HKSAR v. MAN TSZ CHING

CACC 176/2022 [2025] HKCA 506

On appeal from [2022] HKCFI 3370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 176 OF 2022

(ON APPEAL FROM HCCC NO 46 OF 2021)

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R E A S O N S    F O R    J U D G M E N T

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1.  The applicant (D1 at trial) was jointly charged with her boyfriend Jong Tsz-kit (D2 at trial) with one count of trafficking in 3,158.5 grammes of methamphetamine hydrochloride, commonly known as “Ice”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1). She was additionally charged with one count of using an identity card relating to others, contrary to section 7A(lA) of the Registration of Persons Ordinance, Cap 177 (Count 2).[1]

2.  On 30 September 2022, following a trial before D’Almada Remedios J (the Judge) and a jury, D1 was convicted by a majority verdict of 7:1 on Count 1 and a unanimous verdict on Count 2.[2] She was sentenced to concurrent terms of 25 years’ imprisonment on Count 1 and 6 months’ imprisonment on Count 2.[3] D2 was acquitted by a majority verdict of 6:2.[4]

3.  On 18 October 2022, the applicant filed a notice for leave to appeal against conviction and sentence. She complained that there was insufficient evidence to support the conviction and that the jury were “guided in a biased manner”. On 17 January 2023, the applicant was granted legal aid to appeal against her conviction but not her sentence. Ms Kam Suk Yee of Messrs S H Chan & Co was assigned as solicitor for the applicant. On 7 February 2023, Mr Jeremy Cheung was assigned as counsel for the applicant.

4.  On 26 June 2023, the applicant filed Perfected Grounds of Appeal against conviction, settled by Mr Jeremy Cheung. The grounds mainly alleged that the trial judge had inaccurately directed the jury regarding the defence’s allegation that the police had planted some of the drugs at the scene, made remarks “beyond the proper bounds of judicial comment”, gave “an impression of smacking of partiality”, and descended into the arena “donning, or appearing to don the mantle of a prosecutor”. One ground also alleged that the trial miscarried as a result of trial counsel’s incompetence in conducting the defence case. The quoted language in these grounds was inappropriate, contrary to Practice Direction 4.2 and standard procedures, and should not have been used.

5.  The applicant subsequently filed Amended Perfected Grounds of Appeal on 24 August 2023 and Re-Amended Perfected Grounds of Appeal on 31 May 2024, both settled by Mr Cheung, further developed the grounds, in particular the allegations of flagrant incompetence by trial counsel. The complaints focused on trial counsel’s presentation of the defence, particularly his handling of the involvement of another person (referred to as the “wanted person”), alleged to have set up D1 and D2. The applicant detailed her allegations in an affirmation dated 21 May 2024, to which trial counsel and the solicitor each responded with their own affirmations, dated 18 July 2024 and 1 August 2024 respectively. This ground was ultimately abandoned, but the statements of the parties included various allegations of questionable conduct on their part.

6.  On 10 September 2024, Mr Dick Lee was assigned by the Director of Legal Aid to represent the applicant, replacing Mr Jeremy Cheung. On 21 November 2024, Mr Lee filed Re-Re-Amended Perfected Grounds of Appeal in which he deleted the ground alleging incompetency of the trial counsel. He added two further grounds concerning the trial judge’s handling of the involvement of the “wanted person”, whom the applicant alleged had set her up. Whilst Mr Lee inherited the language of the other grounds of appeal, he should have corrected them by removing the inappropriate language.

7.  D1 was represented by Mr Lee in the leave application against conviction while she appeared in person in the leave application against sentence.

The prosecution case

8.  On 5 December 2019, a team of police officers were instructed to observe the vicinity of Kimberly Road, Austin Avenue, and Chatham Road South. They were directed to look for a white private car with registration number WC2169 (WC2169) and a Chinese female fitting D1’s description.[5] The instruction to look for D1 was not adduced into evidence, but was disclosed to the defence in the statement of the police sergeant who briefed the officers.

