HKSAR v. LEE ERNEST

CACC 1/2018

[2022] HKCA 104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 1 OF 2018

(ON APPEAL FROM HCCC NO 305 OF 2016)

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REASONS FOR JUDGMENT

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

Introduction

1.  The applicant was jointly indicted with three other defendants on a sole count of trafficking in a dangerous drug, namely 1.87 kilogrammes of a crystalline solid containing 1.47 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  We will refer to the applicant by his trial designation as D1.  The other defendants were D2, D3 and D4.

2.  On 12 December 2017, following a trial before Deputy Judge McMahon (“the judge”) and a jury, D1 and D2 were both convicted, whilst D4 was acquitted, of the count on the indictment.  The judge ruled at the close of the prosecution case that D3 had no case to answer, after which he was formally acquitted of the count.

3.  On 13 December 2017, the judge sentenced D1 to 24 years’ imprisonment.

4.  D1 applied for leave to appeal against his conviction, which was eventually heard by a Single Judge[1] on 17 June 2020.  He refused to grant leave to D1 to appeal on the eight grounds of appeal against conviction put forward. 

5.  On 24 June 2020, D1 filed an application to renew his application for leave to appeal (Form XIII). 

6.  At the conclusion of the hearing of the renewal application, we refused D1 leave to renew his application and dismissed his appeal.  We also made a 6 weeks loss of time order against D1.  We said we would hand down the reasons for our decisions in due course.  These are our reasons.

The delay and disruption

7.  It is a matter of regret to this Court that these proceedings have been unnecessarily prolonged and wasteful due mainly to the involvement of D1’s fellow prisoner, Mr George Jutting,[2] who apparently represents himself as a law graduate of the University of Cambridge and purports to offer legal assistance to other prisoners such as D1.  Given the large volume of appeals he has been involved in, he seems to be operating a legal practice out of prison, when he is neither qualified nor entitled to do so.  How he is permitted and able to do this is a matter that needs to be urgently addressed by the prison authorities. 

8.  In this application, there have been numerous and ongoing procedural issues because of non-compliance with requirements, changes to the grounds of appeal, and requests for further time to obtain legal assistance.  Experience has shown that Mr Jutting invariably presents grounds of appeal and written submissions on behalf of fellow prisoners which are unnecessarily lengthy, repetitive and prolix, and clearly lack the professional skill and standing of a qualified and experienced legal practitioner. [3]  These grounds and written submissions have usually involved Mr Jutting dissecting the minutiae of a trial in order to find points for argument on appeal, even if they were not in issue at trial.  The arguments in support of the points are generally couched in technical and pretentious language with purported references to legal principles that have either changed or developed over time.  There is also the added burden that the written submissions are not in strict compliance with appellate practice and procedure which unnecessarily engages the Court in further directions and exchanges.  He is able to do this by exploiting the Court’s accommodating and flexible approach when dealing with an applicant who is acting in person.

9.  Mr Jutting cleverly frames his grounds of appeal by appearing superficially arguable through the use of a convoluted language and numerous case citations, which are then drafted and redrafted in order to secure legal assistance, come what may.  In the present case, D1’s numerous applications for legal assistance have been rejected by the Department of Legal Aid,[4] the Bar Free Legal Service Scheme[5] and the Clinical Legal Education Programme of the University of Hong Kong.[6]

10.  This case has suffered inordinate delay because of the non-compliance with the Court’s directions and time requirements, the staggered requests by D1 for further information and materials, and the last minute filing of submissions.  It is the lack of proper consideration of a ground of appeal, with little or no assessment or discernment as to whether it has a reasonable prospect of success, that can severely undermine the criminal justice system because of the wasteful time and effort expended by those involved in the administration of justice in dealing with such a ground, when their time and effort could be better spent on meritorious cases. 

11.  About five minutes before the hearing of the renewed application, D1 submitted a 35-page handwritten submission to the Court.  He was asked why the submission was filed so late given that he had been notified of the hearing by notice dated 14 July 2021.  He said he had discussed the case with Mr Jutting, who told him he should respond to the respondent’s written submission.  When it was pointed out that the respondent’s written submission was filed on 28 September 2021, he said he had to wait for the return of documents he had sent to friends who were lawyers, and referred to Mr Eric Cheung (of the Clinical Legal Education Programme at the University of Hong Kong).  However, this concerned his third application for legal assistance to the Clinical Legal Education Programme, which was refused on 5 January 2022.

12.  D1 explained that Mr Jutting was the author of all of his grounds of appeal and submissions.  He said he would discuss matters with Mr Jutting, who would give him documents to copy in his own handwriting. It would seem Mr Jutting operates as a legal advisor from the Graphic and Printing Workshop in the prison, and must do so on almost a full time basis given the volume of material this Court has received from him in a significant number of cases. 

13.  After further exploring the matter with D1, we established that he fully understood and adopted the contents of the submissions prepared by Mr Jutting.  He was reminded of the Court’s power to order loss of time but he insisted that he wanted to pursue the renewal of his application.  He made an oral submission in support of his application, which he had read out from a prepared document.[7]

The basis of the renewed application

14.  Without going into the details of the previous written submissions that have been filed by D1, it is necessary to set out briefly the procedural history of the case.  Following D1’s renewal of his leave application on the eight grounds of appeal that were refused leave by the Single Judge, the Court issued a direction on 1 September 2020, requesting D1 to inform the Court of the grounds of appeal on which he intended to rely. 

15.  In a letter dated 10 September 2020, D1 explained that his sole ground of appeal was the same as the previous Ground 4, which he expressed in the following terms:

“(a) On the one hand, the prosecution stated clearly to the jury that Lam Chun To was guilty and asserted that this evidence corroborated the prosecution’s allegation against the applicant.

(b) However, on the other hand, not only did the prosecution fail to make a full disclosure to the jury, but it also withheld the fact that Lam Chun To’s existence had already been confirmed by the Customs and Excise Department and a statement had been taken from him by Customs officers and yet not a single charge was laid against him in so far as the case was concerned.”

16.  Despite the allegation of material nondisclosure, we note at this stage that the prosecution did disclose a statement from Lam Chun To as part of the unused material.  Furthermore, prosecuting counsel did not urge the jury to find the defendants guilty because Lam Chun To was guilty of the offence.  This illustrates the difficulties that arise when someone else, particularly someone who is not professionally trained, reviews a case without any appreciation as to what has taken place at trial and why. 

17.  This ground of appeal was subsequently replaced by perfected grounds of appeal against conviction dated 17 November 2020,[8] which were 6 pages in length.  The subject of the complaints can be distilled as follows:

“(1) By failing to disclose to the applicant the relevant Customs and Excise Department investigation report into Lam Chun To and/or sufficient disclosable information relevant to the decision by Customs not to charge Lam Chun To with the offence where with the applicant was charged (together ‘undisclosed materials’), the prosecution was in material breach of its duty of disclosure, which irregularity, in all the circumstances, both amounted to material irregularity and also deprive the applicant of a fair trial.”

…

“(2) The extent to which the prosecution both:

(i) positively asserted to the jury matters which not only were not supported by the evidence but also were known by the prosecution authority (the Department of Justice) and/or by the investigating agency (the Customs and Excise Department) to be false and contradicted by material and/or information which was not adduced into evidence by the prosecution, but which was in the possession or control of the prosecuting authority and/or the investigating agency; and

(ii) by omission, materially misled the jury by failing to adduce into evidence relevant incredible material and/or information which was in the possession or control of the prosecuting authority and/or the investigating agency, amounted to a material breach of the prosecution central duty of “ensuring that the [prosecution] case is presented with fairness to the accused” which, in all the circumstances, deprive the applicant of a fair trial or, in any event, amounted to material irregularity.”

18.  Numerous directions requesting the filing of a written submission in support of the ground of appeal were ignored by D1, although he made spasmodic requests for the inclusion of materials in the appeal bundle.  This unsatisfactory situation resulted in the Court having to take the initiative and deal with the allegation raised by D1 that there had been material non-disclosure by the prosecution.  A direction was issued to the respondent to provide a written response to this allegation. 

19.  Eventually, D1 filed a written submission dated 2 April 2021 in support of the grounds of appeal against conviction, which was 11 pages in length.

20.  In the meantime, the respondent filed a written response to the disclosure issue dated 22 March 2021.  It was pointed out that a statement had been taken from Lam Chun To and was part of the unused material disclosed to D1.  It was noted that when D1 and the other three defendants were arrested on 3 February 2016, none of them mentioned or made reference to Lam Chun To and he only became known to the investigating officers on 24 February 2016 when it was confirmed that he had made a payment in cash for a travel package to Japan in the name of D4.  It was on this basis that the Customs officers took a statement from him on 9 July 2017.  It was stated that Lam Chun To was not a suspect and there was no investigation report.  At the renewed leave hearing, it was explained by counsel for the respondent that was the position at that time. It was also noted that prosecuting counsel in his opening speech to the jury said that Lam and 171 (this was a reference to a person known as Ah Hau and “171” were the last three digits of his telephone number) were never arrested and their telephones were never seized.[9]  

21.  In light of the respondent’s written response, D1 in a letter dated 6 June 2021, advised that he was abandoning Ground 1, the non-disclosure ground.  However, he submitted that Ground 2 clearly had substance and therefore he was pursuing this as his single ground of appeal against conviction.  He tendered supplemental written submissions in support of this ground and sought to advance a revised argument that the prosecution knowingly presented its case on the false basis that Lam Chun To was complicit in the trafficking of the drugs. 

