HKSAR v. CHAN KAM LOI

CACC 410/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 410 OF 2012

(ON APPEAL FROM HCCC NO. 54 OF 2012)

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JUDGMENT

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Hon McWalters J (giving the judgment of the Court):

Introduction

1.  The applicant was tried by a jury in the High Court before Deputy High Court Judge Wright (“the judge”) on an indictment containing three counts.  The first count on the indictment alleged that in November 2002 the applicant conspired to traffic in heroin with two other persons by the names of Chan Man-yung and Yu Cheuk-wah who was also known as Fei Wah.  This offence is contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  The second count was similarly a conspiracy to traffic in heroin and is contrary to the same statutory provisions as the first count.  This offence was alleged to have occurred between March and April 2003 and the persons with whom the applicant allegedly conspired were particularized as, again, Chan Man-yung and one Zhao Ruiren, also known as Ah Yan.

3.  The third count is trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  This count alleged that on 25 May 2003 at the concourse of the Mongkok KCR Station, the applicant, together with Chan Man-yung, unlawfully trafficked in 346.73 grammes of a mixture containing 237.84 grammes of heroin hydrochloride.

4.  The trial took place from 26 to 28 September and 3 to 5 October 2012.  On 4 October 2012 the applicant was acquitted by the verdict of the jury of Count 1 on the indictment but convicted of Counts 2 and 3.  He was sentenced on 5 October to 30 years’ imprisonment in respect of Count 2 and 14 years’ imprisonment in respect of Count 3.  As the sentence in respect of Count 3 was ordered to be served concurrently with the sentence imposed on Count 2, the total sentence that was imposed upon the applicant was 30 years’ imprisonment.

5.  The applicant applied for leave to appeal against his convictions on Counts 2 and 3 and for leave to appeal against the sentence imposed on Count 2.

6.  At the hearing of these applications, we reserved judgment which we said we would deliver at a later date.  This we now do.

The Background to the Prosecution Case

7.  Common to all charges was an allegation that the applicant committed the offences together with Chan Man-yung.  Five months separated the commission of the second count from the first count and the third count was alleged to have been committed the month following the commission of the second count. However, when it came to sentencing, the judge treated the third count as having been committed pursuant to the conspiracy particularized in the second count.  Undoubtedly, that is a reasonable inference from the evidence.

8.  The applicant was initially arrested together with the co‑conspirator Chan Man-yung on 25 May 2003 for the trafficking offence that is the subject of Count 3.  However, he was subsequently released as there was insufficient evidence at that time to prosecute him.  Chan Man‑yung, however, was prosecuted for this offence and he pleaded guilty to it on 23 December 2003.  He was sentenced to 6 years’ imprisonment.  This sentence was more lenient than the sentence that would usually be imposed for this quantity of heroin and this was due to the fact that Chan Man‑yung had provided assistance to the police by giving three non‑prejudicial statements on 8, 9 and 10 December 2003.  These statements implicated a number of people including the applicant.

9.  However, before the applicant was prosecuted he was arrested in the Mainland for a drug offence and sentenced to 12 years in gaol.  After his release he was returned to Hong Kong on 25 July 2011, whereupon he was prosecuted for the offences contained in this indictment.

10.  At the applicant’s trial, the main prosecution evidence was the testimony of Chan Man-yung who was PW1 in the prosecution case.  In order to clearly distinguish him from the applicant, we shall refer to him in this judgment as PW1.  By the time he came to testify against the applicant he had already served his sentence and had been discharged from prison.

11.  PW1 had to testify under immunity from prosecution for, although he had been previously convicted for the offence particularized in the third count of the indictment, he had never been prosecuted for the conduct to which he would testify that underlay the first and second counts.

12.  PW1, therefore, presented as an immunised witness who had been an accomplice of the applicant in respect of all three counts on the indictment and who had already benefited, in terms of a reduced sentence, from the assistance he had previously provided to the police.  Of course, by testifying against the applicant he was also ensuring that, as long as he complied with the terms of his immunity, he would never be at risk of being prosecuted for his involvement in the criminal activity that was the subject of the first and second counts.

13.  However, his alleged criminal activity in these three counts was not his only involvement with the criminal law.  He had eleven previous criminal convictions starting from when he was aged 17 until December 2003.  They included offences of robbery, assault, unlawful sexual intercourse, possession of dangerous drugs and trafficking in dangerous drugs.  In August 1994 he was sentenced by the High Court to 12 years’ imprisonment for robbery.  He was released from prison in September 2002 for this offence.

The Prosecution Case

14.  PW1 testified that he had known the applicant for about 30 years and shortly before he, PW1, was released from prison in September 2002, the applicant sent him a letter providing him with his telephone number and requesting PW1 to contact him after his release.  PW1 did so and when they had tea together, PW1 said that the applicant asked him to work with him.  When PW1 found out that this would involve dangerous drugs, he declined.  He next saw the applicant in October 2002, at which time the applicant informed him that one of his workers had been arrested for a dangerous drugs offence and that he needed someone to go to this person’s residence and retrieve some drugs from it.  The address was Chuk Yuen South Estate in Wong Tai Sin.

15.  PW1 agreed and he and the applicant travelled by taxi to the estate and went to a McDonald’s restaurant.  After making some telephone calls, the applicant left and returned later with two keys to the flat in which the drugs were located.  The two of them then went to the adjacent building and entered a lift.  The applicant pressed the button for the relevant floor but PW1 could not remember the floor number.  After exiting the lift, the applicant pointed out the flat containing the drugs and asked PW1 to enter it and retrieve them. The applicant remained at the smoke door of that floor whilst PW1 entered the flat and searched for the drugs.  He found the drugs and left the flat.  Both he and the applicant then left, with PW1 retaining custody of the drugs and returning with them to his residence.

16.  PW1 said the drugs amounted to several ten packets and he had been told by the applicant to place them properly.  He met the applicant later that day and gave him 3 ounces of drugs.  The applicant told him to retain custody of the drugs as they would shortly be sold.  The applicant asked him to find places to hide the drugs from which he, the applicant, could later retrieve them.

17.  At this time PW1 decided, on his own initiative, to contact Zhao Ruiren the named co-conspirator of the second count and enlist him to work together with him.  He had met Zhao whilst they were both serving sentences of imprisonment in Stanley Prison.  Zhao agreed to work with PW1, knowing that the ultimate beneficiary of their services was the applicant.  Whenever the applicant requested drugs, Zhao helped PW1 to secrete drugs in the hiding places that PW1 had located.  Once that was done PW1 would inform the applicant.  The applicant paid PW1 $170 for every packet of drugs he dropped off at one of the hiding places and PW1 received payment in amounts of $3,000 which he then shared with Zhao.

18.  PW1 was then contacted by the applicant who told him he would send Yu Cheuk-wah, the named co-conspirator of the first count, to PW1’s place to collect the remaining drugs.  PW1 was subsequently contacted by this person and arranged with him to hand over the remaining drugs, plastic bags and electronic scales.  This brought to an end the conspiracy that is the subject of the first count.

