HKSAR v. RODIN

CACC 403/2017

[2022] HKCA 1776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 403 OF 2017

(ON APPEAL FROM HCCC NO 29 OF 2017)

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J U D G M E N T

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1.  On 7 November 2017, the applicant was convicted after trial before Deputy High Court Judge Saw and a jury of a single count of trafficking in a dangerous drug, namely 1,023.4 grammes of a solid containing 825.1 grammes of cocaine.

2.  On 22 November 2017, the applicant was sentenced to 22 years’ imprisonment.  He provided two non-prejudicial statements on 15 and 20 November 2017, in which he gave details of two persons he alleged recruited him and organised his trip.  His defence at trial was that these two people had set him up.

3.  On 18 December 2017, the applicant applied for leave to appeal against conviction.  On 21 August 2018, the applicant applied for leave to appeal against sentence out of time.

The prosecution case

4.  On 11 June 2016, the applicant, a Madagascan, arrived in Hong Kong on board a flight from Addis Ababa in Ethiopia via Nairobi, Kenya.  He was stopped and taken to customs clearance. 

5.  The applicant had with him a suitcase and a black shoulder bag, in which there was a brown wallet that was unusually heavy. An X­ray examination of the brown wallet showed something concealed inside its lining.  The inside of the lining was checked and found inside was a white powder that proved to be 66.4 grammes of a solid containing 54.l grammes of cocaine.

6.  A further examination of the applicant and his belongings was conducted.  The applicant’s shoes were also unusually heavy.  There was a layer inserted between the insole and sole of the shoes.  An examination of this layer in each shoe revealed that it contained a white powder.  In one shoe, the white powder proved to be 478 grammes of a solid containing 388 grammes of cocaine.  In the other, 479 grammes of a solid containing 383 grammes of cocaine.

7.  The total quantity of cocaine narcotic found in the possession of the applicant was 825.1 grammes of cocaine, which had an estimated street value of $1,201,471.60.

8.  The defendant was arrested, and his belongings, including a mobile telephone, were seized.  The mobile telephone contained the details of a person called “Annie” and the call logs as well as WhatsApp communications between Annie and the applicant.

9.  In one of the WhatsApp messages, Annie asked the applicant, “Are the shoes heavy?”  The applicant’s reply was “Very heavy”. Annie’s subsequent reply was, “Be courageous”.

10.  In another WhatsApp message, Annie said to the applicant, “Don’t worry too much because they won’t let their item get lost without reason, then they’ll take care of the rest.”

11.  It was the prosecution case that the applicant knowingly brought dangerous drugs into Hong Kong.[1]  

The defence case

12.  The applicant elected to give evidence and did not call any defence witnesses.  His case was that he was a victim of a scam and had been set up as a dupe, unbeknownst to him, to bring to Hong Kong a significant quantity of cocaine.[2]

13.  According to the applicant, Annie was his cousin who introduced him to the general manager of a well-known company in Madagascar.  His cousin’s full name was Ms Razafindralaza Verohanitra Irinah Annie (Annie), and the general manager’s name was Mr Rakotonirina Jean De Dieu (Jean de Dieu).  The applicant was hired by Jean de Dieu as a representative of the company to visit clients in different regions, including Hong Kong.  Soon after he was employed, the applicant was informed by Jean de Dieu that he would be sent to Hong Kong the next day[3]. The applicant was taken to have a haircut, and provided with an air ticket, a uniform and a pair of shoes he wore during his trip to Hong Kong.  The applicant was also given a brown wallet with USD$1,500 in it.  He transferred the money into his own wallet but kept the brown wallet in his black shoulder bag.

14.  The applicant testified that he did not know that dangerous drugs were concealed in the brown wallet and the shoes.  He said he did not look at the brown wallet after he had put it in his black shoulder bag, nor did he notice anything unusual about the shoes.  He believed the shoes weighed as they did because they were new and of high quality.  In the WhatsApp messages, the applicant said he spoke French, and from where he came from when they refer to an item of high-end quality, they refer to it as being “heavy”.  When Annie asked him to “be courageous”, he understood it as meaning “enjoy yourself, be happy.”  As for Annie’s message, “don’t worry too much because they won’t let their item get lost without reason, then they’ll take care of the rest.”  The applicant understood her as saying they would look after him because they had invested money in him.[4]

The leave applications

15.  In support of his application in December 2017 for leave to appeal against conviction, the applicant stated that the general manager of the company who had sent him to Hong Kong was arrested in Madagascar and had made a full admission to the authorities and was awaiting sentence by the court.  In his later application in August 2018 for leave to appeal against sentence out of time, the applicant stated that he provided information to Customs officers regarding the persons who had recruited him, providing the full names of Jean de Dieu and Annie.  In December 2017, he received information from a very close friend that Jean de Dieu had been arrested in Madagascar and that he had revealed the truth about his case to the police and the court in Madagascar in April 2018.