22.  The written submissions of D1 then descended into absurdity with the following hypothetical scenario advanced as a major part of his argument. 

“[7] Imagine: it is now afternoon at 24^th November 2017 (AB 136-146). the prosecution case has already closed (AB 92K-L); the defence cases are yet to open. The jury has now been sitting for 7 days (between 15^th and 23^rd November 2017) and has been given a bundle of documents, amongst which is a ‘comprehensive schedule’ (AB 256Q-R) entitled ‘summary of telephone calls’ (Exhibit P80: AB 440-448). This schedule has a column for each of the four defendants plus two additional columns: one headed ‘Lam Chun To’ and the other headed ‘Ah Hau/Hau Chai/Kai Yin’. But who are these two additional people? And why have their telephone call records been included in said schedule? The jury knows exactly who these people are. They know because they clearly remember what prosecution counsel, Mr Duncan Percy, told them during his extraordinarily detailed opening speech (AB 232E-F, 256L-258J, 261J-M, 263C-F): Lam Chun To and ‘Ah Hau’ were the two bosses of the drug trafficking enterprise who gave ‘instructions or directions’ about the drugs to the applicant by telephone (AB 258G). And look! Sure enough, D1 (the applicant) had received telephone calls from this boss Lam Chun To; it’s there in black and white on the prosecution’s neat schedule (Exhibit P80). How could D1 not be guilty?

[8] And so; it is now the afternoon of 24^th November 2017. Mr Percy is in full oratorical flow trying to convince the judge that there is indeed a case for D3 to answer. ‘Yes, all right’, Mr Percy tells the judge, ‘It’s undisputed evidence that Lam Chun To was an integral part of this arrangement to ensure that a courier transported the drugs to japan’ (AB 137B-C). Lam Chun To, Mr Percy continues, was one of ‘the so called bosses’ (AB 137E) and D3 ‘is in [the] link. He is linked with two of these important people’, namely ‘171’ and Lam Chun To (AB 140B-C) ‘who were clearly giving orders and instructions’ (AB 144D). The judge however is not convinced: he rules that there is no case for D3 to answer and orders an adjournment (AB 146).

[9] During this adjournment, a man who had been sitting watching from the public gallery stands up and approaches the prosecution side of the bar table where Mr Percy remains, busy tidying his papers. ‘Oi, you!’ The man shouts brusquely to the learned prosecution counsel, ‘I want to tell you that it’s me you’ve been gabbling on about for the past hour. I’m Lam Chun To. And just so you know: you’re talking a load of nonsense. I don’t know anything about the drugs in this case. So why don’t you shut up and stop defaming me?’

[10] Mr Percy, understandably, is somewhat discombobulated by this interruption. He stands staring at the man for several seconds; his mouth agape. The learned counsel swiftly recovers his poise. However, he turns to address the customs officer who still is sitting in the row to his back: ‘Officer! Quick! That’s Lam Chun To! Arrest him!’. The customs officer slowly rises and gives Mr Percy a weary, perhaps embarrassed, grimace. ‘Ah ... Yes’; the Customs officer hesitates, then ploughs on: ‘Well … We probably should have told you this a bit earlier Mr Percy, but actually we do already know about Lam Chun To. We found him and interviewed him a few months’ back and we’ve concluded that he’s not a suspect in this case. In fact, we didn’t even need to do an investigation into him, so we don’t even have an investigation report or anything like that: it’s clear that he’s simply not involved. So we can’t arrest him I’m afraid. This is Hong Kong; we can’t just go around arresting innocent people.’”[10]

23.  Putting aside this puerile narrative, in order to address this ground of appeal, we shall first deal with the facts of the case and then the issues at trial. 

The prosecution case

24.  It was alleged that,^[11] on the morning of 3 February 2016, a team of Customs officers carried out a surveillance operation at the departure area of Hong Kong International Airport and observed, at 7:45 am, D2 pulling a silver-coloured suitcase (“the suitcase”) and meeting up with D3.  At 7:50 am, D1 appeared and joined both D2 and D3; D2 then passed the suitcase to D1 and the three of them proceeded to the airline’s self-check in counter.  D1 alone pulled the suitcase aside and, having briefly checked its contents, gave it to D2 to look after.  From time to time, D1 talked on his mobile telephone and subsequently hurried to the drop-off area to meet D4, who did not arrive until 8:10 am.^[12] The two of them then proceeded to join D2 and D3, whereupon D2 passed the suitcase to D4.  D4 carried the suitcase and queued at the check-in counter, whilst D1, D2 and D3 remained in the vicinity with him.  An air ticket had been booked by Lam Chun To^[13] to enable D4 to depart from Hong Kong for Tokyo^[14] on the 9:55 am flight.  Eventually, at 8:20 am, the four of them were intercepted by different Customs officers.

25.  It was not disputed at trial that inside the suitcase were found five empty iPhone paper boxes and associated wrappings and, in a concealed compartment further inside the suitcase, the drugs the subject matter of the count on the indictment.^[15]  The estimated retail value of the drugs was $566,000.^[16] 

26.  Under caution, both D1 and D4 said that they thought the suitcase contained iPhones or iPhone parts only.^[17] D1 also claimed that the suitcase belonged to “two guys”, who had asked D4 to take it to Japan.^[18]  D2 denied any dealings with D1 or the suitcase;^[19] while D3 claimed he had no knowledge of the suitcase or its contents.^[20] 

27.  The prosecution alleged that each of the defendants was party to the joint enterprise to export the drugs from Hong Kong^[21] and had frequent communications with others by calls and WhatsApp (including both text and voice) messages between 22 January and 3 February 2016.^[22] 

28.  More specifically, the prosecution alleged that D1 had recruited D4, a person with whom he apparently had an ongoing business relationship.  D1 then acted as an intermediary and channelled to D4 information from Ah Hau, who had frequent contact with D1 and D2 on and before 3 February 2016. 

29.  It needs to be understood that the principal purpose of the telephone call records was to show the connection between the defendants directly or through others at the time of the offence.  Prosecuting counsel in his opening speech referred to the telephone call records to show the link and communications between the defendants but repeatedly emphasised to the jury that the propositions that he was putting to them depended on whether they accepted the relevant evidence.[23]

30.  When prosecuting counsel opened his case, he made it clear to the jury that they were to consider the case against each defendant separately as to whether they trafficked in the drugs inside the suitcase.  He in turn addressed the case against each defendant.  He referred to D1’s telephone records which had been admitted into evidence by way of the Admitted Facts: a summary of the call and text records of D1’s mobile telephone[24] was exhibit P72[25], and an aggregate summary of the telephone calls between 13 and 31 January 2016 of the telephones of D1, D2, D3, D4, Lam Chun To, and Ar Hau/Hau Chai/Kai Yin[26] was exhibit P80.[27]  Having addressed the prosecution case against each defendant, he noted it was not in dispute that on 25 January 2016 a staff member of a travel company received cash from Lam Chun To for a travel package of an air ticket and hotel accommodation for D4.  Lam Chun To handed over the passport of D4 and left his name and telephone number as a contact.[28]

31.  He next addressed more specifically the aggregate summary of the telephone calls.  He referred to the telephone communications and their frequency between the persons listed.  He mentioned to the jury that the schedule did not show the communications with “Lam and 171” because they had never been arrested, and their telephones were not seized or subject to any forensic analysis.[29]

32.  He then took the jury to the call and text records.  In analysing the call records, prosecuting counsel said:

“And you can see that there is a lot of outward going calls from 171 and the only conclusion the prosecution say from this is that 171 is giving instructions. It’s a matter for you; you will draw your own conclusions but it seems, from the flow to these respective people, it’s got to be in the nature of instructions or directions. It continues going from 171 to these three individuals, D1, D2 and D3 until the last outward call at 0822 which is about the time, almost close to the time of the interception of these three defendants. So this will be used time and again maybe but it is an analysis digested to help you understand what is going on.”[30] (Emphasis added)

33.  There were also WhatsApp messages between D1 and D4 where D4 referred to D1 as his boss and D1 told D4 the boss would buy the air ticket.  When referring to the call and message records, prosecuting counsel stated:

“The prosecution’s case is that it is clear from the WhatsApp messages, the telephone data that I’ve gone through with you to show that all five were involved, that includes Lam and 171. So far as these defendants are concerned it shows that they were participants in a joint enterprise which could only have related to an unlawful agreement or understanding to ensure that the consignment of drugs reached Japan.

