HKSAR v. LAM MEI CHING BET

CACC 24/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 24 OF 2015

(ON APPEAL FROM HCCC 264 OF 2014)

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D E C I S I O N

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1.  The applicant was charged with trafficking in 95.19 grammes of a crystalline solid containing of 94.54 grammes of methamphetamine hydrochloride. She was tried before V Bokhary J (“the judge”) and a jury and on 19 January 2015 she was convicted of this charge. On the same day she was sentenced by the judge to 11 years’ imprisonment. She subsequently filed a Notice of Application for Leave to Appeal (Form XI) against both her conviction and sentence.

2.  In her Form XI she indicated she wished to apply for legal aid. This application was rejected by the Director of Legal Aid and so the applicant wrote to Mr Eric TM Cheung, a Solicitor Advocate (with higher rights of audience in Criminal Proceedings) and Principal Lecturer in the Faculty of Law of the University of Hong Kong.  He then wrote to the court.  In this way the applicant’s application for an order that she be granted an appeal aid certificate pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D, has come before me.

The prosecution case

3.  The prosecution case was quite straightforward. Plain clothed police officers from the Shatin District Special Duties Squad conducted an anti-dangerous drug operation on the evening of 23 January 2014 and into the early hours of 24 January 2014 in the Kwai Chung area.  There were two teams, one comprising of two officers, namely, PC 3465 Leung Man Tat (PW1) who patrolled with PC 4604 Ng Ka Fai (PW2) in the area of Kwai Fong Housing Estate, and the other comprising PC 6341 Ngan Kwan Yiu (PW3) and WPC 2530 Mok Yuen Ling (PW5) who patrolled in the area of Hing Fong Road together with a Sergeant 53816.

4.  At 00:30 hours on 24 January PW1 intercepted the applicant outside Kwai Kin House, near a park.  They revealed their identity and took her to another location a short distance away where they searched her handbag.  The drugs the subject of the charge were in seven transparent resealable plastic bags which were in a black plastic bag within the applicant’s handbag.

5.  PW1 walked to Kwai Chung police station, which was nearby, to obtain a police vehicle.

6.  When PW1 and PW2 intercepted the applicant, PW2 phoned his Sergeant who was with the other team and informed him of what had happened.  He did so in case they needed the assistance of a woman police officer and there was one in the Sergeant’s team, namely PW5.

The defence case

7.  The applicant did not give evidence but the defence case was put in the cross-examination of the police witnesses.  It was essentially a denial that the applicant had ever been in possession of the dangerous drugs and an allegation that she was being “framed” by the police.  It was put to the police witnesses that the applicant was in fact intercepted by PW3 and PW5, that this took place at a location near a zebra crossing on Hing Fong Road and at a time earlier than 00:30 hours.  PW3 and PW5 then escorted the applicant to the park area of Kwai Kin House.  There, they were joined by PW1 and PW2.  When PW3 and PW5 indicated that they had found nothing, PW1 and PW2 left but returned shortly afterwards.  When they returned, PW2 was holding a black plastic bag which he asserted to the applicant she had thrown away.  Then he alleged that they had found this black plastic bag in the applicant’s handbag.

The application for an Appeal Aid Certificate

8.  The applicant’s application focusses on her appeal against her conviction and originally was based upon an alleged non-disclosure by the prosecution of CCTV footage which had been seized by the police and which might have supported her claim to being intercepted by the police at an earlier time and at another location to that claimed by the police witnesses.

9.  After exhaustive enquiries it became apparent that there had been no seizure by the police of the CCTV footage that the applicant sought to rely upon and even if there had it may not have assisted the applicant in the way that she hoped it would.  On 7 April 2017 I ruled that I would not order that the applicant be granted an appeal aid certificate in order to advance this ground of appeal before the Court of Appeal.

10.  However, part of the applicant’s grounds of appeal had always been a complaint against her counsel Mr Duncan Percy and these complaints now became the focus of the applicant’s application. 

11.  On 7 April 2017 the applicant made additional complaints against Mr Percy and I directed that he be requested to provide a further affirmation in respect of three discrete complaints.  They were:

(i)  his alleged failure to make use of the call records of the applicant’s mobile phone which show that from 00:02 hours on 24 January 2014 all incoming calls were forwarded to voice mail.  This fact, the applicant maintains, would have supported her defence that by 00:02 hours on 24 January she had been intercepted by the police;

(ii)  his alleged failure to make any point of the fact that the fairness of the applicant’s trial and of her ability to defend herself was affected by her inability to produce CCTV footage from Kwai Kin House; and

(iii)  his alleged failure to make any use of the CCTV footage from the car park that was in unused material.

