HKSAR v. IP TSZ YAU

CACC 199/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 199 OF 2015

(ON APPEAL FROM DCCC NO 70 OF 2015)

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REASONS FOR JUDGMENT

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

1.  The appellant faced a charge of assaulting a police officer in the execution of his duty (“Charge 1”), contrary to section 63 of the Police Force Ordinance, Cap 232; and two charges of trafficking in a dangerous drug, namely, 154 grammes of a powder containing 113.1 grammes of ketamine (“Charge 2”) and 11.7 grammes of a powder containing 8.2 grammes of ketamine (“Charge 3”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the charges. On 28 May 2015, after a trial before HH Judge Douglas Yau (“the judge”) in the District Court, the appellant was convicted of Charges 1 and 2; while, in respect of Charge 3, the appellant was convicted of the lesser charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance. He was sentenced to an overall sentence of 7 years’ imprisonment.

2.  At the hearing, we allowed the appeal, quashed the appellant’s convictions and ordered a retrial.  We said that we would give reasons for our decision in due course.  This, we now do.

3.  On 22 December 2016, leave to appeal against conviction was granted by the Single Judge[1] in respect of all four grounds of appeal, which are before us in this appeal.  In pursuing this appeal, application is made on the appellant’s behalf for the admission of various documents, to which we shall later refer, under section 83V(1)(a) of the Criminal Procedure Ordinance, Cap 221.  A similar application to adduce fresh evidence in relation to a further document is also made by the respondent.  We shall deal with the merits of these applications when we have examined the respective cases of the parties and the issues to which they relate.

The prosecution case

4.  In the evening of 9 November 2014, a team of 8 police officers including PC 9486 (“PW1”), PC 8245 (“PW2”) and Sergeant 58794 (“PW3”) mounted an anti-narcotics operation outside the appellant’s home at Flat 409, Shui Moon House, Tin Shui (2) Estate, Tin Shui Wai, in the New Territories (“Flat 409”).  At 7:52 pm, the officers saw the appellant emerge from Flat 409 alone. Accordingly, PW1 approached him and revealed his identity.  The appellant immediately turned around and tried to return to Flat 409.  Together with his two colleagues, PW1 stopped the appellant in the corridor outside Flat 409 and showed him his police warrant card again, asking the appellant for proof of identity.  However, the appellant responded by pushing PW3’s chest, causing him to fall back against the wall behind him occasioning a minor injury.

5.  PW1 and PW2 immediately attempted to control the appellant, who continued to struggle, and in due course subdued him on the floor.  A search was conducted on the appellant and, in the waist band of his underpants, PW1 discovered a transparent re-sealable plastic bag, inside of which were 12 other transparent plastic bags subsequently found to contain 154 grammes of a powder containing 113.1 grammes of ketamine.  Five keys and one mobile telephone were also seized from the appellant.  Upon arrest and caution in the corridor outside Flat 409, the appellant said he had nothing to say, which was immediately recorded in PW1’s notebook and signed by the appellant.

6.  PW1 then showed the appellant a search warrant in respect of Flat 409 and explained his rights.  At 8:02 pm, the police officers entered Flat 409 with the keys seized from the appellant.  There was nobody else inside the premises at the time.  PW1 asked the appellant which was his room and the appellant pointed it out.  Inside the appellant’s room on a computer desk, the officers found one re-sealable bag containing white powder (subsequently found to be 11.7 grammes of powder containing 8.2 grammes of ketamine), two mobile telephones and $21,000 in cash.  PW1 cautioned the appellant again and the appellant said words to the effect that the ‘K chai’ was for his own consumption, and that the money belonged to him.  PW1 again immediately recorded down what the appellant had said in the same notebook and the appellant signed after the entry.

7.  The appellant was arrested and taken back to Tin Shui Wai police station at 11 pm, and subsequently to Tuen Mun police station. Meanwhile, PW3 was sent to hospital for medical treatment, where he was found to have sustained an abrasion to his left hand.  According to the admitted facts, the street value of the ketamine seized in respect of both Charge 2 and Charge 3 was $23,198.