So what are the issues that you may have to consider? What are the main issues that you may have to deal with in your deliberations, once you hear the evidence? It’s likely that one of the issues will be well, who was involved in this unlawful agreement or understanding? Was it all the defendants or just some of them? That’s an issue that you will have to, obviously, consider very carefully in this case.”[31] (Emphasis added)

34.  Prosecuting counsel went on to say:

“The prosecution say they did have roles. The prosecution say so far as the 1^st defendant is concerned, he was the older man of the four defendants. Clearly from the WhatsApp messages, if you accept what he says - and that evidence is - again, whatever D1 says in the WhatsApp messages is evidence against him. You can use that. Same with D4, whatever he says is evidence against him.

The prosecution say that D1 was answerable to his own big boss and he was the recruiter, the prosecution say, of the 4^th defendant as a courier. Look at the WhatsApp messages. The prosecution say D1 was the organiser and coordinator of D2 and D3 and D4 to ensure their timely arrival with the suitcase at the airport on the material day, 3 February of last year, so that that suitcase could be transferred to D4 who was destined to fly out to Japan. D1 had arranged to meet D4 and Lam at Mong Kok to purchase tickets to Japan on 25 January. D1 had inspected the contents of that suitcase in the airport in the presence of D2 and D3, if you accept the evidence, before handing it over to D4.”[32] (Emphasis added)

35.  It is important to note that prosecuting counsel in his opening speech largely focused on the calls between the defendants and 171, who was likely giving instructions to them, but adding that it was for the jury to come to their own conclusions.  He also said Lam was involved but at that stage of the proceedings the prosecution evidence was that he purchased the travel package for D4 and that calls were made on his telephone with some of the defendants.

The judge’s ruling a case to answer

36.  At the close of the prosecution case, the judge ruled that D3 had no case to answer, the reasons for which he delivered at a later date.^[33] In his ruling, he briefly discussed D3’s telephone communications with Lam Chun To and others, and added that the role of Lam in the case was mysterious, the only reference to him in the prosecution evidence being his name on the air ticket booking as a contact person.[34] 

37.  On the other hand, the judge ruled that each of D1, D2 and D4 had a case to answer, notwithstanding the submission advanced on behalf of D1, that on the basis of the prosecution evidence D1 did not have enough time to check thoroughly the contents of the suitcase, so as to enable him to discover the illicit items in the concealed compartment.  It was also submitted on D1’s behalf that he might have been deceived into believing that the suitcase contained only iPhones or iPhone parts.

The defence case

38.  D1 testified in his defence and called two character witnesses.  He stated that he traded in food and beverage, so did a person whom he knew as “Mr Lam”.  He said he met Mr Lam at a gourmet show and regarded him as a potential customer.  It transpired that Mr Lam’s friend, Ah Hau, was looking for someone to take mobile telephone parts to Australia.  This was later changed to take the mobile telephone parts to Japan.  For the sake of his business relationship with Mr Lam, D1 co-operated with Ah Hau and arranged D4 to deliver what he thought were genuine mobile telephone parts. 

39.  D1 testified that Mr Lam and Lam Chun To were two different persons, the latter being sent by Ah Hau to purchase a travel package for D4 at the travel agency where he was also present at the time.[35]

40.  D1 denied knowing there were drugs in the concealed compartment of the suitcase, which he believed contained only iPhones and iPhone parts.[36] He said he did not examine the iPhone paper boxes, because Ah Hau had told him not to touch the things in the suitcase as they were for the customers.  So he did not know that the boxes were empty.[37] 

41.  A transcript of D1’s evidence was not included in the appeal bundle and in light of the issues raised in this appeal, it is necessary, for the sake of completeness, to set out the judge’s comprehensive recitation of D1’s evidence, which read as follows:

“Well, the 1st defendant gave his background. You remember he worked in the media for about 20 years. He also worked on the Mainland in media there, and he then left that in 2015 and went into the food and beverage business which gave him about $40,000 -- or between 20 and $40,000 on average a month. He said these events had come about in this way and I will just briefly remind you: On 13 December, this Mr Lam had rung him. He said that he had got the 1st defendant's business card at a gourmet show and this person, Lam, asked the 1st defendant whether he did wholesale food business and the 1st defendant said ‘Yes.’ They arranged a meeting and at that meeting, this Mr Lam gave the 1st defendant his business card, but didn't tell the 1st defendant the full name of Lam, and Mr Lam took back that business card as he said it was his last one. In any event, they talked about cooperation and how the 1st defendant could supply his company with food and the 1st defendant handed this Mr Lam a catalogue of the 1st defendant's food stuffs.

He then started to contact Mr Lam on the phone and on 18 December, he called him again. Lam said he wanted to visit the shop of the 1st defendant and the 1st defendant said ‘Well what would be better would be if you came to our next gourmet show on 25 December.’ And Lam did so. Was it 25 December? And Lam did so, but he still didn't place any order with the 1st defendant.

Lam rang on 18 December. That is before the gourmet show, obviously. I'm sorry, on 18 January. I do apologise, members of the jury. Lam rang the 1st defendant again on 18 January and said he had a friend who also may have wanted the 1st defendant's food. He said his friend was also in the mobile phone trade and this person wanted to supply parts of mobile phones to customers. He said his friend was very busy at Chinese New Year -- it was Chinese New Year … and he was looking for someone to take the mobile phone parts to Australia and Mr Lam asked the 1st defendant if he was interested in doing so. The 1st defendant said, no, he would be with his children on Chinese New Year on holiday.

Later on, on 18 January, the same day, he rang Lam again with a quote for food and Lam urged him again to take phone parts to Australia. There were conversations between them over the phone at 1830, 2105 hours, 2254 hours, and eventually seven minutes past 11. So there were a number of conversations and phone connections between them over that period of time and Lam on occasion during those phone conversations urged him again to take the phones to Australia, but the 1st defendant said he couldn't. Then Lam asked him if he could find someone who could and on 20 January, the 1st defendant told Lam that he had in fact found someone, because he had spoken to the 4th defendant on 18 January in the evening and … you can see that in the WhatsApp messages … and so he had on 20 January been able to tell Lam that he had found someone to take the phones.

The 4th defendant agreed on the 20th -- yes, he had spoken to the 4th defendant on the 18th, but the 4th defendant didn't agree until 20 January … which is the day he then told Lam he had found someone to do the trip. He said the 4th defendant, when he had agreed over the phone, had some questions about carrying phone parts through customs and other questions as well. And you can see that in the WhatsApp messages. There is particularly a phone message, a voice message, from D4 where he asked the 1st defendant whether they could really take these phones into the ‘Territory’, referring, I suppose, at that stage, to Australia. And the 1st defendant simply said, well, they were parallel goods. He said he got that information, and all the further details he gave the 4th defendant, from Lam.

In any event, Lam told him, told the 1st defendant, his friend would contact him and eventually a person called Ah Hau did ring the 1st defendant and the 1st defendant verified that he was the person who wanted the phones taken to Australia. Hau told the 1st defendant that he engaged in a decent business and needed to send mobile phone parts to regular customers or a regular customer in Australia. They spoke about the trip and Hau told him it was to be in the next week.

The 1st defendant said he had no reason not to believe this person, Ah Hau. In any event, on 22 January, he had three calls with Ah Hau, and you will see those in the summary of communications, and he said Ah Hau told him that the things were now going to Japan and not Australia. And so he then texted the 4th defendant and you can see that in the 1st defendant's bundle, tab 5, there are three texts to the 4th defendant by the 1st defendant simply saying really what you have heard the 4th defendant relate in his evidence.

The 1st defendant said he was simply the relay between Ah Hau and Ah Hau's messages to the 4th defendant. All the information he gave to the 4th defendant, he said, he got from Ah Hau and Mr Lam. He said that the 4th defendant was nervous and asked him if they were really iPhone parts. So on 22 January at 1846, he called Ah Hau, but Ah Hau and he got diverted to a conversation to the effect the 4th defendant needed to provide proof of address and identity.

In any event, on 24 January, he got another voice message from the 4th defendant and this time the 4th defendant suggested that he wanted the 1st defendant to go to the airport to check the thing to make sure that they would not be cheated; in other words, not be tricked. And he promised the 4th defendant he would follow up closely matters involving the shipment of these phone parts. He understood that the tickets would be purchased a couple of days after 22 January and, indeed, on 25 January, after Ah Hau said he was not available to buy the air ticket and that his younger brother would come, Ah Hau's representative was this person Lam Chung-to whose name appears on the travel documents from the travel agency.

