dangerous drugs in the bag.  And in fact, that is the case for all the defendants, is it not?”^[58].

Respondent’s reply: D3’s Ground 6

53.  The respondent argued that this particular quotation needs to be seen in its proper context: the judge was merely exemplifying the issue of knowledge.  She was not suggesting that the jury should consider the VRIs of all the defendants together.

D3’s submissions: Ground 7

54.  All of the defendants received a good character direction in relation to both credibility (in respect of what they had said in their VRI’s) and propensity.  However, Ms Mohamed complained that this was insufficient and a stronger direction in D3’s favour was necessary.  

D3’s submissions: Ground 8

55.  This ground took issue with the propensity limb of the good character direction.  Ms Mohamed submitted that the way in which the judge directed on propensity carried a real risk of confusion.  She complained that the judge’s comment, namely, “There is not a great deal of background.  You have more background for the 4^th defendant…”[59] might have unfairly led the jury to place less weight on the propensity limb when considering D3’s case.

Respondent’s reply: D3’s Grounds 7 and 8

56.  The respondent argued that when it came to summing up D3’s case, the judge succinctly summarised it, and told the jury what D3 had told the investigator during the VRI about her personal background. He referred to the observations of the Court in HKSAR v Mohammed Saleem (No 2) [2009] 5 HKLRD 478, at [27]-[28]:

“27. In many cases in Hong Kong, a good character direction is meaningless, because the defendant is not a Hong Kong resident, or has resided in Hong Kong for a short time only, or is here illegally, or is in transit. In such cases it is arguable that a defendant should not be entitled to a character direction, either as to credibility or propensity, beyond a simple statement to the effect that there is no criminal record which exists in Hong Kong.

28. A jury must be puzzled and confused when listening to a judge give a good character direction for a defendant whose only link to Hong Kong is an intention or desire to come here to commit offences; who may be in Hong Kong for the first time; when no reliable material establishes a clear record in the country of origin and when no character witnesses are called. To require a judge to give a full and unqualified character direction in such circumstances runs the risk of being an affront to common sense.”

D4’s submissions: Ground 1

57.  Mr Victor Lee, counsel for D4 at this application but not at trial, submitted that the questioning of D4 in her VRI amounted to oppression.  He argued that the transcript clearly showed D4, on repeated occasions, requesting to consult a lawyer first.  Accordingly, it is now said that the circumstances of the taking of her VRI were oppressive: the officers did not allow D4 access to a lawyer and yet continued with their questions, effectively taking advantage of D4 as a foreigner, who was unfamiliar with the legal system.  It is contended that the judge ought to have exercised her residual discretion to exclude the interview.

Respondent’s reply: D4’s Ground 1

58.  Mr Man pointed out that D4’s VRI was actually relied on by her counsel at trial to present and advance her case.  There was never any application at trial to exclude the VRI as inadmissible or as an exercise of discretion.

D4’s submissions: Ground 2

59.  Counsel for D4 at trial suggested the interviewing officers were being “sneaky” in, amongst other things, withholding the fact they had already detained D1 and D2.  The judge cautioned the jury that it was unfair to have used the term “sneaky” as this was a serious criminal matter and the officers would not necessarily want to show their hand.

60.  Mr Lee therefore made two complaints.  Firstly, there was no basis for the judge to have made this comment.  Secondly, the judge should have directed the jury in terms of Specimen Direction 39 (which provides for a Mushtaq direction) as well as Specimen Direction 40 (concerning mixed statements).

Respondent’s reply: D4’s Ground 2

61.  Mr Man countered that Specimen Direction 39 had no application to the present case, since this was not a case in which the jury could reasonably conclude the confession was or might have been induced by oppression.  Furthermore, that there was nothing wrong with the judge using the word “sneaky”.  It had never been put to the interviewing officer that the VRI had been conducted improperly. 

D4’s submissions: Ground 3

62.  Ground 3(1) concerns the directions on conspiracy.  Mr Lee complained that the judge did not direct the jury to consider the parties and the scope of the conspiracy before taking into account the acts and declarations in furtherance of the conspiracy.  He suggested that the verdicts indicated the jury did not accept the prosecution case, since only D3 and D4 were convicted on Count 1.  

63.  Ground 3(2) was that there was, on one view, more than one conspiracy; and, therefore, the jury should have been directed that they should only convict if they were sure there was in fact one single conspiracy, and that the defendant was a party to it.  Again, he contended that the jury’s verdict indicated that the jury were not persuaded there was one single conspiracy.