16.  It would appear in the light of the applicant’s claims that he had been set up; he was granted legal aid on 20 November 2018.  The legal representatives assigned to the applicant were Mr Hanif Mughal of counsel and Messrs Morley Chow Seto, instructing solicitors.  On 4 May 2021, Mr Mughal filed a single perfected ground of appeal against conviction.  It was stated:

“There were many protracted attempts to obtain relevant documentation from the Madagascar authorities about judicial proceedings concerning both Jean De Dieu and Annie.  In March 2021 a copy of the criminal judgment (No 071-MS3 of 10 July 2018)  (the “Malagasy Judgment”)  from the Judiciary in the Republic of Madagascar was obtained.  This is a judgment of the Court of First Instance of Antananarivo of the Republic of Madagascar in Director of Public Prosecutions and Rodin v Rakotonirina Jean de Dieu & Razafindralaza Verohanitra Irinah Annie (Case No 5545-RP/18/FAME).  Both Jean De Dieu and Annie were convicted and sentenced for illicit drug trafficking by sending the applicant to Hong Kong carrying 1 kilogramme of cocaine by concealing the same in the shoes and bag of the applicant without his knowledge.”

17.  It was also stated that pursuant to the provisions of section 83V of the Criminal Procedure Ordinance, Cap 221, and the applicant would apply by Notice of Motion at the hearing of the application for leave to appeal to admit and receive into evidence the Malagasy Judgment as fresh evidence.

18.  The sole ground of appeal complained that the conviction of the applicant was unsafe and unsatisfactory in light of the Malagasy Judgment, and it would be a substantial and grave injustice if the conviction was upheld in the material circumstances of the fresh evidence. 

19.  Regarding the sentence appeal, a single perfected ground of appeal was filed on 25 April 2019.  It was complained that the judge had not given appropriate allowance when sentencing the applicant for the assistance he had rendered to the authorities.  This was later amended on 27 May 2021, adding a further ground that in light of the Malagasy Judgments, the information provided by the applicant was of practical use to the relevant authorities.

20.  As is apparent, the leave applications against conviction and sentence are premised on two copies of purported court decisions from Madagascar.  Hong Kong Customs shared with the United States authorities the information supplied by the applicant, but it did not match any information on their database and was of no use.  As there are no formal arrangements between Hong Kong Customs and the Madagascan authorities, a request was made with the Drug Enforcement Administration of the United States to check the authenticity of the two judgments.  After an inquiry with the court in Madagascar, it was confirmed that the two copy judgments were “fake judgments”.  The court confirmed that the judgment bearing no 071-Ma S3 did not exist, and according to the Head Clerk’s office minutes, it concerned a pre-trial decision of a rape case; and the correctional trial bearing no 69-MS3 was a forgery, and there was no such thing as a correctional trial under the Malagasy Criminal Procedure Code.  It was also pointed out that the stamp and the signature of the Head Clerk affixed to the documents were different from the ones used by the Head Clerk’s office.

21.  The applicant’s legal representatives requested and were granted time to consult him about this development.  On 8 December 2021, legal aid was discharged, and legal representatives ceased acting for the applicant. 

22.  In response to the allegation that the judgments were false, the applicant, in a letter dated 20 May 2022 maintained his leave application and requested that fresh evidence be taken from four witnesses, namely, Jean de Dieu, Annie, and two other persons who reside in Madagascar. Of the judgments, he said inquiries had been made with the wrong court, and the case number 071-Ma S3 referred to by the court in Madagascar was different to 071-MS3, which was the number on one of the judgments.  At the leave hearing, he said his brother sent the judgments to him and his previous solicitors.  He said he had no idea if they were false.  He also said that he had evidence from the two people he claimed had set him up, Jean de Dieu and Annie, who were prepared to testify to this effect.  His wife and a friend, who saw what happened at his home regarding the offence.  In all this time, he had not provided any credible material in support of this new evidence, except for a statement dated 1 October 2022, purportedly from his wife, in which she said that she was present throughout the applicant’s dealings with Jean de Dieu and Annie and is prepared to give evidence on his behalf.