He said he had met Lam Chung-to on 25 January when the tickets were bought and Lam Chung-to, after getting the 4th defendant's passport, simply told the 1st defendant and the 4th defendant who had come as well to wait for him while he got the tickets. And that happened. Lam Chung-to get the tickets and gave the 4th defendant his passport back and did not give the 4th defendant the ticket because Lam Chung-to explained that once before the recipient of tickets had simply used them and left.

Very well. He said he was doing all this work and helping the 4th defendant with this arrangement because this Mr Lam was a potential customer. He said Ah Hau at about this time had said there was only one suitcase that was going to be needed to be taken over to Japan and eventually the 1st defendant was aware that it was going to be carry-on luggage. On 30 January, he was told that the electronic parts were, in fact, the 15 sets of disassembled mobile phones. There was no reason to believe Ah Hau was tricking him about that, he said, and so in the early hours of 3 February, Ah Hau called the 1st defendant and said a SIM card had been arranged for the 4th defendant and Ah Hau had also said his brother or cousin would also be at the airport to meet the 4th defendant. He said now also there would only be 10 disassembled phones and five brand new iPhones. And he said that part of the $5,000 living expenses was exchanged into yen already.

Very well. On 3 February, the 2nd defendant rang D1 and said he was the younger brother of Ah Hau and said he would arrive at the airport and contact them. Very well. On 3 February, the 1st defendant said he contacted these two young men in Zone D and one held the suitcase, that is no doubt the 2nd defendant, and the other held an envelope, that would have been the 3rd defendant. In any event, he contacted Ah Hau -- or, rather, Ah Hau rang him and Ah Hau said to him that he, the 1st defendant, should check the suitcase. He said the phone parts were properly wrapped and the clothing was there to protect the phone parts.

The 2nd defendant and the 3rd defendant arrived. The 2nd defendant gave him the air tickets and those documents and they then tried to self-check in. That didn't work. They then went down to the glass wall in Zone A. He kept on throughout this trying to check the 4th defendant's progress towards the airport. Eventually, he went to Zone A with the 2nd defendant and the 3rd defendant. That's when you have heard he checked the suitcase. He said the 3rd defendant said the suitcase was not locked. So he opened it and saw the new iPhone boxes at the back of the suitcase. He didn't examine those boxes because Ah Hau had told him not to touch the things as they were for the customers. So he didn't know those boxes were empty. He didn't look inside the zipper. He didn't see any electronic parts in the suitcase. Ah Hau had said they were all wrapped up, so he didn't look under the zipper, but guessed that those electronic parts were under that zipper. He felt, though, that under the zipper was a hard surface.

He stood up, closed the suitcase and then asked if he could open the zipper. The 3rd defendant was nearby. He said that they were all wrapped up. He then asked the 3rd defendant if they were electronic parts inside and he said, yes, they were. He was confused and anxious at this time. He said at that time when he made his post-recorded statement that he had said they, referring to D2 and D3, had opened the suitcase, but that was wrong, and he said he was simply confused. And he said in his evidence, of course, it was him that had opened the suitcase.

When the 4th defendant arrived, I won't take you through the trips in the meantime -- walking up and down the departure hall -- when the 4th defendant arrived, the 2nd defendant gave him the suitcase and they all went to the check-in and finally queued up and he carried the small suitcase part of the way for the 4th defendant. He said he was not aware the suitcase contained drugs. He thought they were phone parts. In cross-examination, he said that the 2nd defendant did give him the flight ticket and it was given when he was told to go to the self-check in by the 2nd defendant.

He said that when the 4th defendant arrived, he did not give the 4th defendant the suitcase, somebody else did, but he didn't know who. He said he agreed, when he was cross-examined by the 4th defendant's counsel Mr Cheung, that he agreed that the 4th defendant had been told that he owned a private kitchen and he agreed he had also told him he owned a food company. He didn't know why he thought he was a successful businessman -- why the 4th defendant thought he was a successful businessman, though, but he did agree that the 4th defendant called him ‘Big Boss’.

He agreed each time the 4th defendant asked if he was sure that they were electronic parts in the suitcase that were going to be taken to Japan, that he confirmed that. And he also agreed if he was discovered with those parts, the worst that could happen was that he would merely be repatriated or fined. He got all of that information, he said, from Mr Lam. And so when the 4th defendant agreed to do the trip, he did assume it was really electronic parts and he had assured the 4th defendant that there would be no problem. He agreed that the 4th defendant had asked him if the things could be dangerous drugs. He asked this, apparently … the 4th defendant … on a WhatsApp phone call which doesn't, therefore, record that call, but you will remember that both the 4th defendant and the 1st defendant agreed that that question had been asked of the 1st defendant by the 4th defendant.

He also said that at the stage that he and the 4th defendant were in the Delta check-in queue, the 4th defendant asked if he had checked the iPhones and the parts. He had said he saw the new iPhones, but he was not allowed to check the parts. It was put to him, "You hurried the 4th defendant through the airport procedure so that he wasn't able to check the suitcase," but he disagreed with that. And I think there was another phone call earlier on about checking the contents of the suitcase and this was at an earlier stage when the 4th defendant was still on the way to the airport. On the phone call the 1st defendant had told the 4th defendant that he had checked the contents of the suitcase.

And I think Mr Iu relies upon that, along the same lines that he relies upon the evidence of the 1st defendant checking the suitcase at the glass wall. Why would the 1st defendant say that if he thought there may have been dangerous drugs in that suitcase? Mr Iu says, plainly from his actions, he didn't know there were dangerous drugs in the suitcase, and even more plainly from the WhatsApp, he didn't know that there were dangerous drugs in the suitcase.

Very well. He agreed in cross-examination that all of the phone calls from about 8 o'clock on 2 February to the time of his arrest on 3 February, almost all of the phone calls he dealt with were concerning people that were involved in this trip to Japan, whether Ah Hau or the 2nd defendant or somebody else. He said that he did live frugally, but he had a lot of cash. His bank account fluctuated from $100,000-odd down to several thousand dollars. But you will remember it had been to put him by Mr Percy that he needed the money and that was his motive for trafficking in these drugs.”[38]

…

“… the surveillance evidence suggested that the 1st defendant took the suitcase up to the smoking area and the 2nd defendant brought it back down again. But that apparently is not right. The surveillance evidence was the 2nd defendant took the suitcase up to the smoking area and then the 2nd defendant again brought it back down. I don't know what weight you want to place on this, but there is no doubt that both the 1st defendant and the 2nd defendant at various times had pulled or carried that small suitcase.

He said earlier on, on 3 February, Ah Hau rang and said he wouldn't be there, but that his younger brother and a colleague would be at the airport instead. The 1st defendant said he had to go to the airport, so as to meet the 4th defendant and check the suitcase thoroughly. He would do the checking of that suitcase together with the 4th defendant. He said that intention continued even after they checked in. He intended to check the suitcase, inspect the suitcase again, but they couldn't do so because they had been stopped by customs officers.

He said he had not thought there were dangerous drugs inside. He was simply thinking that it was iPhones and iPhone parts, even though he knew the 4th defendant had been concerned about drugs being involved. He assumed those parts were under the zipper, but he had not opened the zipper. He didn't take the 4th defendant's concerns seriously and he did not want to interfere with the client's contents. Ah Hau had told him that the electronic parts were wrapped and they shouldn't be interfered with, during the course of the phone conversation. He did agree the zipper was bulging and it was tightly packed, but it still didn't occur to him that they might be dangerous drugs.

He said that at the end of the day, if by the time they had gotten through their check-in, if they were still not allowed to check or inspect the suitcase, he would not have gone through with the arrangement. He said in the queue, he had told the 4th defendant that he had not -- this is the check-in queue - he had told the 4th defendant that he had not been able to check the contents of the suitcase and that he thought they would be able to check the suitcase after they did the check-in formality. He agreed it was illogical to do the inspection of the suitcase after the 4th defendant had already checked in, and he thought the 2nd and 3rd defendant would help him with the inspection of the suitcase. And you will, of course, remember, members of the jury, that they still had to go through customs even after they had checked in.

He also said that one of the phone calls from Ah Hau had been when Ah Hau had informed him that if they were late, they would have to pay back the ticket money. So he said that was why he was in a hurry and was trying to hurry the 4th defendant along. He emphasised that he and the 4th defendant would not have carried through with the arrangement if there was any problem and he was intending now to do the inspection of the suitcase with the 4th defendant after they had checked in.”[39]

42.  D1 also gave evidence as to his good character, denying that he was destitute or poor, or that he was driven by money concerns to traffic in dangerous drugs.[40]

Prosecution closing speech

43.  It is important to note that D1 by his evidence had asserted that Mr Lam and Ah Hau were significantly involved in arranging the exportation of the suitcase to Japan and that Lam Chun To was Ah Hau’s representative.  Plainly from the evidence other persons were involved, and prosecuting counsel in his closing speech to the jury emphasised with them the call and message records, noting the nature and frequency of communications as recorded on the mobile telephones of the defendants leading up to and including the day of arrest.[41] He asked the jury to consider the roles of those involved and the possible involvement of Mr Lam and 171 (Ah Hau) as the “masterminds”, if that was what they accepted.  He said:

“The second factor that I’d like you to consider is the roles played by different people and who the mastermind was. The prosecution submit very sufficient evidence for you to conclude that the prime mover, the mastermind, the banker or the - - one of the bosses referred to, No 171 or Mr Lam, was in fact behind this trafficking enterprise.