8.  It may also be noted that PW1, PW2 and PW3 all testified that when the appellant was first seen in the corridor outside Flat 409, he was wearing a yellow jacket, blue jeans and a pair of flip flops.  It was also confirmed by each officer that, in the course of subduing the appellant in the corridor, a neighbour had opened the door of the flat opposite Flat 409 and asked what was going on.  The neighbour, Kwan Yu Chan, who subsequently gave evidence for the defence (“DW1”), remained at the scene, according to PW3, for about a minute.  PW1, PW2 and PW3 each denied that anyone else had been present at the scene, apart from the police, the appellant and DW1.

The defence case

9.  The defence called the appellant and two witnesses to give evidence.  The appellant testified that at just before 8 pm on 9 November 2014, whilst alone at home, he received a telephone call from a friend called ‘Ah Chiu’, whose full name was Chan Hung Chiu (“DW2”), whom he had known since childhood and who had previously borrowed $1,000 from the appellant.  DW2 told the appellant that he had arrived at the 4^th floor lift lobby (outside Flat 409) in order to repay the money.  The appellant therefore brought his wallet, mobile telephone and keys with him and went out to the lift lobby.  He said he was wearing a white T-shirt, black shorts and flip flops, and was not wearing any underpants at the time.

10.  At the lift lobby, the appellant met DW2 and another friend called ‘Ah Ming’, whose full name was Leung Chi Ming (“Leung”).  He chatted with DW2 for about a minute and when he was about to return to Flat 409, someone, whom the appellant subsequently recognised as PW3, put a hand on his shoulder and pulled him away.  At that point, two or three other people claiming to be police officers “came out” and pressed the appellant onto the floor between the lift lobby and the corridor outside Flat 409.  The appellant said that he yelled out to DW2 to ask him to video-record what was going on with his mobile telephone.  PW3 however, stopped DW2 from doing so[2].  DW2 and Leung were also ordered by the police officers to squat down.  At that stage, the appellant’s neighbour DW1 came out from Room 406 and, on seeing two men squatting down and another being pressed down on the floor, asked PW3 what was going on[3]. The appellant, despite being pressed onto the floor, also told DW1 to keep an eye on what the officers were doing[4].  DW1 talked briefly with the officers before returning to his flat.

11.  The appellant said that while DW2 and Leung were taken by two police officers, whom he was unable to recognise, to the rear staircase, he was taken by PW2, PW3 and two other police officers to another staircase on the other side of the building.  The two other police officers proceeded to assault him and told him that he had offended their superior.  The appellant then saw PW3 take out a large transparent bag from the bottom of some mesh near the meter room and bring it over to the appellant, telling the appellant to “confess”.  Further, PW3 swore at the appellant and told him that he had never lost a “DD” case.  He then took out the key to the door of Flat 409 and the appellant was escorted home for the purposes of a search.  The appellant said he saw some money and white powder on the computer desk and was told to admit that that was his as well, but he refused to do so.  After a while, the appellant said he felt cold and was allowed to change into a yellow jacket and a pair of jeans.

12.  Initially, the appellant said he did not sign PW1’s notebook.  He later confirmed, however, that he had signed the first entry, but not when he was in the corridor outside Flat 409.  He further denied that the entry was read over to him and contended that certain characters had not yet been written in the notebook when he signed.  He also denied signing the second entry or saying words to the effect that the ketamine was for his own consumption or that the money was his.  It was his case that he had never seen any dangerous drugs inside his home before his arrest, nor did he have any drugs on his person when he left Flat 409 to meet DW2.

13.  DW1 and DW2 gave evidence broadly in line with the appellant’s account of what had happened in the corridor outside Flat 409. They also confirmed the clothing the appellant said he was wearing at the time of his arrest, which contrasted with the evidence of the police witnesses.  The significance of this matter appears to have been whether the appellant could have been wearing underpants, in the waist band of which the police witnesses said they found the dangerous drugs, the subject-matter of Charge 2.

Reasons for verdict

14.  The judge in his Reasons for Verdict found that the three prosecution witnesses were all honest and reliable.  He found that PW1 did give his notebook to the appellant to read and sign and that the appellant did put his signatures against both entries.

15.  The judge further found the appellant’s evidence of being taken to the rear staircase to be beaten and then framed was inherently improbable.  We do not need to go into his reasons for so finding.