23.  On 21 November 2022, the applicant submitted a letter to the court requesting that the following be called to give fresh evidence via video link: Rakotonirina Jean de Dieu; Razafindralaza Verohanitra Irinah Annie; Mahatsara Sandrice Andreas Josiane (the applicant’s wife); and Tongazara Julio (the applicant’s friend).  He stated that none of the witnesses, who were all in Madagascar, could attend Hong Kong to give evidence.  He explained that Jean de Dieu and Annie were both in prison custody; his wife could not travel because she did not have a passport, and his friend was a doctor in a hospital and could not leave because of his work.

24.  As stated by the respondent, the two copy judgments are not credible and, in the circumstances, do not satisfy the requirements to be received as fresh evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221.  Nor do the copy judgments comply with section 31 of the Evidence Ordinance, Cap 8, concerning the admissibility of a foreign judgment in the courts of Hong Kong. 

25.  I have serious doubts about the credibility of the information and materials that the applicant has submitted in support of his two leave applications.  The circumstances surrounding the making and production of the two copy judgments are highly suspicious, and for that reason, I direct that this judgment be supplied to the Director of Public Prosecutions for her consideration.  

Conclusion

26.  I do not consider that there is any merit in the appeal against conviction, given that it is based on two copy judgments which, on the uncontradicted information before the court, are false.  Similarly, the appeal against sentence (out of time)  is devoid of merit and unsustainable.[5]

27.  Accordingly, leave to appeal against conviction and sentence out of time is refused.

Loss of time

28.  As I have stated, there are serious doubts as to the credibility and veracity of the information and materials submitted by the applicant to the court in support of his application.  From what is known, it appears that the two copy judgments were fabricated in order to falsely support the applicant’s appeal against conviction and sentence (out of time).  In circumstances where the appellate court has reasonable grounds to believe that misinformation or false information has been submitted to the court to support an appeal against conviction or sentence, this will provide a strong ground to make a loss of time order.  I invited and received a submission from the applicant on whether a loss of time order of 3 months should be made against him.  Despite official confirmation from the Court of Madagascar that the two copy judgments were false, the applicant still proceeded to justify his application based on this material. 

29.  As revealed by the annexure to this judgment, a chronology of the Court’s correspondence with the applicant, an enormous amount of time and effort has been spent on the applicant’s case that has clearly been unnecessary and wasteful.[6]

30.  For the above reasons, I order that 3 months of the time that the applicant has been in custody since the filing of the notice of application for leave to appeal against conviction and sentence (out of time)  is not to be reckoned as part of the sentence to which he is subject.

31.  The applicant is reminded of his right to renew his application for leave to appeal against conviction and sentence (out of time)  to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a further direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his applications.