If they were - - if you accept that these people - 171 and Mr Lam - were in the background as the masterminds, then you have clear evidence of direct contact to these mastermind through the telecommunications of both the 1^st defendant and the 2^nd defendant, to a limited - - more limited extent. Direct lines to these people. Now, of course, that doesn’t make them guilty of this offence but it is an important connection. If you don’t have a direct line to the boss, then, members of the jury, you have to rely upon intermediaries, and that’s what D4 was doing. He was relying upon an intermediary.

And again, it’s a factor for you to bear in mind; why was this artificial ceiling in existence between the 4^th defendant and the mastermind, 171? Why would it exist? There are many reasons why someone like D1 would perform a role that was intermediary. Quite often, it would be to protect the boss, would it not? To stop someone like a courier knowing about the existence of the shadowy figure who was orchestrating this -- it would be the safety, keep the boss say. The less people know who we are, the better. He is an unidentified person. That would be one very good reason to shield D4 from 171.”[42] (Emphasis added)

Defence closing speech

44.  Defence counsel in his closing speech emphasised that the only issue in the case was whether D1 knew that there were dangerous drugs in the suitcase.[43] As for the call and message records and the roles of Mr Lam and Ah Hau, he said:

“What is important to bear in mind is the prosecutor has never adduced any evidence about the various telephone calls or WhatsApp messages.  They don’t even know why there were these contacts.  Give you a simple example.  When they open the case, the prosecutor said D1 had to answer to his boss.  Who was the boss?  There were never any mention of any boss.  Who is the identity of the boss?  The only evidence came from the 1^st defendant.  He worked for [Lam], through [Lam], Ah Hau.  Prosecutor now says, at the end of the case, Ah Hau was the prime mover, Ah Hau was the boss.  That came from the defendant.  Of course they have practice to do that.  But you cannot pick and choose.  Prosecutor, now, is picking and choosing, “I can make use of that evidence and say Ah Hau was the prime mover”, but they forget that’s not what the 1^st defendant said.  That’s not how the case begin. [Lam] was the prime mover, not Ah Hau.  They have not adduced any evidence about [Lam] – Mr [Lam], not [Lam Chun To], Mr [Lam].”[44] 

Defence counsel mistakenly used the name “Leung” instead of “Lam”, hence Lam is in parenthesis in the above quoted passage.

45.  Defence counsel then went on to address at length the call and message records, giving D1’s account of his communications with a Mr Lam, Ah Hau and the other defendants, submitting that they were not talking about drugs in code.  He particularly addressed certain call records with Lam Chun To and Ah Hau from 22 January onwards as well as the call records with the other defendants.[45] He concluded his closing speech by saying that D1 had been deceived by Mr Lam and Ah Hau:

“That is the story. That is what they were up to because the 1^st defendant was a victim of the fraudulent conduct of [Lam] and Ah Hau. They deceived him and they deceived the 4^th defendant into believing they exporting iPhone parts and iPhones to Japan.”[46]

The judge’s summing-up

46.  The judge in his summing-up to the jury, very thoroughly summarised the facts of the case and the issues at trial.  He said:

“… it is common ground in this case that on 3 February 2016, all three of the defendants were intercepted by customs officers in the departure hall of Hong Kong International Airport. It is also common ground that when the 1st and 4th defendants were intercepted, they were together in Zone D of the airport departure hall and at the check-in counter of Delta Airlines. They had with them the small silver suitcase which was subsequently found to contain, in a hidden compartment, the dangerous drugs referred to in the indictment. That is 1.4 kilogrammes of ‘Ice’.

The 2nd defendant was some distance away from them and was near Leung Tsz-Hang, the original 3rd defendant on the indictment. Those two were also intercepted by the customs officers. Subsequently, as you have heard, the 1st and 4th defendants were each questioned under caution by a customs officer and those questions and those defendants' responses were recorded in writing later in the customs office at the airport in what has been called a post-recorded statement.

The prosecution say that the 2nd defendant was also questioned under caution and his responses were also post-recorded in a statement, in a written statement. The 2nd defendant's case in this regard is simply that he did not say the things in the post-record, but did subsequently sign the post-record as he had effectively been tricked into adopting the 3rd defendant's answers to the caution. The prosecution say that the 1st defendant, 2nd defendant and 4th defendant, were acting together pursuant to a plan or agreement amongst themselves by which dangerous drugs would be brought into the airport departure hall and into the possession of one or more of the defendants for the purpose of those drugs being taken to another country. Let me tell you now that possessing dangerous drugs for the purpose of taking them or having them taken out of Hong Kong is trafficking in dangerous drugs.

The prosecution say that the plan or agreement amongst the three defendants has been proven by two main sources of evidence. Firstly, by the telephone contact records of the defendants including so far as the 1st defendant and 4th defendant are concerned, their WhatsApp messages to each other, and by the surveillance evidence of the customs officers called as witnesses. The 1st and 4th defendants admit to having knowledge of some possible contraband being contained in that small silver suitcase, but their cases are to the effect that they thought that contraband was disassembled iPhones and phone parts which the 4th defendant was to take to Japan in possible contravention of Japanese regulations.

There is no issue in this trial that the 1st and 4th defendants planned that the small silver suitcase be taken out of Hong Kong to Japan and that they were acting together to export that suitcase to Japan. The sole issue relating to those two defendants is whether both knew that the suitcase contained dangerous drugs. So far as the 2nd defendant is concerned, his case is that he did not know what was contained inside that small suitcase and that he was simply recruited to be a delivery boy or courier and was told to take the suitcase to someone at the airport. Accordingly, so far as the 2nd defendant is concerned, while the main issue is whether he knew there were dangerous drugs inside the suitcase, another issue is whether he was part of any plan or agreement to export those drugs out of Hong Kong.

So you may think the fundamental issue in this trial regarding the three defendants you are now concerned with is whether a particular defendant whose case you come to consider knew that the small suitcase contained dangerous drugs. One final thing, it follows from the cases of each of the three defendants that they were cheated by the person or persons who had organised these events. Each defendant by his evidence suggests he was an innocent dupe and was tricked into playing a role in the intended exporting of the drugs to Japan.” (Emphasis added)

…

“Also, take into account what counsel have urged upon you, but remember it is your sole responsibility to decide the facts of this case. You must decide the facts upon the evidence and only upon the evidence presented to you during this trial. There will be no more evidence. You have heard all of the evidence which will be called. If you think there are gaps in the evidence about some matter, do not try and fill in those gaps by speculating. That is guessing and you should not guess.

Now, you have heard in evidence that persons other than the defendants were involved in these events. You have heard the names of Lam Chung-to, Ah Hau, and the person, Mr Lam, mentioned in the course of evidence. You may wonder why some others of those persons are not also on trial before you. Let me tell you this. In our criminal system, there are many reasons why not all persons who may be suspected of involvement in an offence are tried together. Some of those reasons are legal, some are practical. There is no point in you worrying about that and you should not speculate about those reasons. Your duty in this trial is to consider your verdicts in respect of the 1st defendant, the 2nd defendant and the 4th defendant only.”[47] (Emphasis added)

47.  What is important from the judge’s overview of the case is that there was a considerable amount of evidence that was not in dispute; and that the issue at trial was whether the particular defendant under consideration knew the suitcase contained dangerous drugs.  He also addressed the fact that other persons had been mentioned in the course of the evidence and he correctly told the jury not to be distracted by this factor but to focus on considering the case against the defendants only.

48.  The judge went on to address the prosecution case against each defendant, commencing with D1.  He said:

“… Let’s deal with the 1st defendant first. The prosecution says that there are a number of matters which they rely upon. Mr Percy in his speech to you pointed firstly to the increasing degree and intensity of the telephone communications leading up to the 3 February. You have that summary of communications and Mr Percy, I think, was asking the question, ‘Why was there all this fuss simply to send 15 iPhones over to Japan?’ He asked, ‘Why would the 1st defendant trust people like Hau and Mr Lam -- when he had never met Hau and had met Mr Lam only twice and did not know his full name or the name of his company?’

Mr Percy agrees there is no direct evidence but says you can infer the 1st defendant knew dangerous drugs were in the suitcase from the 1st defendant's behaviour at the airport; that is, checking inside the suitcase. Mr Percy says that a businessman like the 1st defendant must have known there was no real business reality to a delivery of iPhones and parts to Japan. Only 15 of the phones, five whole and 10 disassembled, he asserts, would result in a small profit margin not warranting the $24,000 expense of sending the 4th defendant to Japan. So the prosecution says that the 1st defendant must have realised there was something other than iPhones and parts in the small silver suitcase.