16.  The judge also observed that the appellant was a person with a strong character.  He had testified that when he was pressed onto the floor, he had shouted out to DW2 to use his telephone to video-record the actions of the police; he had also told DW1 to keep an eye on what was going on; and at the rear staircase, he refused to confess despite being allegedly beaten by police officers.  If that evidence were true, it showed that the appellant was not someone who was afraid to speak out when under pressure.  Yet, the applicant had never complained to the Duty Officer about being assaulted and framed up by police officers.

17.  In contrast to the prosecution witnesses, the judge found that the appellant was not an honest witness and rejected his evidence.

18.  In relation to the two defence witnesses, the judge came to the conclusion that they had also lied about the presence of (Leung and) DW2 at the scene that day.  He found[5]:

“… that it is unlikely that the police officers would not be aware of the presence of (DW2) and (Leung) given the fact that the incident took place in the corridor on the 4^th floor. The only irresistible inference is then that (DW1) and (DW2) lied about the latter’s presence at the scene that day, and I so find.”

19.  Accordingly, the judge ruled that the prosecution had proved beyond reasonable doubt that PW3 had been assaulted by the appellant in the due execution of his duty, in the course of which he had sustained an abrasion to his left hand; and, further, that the appellant was in physical possession of the dangerous drugs when he was intercepted and searched by PW1 in the corridor outside Flat 409.  Given the quantity of dangerous drugs and the manner in which it was packaged, the irresistible inference to be drawn was that the appellant was in possession of the drugs for the purpose of unlawful trafficking. Accordingly, the appellant was convicted of Charges 1 and 2.

20.  As for Charge 3, given that (i) the dangerous drugs were found inside the appellant’s room and in a much smaller quantity; (ii) the appellant had six previous convictions for possession of dangerous drugs; and (iii) the appellant’s confession that the ketamine found on the computer desk was for his own consumption, the judge ruled that there was a reasonable possibility that the dangerous drugs found inside Flat 409 were for the appellant’s own consumption.  He therefore gave the appellant the benefit of the doubt, acquitted him of trafficking in these particular dangerous drugs and found him guilty of the lesser offence of simple possession.

Grounds of appeal against conviction

21.  Ms Sezen Chong, on behalf of the appellant, has put forward four grounds of appeal.  The first two grounds may be taken together and concern the failure of the prosecution to disclose (i) the duty roster of the anti-narcotics team at Tin Shui Wai police station for 9 November 2014; and (ii) the police notebooks of the other 5 police officers present at the scene of the operation in relation to the appellant’s arrest. This failure, she submits, has resulted in a conviction which is unsafe and unsatisfactory.  These documents formed the basis of her application before us to adduce fresh evidence.

22.  Ms Chong points to the judge’s statement in his Reasons for Verdict, at para 9, that:

“Although the defence witnesses’ evidence do not say directly as to how the police had threatened the defendant and planted the drugs against the defendant, their evidence, if accepted, would cast a reasonable doubt on the credibility of the prosecution witnesses.” (Original emphasis)

Since it is now apparent from the disclosed notebooks of the 5 other officers concerned in the operation that Leung and DW2 were indeed stopped and searched outside Flat 409 on the night in question at about the time in question, although the times in their notebooks suggest that the stopping and searching of the two men (whose full names and Identity Card numbers are recorded in each notebook) was a few minutes after the appellant’s arrest, Ms Chong submits that the judge could not have come to the conclusion he did about DW2 not being present at the scene, if he had known of this evidence.  Furthermore, such evidence might also have impacted on his assessment of the evidence of DW1, who claimed that he saw both Leung and DW2 at the time the appellant was being subdued on the floor.  Since the case was all about credibility, she argued that it is both necessary and expedient in the interests of justice that the evidence which was not disclosed to the defence prior to trial be adduced now for the purposes of this appeal under section 83V(1) of the Criminal Procedure Ordinance, because it may have had a material impact on the judge’s assessment of the credibility of both the prosecution and the defence witnesses.

23.  Ms Chong’s third ground of appeal is that the judge infringed the appellant’s right of silence, by making an adverse finding against him in respect of his failure to complain to the Duty Officer about being beaten and framed up by the police.  The eliciting of this evidence had come, not from prosecuting counsel, but from the judge himself at the end of the appellant’s evidence.  In view of these grounds of appeal, it is argued that the conviction is unsafe and unsatisfactory.