9.  At around 1:24 pm, the officers spotted the car parked at Austin Avenue, and D2 was observed alighting from the car. D2 later entered the Popway Hotel (the Hotel) at 117 Chatham Road South, met D1 nearby, and both were kept under surveillance. Shortly before, at around 1:12 pm, D1 and a person referred to as “Uncle Tung” (Tung) by D1 and D2 arrived at the Hotel. D1 checked into Room 1802 at the hotel using an identity card belonging to “Kwok Wing Sum”.[6] She paid a cash deposit of $500 and signed the guest registration form in Kwok’s name.[7] D1 was not given a keycard at that time. When D2 went to the Hotel, he attempted to collect the keycard to the room but was initially refused.[8] Later, at 1:44 pm, D1 and D2 entered the hotel, collected the keycard, and went to Room 1802. They were in the room for several minutes and then left.[9]

10.  D1 and D2 were observed returning to the Hotel at around 1:55 pm, with D1 carrying a black recycle bag (referred to as “the Love bag”). They went to the hotel room. At around 2:02 pm, D2 left the Hotel. He removed from WC2169 a white paper bag (referred to as “the double-park bag”) and a black unicycle and brought them to the room.[10] At around 2:08 pm, Tung arrived at the hotel with a red plastic bag containing sieves and a metal bowl. He stayed for approximately 10 minutes before leaving with the unicycle.[11]

11.  The prosecution alleged that D1 and D2 occupied the room exclusively for nearly two hours, except for Tung’s brief visit, having brought the quantity of Ice to the room in the Love bag and double-park bag.[12] At 3:56 pm, D1 and D2 left the room, and the police continued their surveillance of them. [13]

12.  Later that evening, at 10:26 pm, D1 and D2 returned to the Hotel, where they were intercepted by the police on the 18^th floor. D1 was carrying a handbag, and D2 was carrying the keycard to Room 1802.[14] The room was searched, and a large quantity of Ice together with an electronic scale were found inside the locked safe, which had been opened by the hotel manager.[15] The police also found on the bed the double-park bag, containing a green box with three packets of Ice inside (the green box), the Love bag, which was empty, and the sieves and baskets.[16]

13.  D1’s palm prints were found on the green box.[17] Her DNA was found on a cigarette butt and a straw inserted in a takeaway cup.[18] She remained silent upon arrest and caution.[19] When she was taken to the police station, she was reluctant to leave the cell, and she refused to sign the tamper-proof envelopes. As a result, the police had to remove her from the cell. She was then released and fell to her knees.[20]

14.  The prosecution’s case was that D1 and D2 were in possession of the drugs in Room 1802 because they were occupiers of the room. They possessed the only keycard to the room.[21] They carried the drugs into the room and had physical possession of them. They were also the ones who put the drugs into the safe.[22] As for D1’s knowledge of the drugs, the prosecution relied on the following matters: (1) she occupied Room 1802; (2) she brought the drugs to Room 1802; (3) she put the drugs into the safe and most of the drugs were clearly visible; (4) the quantity and value of the drugs of over HK$1.6 million; (5) her palm prints were found outside the green box; (6) she used another person’s identity card to conceal her identity.[23]

15.  It was an admitted fact that on 11 June 2021, D1’s solicitor informed the Department of Justice that the other person who accompanied D1 when she checked into the Hotel was Lau Tung Shing (referred to as Tung or the wanted person). The solicitor also disclosed this person’s remand number at Lai Chi Kok Reception Centre. It was also an admitted fact that the wanted person had not been arrested, and up to August 2022, no investigation had been conducted in respect of him.[24]

The defence case

D1’s case

16.  D1 claimed she was set up by Tung, whom she described as a family friend. She stated that Tung asked her to check into the hotel on behalf of his girlfriend, Kwok Wing Sum, who, according to Tung, could not check in herself. Tung gave D1 Kwok’s identity card and the hotel booking information.[25] She admitted checking in using Kwok’s name but denied knowing there were drugs in the room. She stated that Tung asked her and D2 to wait in the room for him and to retrieve some belongings, including the Love bag and double-park bag, which Tung claimed contained his girlfriend’s items.[26] She said she did not open the Love bag but described it as “not light but not heavy”. On Tung’s instructions, D2 retrieved from the car the double-park bag and a unicycle that Tung had left there and brought them back to the room.[27] She also claimed that Tung gave her a new charger in the green box, which she unwrapped and placed on the glass table.[28]

17.  At around 4:00 pm, D1 and D2 left the room and were to meet Tung for dinner, when she would give him Kwok’s identity card and the keycard. However, he did not show up, and he asked them to leave the identity card and the keycard at the reception of the Hotel.[29]