Chronology of correspondence

Date	Sender of the letter: Court  Morley Chow Seto (MCS)  Applicant Department of Justice (DOJ) Legal Aid Department (LAD)	Content of the letters
18 December 2017	Applicant	The applicant filed a Form XI for leave to appeal against his conviction. He asked the Court to believe the information he had received from his close friend that the “director” who sent him to traffick the drugs was arrested in his country.
4 July 2018	LAD	Notice of refusal of legal aid
1 August 2018	Court	A Notice of Hearing For Mention was issued to parties for the hearing fixed for 5 September 2018.
8 August 2018	Applicant	The applicant sought to adjourn the mention hearing because he was waiting for some documents from the court in Madagascar which would be sent to Hong Kong.
13 August 2018	Applicant	To support his application for an adjournment, the applicant further said that he was refused legal aid and he had lodged an appeal against the legal aid’s decision. The applicant attached a letter written by Mr James McGowan, counsel at trial, inviting the Legal Aid Department to grant him legal assistance in light of the circumstances.
21 August 2018	Applicant	The applicant filed a Form XI for leave to appeal against his sentence out of time. In his homemade grounds, the applicant mentioned two persons, Mr Rakotonirina Jean de Dieu, the director who recruited the applicant, and his cousin Razafindralazi who introduced the director to him. (“the two persons”) He claimed he learnt from his close friend and his family in December 2017, that Jean de Dieu was arrested in Madagascar and had told the truth to the police. An affirmation was attached to explain the delay. The applicant explained that an officer from LAD advised him to apply for leave to appeal against both conviction and sentence to obtain legal aid.
23 August 2018	Court	Cheung CJHC directed the mention hearing be vacated.
20 November 2018	LAD	LAD issued an appeal aid certificate to the applicant.
23 November 2018	LAD	LAD issued an amended appeal aid certificate, assigning MCS as the applicant’s solicitors and Mr Hanif Mughal as the applicant’s counsel.
10 December 2018	MCS	MCS requested a transcript of the closing speeches of both prosecution and defence at trial.
13 December 2018	Court	Master Cheung directed the transcript of the closing speeches be obtained and included in the Appeal Bundle. She also directed the applicant to file a Perfected Grounds of Appeal (“PGA”)  within 28 days upon receipt of the updated Appeal Bundle
8 February 2019	MCS	MCS requested an 8 weeks’ extension of time to file PGA. MCS explained that they were making enquiries with the Consulate of the Republic of Madagascar in Hong Kong, and with the Madagascar Embassy in Beijing regarding the information and assistance rendered by the applicant.
12 February 2019	Court	Master Cheung directed the applicant to file PGA no later than 12 April 2019 and directed parties to file written submissions.
12 April 2019	MCS	MCS requested the following items be included in the Appeal Bundle 1.  Non-prejudicial statement (“NPS”)  taken from the applicant on 15 November 2017 2.  Letter from the DOJ to the LAD dated 22 October 2018; and  3.  Letter from the DOJ to the LAD dated 14 November 2018.
18 April 2019	Court	Master Cheung directed the applicant, inter alia, to clarify the content to be included in the Appeal Bundle; and reminded the applicant to apply for leave to adduce fresh evidence if the materials had not been produced at trial.
25 April 2019	MCS	MCS filed PGA against sentence and written submissions for the leave application.
25 April 2019	MCS	MCS filed a notice of motion to admit new evidence. In two attached letters which were sent from the DOJ to the LAD by Ms Claudia NG, Senior Public Prosecutor, provided the following information. In the first letter, dated 22 October 2018, the U.S. Immigration and Customs Enforcement confirmed with the Customs and Excise Department of Hong Kong that the information provided by the applicant was not useful as to the date of the letter. No reply was received from U.S authorities. The second letter, dated 14 November 2018,  stated that the information provided by the applicant to the Customs and Excise Department of Hong Kong (“C&E”)  had not been passed to Madagascar authorities because there was no established official contact point.Therefore, C&E considered it appropriate to pass the information to U.S. Immigration and Customs Enforcement, and US Drug Enforcement Administration.
3 May 2019	Court	Master Cheung directed the two NPS, one on 15 November 2018 and the other on 20 November 2018, and the cover report attached (collectively marked as MFI-13)  to be included in the Appeal Bundle. She reminded the applicant that only PGA against sentence had been filed, and to file a PGA against conviction within 14 days of  the letter.
4 June 2019	MCS	MCS informed the Court that the applicant would argue his appeal against conviction by himself; and the applicant would request additional time to prepare his grounds of appeal against conviction.
11 June 2019	Court	Master Cheung directed the applicant to file PGA against conviction no later than 24 June 2019. She further gave a filing direction for written submission.
17 June 2019	Court	The Court issued a Notice of Hearing for leave to appeal against conviction and sentence fixed for 11 October 2019.