24.  The fourth ground of appeal is the general ground that the verdicts are unsafe and unsatisfactory.  While Ms Chong has argued other matters of fact, about which she says the judge was wrong in his findings, such as his rejection of the appellant’s and the two defence witnesses’ evidence as to the clothing the appellant was wearing at the time of his arrest outside Flat 409, it is not necessary for reasons which will become apparent to deal with those matters.

Respondent’s submissions

25.  Mr Eddie Sean, for the respondent, argues that the defence could have asked the prosecution for the 5 notebooks, if they considered them relevant to the preparation of their case, particularly since they must have known of the identities of the other members of the police team present at the scene from the witness statement of PW1, which had been served on the defence with the District Court ‘transfer papers’.  He acknowledges that, although there was no intention on the part of the prosecution to hide such evidence, the relevance of which they did not appreciate, the notebooks were relevant to the case that was put at trial and were, for that reason, disclosable.  He does not, however, accept that the duty roster was either relevant or disclosable, and, in any event, the notebooks alone supplied what the defence wished to establish.

26.  For his part, Mr Sean seeks to adduce a floor plan of 4/F of Shui Moon House, which was also not in evidence at trial, because it would give this Court a clearer view of the relative positions of what was happening and who was where at the time of the arrest and the interception of Leung and DW2 on the day in question.  With the assistance of the floor plan and the police notebooks, he argues that one can readily see that there was a difference as to both times and location so far as the arrest and search of the appellant and the interception of Leung and DW2 are concerned.  In particular, Leung and DW2 were not, according to the notebooks of the 5 other officers, intercepted until after PW1, PW2 and PW3 had entered Flat 409.  Accordingly, he argues that even if the police notebooks had been disclosed at trial, they would not have cast any doubt on the prosecution evidence.

27.  In respect of Ground 3, Mr Sean concedes that the judge was not correct in using the appellant’s failure to complain to the Duty Officer against him: see Lee Fuk Hing v HKSAR[6]; HKSAR v Lam Sze Nga[7].  However, he sought to invoke the provisoto section 83(1) of the Criminal Procedure Ordinance, Cap 221, submitting that, had the judge properly directed himself on the law relating to the right of silence, the unshaken evidence of PW1, PW2 and PW3 would have driven him to the same conclusion about their evidence.

Discussion

28.  In view of the order we intend to make in this case, we do not propose to say anything about the facts, or the evaluation of those facts, made by the judge other than is necessary for the resolution of this appeal.  In our view, the notebooks of the 5 other officers present at the scene were disclosable.  It may well be that the prosecution did not consider them relevant to the case they had to prove.  Nevertheless, the 5 other officers were present at the scene as part of the police party conducting this operation and their notebooks were potentially relevant and therefore disclosable.

29.  However, we accept that there was no question of bad faith on the part of the prosecution in not disclosing the notebooks of these officers.  Since the prosecution plainly did not regard them as relevant, none of the 5 other officers had been required to make witness statements. That there was no attempt to conceal the presence of other officers at the scene is clear from PW1’s witness statement and evidence-in-chief, at the outset of which he revealed not only the number of other officers present at the scene but also their service numbers.  Later, he testified that some of those officers had subsequently entered Flat 409.

30.  It soon became apparent from the cross-examination of PW1, however, that the defence were contending that the 5 other officers had played a far more prominent part in the events that evening, not only in relation to the arrest of the appellant but also in relation to the interception of Leung and DW2 at about the same time.  Given the defence to be advanced, we find it extraordinary that neither defence counsel nor his instructing solicitors at trial made any request of the prosecution for the notebooks of the 5 other officers to be disclosed.  Had they done so, they would have quickly discovered that both Leung and DW2 were indeed present in the vicinity of the appellant’s arrest, because they were intercepted on the 4^th floor of Shui Moon House by officers who were members of the same team as PW1, PW2 and PW3; albeit that the 5 other officers record the interception at shortly after the appellant was taken into Flat 409[8].