64.  Although not made a discrete ground, Mr Lee has tacked onto this ground by way of Ground 3(3) a complaint about hearsay evidence, namely the statements in the Telecommunications evidence of Nora and Fei Fei (who did not give evidence at trial).  Unless they could be said to come within the co-conspirators rule, Mr Lee contended that the statements of Nora and Fei Fei were inadmissible hearsay.

Respondent’s reply: D4’s Ground 3

65.  Mr Man argued there was only ever one conspiracy alleged.  He pointed out that the Telecommunications evidence was more concerned with the involvement of D3 and D4 in that conspiracy rather than with that of D1 and D2, which would explain why they, and not D1 or D2, were convicted of Count 1.

66.  As for the hearsay point, Mr Man maintained that when the judge referred to the statements of Nora and Fei Fei, she was not relying on the statements for the truth of their contents, but rather that such messages were conveyed to D4 and how D4 responded.

D4’s submissions: Ground 4

67.  Mr Lee contended that the judge should have directed the jury that the exculpatory out of court statements of a co-defendant should have been considered by the jury in favour of other defendants, in particular D4.

Respondent’s reply: D4’s Ground 4

68.  Mr Man noted that each of the defendants gave their own explanation in their VRIs, and that the explanations of D1 and D2 did not exonerate D4.  Accordingly, there was no need for the judge to have given the direction contended for.  Indeed, to have done so would have simply confused the jury.

The grounds of appeal against sentence

69.  All three applicants also seek leave to appeal against their sentences.  It is complained by each applicant that their sentence was based on an uncertain amount of cocaine.

70.  All of the applicants provided assistance resulting in the arrest of Nora, which subsequently led to the arrest and prosecution of others in the Philippines.  The judge described this as a “major breakthrough in the trafficking of dangerous drugs in the Philippines and, it would appear, I am told, a reduction in trafficking from there to Hong Kong”^[60].

71.  The judge found this assistance was only forthcoming after their arrest.  She also noted how the outcome of the trial of a person called “Katumba”, implicated by the applicants, was not yet known and that it would be open to the applicants to seek a greater reduction depending on the outcome of this trial.  She found that none of the applicants accepted the verdicts of the jury; and that no meaningful personal mitigation had been advanced on their behalves^[61].

72.  The judge made reference to the guidelines provided for in HKSAR v Lau Tak Ming [1990] HKLR 370 and HKSAR v Abdallah [2009] HKLRD 437.  For D1, who had trafficked in 944 grammes of cocaine narcotic, the starting point adopted was 21 years and 9 months’ imprisonment.

73.  As for D3 and D4, after discussions with prosecution counsel, it was agreed that for the conspiracy count, the amount of cocaine would be 2 kg, instead of the prosecution’s stance of 4 kg.  A notional amount of narcotic, for sentencing purposes, was taken as between 1.867 kg and 2 kg of cocaine^[62]. Accordingly, D3 and D4 received starting points of 23 years and 9 months’ imprisonment.

74.  The judge found that D4 was the major player in the conspiracy, whose involvement (albeit by a narrow margin) was greater than that of D3.  Since D1, on the other hand, was merely a courier, the starting point in her case was further reduced to 21 years and 3 months’ imprisonment.  On the other hand, the starting point in D3’s case was enhanced by 6 months’ to 24 years and 3 months’ imprisonment, while the starting point in D4’s case was enhanced by one year to 24 years and 9 months’ imprisonment.

75.  To reflect the international element in bringing dangerous drugs over the border into Hong Kong, D1’s sentence was enhanced by 1 year and 9 months’ imprisonment, while D3 and D4’s sentences were both enhanced by 2 years’ imprisonment.  The resulting overall notional sentences after trial were, therefore, 23 years’ imprisonment in respect of D1; 26 years and 3 months’ imprisonment in respect of D3; and 26 years and 9 months’ imprisonment in respect of D4.

76.  Because of their participation in Father Wotherspoon’s “programme”[63], each applicant received a discount in sentence of 6 months’ imprisonment.  For their further assistance in providing information about drug trafficking “within the Philippines”[64], they each received a further discount of some 7%.

77.  Therefore, the ultimate total sentences passed were as follows: D1, 20 years and 11 months’ imprisonment; D2, 23 years and 11 months’ imprisonment; and D3, 24 years and 5 months’ imprisonment. 