Mr Percy’s reply

12.  Mr Percy has now given two affirmations, one dated 17 November 2015 and one dated 2 May 2017.  His response to each of the three complaints is set out below.

(i)  Alleged failure to make use of the call records

In his first affirmation of 17 November 2015 Mr Percy confirmed that he had received the call log for January 2014 for mobile phone number 69764336 but said that he cannot now recall the relevance of it.  He did not make use of it on either the voir dire or the trial proper.

In his second affirmation of 2 May 2017 Mr Percy affirmed as follows:

“7. I don’t remember reading any instructions explaining why or how the call records could or did support the Defendant’s case that the police team were all lying about the time of interception namely at 00:30 hrs on the 24^th January. The Defendant claims it happened much earlier that night between about 23:55 (23^rd January 2015) -00:02 hrs on the 24^th January 2015. Only she could adduce this evidence by giving evidence and explaining the significance of the call records.

8.  The Defence case was focused on an allegation of ‘frame up’ inside the park when the Defendant was being questioned and searched by police officers, not the time of interception.  I don’t have the advantage of a transcript of my cross-examination but I believe I did follow any instructions provided by putting the Defendant’s instructions of an earlier time to the relevant PWs.”  

(ii)  Alleged failure to assert unfairness from the missing CCTV footage

There was no footage to view and no instructions to explain its unavailability.  He did not consider making a stay application because he had no instructions to do so and in any event he was in no position to claim that the applicant was prejudiced by the absence of the CCTV footage. Given the poorer lighting conditions in the small park and the presence of trees it was unlikely this footage would have revealed anything useful.  He was of the view that the applicant would still be able to receive a fair trial even without the CCTV footage.

(iii)  Alleged failure to make use of the car park CCTV footage

Mr Percy viewed the footage of the car park that was in unused material and said that it did not show anyone being arrested, it did not show a person being surrounded by others and there was no clear image of the applicant.  He confirmed he had seen this material prior to trial but formed the view that there was no point seeking to introduce it into evidence as it could not be helpful to the defence. 

The applicant’s submissions

13.  Since being served with Mr Percy’s affirmation the applicant has written to the court on 18 May and filed an affirmation dated 6 June 2017.  After the conclusion of the hearing the applicant wrote to the court on 23 July, 10 and 29 August.

14.  In her letter of 18 May she referred to the instructions she gave to CK Mok & Co in preparation for trial in which she claimed that she was intercepted at 23:50 hours.  Yet, as the transcript shows, Mr Percy put her case to PW1 as being that she was intercepted at 10 minutes past midnight.

15.  She also said that in her amended instructions she claimed she left the scene and moved towards the roundabout instead of Hing Fong Road but counsel put to PW1 that she was brought to the police van parked on Hing Fong Road.  She claimed she had never reached Hing Fong Road.

16.  The applicant complained that in respect of the time that she was intercepted and in respect of the route taken to leave the park Mr Percy departed from her instructions thereby rendering the CCTV irrelevant and immaterial.

17.  She also said that it was not her intention not to give evidence and blamed her counsel for her not testifying.  She also criticized his final submission for not fully setting out the inconsistencies in the evidence of PW1 and PW2.

18.  She concluded her letter by saying that she “could not have a fair trial due to the counsel’s fault.”

19.  In her affirmation of 6 June 2017 she exhibited her instructions to CK Mok & Co, a sketch of the crime scene (P26B), telephone call records and a CSD list of her counsel’s visits.  Her instructions are made up of several documents and were sent to the Director of Legal Aid in a letter dated 4 September 2015.  Paragraph 3 of that letter lists out nine separate documents numbered (i)-(ix).  In one of the documents bearing the handwritten numbers 3(viii) the applicant said:

“3. At around 23:35 hours on 23 January 2014, I left home and took a taxi to Kwai Fong Estate. When I alighted from the taxi at a traffic light junction opposite McDonald’s, I was intercepted by a woman police officer. I was not intercepted in a park. They said they needed to search my body, then I was taken to a park. The time was not 00:30 but 23:50 hours or so. These could be supported by the CCTV of my house and the CCTV of the carpark and the phone record of my mobile phone.”

20.  Also attached to the affirmation was a written submission dated 5 June 2017.  In this submission she repeated the complaints that she made in her letter of 18 May 2017.

21.  In court the applicant further submitted that the CCTV footage from the car park showed that the police had been telling lies.  She also agreed that she had been told that if she wanted to adduce evidence of the call records she would have to testify.  But she then raised the issue of whether her daughter could have given a statement.

22.  In her letter of 23 July she claimed that the car park CCTV footage supported her case and contradicted the evidence of PW1 and PW2.

Discussion

23.  In respect of the call records, Mr Percy is correct.  On their own they have no probative value.  They help explain the defence case but they require the applicant to give evidence and say that the only reason incoming calls were not picked up by her by 00:02 hours on 24 January was because she was in police custody and no longer able to access her phone.