19.  The next episode in PW1’s drug trafficking association with the applicant occurred in early 2003 when the applicant requested PW1’s assistance in bringing drugs across the border from the Mainland into Hong Kong.  The applicant would provide PW1 with blocks of heroin weighing 350 grammes which, when broken down into 28 gramme packets, PW1 would refer to colloquially as “on taus”.  The applicant told PW1 that for transporting these drugs to Hong Kong he would be paid $500-$600 or more per ounce.[1]

20.  PW1 agreed to this proposition and again sought out Zhao Ruiren to help him.  Zhao helped PW1 rent one floor in a village house in Shenzhen and once this was done PW1 informed the applicant.  They met in Hong Kong over tea and several days later the applicant called PW1 and told him it was time to start work.  The applicant asked PW1 to meet him at Lo Wu railway station in Shenzhen. PW1 agreed but took Zhao with him.  This was the first occasion that the applicant met Zhao.  The applicant introduced himself as Ah Ming and PW1 informed the applicant that Zhao would be helping them.

21.  They went to a Szechuan restaurant and then the applicant left them for half an hour.  He came back with a plastic bag in his hand and placed it on the table saying “after you have handled this, just give me a call”.  The applicant then left.

22.  PW1 and Zhao then went to the village house that PW1 had rented and broke the drugs down into smaller packets.  Once this was done he telephoned the applicant who instructed him to bring 1 or 2 ounces to Hong Kong.  PW1 agreed to do so and to transport 7 ounces that day.  The drugs were smuggled across the border by both PW1 and Zhao secreting them within their anuses.  Once in Hong Kong they went to PW1’s flat and removed the drugs from their bodies.

23.  PW1 was later instructed by the applicant to distribute the drugs to the hiding places he had used in the course of his drug trafficking that is the subject of the first count.  Once this was done, Zhao was sent back to the Mainland to bring more drugs into Hong Kong.  The applicant subsequently paid PW1 $6,000 for this work, which PW1 shared with Zhao.

24.  The following day the applicant arranged to meet PW1 in Shenzhen at which time he gave him more drugs.  PW1 then repeated the same exercise: he took them to his rented house, repackaged them and with Zhao’s help smuggled them into Hong Kong.  Once in Hong Kong they distributed the drugs in the same way.

25.  This phase of drug smuggling involving both PW1 and Zhao cross-border trafficking in “on taus” secreted in their anuses continued for one month with border crossings being made every second day.

26.  In early April 2003, the applicant told PW1 that he would have “jak tau” customers.  A “jak tau” is a block of heroin and the applicant offered to pay PW1 $2,000 for every block smuggled.  It was agreed that Zhao would continue to smuggle the “on taus” and PW1 would smuggle the “jak taus”.  The judge referred to this in his summing-up as the second phase of PW1’s drug trafficking.

27.  One or two days later, the applicant contacted PW1 and they met at a café at the railway station and from there they went to the Hubei New Village.  At a restaurant at this place, the applicant handed two blocks of drugs to PW1.  PW1 took them back to his village house.  Subsequently, PW1 was contacted by the applicant who told him they would cross the border together.  After the applicant met up with PW1 they went to his village house where PW1 placed the drugs on his stomach area and tightened his belt around them.  They crossed the border at Lok Ma Chau and PW1 took the drugs to his flat.

28.  The next morning, the applicant arranged for PW1 to take the drugs into a restaurant toilet and transfer the drugs to him by passing them underneath a toilet cubicle wall into the adjacent cubicle.  PW1 was paid $4,000 for this act of trafficking.

29.  One or two days later, the applicant contacted PW1 to smuggle more drugs into Hong Kong and the process was repeated.  This form of trafficking involving “jak taus” continued for about three weeks with about four cross-border trafficking trips taking place each week.  On each trip there would be two and sometimes three blocks being smuggled and once in Hong Kong they would be handed over to the applicant in the same way, namely passing them under the dividing wall of adjacent toilet cubicles in the same Chinese restaurant.

30.  Around this time there was the outbreak of SARS in Hong Kong and this caused the applicant to change the smuggling route to Zhuhai, into Macau and from Macau to Hong Kong.  In the course of carrying out this smuggling operation, they both travelled to Hong Kong on the same jet foil.

31.  This ended PW1’s testimony on the second count and he then gave evidence on the events that led to the commission of the offence that is the subject of the third count.  PW1 said he was contacted by the applicant on 24 May 2003 and met him at a massage parlour in Lo Wu.  The applicant asked PW1 to take one block to Hong Kong and gave him the drugs.  PW1 returned to his village house with the drugs and the next day the applicant telephoned him and instructed him to bring the drugs to Hong Kong.  The applicant said he would accompany him.

32.  The applicant came to PW1’s village house and they took a taxi together to a bus station at Huanggan and from there took a cross‑border bus to Sheung Shui.  They then took a train to Mong Kok KCR Station and as they stepped onto the concourse they were arrested by police who discovered the drugs concealed around PW1’s waist.

The Cross-examination of PW1 and the Defence Case

33.  Much of the cross-examination of PW1 focussed upon his criminal record in order to portray him as a person of bad character who had lived the life of a professional criminal.  Complementing this was questioning designed to show that he did not want to have to endure another lengthy prison term and was willing to do whatever it took to reduce that term.  That meant not only implicating others but also implicating the applicant.  It was suggested to him that his statements implicating others achieved for him a reduction in his sentence to 6 years’ imprisonment but that he wanted to reduce it further and the only way to do so was to help the police in a prosecution of the applicant.  However, he was frustrated in this because the applicant could not be prosecuted until he, PW1, had completed his prison term.  Nevertheless, it was suggested to him that he had to go through with his offer to testify against the applicant and relate his fabricated story about him to the court in order to enjoy the benefit of his immunity and avoid the risk of himself being prosecuted for the offences contained in Counts 1 and 2 of the indictment.

34.  PW1 agreed with what was said of his criminal history and even that he was a professional criminal but denied that his story was false and that he was adhering to it in order to protect himself.

35.  It was also brought out in cross-examination that the non‑prejudicial statements he gave to the police implicating the applicant were given on 8, 9 and 10 December 2003, some two weeks before he pleaded guilty on 23 December 2003.  Yet, on that plea, the Summary of Facts made no mention of the applicant as PW1’s accomplice but continued to refer to a person by the name of Ah Cheung, a false identity that PW1 first mentioned in his cautioned interview. It was suggested to PW1 that Ah Cheung was, in fact, the real accomplice of PW1 in his drug trafficking but PW1 denied that.  Nevertheless, Mr Egan made the point that PW1 allowed his sentencing court to be misled as to the identity of his accomplice.

36.  PW1 accepted that there were a number of differences between his evidence and his witness statements but denied that this was because his story was an invented one; rather they were due to poor recollection as a result of the lapse of time.

37.  In respect of the substance of his evidence only two matters were addressed.  The first was the absence of any independent evidence to support his allegations underlying the first count.  The cross-examination proceeded as follows:

“Q. See, the problem with this account that you give of having gone to this set of premises owned by Siu Yu, or being occupied by Siu Yu, and recovering the drugs, that whole story, that whole account comes from you and you alone, doesn’t it?

A. It’s not a story, it’s a fact.

Q. All right, let’s call it an account, your account of these events; we have to rely entirely on you to accept that that’s a true account, don’t we? There is no other independent evidence whatsoever to support your account that this took place.

A. Well, at the very beginning when I made the statement, well, I was prepared that the police would prosecute me because of that.

Q. That’s not the question. You see, you’re a professional criminal, someone whose word, whose truthfulness must necessarily have a question mark over it.

A. Correct.

Q. In order to believe you, what we need to look for is some sort of independent evidence that supports your account.

A. If at the very beginning, I wanted to have the defendant prosecuted, well, I would have already given my statement to the police long time ago. I do not need to wait for such a long period of time.