18.  D1 alleged that the police had planted drugs in the green box and framed her.[30] She further alleged that she was assaulted by police officers, including being slapped and dragged to the ground. She claimed that the police searched the room in her absence, and said there were no sieves, baskets or bags on the bed.[31] She reported these incidents to the Complaints Against Police Officers (CAPO) and provided medical evidence of her injuries.[32]

D2’s case

19.  D2 admitted helping Tung by storing the unicycle and double-park bag in his car during lunch. He claimed he did not know what was inside the bags and spent most of his time in the hotel room playing video games and being intimate with D1. He denied noticing what Tung was doing in the room, as he was focused on his video games. He stated he helped D1 bring items to the room at Tung’s request, but had no knowledge that the drugs were inside these items. He also claimed he tidied the bed before leaving the room and insisted there was nothing on the bed when they left.

20.  Both D1 and D2 denied having any knowledge of the drugs and claimed Tung was responsible. They suggested that Tung might have set them up.

The leave application against conviction

21.  In the Re-Re-Amended Perfected Grounds of Appeal dated 21 November 2024, D1 advanced five grounds of appeal against conviction:

(1) Ground 1 complained that the Judge erred in misdirecting the jury that the police were not implicated in the three bags of Ice seized from within the green box, thereby denying D1 the right to have her defence that she was framed by the police placed before the jury.

(2) Ground 2 alleged that the Judge went beyond the proper bounds of judicial comment in the summing-up in respect of the defence of a police frame-up, by such comments “giving an impression of smacking of partiality”.

(3) Ground 3 alleged that the trial miscarried by the Judge descending into the arena, having “donned, or appeared to don, the mantle of the prosecutor”.

(4) Ground 4 complained that the Judge erred in misdirecting and misleading the jury that even if they concluded Tung was an informer for the police or that Tung cheated D1 and D2, the jury still had to decide whether D1 had knowledge of the drugs in the hotel room. It was contended that such misdirection gave an impression to the jury that D1 could still be convicted even if they found that D1’s defence was true or may be true.

(5) Ground 5 complained that the Judge erred in misdirecting the jury that there were many legal and practical reasons why the police and/or the prosecution did not investigate Tung. It was alleged that such a direction usurped the function of the jury in its fact-finding role; did not have a proper evidential basis; and was unbalanced and unfair, which effectively prevented the jury drawing an inference favourable to D1.

Discussion

22.  Grounds 1, 2, 4 and 5 can be considered together as they concerned the Judge’s handling of the alleged involvement of Tung in the trafficking of the drugs in Room 1802. Ground 3 will be dealt with separately as it concerned the allegation that the Judge, by her conduct, entered the arena.

Grounds 1, 2, 4 and 5

23.  In essence, the four grounds complained that the Judge by her various remarks, did not fairly present the defence case that Tung had set up her and D2, and thereby, prevented the jury from considering the defence case. There is no merit in these grounds of appeal. An examination of the Judge’s summing-up as a whole and the defence closing address revealed that the impugned remarks were taken out of context.

24.  The allegation that the Judge did not properly present the defence case, namely Tung, who might have been a police informer or colluded with the police, had set up D1 and D2, was not correct.

25.  At the outset of her summing-up, the Judge identified what was in issue and disputed by the defence regarding the prosecution case. She said:[33]

“You might think, well, what is disputed on the prosecution evidence? The prosecution evidence that I see is disputed is really this. Firstly, there were no drugs in the green charger box in the room when the defendants left the room at about 4 o’clock on 5 December. So the 1^st defendant’s case or allegation is that when the police officers entered the room, they planted the drugs in the green cardboard box. They put the drugs into the green box. So that is the first dispute.

The second dispute, as I see it, is there was nothing on the bed when the defendants left the room at 4 o’clock. I say 4 o’clock; about 1556, as you know. When the police entered the room with the defendants after they were intercepted at about 10.30 (pm), the police put and placed all these items on the bed, as you can see on the photos. So that, as I see it, is the main dispute of the prosecution case.”

26.  A little later on, the Judge again addressed the defence case by describing D1’s evidence, including that the police officers had framed her by placing the drugs inside the green box and that when she left the hotel room, the green charger box was on the glass table with nothing inside it.[34]

27.  When addressing the forensic evidence, the Judge again highlighted the defence case:[35]

“Members of the jury, there is no dispute that the drugs were found in the room. It is the prosecution case that the majority of drugs were found in the locked safe save for the small amount inside the green box. If you accept the prosecution evidence that when the police entered the room the safe was locked and there were drugs inside the safe, you should have no hesitation in finding somebody must have put the drugs in the safe. They did not just get in there themselves.