Respondent’s submissions on sentence

78.  The respondent made two points.  First, the amount of cocaine for which D1 was sentenced was 944 g, which was the quantity of cocaine found in her green bag when she was intercepted.  Second, D3 and D4 were sentenced on the basis of 1.867 kg of cocaine.  This was the total quantity of cocaine recovered from D1 and D2.  It was the prosecution’s case that this was the minimum amount D3 and D4 had agreed to traffic.

79.  The respondent submitted that the judge’s approach was lenient and favourable to the applicants, when, having held that the only plausible and logical inference on the facts was that approximately 2 kg of cocaine was being carried by D3 and D4, she adopted an altogether more favourable sentencing basis of 1.867 kg of cocaine (ie the total quantity recovered from D1 and D2). 

80.  As for the 6-month discount for participation in Father Wotherspoon’s programme, Mr Man pointed out it was twice the maximum discount which the Court said could be given for this factor in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88.

Consideration (conviction)

81.  My function as Single Judge is to grant leave only where there are reasonably arguable grounds of appeal.  A ground of appeal is not reasonably arguable simply because it sounds reasonable by virtue of being articulately or plausibly presented.  It must have some reasonable chance of success.  Nor is it my function to grant or refuse leave where the point is one of pure law.  I am only required to consider whether leave should be granted where a ground of appeal involves a question of fact alone, or a question of mixed law and fact[65].

82.  I make this latter point because I regard both Ground 3 of D3’s grounds of appeal and Ground 3(1) and (2) of D4’s grounds of appeal as involving questions of law alone, for which leave is not required.

83.  I have also considered whether the complaint by D1 in Ground 5 of her grounds of appeal (also adopted by D3 in support of Ground 3) involves a question of law alone, or whether it can be said to involve a question of mixed law and fact.  I have concluded that it is a question of mixed fact and law because whether the “shut eye” direction was merited in this case or not must depend on the evidence and circumstances and, in particular, on what the various defendants said in their VRIs.  Thus, the question of the judge’s directions is dependent on the particular facts of the case.  

84.  It must also be remembered that D2 in her VRI asserted that, given her concerns, she had actually made enquiries about the contents of the bag and been persuaded that there was nothing to worry about.  However, if the jury had found, notwithstanding her inquiries, that she could not, from the surrounding circumstances, such as the weight of the bag and the money she was being paid, have really believed what she was being told and that she had pressed on knowing full well that she was carrying drugs, she would have been found guilty.  The judge’s directions had to cater for all eventualities, and all defendants’ cases.

85.  Having said that I regard this issue as one involving a question of mixed law and fact, I nevertheless consider that the argument is reasonably arguable and, accordingly, grant leave to appeal.

86.  As for the remaining grounds of appeal of D1, however, I do not regard them as reasonably arguable and I refuse leave.

87.  In respect of D1’s Ground 1, the judge gave a correct direction as to the burden and standard of proof at the outset of her summing-up[66], including explaining the essentials of the so-called Liberato direction from the eponymously named Liberato & Others v R (1985) 159 CLR 507, as applied in Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475, at [27].  It is not at all uncommon for a judge to give an overarching direction as to the burden and standard of proof at the commencement of their summing-up in accordance with the specimen directions and subsequently to ask the jury to consider what they “accept” or “think” or “find” or “believe” of a particular piece of evidence, including defence evidence, as he or she proceeds through a summary of the evidence.  To require a judge each time he or she uses such an expression to add the qualification “or may accept”, “or may think”, “or may find”, “or may believe” would be unrealistic and an unnecessary counsel of perfection.  It is also an affront to the intelligence of the jury in understanding the burden and standard of proof in criminal trials.  What is essential is that, reading the summing-up as a whole, the message is clearly conveyed by the judge to the jury that it is for the prosecution to prove all matters in issue and for the defence to do no more than raise a reasonable doubt about them.  However, there is no burden on the defence.  When one reads this summing-up as a whole, this ground of appeal is not reasonably arguable.

88.  The alleged inconsistency of verdicts as between D1 and D2 (D1’s Ground 2) is also not a reasonably arguable ground of appeal. The cases of each defendant were not the same and the jury were entitled to regard what D2 had said in her VRI as more worthy of belief than what D1 had said.

89.  The complaint under Ground 3 of D1’s grounds of appeal that the judge erred in allowing the prosecution to proceed with a conspiracy and a substantive offence is also not reasonably arguable.  No such application was made by counsel, for a rather obvious reason: Counts 2 and 3 were specifically expressed as alternative counts in the event that the jury were not satisfied that D1 and D2 were parties to the conspiracy.  The complaint that the judge should have excluded, in the interests of a fair trial, relevant, admissible evidence in the form of the Telecommunications evidence if there had been an election to proceed on the trafficking counts rather than the conspiracy count is an untenable proposition when there was no election and no need for an election.