25 June 2019	MCS	MCS sought a further extension of time to file PGA, on the ground that the solicitors and the applicant were obtaining information from Madagascar to support his application for leave to appeal against conviction and sentence.  The solicitors explained that circumstances in Madagascar had caused difficulty obtaining the information.
2 July 2019	Court	Master Cheung directed the applicant, inter alia, to file PGA against conviction within 14 days of the letter.
17 July 2019	MCS	MCS sought a further extension of 2 months to file PGA and submission for his appeal against conviction. MCS was of the view that the information might have potential significance that the applicant might not be guilty of the convicted offence.
17 July 2019	MCS	MCS requested the Court to provide a copy of MFI-5 to the applicant (a letter from Father John Wotherspoon dated 3 November 2017).
24 July 2019	Court	Master Cheung considered the letter dated 17 July 2019 and the Notice of Motion, and she gave the following directions: 1.  The applicant is to file PGA against conviction in 14 days, to file and serve written submission in 21 days; 2.  MFI-5 be provided; and 3.  The applicant is to file an affirmation to support the notice of motion to admit new evidence which was filed on 25 April 2019.
8 August 2019	MCS	MCS sought an extension of time to file PGA, on the ground that the solicitors were being informed by the applicant’s family that the authorities of Madagascar had arrested “the two persons”, and they had given a detailed confession exonerating the applicant. They indicated that they would like to wait for the official documents before drafting a PGA for the appeal against conviction.
13 August 2019	Court	Master Cheung gave the following directions to the applicant, inter alia: 1.  The applicant’s solicitors to confirm whether the applicant would act in person in his application for leave to appeal against conviction. 2.  The applicant is to file PGA against conviction before 10 Sep 2021.
18 August 2019	MCS	MCS confirmed that they remained instructed by the LAD for the applicant’s application for leave to appeal against conviction.
9 September 2019	MCS	MCS sought an extension of time to file PGA and apply to vacate the hearing fixed for 11 October 2019. MCS explained that they had yet to receive further information from Madagascar. Therefore, they were not in a position to draft the PGA.
11 September 2019	Court	Master Cheung refused the application to vacate the hearing. She reminded the applicant that if they were minded to re-apply to vacate the hearing, they shall explain the nature and relevancy of the forthcoming evidence to the application for leave to appeal against conviction and sentence.
13 September 2019	MCS	MCS replied to the direction given on 11 September 2019: The purported evidence would show the applicant’s lack of knowledge of the drugs found. Secondly, the solicitors had written letters to verify the truthfulness of the information provided by the applicant to both Consulate of Madagascar in Hong Kong and the Embassy of Madagascar in Beijing, pending responses. The applicant’s solicitors were of the view that the official record/ judgment would have a crucial bearing on the appeal against conviction.
27 September 2019	Court	Master Cheung directed that the hearing fixed for 11 October 2019 be vacated and the applicant’s solicitors to report to the Court about the progress of the matter in 28 days.
23 October 2019	MCS	MCS reported that they had not received any information about “the two persons”, so they could not prepare the PGA.
30 October 2019	Court	Master Cheung directed the applicant to report the progress of the matter in 8 weeks. She reminded the applicant that the Court was minded to fix a hearing date upon the expiration of the 8-week period unless significant progress in the matter could be shown.
20 December 2019	MCS	MCS informed the Court that having been instructed by the applicant, the relevant court hearing in Madagascar was adjourned for unknown reasons.  Therefore, MCS was unable to report significant progress. MCS undertook to write to the Court in the week commencing on 6 January 2020 after a legal visit with the applicant.
6 January 2020	MCS	MCS informed the Court that the applicant was seeking further information regarding the date of the hearing in Madagascar and the reason for adjournment by telephone with his family in Madagascar.
13 January 2020	Court	Master Cheung, inter alia, reminded that the applicant’s legal representatives should assist the applicant in making enquires and obtaining information from the court and the authorities concerned in Madagascar.
7 February 2020	MCS	MCS informed the Court that, according to the instructions from the applicant, the prosecutor in Madagascar had asked for a 6-months adjournment for further investigation of the two persons. Furthermore, the applicant had asked his lawyer in Madagascar (via his family)  to write to MCS. However, MCS has not yet received any correspondence.
28 February 2020	MCS	MCS informed the Court that they had not heard further from the applicant’s lawyer in Madagascar. MCS sought further direction.
13 March 2020	MCS	MCS informed the Court that they had received an email address and phone number of the applicant’s lawyer in Madagascar from the applicant.
20 March 2020	MCS	MCS informed the Court that they had tried to communicate with the applicant’s lawyer in Madagascar by telephone, text and email, but to date, they were unable to contact the lawyer.