Of course, you heard D1’s evidence, and D2, that it was not her, nor was it D2 who put the drugs in the safe. By inference they are saying it must have been Tung who put the drugs in the safe as clearly he was the only other person in the room, but there is no DNA at all. Mr Leung has submitted to you that, well, maybe he wiped them. There is no evidence of that, but as it is there is no DNA or insufficient DNA on the safe lock. If you accept what the experts say, you may consider that the absence of fingerprints or DNA on the packaging of the drugs and on the safe is a neutral factor. However, in the end it is entirely for you to consider whether the absence of fingerprints or DNA assists the defence.

Let me now turn to the drugs in the green box. As you know, D1 says when she left the room at 1556 hours the green box was empty, and she had placed the box on the glass table in the room. She accuses the police of putting the drugs inside the green box to frame her up. The prosecution case is that when the police entered the room the green box was inside the double-park bag which was placed on the bed. Three packets of the drug ‘Ice” were found inside the green box. The prosecution denied putting the drugs in. The prosecution witnesses denied putting the drugs in the green box.

Members of the jury, if the police, you may think, really wanted to frame up the 1^st defendant, why not put the drugs into her handbag? Why into a green box? However, members of the jury, it is your decision and your decision alone as to whether you accept the prosecution case that they deny putting these drugs into the green box.

I should point out to you that this palm print evidence is evidence of D1 having contact with the green box. If the only evidence in the case was the palm print of D1 on the green box containing the drugs you could not begin to find the 1^st defendant on Count 1 just because the palm print evidence shows she had contact with the box.

The prosecution say, however, having regard to all the other evidence in this case this is part, just part of the evidence which you can take into account when considering whether D1 had knowledge of the drugs in the room, and I shall give you more directions on knowledge later. So the evidence by itself does not prove that the 1^st defendant committed the offence of trafficking, but in order to reach your verdict you must have regard to all the evidence in this case of which this is just a part.”

28.  The Judge also addressed the involvement of Tung and his absence from the proceedings in her following comments:[36]

“ Now, Mr Boey also says if it is true that Tung was an informer to the police, or set up D1, by the time Tung had left the room all the drugs were inside Room 1802. If Tung was in collusion with the police, the police would know this. So why would the police just not – would the police not just arrest D1 and D2 when they left the room at 4.00 pm? It does not make sense that they did not come out and arrest D1 and D2 then. By not arresting D1 and D2 at that time, how could the police be sure that D1 and D2 returned to the hotel?

Why would the police waste their time and wait for hours for D1 and D2 to return to the hotel when they could have arrested them immediately once they knew the drugs were in the room? Mr Boey says there was no such collusion at all. Sergeant Ng and the CCTV monitoring officer who were the only two officers who were asked about this collusion, about this, they denied there was any collusion between them and Tung.

The police did not arrest the 1^st and the 2^nd defendants at the time, the prosecution say, because, as you heard from Sergeant Ng, he was waiting for the exhibits officer to return from – with the search warrant from the court which he had sent her to apply for a search warrant. And Sergeant Ng says that, in any event, he believed that the 1^st and 2^nd defendant would return to the room because they had checked into the room and had not checked out. Remember, members of the jury, there is no evidence that Sergeant Ng or any of the police officers knew at 4.00 pm that the 1^st defendant had used another person’s ID card to check in.

The defence are suggesting that the Department of Justice did not investigate the person D1’s solicitor told them about and the name since from 2021. Firstly, let me say this, members of the jury. There are many reasons why not all persons suspected of involvement in an offence are – sorry, I will start again. There are many reasons why not all persons suspected of involvement in an offence are not investigated. Some of those reasons are legal and some of those reasons are practical. There is no obligation to investigate and much depends on the evidence.

You have seen in this case from the evidence presented to you by the prosecution that it is the prosecution case that it is the 1^st and 2^nd defendant who took the drugs to the room, they were the occupants, and it was D1 and D2 who knew of the drugs. Now, in this case, members of the jury, you can see the evidence and the only evidence against Tung as regards to the prosecution evidence presented to you is his presence with D1 on checking in and going up to the room with a small red plastic bag containing sieves and staying in their room for nine and a half minutes and leaving with the unicycle.