Q. Can you please try and focus. This account that you give about having gone with Ah Loi to Chuk Yuen South Estate, going up in the lift to one of the blocks, getting access to the flat, recovering drugs and taking them away, there is no independent evidence to support your account that that happened, do you agree?

…

A. Regarding this incident, only the defendant and I knew.

Q. So we have to rely on your account, we have to rely on your statement that you’re telling the truth.

A. Yes.” [2]

38.  He went on to obtain PW1’s agreement that since the co‑conspirator Yu Cheuk-wah and Zhao Ruiren were not witnesses, he, PW1, could say what he liked about them without fear of contradiction.  Likewise, their absence also meant that there was no evidence from them to support his evidence.

39.  The only other matter on which PW1 was cross-examined was the records of his financial transactions with the applicant.  He agreed that the only evidence, other than his word, of a financial transaction with the applicant was the transaction he mentioned in his record of interview.  This transaction, he then claimed, was part repayment by him of $2,200 of a debt of $3,000 that he owed to the applicant.  This explanation was made because bank deposit slips for $1,400 and $800 were found in PW1’s possession when he was arrested.  In his testimony PW1 said that his cautioned interview explanation was false and he had said it in order to protect the applicant.  The truth, he said, was that the monies were received from the sale of drug samples and PW1 was returning these sale proceeds to the applicant.

40.  After his arrest and charging, PW1 was remanded in Lai Chi Kok Reception Centre and was visited by the applicant.  But, the applicant had promised PW1 that he would visit him every two weeks before he was sentenced and would give $500 or $1,000 to PW1’s father on festive occasions.  However, once the applicant obtained from PW1 the keys to his village house he retrieved the remaining drugs that were there and no longer visited PW1.  Because of the applicant’s failure to honour his promises PW1 volunteered assistance to the police implicating the applicant.

41.  Whilst the conspiracy count that is Count 1 is a conspiracy to traffic in Hong Kong drugs already in the jurisdiction, the conspiracy count that is Count 2 is a conspiracy to import dangerous drugs from the Mainland into Hong Kong.  Consequently, relevant to the proof of this allegation are the movement records of the conspirators across the Hong Kong border.  Their movements were proven by the Immigration Travel Movement Record relating to the applicant, PW1 and the co‑conspirator Zhao Ruiren.  The entries on this record established that on a number of occasions within the period of Count 2 their travel movements into Hong Kong coincided with each other and the prosecution argued that this was supportive of PW1’s evidence and the prosecution case that they were acting in concert. By way of example, the entries showed that on 14 April 2003 PW1 and Zhao crossed the Lok Ma Chau B Border Point within 1 minute of each other.  And on the following day at the same border point the applicant crossed only 11 minutes after PW1.  Then, on 18 April at the same border point Zhao crossed 1 minute after PW1.  On 20 April they passed through the Macao Ferry Terminal Immigration point within 5 minutes of each other, suggesting that they entered Hong Kong on the same ferry.  This, it was said, also supported PW1’s claim as to the SARS-prompted change of route.

42.  The prosecution also adduced prison visit records relating to visits by the applicant to PW1, Yu Cheuk-wah, the conspirator named in the first count and Zhao.  The prosecution argued that these visits by the applicant also supported PW1’s evidence and the prosecution case that these persons were acting in concert; additionally they cast doubt on the applicant’s claim in his cautioned video interview that he did not know Zhao.  These records showed that the applicant visited PW1 on four occasions, namely on 28 May 2003, 10 June 2003, 26 June 2003 and 26 July 2003; and Zhao on two occasions, namely 14 June 2003 and 5 July 2003.

43.  The applicant did not testify or call any defence witnesses.  He relied on his out-of-court statements recorded in post-record notebook entries and three video interviews.  The case that was advanced on his behalf through these out-of-court statements was essentially one of a complete denial of the offences.  We have already set out the thrust of the defence case as put in the cross-examination of PW1 but, in a nutshell, it was that PW1 was a criminal who would do or say anything to protect himself and advance his own interests and, in this case, he was fabricating the evidence against the applicant for his own self-serving purposes.

The Grounds of Appeal

44.  There are four grounds of appeal.  The first ground of appeal is that the conviction by the jury of the applicant of Counts 2 and 3 is inconsistent with their acquittal of him on Count 1.  The acquittal in respect of Count 1 was by unanimous verdict whereas the conviction of the applicant on Counts 2 and 3 was by a majority of five to two.  It is argued under this ground that the convictions on Count 2 and 3 are “both logically and forensically inconsistent so that their verdicts in respect of Counts 2 and 3 are unsafe and unsatisfactory”.

45.  The second ground of appeal attacks the adequacy of the judge’s summing-up in respect of the approach the jury should take to the evidence of PW1.  There is no doubt that PW1’s evidence was the cornerstone of the prosecution case and there is equally no doubt that in terms of his character, PW1 was very much a flawed witness whose evidence would need very careful consideration.  The judge’s directions on these matters were, it is said, lacking in sufficient force.

46.  The third ground of appeal alleges that there was imbalance in the summing-up to the jury in respect of the judge’s treatment of suggestions made by police officers when conducting a recorded interview with the applicant and specifically when they put to him that his accomplices had accused him of being the mastermind of the drug trafficking criminal enterprise.  In support of this ground of appeal it is suggested that the judge should either have excluded these questions and answers from the record of interview or, if they were to go before the jury, to supplement them with direction in the summing-up which informed the jury that mere suggestions put in questions to the applicant by police officers were not themselves evidence unless accepted by the applicant.

47.  The fourth and final ground of appeal is that there was a material irregularity during the summing-up which rendered the guilty verdicts unsafe and unsatisfactory when the judge failed to give the jury a lies direction.  The lies direction became necessary, it is said, because the judge made comments to the jury in relation to the exculpatory portions of the applicant’s statements which, it is argued, was an invitation to the jury to find the applicant to have lied.

Discussion

The 1^st ground of appeal

48.  The legal principles relevant to this ground of appeal are well settled.  In HKSAR v Chau Shu Ho [2008] 5 HKLRD 796 Stock JA (as he then was) summarised the law at pages 801-802, paragraph 18:

“It is well established that when such a complaint is raised, the burden is upon the applicant to show, first, that the verdicts are inconsistent and, if so, that they are so inconsistent as to call for interference by the appellate tribunal, in other words that “there is no way in which the logically inconsistent verdicts can sensibly be explained”: R v Clarke & Fletcher (unrep., English Court of Appeal, 30 July 1996).  See also R v Durante [1972] 1 WLR 1612, and HKSAR v Chan Kai Lam (unrep., CACC 311/2003, [2004] HKEC 1246).”

The ultimate question is whether the verdicts are unsafe and unsatisfactory [3] and that is why inconsistency alone may not be enough to lead to the setting aside of the jury’s verdict and why the appellate court looks to whether there is a sensible explanation for the jury’s verdicts.  It is only in the absence of such an explanation that the verdicts become verdicts which no reasonable jury applying their minds properly to the facts of the case could have reached.

49.  In determining whether the jury’s verdicts can sensibly be explained, sight should not be lost of the reality that juries not only form their own views on the credibility of the witnesses they have heard but also on the justice of the case.