27 March 2020	MCS	MCS informed the Court that they were still unable to communicate with the applicant’s lawyer in Madagascar.
10 June 2020	Court	Master Cheung reminded the applicant that, after nearly a year, the applicant had not demonstrated any significant progress in obtaining the purported information. As the parties had filed written submissions for sentence application, the Court is minded to list the case for hearing after 28 days of this letter.
23 June 2020	MCS	MCS sought a further extension of time to file PGA. MCS had instructions from the applicant that all courts in Madagascar had remained closed until 7 September. The applicant’s family had not been able to communicate with the lawyer in Madagascar. The applicant told the MCS that if he could not communicate with his lawyer in Madagascar, he would approach another lawyer for follow-up.
2 July 2020	Court	Master Lee stated in his direction to the parties that the status of the case was far from satisfactory.  Nevertheless, the Court granted the applicant a final extension of time to file PGA on or before 21 September 2020. The Court would list the case for a hearing for leave application after 21 September 2020 without further notice.
23 September 2020	MCS	MCS wrote to the court, inter alia, seeking a further extension of time to file PGA on or before 30 November 2020 with reasons. The applicant had instructed MCS that the hearing in Madagascar had been fixed for two days on 5 and 6 November 2020, and MCS would be informed of the findings of the case.
25 September 2020	Court	Master Lee granted the applicant’s application for an extension of time to file PGA on or before 30 November 2020. He nonetheless indicated that there would be no more extension of time unless for an exceptional and compelling reason.
25 November 2020	MCS	MCS filed a letter to the Court with two attachments: (1)  purportedly a criminal judgment, written in French, from the Court of Madagascar of the two persons - RAKOTONIRINA Jean de Dieu and RAZAFINARALAZA Verohanitra Irinah Annie concerning a case of exportation and international transportation of high-risk drugs; and (2)  an English translation of the said judgments prepared by MCS. MCS sought a final extension of time to take further instructions and discuss with the counsel how the materials would affect the appeal.
3 December 2020	Court	Master Lee granted the applicant an extension of time to file PGA on or before 31 December 2020.
4 January 2021	MCS	MCS requested a further extension of time to file PGA. After visiting the applicant in prison on 31 December 2020, the applicant instructed MCS that the applicant’s family had already requested additional materials from the courts of Madagascar, including the transcript of the proceedings, original judgment and affidavits.
8 January 2021	Court	Master Lee directed the applicant to file PGA on or before 5 March 2021.
5 March 2021	MCS	MCS requested an extension of time to file PGA. MCS was still waiting for the materials from Madagascar. An acquaintance of the applicant informed the MCS that the lawyer in Madagascar had dispatched the additional materials, and MCS was expecting to receive them in a week’s time.
9 March 2021	Court	Master Lee granted the application and directed the applicant to file PGA on or before 12 April 2021.
12 April 2021	MCS	MCS requested a final extension to file PGA for 3 weeks. MCS received a batch of documents from the applicant. The two sets of documents were attached to the letter.  (One appeared to be some Court documents, and the other was the English translation of the purported court documents.)
15 April 2021	Court	Master Pang granted the applicant an extension of time to file PGA on or before 5 May 2021.
4 May 2021	MCS	The applicant filed a PGA against conviction.
17 May 2021	Court	Master Pang directed MCS to confirm whether the applicant sought to amend the PGA against sentence dated 8 April 2019 in light of the two sets of documents filed by the applicant on 12 April 2021. He further reminded MCS that they should file a proper application to adduce fresh evidence pursuant to s.83V of Cap 221 by notice of motion and supported by an affidavit or affirmation within 14 days.
24 May 2021	MCS	MCS indicated they would amend the PGA.
31 May 2021	MCS	MCS filed a drafted amended PGA against sentence with a Second Notice of Motion to file fresh evidence. The Notice of Motion included two judgments from Madagascar as exhibits.
7 June 2021	Court	Macrae VP granted the applicant leave to amend the PGA.
7 June 2021	MCS	MCS filed an Amended PGA against sentence
11 June 2021	Court	Master Pang directed the respondent to file and serve on the other party additional information relevant to the application for leave to appeal against conviction and sentence within 28 days and reminded the respondent to follow the procedures laid down in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516.
8 July 2021	DOJ	The respondent sought a 3-month extension of time to file additional materials in order to have sufficient time for the Hong Kong Customs and Excise Department to be in a more informed position.
13 July 2021	Court	Master Pang granted a 3-month extension of time to the respondent.