On this evidence alone, maybe for legal or practical reasons, they have formed a view that there may be insufficient evidence on the prosecution evidence to suspect Tung to be involved in the trafficking of dangerous drugs. So it may be for that reason no investigation took place. You will remember, however, I must remind you, it is Mr Leung’s submission that no investigation took place because, as Mr Leung suggests, Tung was involved with the police in setting up D1.

Now, members of the jury, even if you think D1’s account is or may be true that Tung did collude with or inform police, you heard Ms Lee suggest Tung may have been a police informer, in this case there is no suggestion by the 1st defendant in her evidence or by Mr Leung in his closing speech or in his cross-examination that the police knew that the 1st and 2nd defendants did not know there were drugs in the room. There is no allegation by D1 that the police were acting with impropriety. That is that the police were framing D1 with all these drugs. Therefore, even if you conclude that Tung may have been an informer for the police or that Tung had cheated D1 and D2, the main issue before you, members of the jury, is still one of knowledge. That is you must decide on the evidence whether the 1^st and 2^nd defendants had knowledge of the drugs in the room.”

29.  Ground 1 alleged that the Judge misdirected the jury when she said: “There is no allegation by D1 that the police were acting with impropriety. That is, the police were framing D1 with all these drugs.”[37] There is nothing wrong with the Judge’s remarks. They reflected the defence case that Tung had put the drugs in the hotel room and set up D1 and D2. It was suggested that the police had put the drugs in the green box and the Judge had made this abundantly clear in her comments when addressing this aspect of the case. The Judge’s remarks were made at a time when she was addressing the defence case that Tung had set up D1 and D2 and their claim that ‘all’ the drugs had been planted by Tung, not the police. The defence case was that the police (by inference) had put three packets of the drugs in the green box, and this was repeatedly explained to the jury by the Judge.

30.  In his closing address to the jury, defence counsel said: “Our case is not, basically, not that the police set her up because we say that it was a set up by the wanted person.[38] … According to what we have, it was a set up. It was meant to be a set up by Uncle Tung who wanted my client to use another ID card to check in the room.”[39] (Emphasis added)

31.  As for the drugs found in the green box, the defence counsel submitted to the jury: “Although it is not a case, as I said before, it is not a case - basically, it is not a case that we allege that it was a set up by the police but concerning the green box, the three bags of dangerous drugs in the green box, we are saying that when the 1^st defendant left the room, the green box was empty. And we have no choice but to infer that it must be the police who put the three box-three bags of dangerous drugs into the box.”[40] (Emphasis added)

32.  Read in context, the Judge’s remarks were merely reflecting the defence case, and there is no substance to this ground of appeal.

33.  Ground 2 concerned the Judge’s comment that if the police wanted to frame up D1, why not put the drugs in her handbag rather than a green box. The Judge immediately told the jury that it was a matter for them to decide whether to accept the prosecution’s case. As already noted, it was the defence case that Tung had planted the drugs, and it was submitted that, by inference, the three packets of drugs in the green box must have been put there by the police. The Judge, on numerous occasions, had reminded the jury of the defence case regarding the drugs found in the locked safe and the green box. The Judge’s comment was directed to the defence counsel’s proposition that, by inference, the police put the drugs in the green box. This comment has to be considered against the backdrop of the defence case that Tung, not the police, planted the drugs in the hotel room. I do not consider that the Judge’s comment, which was a matter for the jury whether they accepted it or not, exceeded proper bounds: HKSAR v Zhou Limei [41].

34.  Ground 4 complained that the Judge misdirected and misled the jury when she said that even if they concluded that Tung was a police informer or that he cheated D1 and D2, the main issue was “one of knowledge. That is you must decide on the evidence whether the 1^st and 2^nd defendants had knowledge of the drugs in the room.”[42]

35.  The Judge was merely emphasising, to the benefit of D1 and D2, the importance of the element of knowledge of the drugs in the hotel room. It was their case that they did not know there were drugs in the hotel room, and they had been set up by Tung, who planted the drugs in the room. The Judge, when discussing the ingredients of the offence, had previously reinforced the importance of the element of knowledge.[43] As pointed out by the respondent, the Judge was instructing the jury that they had to be satisfied that D1 and D2 had knowledge of the drugs to be found guilty of the offence. She was not removing from their consideration the defence that Tung was an informer who had planted the drugs in the hotel room, which she had repeatedly emphasised with the jury, but accommodating the defence case that D1 and D2 did not know there were drugs in the hotel room.