50.  On the former issue, the Court of Appeal in HKSAR v Li King Sing Ivan [2001] 2 HKC 539 at page 546 H referred with approval to the following comments by the English Court of Appeal:

“… the English Court of Appeal held in R v Van der Molen [1997] Crim LR 604 at 605 that:

‘… it did not follow that because the jury must have disbelieved a witness or rejected his or her evidence with the result that it acquitted on one count, it was necessarily acting irrationally to rely on the evidence of the same witness to convict on another count. The Court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard.’

In the following year, in R v G [1998] Crim LR 482, the English Court of Appeal held that:

‘A person’s credibility is not a seamless robe, any more than is their reliability.  The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts.  It was too simplistic to draw a stark distinction between reliability and credibility (as had been put in the argument).  It was for the jury to decide on the basis of all the material before it whether it was sure of the particular allegation in each count.’”

51.  On the latter issue of forming a view on the justice of the case, the Court of Appeal referred to comments by King CJ of the South Australian Supreme Court in R v Kirkman (1987) 44 SASR 591, which it noted had been adopted and followed by the High Court of Australia in R v Mackenzie (1996) 90 A Crim R 468 at 483.  At page 593 King CJ said:

“Juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of the law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting them of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts should therefore not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”

These words serve to remind us that juries sometimes act in accordance with their own sense of justice rather than one dictated by inexorably following a purely logical course.

52.  Consequently, the full depth of the wisdom of the jury may not always be fathomable but that does not mean that the jury have acted irrationally or illogically. Appropriate respect must be accorded the verdict of the jury and appellate courts should not readily assume that no sensible explanation exists for what, at a superficial level, may appear to be inconsistent verdicts.

53.  In the present case, Mr Egan argued that in respect of PW1 the jury had only two alternatives ‑ believe him wholly or disbelieve him completely.  He submitted that as PW1’s evidence was a seamless account it was not possible to pick from amongst his testimony and choose to believe certain parts of his evidence whilst rejecting other parts.  In this respect Mr Egan sought to distinguish this witness from others and place him in a particular category of witness where the jury were faced with a stark ‘all or nothing’ choice of either believing or disbelieving him in his entirety.

54.  We do not agree.  That may well, on occasion, be a choice facing a jury where there is no other evidence adduced by the prosecution which supports an aspect of the witness’ evidence, making it, thereby, more reliable than other, unsupported parts of his evidence, and there is nothing in the account of the witness to distinguish one part of his evidence from another in terms of its inherent credibility or probability to be true.  It is in this latter respect that we understand Mr Egan to be using the word “seamless”; namely that one episode of drug trafficking naturally flowed on to another and all had one thing in common in that they arose from a longstanding relationship between PW1 and the applicant.  From this portrayal of PW1’s evidence, Mr Egan argues there was nothing, in reality, to separate the episodes of drug trafficking other than dates and a slight variation in the nature of the drug trafficking.  There was nothing about the conduct of the two of them or the activities in which they were allegedly engaged together to make any part of PW1's testimony more believable or more likely to be true than any other part.

55.  Mr Egan argues that the evidence in respect of each count was essentially the same and that is why the verdicts are inconsistent.  He referred us to the decision of the Court of Appeal in HKSAR v Chan Shek‑wai CACC 472/2001; unreported, 2 August 2002, where Stuart‑Moore Ag CJHC referred to the ‘all or nothing’ situation.  Mr Egan says that this is the position in the present case; that the credibility of PW1 is not a divisible commodity in the circumstances prevailing here and that there was no supporting evidence to provide an “escape route” for the jury.  In the passage from Chan Shek-wai to which Mr Egan refers, Stuart‑Moore Ag CJHC actually said, at paragraph 43:

“On the face of these counts, it appeared at first as if this was an ‘all or nothing’ situation where, unusually, the judge would have been duty-bound to have directed the jury that if they acquitted on any of the counts of deception they should follow suit on all the others.”

56.  After closer scrutiny of the facts of that case, Stuart-Moore Ag CJHC concluded at paragraph 51, that “there were valid and sensible reasons for the jury to have concluded that the applicant was guilty of some of the counts … while being unsure about others.”

57.  In order to address this ground of appeal, we must give this case the same closer scrutiny.

58.  The starting point to such an exercise is to note that if the jury did err in their approach to the evidence it is because the judge instructed them to.  He said in the course of his summing-up:

“You must consider the case against and for the accused on each of the three counts separately. The evidence concerning each count is different and therefore your verdicts need not be the same.” [4]

We note that at trial, Mr Egan took no objection to this part of the judge’s summing-up.

59.  We agree with Mr Egan that PW1’s testimony was seamless in the sense in which we understand Mr Egan to be using that word, but that does not mean that the jury were obliged to accept it all or reject it all for that reason alone.  There are differences between the evidence of PW1 on the first count and his evidence on the second and the third counts.  In respect of the first count, his evidence was at times vague and lacking in detail and, as Mr Egan emphasized in his cross-examination of PW1, it was necessary for the jury to place their trust completely in him and, in order to convict on the first count, to act on his word alone.

60.  In the circumstances of this particular witness, it is hardly surprising that the jury were reluctant to trust him so completely.  But, that is not to say that the jury must have concluded that PW1 was lying.  They may well have thought that he was probably telling the truth but in the absence of any independent evidence to point to that being so could not reach the level of being sure that he was.  Such an approach would follow quite naturally from the judge’s characterization and summary of the evidence.  He said:

“One final but important matter before I turn to review Chan’s evidence. As I have said before, Chan’s is the only evidence which directly implicates the accused in the commission of any of these three offences. There are other pieces of evidence which you may conclude are supportive of Chan’s evidence or that tend to support his credibility. I will remind you of those when I come to the end of Chan’s evidence.” [5]

This passage was followed by the following comment by the judge:

“You will wish to exercise particular care in considering his [i.e. PW1’s] evidence. This is a matter in which you may think it wise to look for evidence which is supportive of Chan before you act on his evidence.” [6]

61.  That potentially supporting evidence was the travel records and the prison visit records.  The prosecution invited the jury to regard this evidence as evidence independent of PW1 and capable of supporting his testimony.  The judge made it clear that it was a matter for them as to whether they accepted that these records had the favourable impact upon PW1’s evidence that the prosecution claimed.

62.  Mr Egan argues that the supportive value of this evidence was so small as to be meaningless.  He took us through a table contained in the respondent’s appeal submissions to demonstrate that, in reality, there was no coincidence of travel movement that was capable of providing support for PW1’s evidence.  Some of the travel movements did not involve the applicant but only PW1 and Zhao; one of the travel movements involving the applicant and PW1 showed they crossed the border 11 minutes apart which, Mr Egan said, is not proof they were travelling together and likewise in respect of three other travel movements involving the applicant.

63.  It is not correct to say that the travel movement records are incapable of providing support for the evidence of PW1.  The issue the jury had to decide was whether or not the travel movements of the applicant, PW1 and Zhao did coincide and, if so, whether this coincidence was just happenstance or explained by the more sinister assertion of PW1 that the three of them were acting in concert.  Obviously the greater the time between each person’s border crossings, the less strong is the inference they were acting in concert.  But, whether the travel movement records did provide the support for PW1 that the prosecution claimed and, if so, the extent to which they did was ultimately a jury question.  This approach was clearly set out by the judge and we can find no fault in his directions.

64.  Another attack made by Mr Egan on the use of the travel records as evidence supportive of PW1 was that three of the travel movements referred to in the Respondent’s table occurred on 18, 19 and 24 May 2005 and were therefore outside the period of the conspiracy.  This, he argues could not be used by the jury as evidence probative of the applicant’s participation in the conspiracy.