90.  Having looked at the several complaints in respect of the Telecommunications evidence, I do not regard any of them as reasonably arguable.  The jury received adequate instructions as to how they were to approach this evidence.

91.  As I have already said, I shall grant leave to appeal on D1’s Ground 5.

92.  Turning to D3’s Ground 1, I do not consider it reasonably arguable that the overall effect of the summing-up was, for the reasons advanced by D3, confusing.  Nor, when read as a whole, can the summing-up reasonably be said to be unbalanced.  With respect, as has been said before when this type of ground is advanced, there is little point in taking one sentence out of context: the whole effect of the summing-up must be looked at.  When that is done, the complaint is not reasonably made.

93.  D3’s Ground 2 has been abandoned, in light of the Court of Appeal’s decision in Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529, which came after the settling of the original grounds of appeal.

94.  In my judgment, no leave to appeal is required for D3’s Ground 3, since the argument involves a pure question of law, namely the propriety of the judge’s legal directions, both oral and written.

95.  D3’s Ground 4 is not reasonably arguable.  It was a matter for the judge to determine how best to sum up the case to the jury.  Clearly, the jury must have conscientiously understood their task, for they acquitted D1 of Count 1 but convicted her of Count 2, while they acquitted D2 of both counts.  Moreover, it is difficult to see how the issues averred in Ground 4 had any discernible impact on D3 and D4, since they were only ever charged with conspiracy.

96.  None of the contentions under D3’s Ground 5 is reasonably arguable.  A reading of the summing-up as a whole, and the judge’s analysis of the Telecommunications evidence, does not reasonably give the impression, or lead to the risk, contended for.  Moreover, none of the very experienced trial counsel ever sought to suggest as much at any time during the summing-up.

97.  D3’s Ground 6 is not, with respect, accurately pleaded.  The judge made it quite clear that what one defendant said in her VRI about the involvement of another defendant was not evidence against that other[67].  The distinction between what a defendant said in her VRI and what was said by one defendant implicating another under the co-conspirator’s rule in the Telecommunications evidence was also clear when the summing-up is read as a whole.  This ground is not reasonably arguable.

98.  As for D3’s Grounds 7 and 8, Ms Mohamed rather accepted in argument that they were not very strong grounds of appeal.  Indeed, for the reasons given by Mr Man, I regard them as wholly unarguable, as distinct from being not reasonably arguable.

99.  In respect of D4’s grounds of appeal, Grounds 1 and 2 are also, with respect, wholly unarguable.  Defence counsel at trial mounted no application as to the admissibility of D4’s VRI and for good reason: he wanted to rely on it.  It hardly lies now in the mouth of fresh counsel on appeal to say that he would have done things differently.  He was not trial counsel and there is no allegation that counsel at trial acted flagrantly incompetently in running the defence as he did.  These grounds of appeal should not, with respect, have been advanced; certainly not without proper enquiries being made of trial counsel in accordance with appellate counsel’s duties under HKSAR v Apelete (No 1) [2019] 5 HKLRD 574, with which counsel are now expected to be familiar.

100.  I do not consider that leave is required in respect of D4’s Ground 3(1) and (2), since they are questions of pure law. However, Ground 3(3) is not reasonably arguable and I refuse leave on that aspect of the ground.

101.  I do not regard Ground 4 as reasonably arguable in the context of this case.  With respect, it would be very difficult to point to any evidence from other defendants that could be said to be in D4’s favour, against whom the evidence was very strong, including her being seen on CCTV delivering the brown and black bags to two men in Chungking Mansions in the early hours of 27 September 2015.

Conclusion (conviction)

102.  I do not consider that leave to appeal is required in respect of D3’s Ground 3 and D4’s Ground 3(1) and (2).  I shall grant leave to appeal on D1’s Ground 5.  Although the “shut eye” issue is not specifically pleaded as a ground of appeal by D3 (or D4), it is of course open to them to use the argument to advance their respective Ground 3, if they consider it relevant.  Leave to appeal against conviction on all other grounds is refused, namely: D1’s Grounds 1, 2, 3 and 4; D3’s Grounds 1, 4, 5, 6, 7 and 8; and D4’s Grounds 1, 2, 3(3) and 4.