24.  The decision not to make a stay application and not to make a forensic point of the missing CCTV footage were very much decisions for counsel to make in the exercise of his professional judgment and I am not persuaded that the applicant has a basis for arguing that these decisions were incompetently made.

25.  As to the CCTV footage in unused material, I have also viewed it and I agree it would be of very little, if any, evidential value.  Again, the decision not to make use of it was an exercise of professional judgment and I see no basis for arguing that this decision was an incompetent exercise of judgment.

26.  What is of concern to me is that when cross-examining PW3 and PW5 Mr Percy appears to have put to them a case different from his instructions.  The relevant part of the cross-examination of PW3 was as follows:

“Q. So you know the area. So did you patrol with your colleagues up on the left-hand side of this road and the right?

A. Yes.

Q. And you did so for about an hour and three quarters?

A. Yes.

Q. Right. On the very left of this first Google maps plan or street plan, on the very left you can see a 7-Eleven convenience store, can you see that?

A. I see that.

Q. And you’ve past with your female colleague that area, is that right?

A. Yes.

Q. And again in this photograph you see there’s a zebra crossing linking McDonalds on the one side of the road with the housing estate on the other?

A. Correct.

Q. And then if you proceed across, as it were, the zebra crossing and you turn left, according to this photograph, there is a like a bin just above the nose of the taxi, you see?

A. Yes, I see that.

Q. I suggest that it was at about 10 minutes past midnight that you came across the defendant, that is the lady in the dock here, you first spotted her standing at that location, close to that location?

A. Disagree.” (Emphasis added.)

27.  The relevant part of the cross-examination of PW5 was as follows:

“Q. If you look at the first photograph there’s a zebra crossing between McDonalds and the estate, do you see that?

A. I see that.

Q. And if you could rest, as it were, along the pavement, just outside the Kwai Fong Estate and walk towards the taxi, as it were, you see there’s a rubbish bin there, appears to be a rubbish bin on the pavement?

A. Yes, I see that.

Q. I suggest to you that on this night about quarter-past – 10 past midnight, quarter-past midnight, that’s where you first came cross the defendant and you stopped her at that point?

A. Disagree.” (Emphasis added.)

28.  Had Mr Percy laboured under a mistaken understanding that the applicant’s case was that she was intercepted after, rather than before, midnight, then that would explain why he did not appreciate the significance of the applicant’s mobile phone records.  Had he appreciated the potential support they could give to the applicant’s case it might have affected the way he conducted the trial and the legal advice he gave to the applicant on whether she should testify in her defence.

29.  These are matters which the applicant intends to rely on in her appeal and so are matters the Court of Appeal will have to explore.  In order to assist the applicant and the Court of Appeal I believe it is appropriate to grant her an appeal aid certificate in respect of her application for leave to appeal against her conviction. 

30.  The applicant is also applying for leave to appeal against her sentence.  I shall, therefore, consider whether I should also grant her an appeal aid certificate in respect of her sentence appeal. 

31.  The applicantwas sentenced to 11 years’ imprisonment for trafficking in 94.54 grammes of Ice.  As the offence occurred before the decision of the Court of Appeal in HKSAR v Tam Yi Chun[1], the applicant fell to be sentenced under the guideline contained in the Court of Appeal’s judgment in Attorney General v Ching Kwok Hung[2]  This judgment lays down a guideline sentencing range of 10 to 14 years’ imprisonment for persons convicted after trial of trafficking in a quantity of between 70‑300 grammes of Ice.  An arithmetically calculated starting point for this quantity of drugs produces a period of 10 years 5 months’ imprisonment which is 7 months less than the starting point adopted by the judge. 

32.  Nothing was said by the judge to indicate how she determined her sentencing starting point of 11 years’ imprisonment but she did make clear that she was not enhancing her starting point to allow for the presence of any aggravating factor.  She said:

“…Having regard to the quantity of drugs in which you unlawfully trafficked, namely 95.19 grammes of a crystalline solid containing 94.54 grammes of methamphetamine hydrochloride, I consider a term of 11 years to be the appropriate starting point. There is no aggravation calling for an increase nor any mitigation calling for a decrease.

I therefore sentence you to 11 years’ imprisonment.”

In these circumstances the applicant may have a reasonably arguable ground of appeal in respect of the length of her sentence and so I am satisfied that it is appropriate to grant her an appeal aid certificate in respect of her application for leave to appeal against her sentence.

Conclusion

33.  For these reasons I grant the applicantan appeal aid certificate in respect of both her application for leave to appeal her conviction and her application for leave to appeal her sentence.

[1] [2014] 3 HKLRD 691