65.  In order to consider the merits of Mr Egan’s submission, it is necessary to have regard to the way the judge directed the jury on the travel records. He started by putting the prosecution position:

“ I turn now to the remainder of the prosecution evidence which prosecution suggests you may regard as being supportive of the evidence of Chan. As I indicated to you earlier, it falls into two areas; first, the travel records and, second, the records of visits by the accused to Lai Chi Kok Reception Centre. The prosecution says that this evidence justifies the drawing of the inference that the parties had been acting in concert, albeit in different combinations, further to the conspiracies and the joint venture. I explained to you a little while ago about the drawing of inferences.

The travel records of Chan, the accused and Zhao appear in full as Exhibits 16, 17 and 18, and it is the prosecution’s case that an analysis of those records shows three significant correlations between the movements of the personalities involved in the alleged drug trafficking and the conspiracy charged in Count 2 which support the evidence given by Chan.” [7]

66.  He then went on to describe the “three significant correlations” and they were the travel movements on 15, 20 April, and 25 May 2003.  The first two were in the charge period for the second count and the third was the date of the third count.  The three travel movements in May that Mr Egan complains about are derived from the table prepared by the respondent for the purpose of this appeal.  They were not amongst the travel movements highlighted by the judge.

67.  Furthermore, it is clear that the evidence of the travel movements was being relied upon only as evidence that could provide support to PW1’s credibility and to his claim that they were acting in concert.  This is apparent from the way that the judge directed the jury.  He said:

“It is the prosecution case that these travel movements are consistent with and supportive of the evidence of Chan and justify the inference that the parties concerned were acting in concert. It is a matter for you whether you find that to be so.” [8]

68.  There is no suggestion in the summing-up that the judge or the prosecution invited the jury to use these three travel movements as stand‑alone pieces of evidence independently proving the guilt of the applicant on the second count.  Using the evidence for the limited purpose of supporting the credibility of PW1 does not require that the movements relate to the charge period but only that they are, in fact, consistent with the testimony of PW1. And this they certainly are for, notwithstanding the dates particularized in Count 2 as being the duration of the conspiracy, PW1 testified that the trafficking continued beyond the dates of the conspiracy.  This is why in sentencing the applicant the judge ultimately concluded that Count 3 was committed pursuant to the conspiracy in Count 2.  The judge’s directions are correct; the jury were entitled to use this evidence for the purpose on which it was relied by the prosecution and directed by the judge.

69.  As we have already said, when considering an inconsistency of verdicts argument, the task of this Court is to examine the evidence and by so doing to determine whether the jury’s verdicts can be sensibly explained.  Here, we are of the view that they can be.  The evidence was different both as to the detail of the accounts that PW1 was able to provide in respect of the first count and the other counts and the existence of supporting evidence in respect of the different counts.

70.  If, as we earlier suggested, the jury were inclined to believe PW1, but did not wish to convict on his evidence unless it was supported in some way then that would sensibly explain their verdicts.  The applicant has not discharged the burden that is on him that these verdicts are on this basis unsafe and unsatisfactory.

The 2^nd ground of appeal

71.  This ground attacks the adequacy of the judge’s summing-up in respect of the caution with which the jury should approach the evidence of PW1.  Mr Egan argues, and clearly correctly, that PW1 was a witness whose evidence needed very close scrutiny and very careful evaluation.  He reminded us of the pertinent observation of Mortimer JA in R v Chu Ip Pui [1997] HKLRD 549 at 552D that although through the reform of the law the requirement that the evidence of accomplices must be corroborated has now been abrogated, that does not mean that the testimony of accomplices has thereby become more reliable. Mortimer JA said:

“Accomplices have not by this reform suddenly become more credible or less dangerous as witnesses, but the approach is now left to the discretion of the judge.”

Thus, what the applicant has to show is that the exercise of this discretion has miscarried.

72.  Mr Egan points to a number of passages in the summing-up where he says the judge made comments that had the effect of diluting or neutralising the effect of warnings he had just given in respect of PW1.  These passages rendered the summing-up unbalanced and unfair to the applicant.

73.  It was for the jury to decide what weight they should give to PW1’s evidence.  The judge’s role was to assist them in making that determination by warning them of the caution that needed to be exercised when dealing with a witness of the bad character of PW1 who, additionally, had very definite interests of his own that he might be keen to serve and which he might regard as more important than his obligation to tell the truth.

74.  The judge warned the jury on numerous occasions of the need for caution when evaluating the evidence of PW1.  Very soon into his summing-up he said:

“In the case of Chan, consider whether he has been telling you the truth as well as whether he has been accurate in the account that he has given to you. … There are other reasons why you should approach Chan’s evidence with caution. I will come to them.” [9]

75.  After referring to the presence of inconsistencies between PW1’s evidence and witness statements, the judge said:

“There is nothing, as a matter of law, which prevents you from convicting the accused, if you are sure of his guilt, on the evidence of Chan alone. However, when you consider Chan’s credibility and reliability, there are a number of matters, one of which I have already referred to, which you will wish to take into account. You will wish to exercise particular care in considering his evidence. This is a matter in which you may think it wise to look for evidence which is supportive of Chan before you act on his evidence.” [10]

76.  He referred to the claim that PW1 implicated the applicant in order to secure an additional reduction in sentence and, it is true, he puts the counter proposition advanced by the prosecution, finally leaving all these matters to the jury as matters they “should take into account in considering whether you find Chan Man-yung to be a credible and reliable witness” [11]

77.  There is no doubt in our minds that the judge sufficiently conveyed to the jury the problems surrounding PW1 as a witness and the need to exercise caution and care in evaluating his evidence.  The comments by the judge that Mr Egan complains had the effect of undermining his words of caution in respect of PW1 were merely legitimate comments made in an endeavour to assist the jury in making their assessment of PW1.  He never encouraged them to form a particular view of PW1 or of the evidence on which the prosecution relied as supporting evidence.  He referred to that evidence as “capable” of supporting PW1 but left to the jury the question of whether it actually did so.  Where there was an alternative view that could be taken of the effect of certain evidence he presented that view for the consideration of the jury.  Merely because that alternative view might portray PW1 more favourably does not mean that it was wrong for the judge to refer to it.  A balanced summing-up involves presenting competing views to the jury in order to assist them in reaching their own view.

78.  The obligation on the judge in respect of a witness like PW1 is not to tell them that they should not believe him.  The obligation on the judge is to inform the jury of the dangers associated with the witness, and these we have referred to, and, through a balanced summing-up, to assist them reach their own view of the witness and how to regard his evidence.  This the judge did.  There is no merit in this ground of appeal.

The 3^rd ground of appeal

79.  This ground complains that there was no direction by the judge, and there should have been, to the effect that assertions in questions put in the video record of interview (“VRI”) and denied by the applicant were not evidence against him.  These questions in the VRI referred to accusations by PW1 and Zhao in one question in the first VRI, and accusations by PW1 and Yu Cheuk-wah in one question in the second VRI, that it was the applicant who had instigated and instructed them in their drug trafficking activities.

80.  These records of interview had been carefully redacted in order to remove prejudicial material from them.  These particular two questions, Mr Egan asserts from the bar table, had not been detected by him at trial, and should have been, and as a consequence of them remaining in the records of interview the applicant did not receive a fair trial.  Contrary to Mr Egan’s explanation as to how it came about that these particular questions were not removed from the record of interview, the respondent suggests that they may have been deliberately left in it by Mr Egan for tactical reasons. 