Now, Mr Percy asserts that the 1st defendant did not properly check the suitcase even though he was aware the 4th defendant was concerned it may have been a trick and dangerous drugs may have been the real reason for it to be taken to Japan. And it is suggested by the prosecution that the 1st defendant's failure to inspect the small suitcase properly in those circumstances supports the prosecution case that the 1st defendant knew there were dangerous drugs inside.

Let me tell you this. Only if you are sure that the 1st defendant deliberately passed up any inspection opportunities and that there was no innocent reason for him to do so such as his being in too much of a hurry or being told he should not handle the contents of the suitcase because they were wrapped up or because he wished to wait for the 4th defendant to arrive, or intended to inspect the suitcase after the 4th defendant checked in … it is only if you are sure that the 1st defendant deliberately chose not to properly inspect the suitcase, and no such innocent reason existed for him failing to do so, that you can take his lack of properly inspecting the suitcase into account as supporting the prosecution case.

So do pay attention to the evidence of what is said to be the reasons why the 1st defendant did not inspect that suitcase properly. You might think, members of the jury, that because this was a suitcase which comprised hand luggage that when the defendants, the 1st and the 4th defendants, were at the check-in counter, they knew they wouldn't be checking in that small suitcase and they knew they still had to go through immigration, and so there was an opportunity still looming for them to thoroughly check that suitcase if they so wanted.

Mr Percy also suggested that the 1st defendant ignored the warning signs of there being something very strange about the taking of these goods to Japan. He points out that arranged meetings with Ah Hau were cancelled. That when an air ticket was purchased, Lam Chung-to said there was no need for the 1st and the 4th defendants to enter or go with him to the travel shop. That the 1st defendant’s claim he was not allowed to undo the zipper was itself, even if true, indicative of something wrong.

The defence says that the 1st defendant was a person of good character and is, therefore, believable when he said he did not know there were dangerous drugs in the suitcase. They further say that a person such as the 1st defendant, a good family man who was not destitute or poor or, contrary to the prosecution's assertions, was not in urgent need of money … and there is no evidence that the 1st defendant was in urgent need of money, members of the jury … Mr Iu asserts that a person such as that would be most unlikely to traffic in dangerous drugs. Mr Iu asserts also that the WhatsApp messages are conclusive proof that the 1st defendant did not know there were dangerous drugs in the suitcase. He says the WhatsApp messages are plainly genuine and it is clear that no code was used to refer to dangerous drugs as electronic parts or disassembled iPhones. Further, says Mr Iu, the whole issue of checking the small suitcase arose from the 4th defendant's concern that someone may have planted dangerous drugs in the suitcase in some way. Why would the 1st defendant even try to check the suitcase and its contents at the glass wall in the departure hall if he knew already there were dangerous drugs contained in it?

So Mr Iu suggested the WhatsApp messages are genuine and not related to some sort of code or designed to set up a defence for the 1st defendant or the 4th defendant. There were other matters in the WhatsApp messages such as the 4th defendant's attempt to have D1, the 1st defendant, ask for a ticket for his girlfriend which makes it clear the messages are genuine. You might think that if those messages were going to be designed to be produced in a court in some future -- on some future occasion, the 4th defendant's language would have been a lot more polite. You might think that that's another small indication that these were genuine messages passing between the 4th defendant and the 1st defendant.

Mr Iu also suggested to you, ‘why would the defendant, the 1st defendant, take that small suitcase up to the check-in counter for the 4th defendant if the 1st defendant knew there were dangerous drugs in it by holding that suitcase and taking it up, helping the 4th defendant to take his luggage up to that counter?’ The 1st defendant picked up that suitcase. He must have realised that if there were dangerous drugs in it, he was taking a risk in doing it. But Mr Iu primarily relies upon the WhatsApp messages as demonstrating a genuine belief on the part of the 1st defendant, indeed, on the part of the 4th defendant, that they were involved in the possibly illegal transportation of parallel goods in the form of iPhone parts. Those parts, according to those WhatsApp messages, were going to Japan. There was an original suggestion that they might be going to Australia, but eventually it became obvious that the agreement that was being set up by those WhatsApp messages, that is the agreement between the 1st defendant and the 4th defendant, that the 4th defendant go with that suitcase -- sorry, go with those parts to Japan, was genuine. That's Mr Iu's case and Mr Iu says there is not really much more that you need, other than those WhatsApp messages to say you cannot be sure that the 1st defendant knew that there were dangerous drugs in that suitcase.”[48]

49.  The judge next addressed the matters in issue in respect of the elements of the offence against each defendant.  In respect of D1’s case, he said:

“… Let me deal with the cases of each defendant regarding this first matter. First, we'll deal with the 1st defendant. So far as the 1st defendant's case is concerned, it has never been disputed that he had an agreement, plan or understanding with the 4th defendant that the small suitcase and its contents were to be taken by the 4th defendant to Japan. In other words, exported from Hong Kong. You may think that is clearly set out in the text of WhatsApp messages produced before you going back over the two weeks or so before 3 February 2016.

You may have little difficulty in finding that on the evidence the 1st defendant was part of a plan with at least the 4th defendant to have that suitcase and its contents in their possession at the airport for the purpose of having it and its contents taken to Japan. In other words, you may have little difficulty in deciding the 1st defendant had an agreement with at least the 4th defendant that one or other of them would possess that suitcase and its contents at the airport for the purpose of it being flown to Japan with the 4th defendant. That has never been disputed by either the 1st defendant or the 4th defendant and what I have said obviously applies equally and for the same reasons to the 4th defendant's case.

From those same WhatsApp messages that you have been referred to again and again, both text and voicemail, you might think it is obvious that the 4th defendant had agreed with the 1st defendant that he would take that small suitcase and its contents to Japan and he said so in his evidence. The issue is simply whether the prosecution have proven the 1st defendant and the 4th defendant knew that the contents of the suitcase contained dangerous drugs. I have already dealt with the matters the prosecution and Mr Cheung for the 4th defendant rely upon regarding this issue and I won't repeat them. And I have also dealt with the issues regarding the 1st defendant as to his knowledge of dangerous drugs in the suitcase and I won't repeat those either. So that's the issue as to whether the 4th defendant and the 1st defendant had an agreement between them, relating to this first matter on the handout, which involved dangerous drugs.

Could the 1st defendant have had an agreement with the 2nd defendant? Now, there was no contact between the 1st defendant and the 2nd defendant until, I think, 6 o'clock in the morning on 3 February. But as I say, an agreement or plan can be formed very quickly. It does not have to be expressed in words. It can simply consist of a mutual understanding. It is not in dispute that the 1st defendant expected to have the hand-carry suitcase delivered by someone to the airport on 3 February for the purpose of the 4th defendant taking it to Japan. That has never been in issue in this case in any way.”[49]

…

“Let’s go on to the second matter. So far as the second matter is concerned, there can be no doubt on the defendant's own evidence that they were all involved to a greater or lesser extent in the handling of the suitcase at the airport. So that if you are sure the first matter has been proven against a particular defendant, then you may have little difficulty in deciding that he played an active part in the execution of the plan. That is, he played a role in the carrying out of the plan on 3 February at the airport. At the very least, each defendant carried that suitcase or pulled that suitcase from point to point and that, you might think, is a role that that defendant played actively in furtherance of any plan to have the contents of the suitcase exported overseas.”[50]

…

“So let’s go to the third matter. You will remember the bank robbery example I gave you earlier. If there had been no bank robbery, then there would have been no offence. And so in this case, the prosecution have to prove that the offence of possessing of the dangerous drugs, at the airport for the purpose of exporting them out of Hong Kong was actually committed. The offence is not the sending of the contents of the suitcase out of Hong Kong. That didn't happen. The offence, in our law, is possession of that suitcase and its contents, which if they included dangerous drugs, were going to be exported out of Hong Kong. It is possession of dangerous drugs for the purpose of exporting.

So far as this third matter is concerned, keep in mind that the offence which was the subject matter of the plan, as I say, was the possession of dangerous drugs at the airport for the purpose of them being taken overseas. If you are satisfied as to the first two matters as against a particular defendant, that is, that he was part of the agreement with either or both of the other defendants and played an active part in the carrying out of that plan, then you may not have much difficulty in deciding that that particular defendant was aware, when the suitcase and its contents were in the possession of another defendant involved in the plan with him, that that other defendant also knew there were dangerous drugs in that suitcase. Obviously, if you are sure the particular defendant himself possessed the suitcase as part of the plan or agreement knowing it contained dangerous drugs and knew that the suitcase was to be taken overseas, then the offence has been committed and this third matter proven.”[51]

50.  We observe that the evidence against D1 as summarised by the judge was strong.  It consisted of the surveillance and CCTV footage of his dealings with the others and his handling of the suitcase, and the messages and arrangements with D4 in exporting the suitcase to Japan.  The judge very properly directed the jury on the issues they had to consider in respect of the case against D1 and focused their attention on the key consideration, which was whether D1 knew there were drugs in the suitcase.