Consideration (sentence)

103.  The sentences may be lengthy, but in fact they could have been longer.  The discount for assisting the authorities in the Philippines was within the judge’s discretion to give, while the further discount of 6 months’ imprisonment for assisting Father Wotherspoon’s programme was overly generous and wrong in principle, in light of the subsequent judgment of the majority in Kilima Abubakar Abbas.

104.  The basis of sentence in respect of D3 and D4 was particularly favourable to them, since the judge decided only to sentence them on the basis of the combined quantity of the drugs seized from D1 and D2 and to disregard what they must have brought into Hong Kong themselves.  As for the difference in the sentences, the judge was properly doing what this Court has recently said should be done where different roles are played by different defendants: see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  The enhancements for the international element were also correct and in accordance with authority.

Conclusion (sentence)

105.  Accordingly, I can see no reasonably arguable grounds of appeal against sentence and refuse leave.

Loss of time warning

106.  Having given leave to appeal on a limited basis on certain grounds of appeal against conviction, but refused leave to appeal on all other grounds of appeal against conviction, as well as the grounds of appeal against sentence, I should say this to the applicants.  They are entitled to apply to renew any of the grounds on which leave has been refused in respect of either conviction or sentence, but they should also be warned that the Court has power to make an order for the loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the view that there was no justification for the renewal of the application in respect of the renewed grounds.  However, no question of loss of time should apply to grounds of appeal for which leave has been granted, or, in the present case, for grounds for which leave is not required.

[1] The travel itineraries of D1, D2, D3 and D4 were not in dispute and were produced by way of admitted facts.  Nor were the quantities of drug found in D1’s green bag and D2’s red bag.

[2] See Admitted Facts paras 9 and 10, Appeal Bundle (“AB”), p 17.

[3] AB, p 1507, para H.

[4] See Admitted Facts paras 12 and 13, AB, pp 17 and 18.

[5] Pages 1, 2 and 16 of the Computer Forensics and Examination Reports of Mobile Phones and SIM Cards Bundle.

[6] Sham Wing Kan v Commissioner of Police [2017] 5 HKLRD 589.  This decision was, however, overturned by the Court of Appeal in Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529.

[7] AB, pp 1082-1088.

[8] AB, p 911-046 D-G.

[9] AB, p 909 K-T.

[10] AB, p 911-002 G-I.

[11] AB, p 911-003 J-L.

[12] AB, p 911-011

[13] AB, p 911-040 J-L.

[14] AB, p 911-015 N-S.

[15] AB, p 1512.

[16] AB, p 911-048 N.

[17] AB, p 145F-I.

[18] AB, p 146P-R.

[19] AB, p 1075 E-G.

[20] AB, p 1071 G-H.

[21] AB, p 1076 K-O.

[22] AB, p 926 K-L.

[23] AB, p 927 H-J.

[24] AB, pp 916-917.

[25] AB, p 922.

[26] AB, p 1333 F-H.

[27] AB, p 1336 I-O.

[28] AB, p 1341 G-J.

[29] AB, p 37 D-G.

[30] AB, p 48 J-K.

[31] AB, p 137 F-G.

[32] AB, p 143 C-E.

[33] See AB, p 234 at counters 883-884.

[34] AB, pp 30R-31D.

[35] AB, pp 143O-144B.

[36] AB, p 148J-M.

[37] AB, p 150A-J.

[38] See D3’s skeleton submissions at pages 3-4.

[39] AB, p 32I-J.

[40] AB, p 1532.

[41] AB, p 27 T-U.

[42] AB, p 29 E-F.

[43] AB, pp 1534-1592.

[44] At para 12 supra.

[45] AB, p 97D.

[46] From AB, pp84R-94H.

[47] AB, p 63 I-K.

[48] AB, p 64M.

[49] AB, p 66 A-C.

[50] AB, p 73 O-P.

[51] AB, p 75 J-K.

[52] AB, pp 77 S-T & 78 J-M.

[53] AB, p 82 K-L.

[54] AB, p 91 S-U.

[55] AB, p 125 O-S.

[56] AB, p 94C.

[57] AB, p 97A-E.

[58] AB, pp 119Q-120C.

[59] AB, p 46H-I.

[60] AB, p 664 Q-U.

[61] AB, p 666 A-C.

[62] AB, p 666 D-F.

[63] AB, p 667E-F.

[64] AB, p 667I-J.

[65] Section 82 of the Criminal Procedure Ordinance, Cap 221.

[66] AB, p 27I-P.

[67] AB, pp 37M-38E.