81.  As a consequence of the way this ground has been advanced this Court is left in the undesirable position of Mr Egan, in effect, giving evidence before us and counsel for the respondent querying the credibility of that evidence.  Nevertheless for the purpose of addressing this ground of appeal, we shall assume that Mr Egan’s claim is accepted.

82.  Yu Cheuk-wah, of course, was only a conspirator in the conspiracy charged in the first count of which the applicant was acquitted and so it cannot have had any impact upon the jury’s verdict on the second and third counts.  Its only relevance to the verdicts on those counts is that the jury appear to have been unaffected by it in respect of the first count and that goes to the question of whether, in the circumstances of this case, realistically, it had any impact upon their verdicts on these other two counts.

83.  In order to address this issue, the impugned question has to be placed in context, that is, taking account of the circumstances of the case.  These circumstances are that this question appears right at the end of the interview in which there was frequent reference to PW1, including to statements that he made about the applicant; in this one question the reference to Zhao is not what he alone said but rather it is phrased as “they, Chan Man-yung and Zhao Ruiren, gave information to us …”; and what was claimed to have been said about the applicant by Chan Man‑yung was ultimately overshadowed by the actual evidence which Chan, as PW1, gave.

84.  It must be remembered that the applicant did not testify or call any witnesses.  The records of interview represented his case and were the vehicles by which he put his defence before the jury.  They contained his denials of being a co-conspirator with Chan, Yu and Zhao.  In his discussion of the records of interview, the judge emphasized these denials, as, of course, did Mr Egan in his closing address to the jury.  No-one drew attention to the impugned questions and it seems most unlikely to us that they in any way infected the jury’s deliberations.

85.  After giving careful consideration to the context in which the impugned question appears and the summing-up of the judge as a whole, we are not persuaded that the presence of the reference to what Zhao said impacts upon either the fairness of the summing-up or the safety of the conviction.

The 4^th ground of appeal

86.  The final ground of appeal complains about the absence of a lies direction when the judge discussed the evidence of the applicant and raised queries in respect of the truthfulness of certain parts of his evidence.  One of those queries was in respect of a denial by the applicant in the first of his 2011 interviews that he did not know Zhao.  The judge referred to this denial immediately after discussing the travel movement records and how the prosecution was asserting that they were:

“… consistent with and supportive of the evidence of Chan and justify the inference that the parties concerned were acting in concert.” [12]

87.  After reminding the jury that it was a matter for them whether they found this to be so, the judge continued:

“A further significance of the apparent coincidence between the arrivals of the accused and Zhao is that, as you will recall, the accused said, in the first of his 2011 interviews, that he had at first no impression of anyone by the name of Zhao but then, later, said specifically, that he did not know that person. It is a matter for you whether you find that these travel records affect the weight you feel you are able to attach to the exculpatory parts of the accused’s interviews.” [13]

88.  That the denial by the applicant was a lie found support in the evidence of the prison visit records as they showed that on two occasions the applicant visited Zhao whilst he was in gaol.

89.  What determines whether a lies direction is necessary is not whether the jury are likely, in the course of their assessment of a witness’s credibility, to find that on a particular matter a witness has lied, but rather on whether the prosecutor is inviting the jury to find that what an accused said was a clear lie proven by independent evidence, was deliberately told, related to a material issue in the case and for which there could be no innocent explanation and which, consequently, could be used by the jury as strengthening an inference of guilt or, in the particular circumstances there was a danger that the jury may engage in an impermissible process of reasoning to the disadvantage of the accused in its use of the fact that it finds the accused lied in his testimony or in an out of court statement.  (See the decisions of the Court of Final Appeal in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 and Jim Fai v HKSAR (2006) 9 HKCFAR 85).  The legal position was succinctly stated by Stock JA (as he then was) in HKSAR v Chan Boon Ning CACC 571/2001; unreported, 7 August 2003, at paragraph 48 where he said:

“It seems still not to be appreciated that a lies direction is reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of the defence, but as in itself constituting a separate item of evidence or conduct in support of the case against the defendant, or where there is a danger that the jury might use a lie, not merely as undermining the credibility of a defence, but as itself probative of guilt.”

90.  In the present case neither the prosecution nor the judge was inviting the jury to use any finding by it that the applicant had lied in an evidential way as probative of the applicant’s guilt.  The applicant’s evidence was being contrasted with other evidence adduced by the prosecution and the jury were being invited to consider whether the differences between the two might affect the weight they gave to the applicant’s evidence.  This is the archetypal situation where the Court of Final Appeal and the Court of Appeal have said in innumerable judgments that no lies direction is necessary.  There is no danger in this situation of the jury embarking upon an impermissible line of reasoning in reaching its determination of the guilt of the applicant.  There is no merit in this ground of appeal.

91.  For the above reasons, the application for leave to appeal against conviction is refused.

The Judge’s Reasons for Sentence

92.  In respect of Count 2, the judge recognised that there are always difficulties for courts in sentencing for conspiracy to traffic in dangerous drugs. That is because the sentencing guidelines provided by the Court of Appeal for trafficking in dangerous drugs are based upon the quantity of drugs being trafficked and when the offence charged is a conspiracy offence precise knowledge of the quantity of drugs being trafficked is not always available.  However, the judge felt that the evidence of PW1 was sufficiently detailed and precise to enable him to calculate a quantity of drugs that the applicant would have arranged to be trafficked over the period of the conspiracy.  When evidence was lacking he made assumptions favourable to the applicant, the main example of which was the purity of the mixture.  In respect of Count 3 the purity was proven to be 69% but for Count 2 the judge assumed only a 50% purity.

93.  The evidence of PW1 was to the effect that the drugs were acquired in quantities of 350 grammes, which was, in fact, the quantity of the drugs being trafficked in the third count.  According to PW1, these quantities were then trafficked in two different ways; what the judge referred to as a two phase system of importation.  Under the first phase the drugs were ultimately transported into Hong Kong in smaller quantities after the 350 grammes had been broken down into 28 gramme packets.  They were placed in locations in Mongkok in accordance with the applicant’s instructions.  PW1 testified that this system of transporting drugs into Hong Kong occurred every second day and continued for a month.  Doing a calculation based upon fourteen acts of trafficking in quantities of 350 grammes, the judge arrived at a total quantity of 4.9 kilogrammes of mixture.

94.  The second phase, according to PW1, was that PW1 would transport from the Mainland entire blocks of 350 grammes of heroin and would then hand them over to the applicant in Hong Kong.  The co‑conspirator in the Mainland also continued to transport drugs on behalf of the applicant.  This second phase was difficult for the judge to arrive at a precise figure.  He could only rely on the information provided by PW1 who was not able to give any information on the drugs imported by the co‑conspirator.  PW1 said that over a 3 week period he carried blocks of 350 grammes into Hong Kong on his person approximately four times per week.  He said that there were occasions that he carried two and sometimes three of these blocks on his person.  The judge made an assumption that the applicant took two blocks per occasion and calculated that over the period of the conspiracy the quantity of drugs he imported into Hong Kong would have been approximately 8.4 kilogrammes.  By adding the quantities of the first and second phases together, the judge reached a figure of a total importation of 13 kilogrammes of heroin mixture.

95.  The judge noted that he had no information before him on the narcotic content of this mixture but that under the guidelines laid down by the Court of Appeal the sentencing of a drug trafficker was on the basis of the narcotic content not the volume of the mixture.  However, he noted that even if he allowed a narcotic content of only 50% the applicant would still be in a sentencing range of 26 to 30 years.