31.  Quite apart from that issue, PW1 readily testified that the 5 other officers had also subsequently entered Flat 409 to assist him and his colleagues.  Since the appellant was in due course to cast doubt in evidence on the way PW1’s notebook had come to be written up and signed in Flat 409, whether any dangerous drugs were found in his room and whether he was permitted to change his clothes in the premises, it seems inconceivable that his trial counsel and solicitors would not have wanted to see what these other officers had recorded in their notebooks.  As Ms Chong rightly and rather obviously accepted, given the instructions that were to be put on the appellant’s behalf to the witnesses and given the evidence that was to be called by the defence, counsel would not only have wanted but also needed to see the notebooks of the 5 other officers present at the scene.

32.  Mr Sean has floated the suggestion that the failure to ask for the notebooks of the 5 other officers was a tactic employed by trial counsel (not, we emphasise, Ms Chong), so that the defence could point to the prosecution’s failure to counter the defence evidence, and a complaint could later be mounted about non-disclosure.  He points to the closing written submissions of counsel at trial to the effect that “[i]t is also relevant that the defence made clear at the outset what the defence was and that the prosecution did not seek to call any further witnesses to refute the defence case or apply to adjourn to obtain rebuttal evidence”[9].

33.  We find the suggestion that the defence deliberately did not ask for disclosure of the 5 other officers’ notebooks so as to set up a later complaint of non-disclosure a little far-fetched.  We have not heard from counsel concerned, but if that were the tactic, it would have been thoroughly ill-conceived, as well as run obvious risks for the appellant and for those advising him.

34.  The duty of disclosure by the prosecution is, of course, a continuing one.  We also find it strange that when it became apparent what the defence case was, and that there were 5 other officers present at the scene who could have shed light on the defence allegations, prosecuting counsel himself (not Mr Sean) did not call for their notebooks and arrange for copies to be passed to the defence.  It remains part of prosecuting counsel’s duty to satisfy himself that all relevant disclosure has been made.  It is somewhat surprising, therefore, that the ‘Notes for Prosecuting Counsel/Solicitors’, which encompass 8 pages of instructions accompanying the ‘Brief’ to prosecute, make no reference to the important role of a prosecuting counsel/solicitor in respect of the ongoing duty of disclosure of un-used material.  In fairness to prosecuting counsel in the present case, who was prosecuting on fiat, and from whom we have also not heard, it seems clear from our enquiries that the notebooks were evidently not seen by, nor passed to, him and were, in any event, written in a language which he would not immediately have understood. That, however, cannot abrogate the vital duty upon the prosecution to make necessary and timely disclosure.

35.  We wish to remind prosecuting authorities of the adjuration from the Court of Final Appeal in HKSAR v Lee Ming Tee and Securities and Futures Commission[10], at para’s 161-162:

“161. The prosecution’s duty is to disclose to the defence material (including information) in its possession or control. That will ordinarily include materials that have been gathered by the investigating agency (the police) and it is the responsibility of the prosecution to make the investigating agency aware of the need to make available all relevant materials. In this sense, the prosecutor’s duty is to disclose to the defence all relevant material in its possession or control and in the possession or control of the investigating agency.

162.   In order to ensure that all disclosable material is provided to the defence, prosecuting counsel should instruct investigating officers and, where appropriate, witnesses to bring to counsel’s attention any material that may be disclosable. In other words, disclosable material known to a witness, including an expert witness, should be channelled through prosecuting counsel who should take appropriate steps to facilitate that happening.”

36.  We have been shown, in the course of argument, the typed list of used and un-used material considered by the Department of Justice necessary to be given to the defence at the time of transfer of this case from the Magistrate’s Court to the District Court.  Such a list is normally prepared by the Department of Justice, reviewed by Government counsel and attached to the material which is to be disclosed. Needless to say, the list in this case does not include the notebooks of the 5 other officers, which, even without appreciating what the defence might be, ought to have been disclosed to the defence before trial.  Even if it had not been disclosed at that stage, it was obviously incumbent on the prosecution, in the continuing exercise of their duty, to disclose the material once it became clear that it was potentially relevant to the issues before the court.  It would not, we think, have taken much effort to realise, since there were 5 other officers present at the scene in question, the events in relation to which were being hotly contested, that their notes of what took place were potentially relevant and, therefore, disclosable to the defence.  Unfortunately, they were not disclosed.