The ground of appeal

51.  The present ground of appeal expands the previous Ground 4 to complain that Lam Chun To was complicit in the offence but not charged by the prosecution, although no similar complaint has been made in respect of Ah Hau or Mr Lam.  The ground of appeal consisted of two limbs. 

52.  The first limb complained that the defence was prejudiced because the prosecution failed to disclose the investigation report of Lam Chun To.  As already pointed out, it was confirmed by the respondent that there had been proper disclosure of the information held by the authorities in respect of Lam Chun To.  It was explained that a statement had been taken from Lam Chun To and at the time he was not regarded as a suspect and no investigation report was made in respect of him. 

53.  The second limb complained that D1 was deprived of a fair trial since the jury’s minds might have been tainted by the prosecution’s assertion that Lam Chun To was one of the masterminds.  Notwithstanding that there was no substance to the complaint about non-disclosure, D1 persisted with the second limb but revised his argument by alleging that the prosecution knowingly presented its case at trial on the false basis that Lam Chun To was complicit in the offence.  

The respondent’s submissions

54.  Ms Christal Chan, for the respondent, submitted that as far as the involvement of Lam Chun To was concerned, the prosecution case had two facets.  First, Lam Chun To went to a travel agency office on 25 January 2016 and paid for D4’s travel package.  Secondly, as revealed in the call records, D1 had telephone communications with Lam Chun To on 22 January 2016 (three calls) and 25 January 2016 (one call).[52] 

55.  Ms Chan pointed out that D1’s case only involved the first facet, and it was his evidence that he worked for Mr Lam (as opposed to Lam Chun To) and Ah Hau.  The prosecution case was therefore Mr Lam (not Lam Chun To) and Ah Hau were the shadowy figures or masterminds of the plan.[53] 

56.  Ms Chan rejected the proposition that the prosecution had presented its case on a false basis.  She submitted this accusation was completely unfounded.

Discussion

57.  D1’s sole complaint is that the prosecution had asserted that Lam Chun To was one of the masterminds of the trafficking of the drugs, in circumstances where he was not investigated as a suspect in respect of this offence. 

58.  It is clear that there is no substance to this ground of appeal whatsoever.  It was premised on an extremely superficial submission, advancing arguments that were based on evidence or statements, which have been taken out of context, and couched in extreme and emotive language.  We must say at the outset that the use of such language in legal submissions is soundly deprecated, and is clearly not conducive to rational and reasonable argument on appeal.  

59.  In his submissions, D1 stated “the prosecution in my trial did not present its case fairly and honestly”.  He alleged that the presentation of the prosecution case against him at trial was “materially unfair and materially dishonest”.[54] It was argued by D1 that “salient elements of the chain of inferential reasoning which was covertly - and strongly - suggested to the jury” by prosecuting counsel were knowingly false.  It was complained by D1 that “the prosecution knowingly and materially misled the jury” and secured a guilty verdict based in part upon a factual premise which was known by the prosecution to be false.[55] 

60.  After discussing prosecuting counsel’s remarks in his opening speech in respect of the telephone records and data, with particular reference to the telephone contact with Lam Chun To, D1 in his submissions stated:

“So there we have it. Boom! Unanswerable watertight prosecution case. First defendant - obviously guilty. Do not pass go; do not collect $200; straight to jail.

But actually, we now know, don’t we, that a load of this stuff isn’t actually true. We now know. Don’t we, the crucial elements of this apparently watertight prosecution case were - and are -simply not true. Rather, they were - and are - false, untruths, fallacies. Barefaced lies.”[56]

61.  The sole issue at trial in respect of D1’s case was whether he knew the suitcase contained dangerous drugs.[57]  It was accepted that this issue had to be determined on the circumstantial evidence, which D1 did not dispute was correctly summarised by the judge in his summing-up.  In fact, D1 in his submissions did not complain about, nor did he take issue with, the judge’s directions and summary of the evidence in his summing-up.[58] 

62.  Before we turn to the points made by D1, taking issue with what was said by prosecuting counsel in his opening speech, it is appropriate, firstly to note the nature of the evidence in contention.  As we have already observed, the involvement of Lam Chun To concerned his payment of D4’s travel package and calls on his telephone with the defendants.  The telephone records and data of the defendants and a forensic analysis of the information extracted from their telephones was adduced into evidence by way of admitted facts.[59] There was no dispute as to what was contained in the telephone records and data, which was conclusively proven before the jury by the admitted facts.

63.  The submissions of D1 need to be considered against the state of the evidence in respect of Lam Chun To, which was limited.  It was not until D1’s evidence that another person, by the name of Mr Lam, was also said to be involved but as an organiser together with Ah Hau.

64.  In the course of his opening speech, prosecuting counsel took the jury to the telephone records and data and related tables, including a Summary of Telephone Calls (exhibit P80). 

65.  D1 referred to the following remarks of prosecuting counsel:

“I will be showing you, in due course, a very useful summary that combines all the defendants’ call records over a period starting from about 13 January, showing not only the first four defendants’ call records but to other people in the column. One referred to is Mr Lam and the other one is 171, so I’ll be coming to that. I’m just showing you now where the source is. The summary is taken from all these call records and other things but not the WhatsApp.”[60]

66.  In respect of these remarks, D1 argued that the jury would have been wondering what was the significance of these other people when the count alleged a joint enterprise between D1, D2, D3 and D4.  However, this was answered by prosecuting counsel later on in his speech when he said:

“I now turn to the evidence concerning the mobile phone records, the contacts and the WhatsApp messages. The prosecution suggests that all the telephone data that I’ve gone through with you covering the period 10 January to 3 February of last year - in respect of each of the defendant’s mobile phones together with the contact details found on the phones - provides reliable evidence of their respective relationships, one with another and the increasing volume you see of those calls as we get closer to 3 February 2016.

It also shows that there was an increased volume of calls between the first three defendants, D1, D2 and D3 and two unidentified contacts over the last three days. All that information, the call records and the contacts have been reduced to a comprehensive schedule or summary for you to consider.”[61]

67.  After he had taken the jury through the telephone records and data, prosecuting counsel said:

“The prosecution’s case is that it is clear from the WhatsApp messages, the telephone data that I’ve gone through with you to show that all five were involved, that includes Lam and 171. So far as these defendants are concerned it shows that they were participants in a joint enterprise which could only have related to an unlawful agreement or understanding to ensure that the consignment of drugs reached Japan.

  So what are the issues that you may have to consider it?  What are the main issues that you may have to deal with in your deliberations, once you hear the evidence?  It’s likely that one of the issues will be, who was involved in this unlawful agreement or understanding?  Was it all the defendants or just some of them?  That’s an issue that you will have to, obviously, consider very carefully in this case.”

68.  D1 also complained about the following comments by prosecuting counsel in his opening speech:

“The prosecution say that you will be able to infer knowledge that each had of the existence of the dangerous drugs from all the surrounding circumstances, all the material that I’ve opened the case about.

For example, their respective telephone connections with Lam and 171 by D1, D2 and D3 leading up to 3 February. For example, the telephone contacts with each other, between D1, D2 and D3, and D4 and D1. By what you’ll hear as to their behaviour on arrival at the airport, they’re greeting each other; they’re talking to each other. The impression that they knew each other. That’s a matter for you.

  The impression of how they handled the suitcase, passing it from one to the other.  Who had possession of the tickets when the tickets were handed over and the hotel booking were handed over to D4.  The envelope of money, when was that expected to be handed over.  Also, what each defendant individually said on interception to their respective arresting officers.  That’s important as well.  And finally, what D2 and D4 said in their video interviews.  You are entitled to take all that into consideration and be invited to draw certain conclusions or inferences of knowledge from all that material.”

69.  D1 contended that by these remarks prosecuting counsel was asking the jury to take into consideration the records of his telephone calls with Lam Chun To for the purpose of inferring that he had knowledge of the drugs.  He submitted that as the prosecution knew that Lam Chun To was not a suspect; therefore, the telephone calls he had with him could not have been probative of his alleged knowledge of the drugs.  As a result, he complained the prosecution presented “a false picture, a misleading picture, a fraudulent picture.”[62]

70.  As we have already pointed out, during the trial evidence emerged from D1 that Mr Lam and Lam Chun To were two different people and that a Mr Lam was significantly involved in the trafficking of the drugs. D1 also testified that Lam Chun To was a representative of Ah Hau, who went to the travel agency to arrange and pay for D4’s travel package of D4.  The telephonic contact between the defendants and others was relevant to show the nature and frequency of the communications between them at the relevant times, including with Lam Chun To.  However, as rightly pointed out by Ms Chan, the evidence as to Lam Chun To’s involvement was limited to his attendance at the travel agency and the telephone contact that he had with D1 and others, although D1 testified that he spoke to Ah Hau on those occasions. 