96.  The judge concluded that this conspiracy was “designed to introduce vast quantities of heroin into Hong Kong, with all the misery that would bring to our community”.[14] The judge noted that the offence occurred in 2003 and that the applicant fell to be sentenced upon the guidelines in place at that time.  He noted that one of the reasons for the delay in prosecuting the applicant was because he was apprehended in the Mainland and sentenced in 2004 to a period of 12 years’ imprisonment in respect of an offence involving the smuggling of drugs.  He noted that the applicant had previous convictions in Hong Kong including one in 1994 for which he had been sentenced by the High Court to imprisonment for 13 years.  He recognised that an offender’s previous criminal history for offences of the same nature was a matter that could, properly, be taken into account.  In this respect he noted that the other punishments imposed upon the applicant over the years appeared to have had little deterrent impact on him.

97.  He also concluded from the evidence before him that the applicant’s role in this conspiracy was a leading role, saying:

“It is self-apparent that you were a senior player responsible for orchestrating, planning and supervising the operation.” [15]

For all these reasons, the judge concluded that an appropriate sentence on Count 2 was one of 30 years’ imprisonment.

98.  Before leaving the judge’s Reasons for Sentence it worth noting that in explanation for why he ordered the sentence for Count 3 to be served concurrently with the sentence for Count 2, he said that “there was nothing in the evidence at trial to indicate that the offence referred to in Count 3 was otherwise than in pursuance of the conspiracy previously concluded” [16]

Grounds of Appeal against Sentence

99.  As previously mentioned, the only sentence against which the applicant appealed is the sentence of 30 years’ imprisonment imposed in respect of Count 2.  There is only one ground of appeal against sentence and that is that there was insufficient precise evidence about the amount of drugs and the purity of the drugs to enable the judge to calculate, in accordance with the heroin guidelines, the appropriate sentence for the applicant.

Discussion

100.  Before any court can sentence an offender it has to make an assessment of the gravity of the offence he has committed.  In drug trafficking offences the starting point for that to be done is by recourse to the quantity of drugs being trafficked.  In most cases, certainly in respect of substantive offences, that will not create any problem simply because the charge will reflect the quantity of drugs that has been seized by the law enforcement agency.  But, in respect of inchoate offences it may not be possible to assess precisely the amount of drugs that were, or were going to be, trafficked.  This does not mean that the Court is absolved from reaching a view on the gravity of the offence, merely that it does not have the advantage of doing so in the usual way.  Of course, quantity is not the only fact relevant to the assessment of gravity but it has provided the courts with a ready means of identifying an appropriate starting point which can then be enhanced should there be present aggravating factors which increase the gravity of the offence.

101.  Thus, even in respect of inchoate offences, the natural course is for the Court to analyse the evidence to see whether it allows the Court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.

102.  The evidence may not always allow of precise quantification but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence. Such a course is permissible as long as the inferences and assumptions are based upon evidence and do not become mere speculation with no evidential foundation. Whether the evidence and the inferences that are drawn from it enable the Court to have recourse to the quantity based sentencing bands will inevitably vary from case to case.  But sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the Court to impose a just sentence.

103.  In the present case the judge examined the evidence to see whether it would allow him to reach a fair assessment of the amount of drugs being trafficked so that he could have recourse to the quantity based sentencing bands.  However the evidence was not sufficiently precise to enable this to be done without making certain assumptions.

104.  An example where an assumption was adopted by the judge is the purity of the mixture.  But, although an assumption, it is based upon the purity of the drugs seized in the third count and makes allowance for the inevitable variation there would be between different consignments of drugs.  In order to avoid using a purity percentage that would be unfair to the applicant the judge adopted a figure of 50%, almost 20% less than the purity of the drugs the subject of the third count.  Fifty percent is not a wholly arbitrary figure and the reality is that it is undoubtedly a figure favourable to the applicant.  It is certainly not a figure which is divorced from the reality of the situation nor is it such as could cause a justifiable sense of grievance in the applicant.

105.  Another assumption was that on average PW1 would smuggle two blocks of drugs, or “jak taus”, in his cross-border trips in the second phase of his drug trafficking activities.  PW1 said in his evidence that “sometimes there would be two blocks, sometimes would be three blocks”.[17] Thus, by assuming only two blocks the judge was relying on the evidence but allowing for its imprecision by taking a figure that was again not divorced from the reality of the situation yet was not such as could cause a justifiable sense of grievance in the applicant.

106.  The other factors on which the judge relied in order to calculate a quantity were all derived from the evidence of PW1.  They were either matters on which he gave direct evidence or they were the only reasonable inferences that could be drawn from his evidence.  These were factors such as the duration of the conspiracy, the number of trips made by PW1 and Zhao, and the quantity of drugs trafficked on each trip.  Where the evidence was completely silent on a matter, such as the amount of drugs (the “on taus”) trafficked by Zhao in the second phase of PW1’s drug trafficking, then the judge simply omitted this quantity of drugs from the equation.  Since PW1 maintained that Zhao continued to traffic for the applicant, the course adopted by the judge would have inevitably resulted in an under-assessment of the quantity of drugs that was trafficked in the conspiracy period.

107.  In respect of the first phase the judge assumed that when PW1 said he and Zhao transported drugs across the border every other day for one month (ie 14 occasions of trafficking), the quantity they transported on each of the 14 trips was 350 grammes.  That they were given the heroin in 350 gramme “jak tau” blocks by the applicant, that they then broke the blocks down into 28 gramme packets, that they placed these in condoms and smuggled them into Hong Kong in their anuses and that they could accommodate in condoms within their anuses more than one 28 gramme packet is all clear from the evidence of PW1.  What is not clear is that PW1 and Zhao were able, between them, to accommodate the number of packets (at least twelve) that would be derived from one 350 gramme “jak tau”.  PW1 recalled one occasion when, by this method, he smuggled 7 ounces (ie 7 packets) across the border.  This occasion would suggest that he and Zhao could, between them, smuggle 350 grammes per trip.  But, that does not mean that he and Zhao smuggled this quantity on every trip they made.

108.  The travel records show that throughout March and April 2003 PW1 and Zhao were crossing the border frequently.  For example, in March PW1 entered Hong Kong on 11 occasions and in April on 14 occasions.  But Zhao only entered Hong Kong on one occasion in March 2003 and on 10 occasions in April 2003.  In our view this evidence is not sufficiently clear to allow of the inference that the judge drew that 350 grammes were being transported across the border on every trip by PW1 and Zhao.  All it is possible to say is that there were regular crossings of the border by PW1 in both March and April but that in March Zhao had only one border crossing.  In terms of the conspiracy period, his trafficking must have taken place almost exclusively in April 2003 when he had 10 entries into Hong Kong.  Whether Zhao’s entries in April were part of the first or second phase cannot be known but clearly they were much fewer than the judge assumed when making his calculation for the quantity trafficked in the first phase.

109.  The judge was wrong, therefore, in his calculation that in the first phase 4.9 kilogrammes of mixture was trafficked.  It is not possible to assess the quantity trafficked in the first phase.  Nevertheless, it is clear that PW1 alone would have imported a significant quantity of mixture into Hong Kong.  This much is apparent from the number of entries he made and what he said as to the quantities that he, at times, carried within his body.