37.  As a result, the judge was never told that the 5 other officers had indeed intercepted the two men, Leung and DW2, on the 4^th floor of Shui Moon House in the vicinity of Flat 409.  Had he been made aware of this fact in some form, he could not have found, as he plainly did, that DW2 was lying about his presence at the scene; because clearly he was not lying.  We do not necessarily impugn PW1, PW2 and PW3’s evidence for not conceding the presence of Leung and DW2 at the scene because, if Mr Sean is correct in his submissions about times and locations, they may not have seen them before escorting the appellant into Flat 409.  These will obviously be matters which are better canvassed and explored at trial than before this Court.

38.  We are nevertheless satisfied that the evidence of the notebooks of the 5 other officers and the plan should be admitted for the purposes of this appeal as both necessary and expedient in the interests of justice.  We do not, however, consider the evidence of the duty roster relevant or disclosable.  This was an internal police document merely detailing who was on duty during a particular shift on a given day at a particular police station.  It did not say who went on the operation to the appellant’s home and has no obvious connection with that particular operation.  We do not see any basis for its disclosure.  Of course, if the defence had some valid reason for wishing to see such a record, they could always have made a specific request for its disclosure to the prosecuting authority, or to prosecuting counsel or, if they refused to supply it, to the court.

39.  Having admitted this evidence, we are of the view that by virtue of the non-disclosure of the notebooks of the 5 other officers, and the essential findings of credibility in relation to all defence witnesses, including the appellant, which this material may be said potentially to impugn, the verdict cannot be regarded as other than unsafe and unsatisfactory.  Had the judge known that the 5 other officers had all confirmed the interception of Leung and DW2 at the scene that day, he could not have found it an “irresistible inference” that the appellant, DW1 and DW2 had all lied about the latter’s presence.

40.  We further agree that Mr Sean’s concession in relation to Ground 3 is correct, and that the verdict is thereby unsafe and unsatisfactory on this basis as well.  We do not accept that this would be a proper case for the application of the proviso, particularly where the judge’s findings of credibility in relation to the defence witnesses were made in the absence of the disclosure of the material concerned.  It may be that the judge would still have accepted the evidence of PW1, PW2 and PW3, having heard evidence about the 5 other officers’ dealings with Leung and DW2, but we do not think that such an assumption is inevitable.

Conclusion

41.  Accordingly, for the above reasons, the appeal against conviction was allowed.  Having heard counsel on the question of a retrial, we were of the view that we should order a retrial in the public interest.  Although, in one sense, the non-disclosure of the notebooks of the 5 other officers lies firmly at the door of the prosecution, it is, as we have already remarked, astonishing that the defence never asked for this material, when it ought to have been obvious that it existed and that it was necessary to inspect it in order to properly present the defence.  We were also concerned that several matters were not put to relevant prosecution witnesses by defence counsel, when they should have been[11].

42.  This was a serious matter, for which the appellant was sentenced to an overall sentence of 7 years’ imprisonment, which is the maximum sentencing jurisdiction of a judge of the District Court.  Although we have considered the fact that the appellant will have to go through a second trial, it is in the public interest that he be retried on Charges 1 and 2.

43.  Accordingly, we quashed the convictions on all charges and ordered that the appellant be retried on a fresh charge sheet before another judge.  As for Charge 3, on which the appellant has been acquitted of trafficking but convicted of simple possession by the judge, we ordered a retrial on that matter as well but on a charge of simple possession only, contrary to section 8 of the Dangerous Drugs Ordinance.

[1] McWalters JA (unrep., CACC 199/2015, 4 January 2017).

[2] Such an allegation was not put to PW3 in cross-examination; Reasons for Verdict, para 49.

[3] Such an allegation was again not put to PW3 in cross-examination; Reasons for Verdict, para 51.

[4] Such an allegation was also not put to PW3 in cross-examination; Reasons for Verdict, para 52.

[5] Reasons for Verdict, para 130.

[6] (2004) 7 HKCFAR 600.

[7] [2007] 2 HKLRD 75.

[8] It should be noted, however, that while all 5 other officers record times consistent with the interception of Leung and DW2 after the appellant had been taken into Flat 409, their times are not entirely consistent with each other.

[9] Closing submissions of the defence, para 8.

[10] (2003) 6 HKCFAR 336.

[11] See para 10 and footnotes (supra).