13 September 2021	DOJ	The respondent filed a set of confidential information with the Court. A statement was made by a Customs Inspector Chung, inter alia, stating that the Hong Kong Customs had sent a set of documents including “Engrossment of Judgment (0-71-MS3, case no. 5545-RP/18/FAME)  and Correctional trial (69-MS3)” to the DEA, requesting verification of their authenticity. A reply letter from the Head Clerk of the Court of First Instance of Antananarivo, confirmed that (1)  the judgment did exist, but related to a rape case “with different subjects” (apparently different defendants); (2)  there was no “Correctional trial” under the Malagasy Criminal Procedure Code; and (3)  the stamp and the signature of the Head Clerk were extremely different from the ones used in their office. It was confirmed that the documents were fake.
20 September 2021	Court	Master Pang directed the applicant to provide a proposal on the future conduct of the case within 14 days in view of the disclosed documents.
21 September 2021	MCS	MCS sought an extension of time of 28 days to translate the document into French for taking further instruction.
4 October 2021	Court	Master Pang granted 28 days extension of time.
31 October 2021	MCS	MCS sought a final extension of time for 8 weeks. MCS was instructed that the applicant was liaising with his family and lawyer in Madagascar, and the Madagascar Embassy in Beijing, to seek clarification “on the documents purportedly issued by a Madagascan Court which appear to have been forged”.
9 November 2021	Court	Master Pang granted the applicant an extension of time of 8 weeks, and directed the applicant shall report to the Court in writing the progress of the matter.
8 December 2021	LAD	Notice of discharge of legal aid was issued.  MCS ceased acting for the applicant.
31 December 2021	Court	Direction by Master Pang: “In view of the discharge of the legal aid certificate by the Department of Legal Aid, the applicant shall confirm in writing, within 14 days from the date of this letter, whether he will adopt any of the following documents filed by the applicant’s then counsel in appeal in his application for leave to appeal: 1.  Perfected Grounds of Appeal against conviction filed on 4 May 2021 2.  Perfected Grounds of Appeal against sentence out of time filed on 7 June 2021; 3.  Written submissions for the original Perfected Grounds of Appeal against sentence out of time filed on 26 April 2019 4.  1st notice of motion to admit new evidence filed on 25 April 2019; and  5.  2nd Notice of motion to admit new evidence and the associated affirmation of the applicant filed on 27 May 2021.”
8 January 2022	Applicant	The applicant requested a copy of the documents mentioned in the direction dated 31 December 2021.
9 February 2022	Court	Master Pang directed the applicant to settle a payment of a $288 copy fee for obtaining copies of the documents.
31 March 2022	Court	Master Chung directed that: “Up to the date of this letter, the Court has not received any notification that the applicant has settled the payment for copies of the following documents filed by his previous legal representative for his appeal, namely: 1.  Written submissions for the original Perfected Grounds of Appeal against sentence out of time filed on 26 April 2019 2.  1st notice of motion to admit new evidence filed on 25 April 2019; and  3.  2nd Notice of motion to admit new evidence and the associated affirmation of the applicant filed on 27 May 2021. The applicant shall within 14 days from the date of this letter reply to the Court in writing confirming whether (1)  he requires copies of the said document and (2)  he is willing to pay the relevant copying charge of HK$288.”
12 April 2022	Applicant	The applicant settled the copy fee.
12 April 2022	Court	Court sent a copy of the documents to the applicant.
2 May 2022	Applicant	The applicant sought clarification of the previous direction from the Court
16 May 2022	Court	Master Chung directed the parties, inter alia, the followings: “Up to the date of this letter, the Court has not received any confirmation from the applicant on whether he will adopt any of the documents filed by the applicant’s previous legal representative for his appeal. It has already been more than 4 years since the applicant was convicted in 2017. The case shall be listed with a time estimate being 1.5 hours. The applicant shall, within 14 days of the date of this letter, file his grounds of appeal and written submission in respect of his applications for leave to appeal against conviction and for leave to appeal against sentence out of time, in replacement of all grounds of appeal and written submissions filed by his previous legal representative. The grounds of appeal and written submission shall be a single document not exceeding 15 pages. The respondent shall within 28 days from the date of this letter, file its written submission…”
20 May 2022	Applicant	The applicant applied to the Court to call four witnesses to give evidence at the leave hearing via live television link,and provided a response to the C&E statement.
29 June 2022	Court	Notice of Hearing Hearing fixed for 29 November 2022
5 July 2022	Applicant	The applicant filed a set of handwritten submission.
8 August 2022	Bar Free	The Bar Free Legal Service Scheme asked the applicant to provide further documents to support his application.  The letter was copied to the Court.
15 September 2022	Bar Free	The Bar Free Legal Service Scheme refused the applicant’s application, and reminded the applicant of the risk of loss of time order in unmeritorious cases. The letter was copied to the court.
15 November 2022	Applicant	The applicant applied for the Court’s leave for his wife to give evidence at the leave hearing via live television link.