110.  In respect of the second phase of PW1’s drug trafficking activities it is clear from his evidence that he transported at least two “jak taus” four times a week, for three weeks.  This made a total of 24 “jak taus” at 350 grammes each, which came to 8.4 kilogrammes of mixture.  On an assumed purity of 50%, this amounted to 4.2 kilogrammes of narcotic.  This figure for the second phase is a very conservative one and favourable to the applicant because it assumed only two blocks were smuggled per trip when on PW1’s evidence there were occasions when three blocks were smuggled; it assumed a purity of 50% when the drugs seized on the third count revealed a purity of almost 70% and the third count was just a continuation of the second count; and it omitted completely the “on tau” drugs smuggled by Zhao.

111.  We can see nothing wrong in the assumptions and inferences made and drawn by the judge in respect of the second phase of PW1’s drug trafficking activity.

112.  Every sentence, in order to be a just sentence, must reflect the true facts underlying the commission of an offence.  A significant part of the gravity of the conspiracy of which the applicant was convicted was the trafficking by Zhao.  The judge accepted the evidence of PW1 that in the second phase Zhao continued to traffic in “on taus”, but because he could not determine the amount the judge left it out of his quantification equation.  This was a perfectly proper course for the evidence was simply too unclear as to enable any calculation of drug quantum.  But, Zhao’s trafficking is still relevant to an assessment of the gravity of the offence.  If cannot be ignored just because it cannot be factored, in a mathematical way, into a precise assessment of the quantity.  It remains a very important part of the drug trafficking conspiracy and is highly relevant to an assessment of the scale of the drug trafficking. 

113.  In assessing the gravity of this offence, account must be taken of the following facts:

(i)   it was a conspiracy to traffic across the Mainland – Hong Kong border;

(ii)   it was a conspiracy that lasted at least two months [18] and involved three persons;

(iii)   for one month of the conspiracy, the first phase, PW1 transported “on taus”, ie drugs in multiple packets of 28 grammes, secreted within his anus in the course of multiple trips each week, and for a period of time Zhao also did so;

(iv)   for a further three weeks, the second phase, Zhao continued smuggling “on taus” but PW1 commenced smuggling “jak taus” ie 350 gramme packages four times a week;

(v)   the applicant was the ringleader of this operation and with a past criminal history for drug trafficking could be legitimately characterised as a professional drug trafficker; and

(vi)   the quantity of drugs significantly exceeded 8.4 kilogrammes of mixture.

There can hardly be any doubt that the gravity of this offence was at the top end of drug trafficking offences.  The judge was right to characterize the scale of the drug trafficking as “massive”.  Against this assessment of the gravity of the offence the applicant fell to be sentenced.

114.  In HKSAR v Abdallah [2009] 2 HKLRD 437 this Court laid down a sentencing tariff of 26-30 years’ imprisonment for quantities of 4,000-15,000 grammes of narcotic.

115.  In Abdallah the Court of Appeal also identified four aggravating features whose presence would call for an enhancement of the starting point. Three of those four aggravating features are present in this case, namely the involvement of an international element, the applicant having previous convictions for drug trafficking and the applicant being shown to be the mastermind.  The Court also said that if these features were present in respect of trafficking in excess of 1 kilogramme then the starting point should be enhanced by at least two years.

116.  Of course, the decision in Abdallah post-dates the applicant’s offending and so he falls to be sentenced on the tariff and principles in place in 2003.  The tariffs then in place contained a top band of 400 grammes to 600 grammes which carried a sentencing range of 15‑20 years.  For quantities in excess of this top band it was left to the courts to determine an appropriate upward adjustment bearing in mind that the maximum penalty is life imprisonment.  In Abdallah the Court of Appeal set out in table form thirteen cases involving the sentencing of large quantities of dangerous drugs. These cases ranged from 1997 to 2007 with nine of them taking place between 1997 and 2002.  These nine cases also included those with the greatest amount of drugs.  Cases involving 3,000 to 5,000 grammes attracted starting points for sentence of 24‑27 years’ imprisonment.  This prompted the Court to conclude that “in general, the court would only adopt 24 years or more as the starting point in cases involving more than 2,000 grammes of drugs” [19]

117.  The Court also noted that the presence of an international element had long been regarded “as a factor in material aggravation of the offence for sentencing purposes”.[20] Of course, there is nothing novel in the propositions that a previous criminal record for the same offence and that being a ringleader in a joint enterprise offence are aggravating features.

118.  So, the position in 2003 was that trafficking on this scale would have attracted a starting point for sentence in the range of 26‑27 years’ imprisonment which would then have been enhanced in order to take account of the aggravating features we have mentioned.  Being sentenced on the pre-Abdallah sentencing tariffs and principles does not, in reality, confer any benefit on the applicant.

119.  Thus, the only issue is whether the judge was entitled, on the evidence before him, to determine that this conspiracy involved drug trafficking on such a scale as to warrant a starting point of around 26‑27 years’ imprisonment which could then properly be enhanced to 30 years’ imprisonment to allow for the aggravating features to which we have referred.  For the reasons we set out in this judgment we are of the view that the judge was so entitled.

120.  As we, therefore, agree with the applicant that the judge erred in his assessment of the quantity of drugs trafficked in the first phase of the conspiracy, we allow the application for leave to appeal against sentence. However, for the reasons we have set out, we are of the view that the judge correctly assessed the overall gravity of this conspiracy and the culpability of this offender.  Consequently, we dismiss the appeal.

Conclusion

121.  For the reasons set out in this judgment, we dismiss the application for leave to appeal against conviction, allow the application for leave to appeal against sentence and treating the hearing of the application as the hearing of the appeal, dismiss the appeal.

[1] 1 ounce is approximately 28 grammes.

[2] Appeal Bundle, page 343 D-U.

[3] See Keith JA in HKSAR v Sham Ying Kit [2001] 1 HKLRD 52 where he said at page 61 D-F:

“Inconsistencies in verdicts do not necessarily result in convictions based on those verdicts being quashed.  That is because (once one leaves aside erroneous rulings of law and material irregularities in the course of the trial) an appeal against conviction can only be allowed, and the conviction can only be quashed, if the conviction is ‘unsafe or unsatisfactory’: see s 83(1)(a) of the Criminal Procedure Ordinance (Cap 221).  Verdicts which are inconsistent with each other may, and usually will, result in one or more of the verdicts being set aside, but in the final analysis inconsistencies in verdicts are no more than a factor to be taken into account in determining whether the convictions based on them are unsafe or unsatisfactory.”

[4] Appeal Bundle, page 5 I-K.

[5] Appeal Bundle, page 11 F-I.

[6] Appeal Bundle, page 11 L-N.

[7] Appeal Bundle, page 25E-M.

[8] Appeal Bundle, page 26 K-M.

[9] Appeal Bundle at page 3 A-E.

[10] Appeal Bundle at page 11 J-N.

[11] Appeal Bundle page 13 M-N.

[12] Appeal Bundle, page 26 K-M.

[13] Appeal Bundle, page 26 M-R.

[14] Appeal Bundle, page 47 I-J.

[15] Appeal Bundle, page 48 N-P.

[16] Appeal Bundle, page 49 F-G.

[17] Appeal Bundle, page 315 N.

[18] The indictment pleaded the duration of the conspiracy as “between a date unknown in or about March, 2003 and a date unknown in or about April 2003”. (Emphasis added)

[19] HKSAR v Abdallah [2009] 2 HKLRD 437 at 446, paragraph 19(9).

[20] Ibid at page 447, paragraph 21.