71.  When prosecuting counsel asked the jury to consider whether Mr Lam or Ah Hau were the masterminds behind the trafficking of the drugs, he did so in light of D1’s testimony as to their involvement in the offence. 

72.  The complaint about the references to Lam Chun To in the prosecution case is in any event a “red herring” because the focus of the trial against D1 was whether he knew there were drugs in the suitcase.  How the authorities considered or dealt with Lam Chun To was inconsequential to this issue.  Furthermore, the suggestion that the prosecution falsely presented Mr Lam as a mastermind was simply a reflection of the evidence, if accepted by the jury, that was adduced by D1 himself.

73.  Contrary to what has been contended by D1 in submissions to support this ground of appeal, he acknowledged his contact with Mr Lam, Ah Hau and Lam Chun To, and their involvement in the present offence, although his dealings were mainly with Mr Lam and Ah Hau.  It was the defence case that they were the masterminds and D1 had been deceived by Ah Hau’s side into transporting the suitcase containing the drugs.

74.  The fundamental flaw with D1’s reasoning in support of this ground is that his case at trial was that he had been deceived and tricked into arranging the suitcase, containing the drugs, to be transported to Japan.  He had recruited D4 to take the suitcase to Japan and had taken him, together with his boss, or the younger brother of the boss, to a travel agency to arrange an air flight package for D4 to Japan.  Lam Chun To attended the travel agency to pay for the air tickets.  He testified that Mr Lam was the person he referred to as the boss in his messages. 

75.  As we have already pointed out, the issue at trial was whether D1 knew there were drugs in the suitcases and this was made abundantly clear to the jury by the judge in his directions to them.  More importantly, he told the jury not to be distracted from their task by the references to the involvement of other persons, such as Mr Lam, Ah Hau and Lam Chun To, and that it was their duty to consider their verdicts in respect of the defendants only.  Moreover, we cannot see how the Customs officers considered or dealt with Lam Chun To at the relevant time, whether correctly or not, had any bearing as to D1’s guilt in the circumstances of this case.

76.  We had no hesitation in concluding that this ground of appeal was devoid of merit. 

Loss of time

77.  After we had refused D1’s renewal application and dismissed his appeal, we asked him to address us on why we should not make an order of loss of time.

78.  D1 acknowledged that he knew of the Court’s power to order loss of time and fully understood and adopted the submissions that had been prepared for him by Mr Jutting.  It was quite apparent that he made an informed decision to pursue the ground of appeal before this Court.  He claimed that when he argued Ground 4 at the leave hearing he was not able to develop the point because of his emotional state at the time.  He said he felt he would be able to elaborate upon and explain the point more clearly and that was why he renewed his application.  He said he pursued the point because he was innocent.  Having acknowledged that he had made numerous applications for legal assistance which had been refused, he knew the chance of success was slim. 

79.  We pointed out that a considerable amount of time and energy had been expended by the Court on a ground that was found to be utterly devoid of merit, since we still had to ensure that there was nothing in it.  In view that there was absolutely no merit whatsoever in the appeal, we ordered that 6 weeks of the time D1 has spent in custody pending his appeal should not count as part of the sentence he has served. 

80.  We should make it abundantly clear that the order for loss of time was not made because of Mr Jutting’s involvement in this application for that is a separate issue that has nothing to do with this order.  D1 has renewed this application on his own accord, fully conversant with the arguments and manner in which this ground of appeal has been argued and presented to this Court.

81.  The Court of Final Appeal in Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540, at [55] and [56], emphasised that the object of a loss of time order was “to ensure that only reasonably arguable cases should go to the Court of Appeal” and thereby “to deter unmeritorious applications because they would otherwise engage judicial time which may well be better spent on other meritorious cases.  The result of wasting judicial time is that meritorious cases would have to be deferred or delayed, thus causing injustice to the parties in those cases.”  In our view, this was undoubtedly such a case.

[1]      Macrae VP.

[2]      Mr George Rurik Jutting is a convicted double murderer, serving a life sentence.  See HKSAR v Jutting Rurik George Caton, unrep., CACC 361/2016, 9 February 2018; unrep., FAMC 26/2018, 15 August 2018.

[3]      We recently voiced the same concerns about the same individual in HKSAR v Chung Chun Fung and Anor, unrep., CACC 28/2020, 3 December 2021, at paras 35 and 36. 

[4]      Applications refused on 27 August 2018, 2 August 2019, 4 March 2020 and 17 February 2021.

[5]      Application refused on 4 August 2021.

[6]      Applications refused on 21 January 2019, 11 June 2020 and 5 January 2022.

[7]      D1 provided to the Court a handwritten copy of his submission.

[8]      It was part of a 14-page document filed on 24 November 2020, which also consisted of an “application for prosecution disclosure of previously undisclosed materials relating to Lam Chun To” (1 page), an “application for additional materials to be included in appeal bundle” (1 page), and an “application for appeal aid certificate” (1 page).

[9]      AB, p 257Q-S.

[10]     Applicant’s Supplemental Written Submissions, dated 6 June 2021, p 3.

[11]     See AB, pp 223B-225H.

[12]     Admitted Facts, para 3.

[13]     AB, p 381M-N.  Reference to Lam Chun To was also made in the Admitted Facts at para 1, which stated that: “On 25 January 2016, Ms Yan Ching Yi, a staff member of Travel Tone Company Ltd, a travel agency situated at 1019 Hollywood Plaza, 610 Nathan Road in Mongkok, received cash payment from a male named Lam Chun To and issued a travel package including flight tickets and a confirmed hotel booking for D4 to fly on flights DL274 and DL275 respectively, being a Delta Airline Economy return flight Hong Kong-Japan-Hong Kong.  Lam Chun To brought with him a passport in the name of Cheung Siu Fung (D4) and left his own name as the contact person together with a contact telephone number 53053298 and an email address s372531@gmail.com for the purpose of registration”.  AB, pp V-VI.

        It should be noted that, at trial, D1 referred to another male whose surname was also Lam, whose full name D1 did not know and whom he had met only twice (AB, p 25D-E); the first time being on 13 December 2015 for purported business purposes (AB, p 56N-T). 

[14]     Admitted Facts, paras 1-2.

[15]     Admitted Facts, para 4(b) and (e).

[16]     Admitted Facts, para 12.

[17]     AB, p 11A-B.

[18]     AB, p 228E-F, I-J.

[19]     AB, p 12S-U.

[20]     AB, p 243A-B.

[21]     AB, p 261L-M.

[22]     AB, p 231R-S.  The telephone records also involved contact references to Lam Chun To and Ah Hau.  Ah Hau’s telephone number ended with 171 (see AB, p 231P-Q and p 232F) as a result of which he was sometimes referred to at trial as “171”, the boss, Hau Chai or Kai Yin (AB, p 149T).

[23]     AB, pp 232D-G, and 257E-258I. 

[24]     AB, pp XIII-XIV, paras 18-21.

[25]     AB, pp 386-439.

[26]     AB, pp XV-XVI, paras 30 and 31.

[27]     AB, pp 440-447.

[28]     AB, p 256F-K.

[29]     AB, p 257E-S.

[30]     AB, p 258E-F.

[31]     AB, p 261K-P.

[32]     AB, p 262A-H.

[33]     AB, pp 381E-382G.

[34]     AB, p 381J-N.

[35]     AB, p 59F-L.

[36]     AB, p 160Q-S.

[37]     AB, p 60L-N.

[38]     AB, pp 56K-62R.

[39]     AB, pp 63I-64R.

[40]     AB, p 26M-P.

[41]     AB, pp 149M-165B.

[42]     AB, p 156G-R.

[43]     AB, p 167P-R. 

[44]     AB, p 169N-U. 

[45]     AB, pp 176K-178L and 179U-186O. 

[46]     AB, p 186P-R.

[47]     AB, pp 1H-4E.

[48]     AB, pp 24T-28C.

[49]     AB, pp 35K-36P.

[50]     AB, p 39H-O.

[51]     AB, pp 39P-40K.

[52]     Exhibit P80 at AB, pp 440-441.

[53]     Respondent’s supplemental written submission dated 28 September 2021, para 7.

[54]     Applicant’s Written Submissions, pp 1 and 2.

[55]     Applicant’s Written Submissions, p 3. 

[56]     Applicant’s Written Submissions, p 18.

[57]     AB, p 2O-P. 

[58]     D1 refers to AB, pp 24R-26M but the judge’s comments extend to 28C.

[59]     AB, pp XIII-XVI, at [18]-[31] and related exhibits P72, P72A, P73, P74 and P75. 

[60]     AB, p 232D-G.

[61]     AB, p 256L-R.

[62]     Applicant’s Oral Submissions.