36.  The Judge was also criticised for her remarks that it was not the defence’s case that the police were involved in the set-up, noting that the police had not been cross-examined, and that they knew that D1 and D2 did not know there were drugs in the room.[44] It was argued that this raised the issue of lack of puttage by the defence, but the Judge’s remarks simply reflected the reality of the situation and the defence case.

37.  Ground 5 alleged that the Judge misdirected the jury when she remarked that there are many legal and practical reasons why the police and/or the prosecution did not investigate Tung. It was an admitted fact that in June 2021, approximately 18 months after the offence, D1, through her solicitor, informed the prosecution that the person known as Tung was Lau Tung Shing, who was in custody on remand. It was also an admitted fact that in August 2022, the police had not conducted an investigation in respect of Lau Tung Shing, and he had not been arrested for the case.[45]

38.  There was nothing inappropriate in the Judge’s remark, given the circumstances of the case. The respondent confirmed that on 11 June 2021, D1 provided the prosecution with the name and remand number of Tung, but without any information as to when he was remanded. The information was provided to the police, who reviewed the case and made inquiries with the Correctional Services Department (CSD). It appeared that recent inquiries with the CSD revealed that the Chinese name “Lau Tung Shing” did not match its records. In fact, at the time of trial, the defence were informed by the prosecution that Tung was neither the informer in the case nor in any way connected with the provision of intelligence to the police.

Ground 3

39.  There was no basis whatsoever for the allegation that the Judge descended into the arena, siding with the prosecution: HKSAR v Lai Oi Yan[46]. The Judge’s questions or comments were all part of her function as the arbiter of the law in ensuring that the examination of witnesses was properly conducted in accordance with the relevant legal principles and procedures.[47] There were occasions where the Judge intervened to prevent leading questions[48] or to ensure that there was clarity in the presentation of the evidence by asking counsel to reframe their questions or present the questions chronologically[49]. This was applied with equal measure to both prosecuting counsel and defence counsel.[50]

40.  There were also occasions when objections or issues were raised and the Judge discussed the matters with counsel in the absence of the jury.

41.  I did not find any of the matters mentioned suggested that the Judge was favouring the prosecution. In fact, on occasions, the converse was true, where she was critical of the prosecution, ensuring that the case was fairly and properly presented. She did not prompt prosecuting counsel to attack the credibility of the applicant, when it is clear she was merely clarifying the prosecution case and ensuring that prosecuting counsel conducted his cross-examination properly. She did not intervene to cross-examine the applicant, when it is clear she was clarifying the applicant’s defence regarding the drugs in the green box.

42.  The allegation that the Judge descended into the arena by siding with the prosecution is without substance.

The leave application against sentence

43.  D1 was 23 years old at the time of the offence and 26 when sentenced for this offence. She had eight previous convictions, including two in 2017 for drug offences. In mitigation, D1’s counsel submitted that, based on the narcotic content, the appropriate starting point for her sentence was 25 years and 1 month’s imprisonment. He highlighted her relatively young age and requested a concurrent sentence for the second count.[51]

44.  Having considered the facts, the background of D1 and the sentencing authorities, the Judge found no aggravating or mitigating factors. She sentenced D1 to concurrent terms of 25 years’ imprisonment on Count 1 and 6 months’ imprisonment on Count 2.[52]

45.  The Judge applied the sentencing guidelines laid out in HKSAR v Tam Yi Chun[53] and HKSAR v Abadallah[54]. These guidelines have been amended in HKSAR v Huang Ruifang (No. 3)[55], and the applicant would have the benefit of a significantly lower starting point when applied to the quantity of narcotic in this case. The respondent acknowledged this to be the case and accordingly leave to appeal against sentence was granted to the applicant. I also granted the applicant an appeal aid certificate so that she could be legally represented in her appeal against sentence.

Conclusion

46.  For the reasons stated, I refused D1 leave to appeal against her conviction but granted leave to appeal against her sentence. For this purpose, D1 was granted an appeal aid certificate to be legally represented in her appeal against sentence.

47.  The applicant was informed that she has the right to renew her application for leave to appeal against her conviction before the Court of Appeal. She was also informed that the Court of Appeal has the power to order the loss of any time which she has served in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.