HKSAR v. CHOI WING KA

CACC 222/2023 [2025] HKCA 599

On appeal from [2024] HKCFI 156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 222 OF 2023

(ON APPEAL FROM HCCC NO 33 OF 2022)

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BETWEEN

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J U D G M E N T

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1.  On 23 November 2023, following a trial before Deputy High Court Judge Anthony Kwok (as he then was) (the judge) and a jury, the applicant was convicted by unanimous verdict of the jury of a single count of trafficking in a dangerous drug, namely 2,489 grammes of a solid containing 2,119 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134[1]. On 27 November 2023, she was sentenced to 23 years and 11 months’ imprisonment.

2.  On 6 December 2023, the applicant applied for leave to appeal against conviction. The processing of the leave application has been delayed because of the applicant’s non-compliance with directions and claimed attempts to secure legal assistance. An application for legal aid was refused on 27 February 2024.

3.  On 13 June 2025, the applicant filed a notice for leave to appeal against sentence out of time by about one and a half years. She stated in her letter dated 10 June 2025 and her affirmation dated 11 June 2025 attached to the notice that her sentence should be reduced in light of the new guidelines concerning the offence of trafficking in large quantities of a dangerous drug, including cocaine laid down in HKSAR v Huang Ruifang[2], which this Court handed down after her sentence was passed. She also claimed that she was granted legal assistance by the Clinical Legal Education Office of the Faculty of Law in the University of Hong Kong in respect of her appeal against sentence, but no correspondence has been received to this effect.

4.  The applicant appears in person in her leave application.

The prosecution case

5.  On 6 August 2020, a team of police officers mounted an anti-drug operation at Room 29, 7^th Floor, Ming Sang Industrial Building, No 19-21 Hing Yip Street, Kwun Tong, Kowloon (Room 29), where they executed a search warrant[3]. When the police officers entered Room 29, the applicant was the only person in the room. She was standing next to a stack of two carton boxes and wearing a pair of surgical gloves on her hands.[4] The police found inside the room one vacuum sealed packet of cocaine[5] on top of the upper carton box; nine vacuum sealed packets of cocaine[6] inside nine gumboots placed underneath two pillows in the other carton box; and other related items[7].

6.  The police searched the applicant and found two mobile telephones with SIM cards in her possession[8], containing Telegram and WeChat messages with a person called “Ken” and an unknown person between 1 and 6 August 2020[9]. DSIP Leung Ka-lung (PW6) testified that one WeChat message sent from the applicant to Ken, on 1 August 2020, read as follows: “Orange: 11.5 + tail”, which referred to 11.5 grammes of cocaine according to the expert evidence on the code used by the drug trade.[10]

7.  It was not disputed that CCTV footage of the building revealed the applicant visiting Room 29 between 2 and 6 August 2020[11]. The estimated value of the cocaine found in Room 29 was about HK$4.4 million in powder form or HK$8.5 million in crack form.[12]

8.  The prosecution case was that the applicant had been handling the ten vacuum sealed packets that contained cocaine since 2 August 2020, according to Ken’s instructions, and continued to pack or handle the packets in Room 29 on 6 August 2020 with full knowledge that she was dealing in cocaine.[13]

The defence case

9.  The applicant gave evidence in her defence but did not call any witnesses. The defence case was that the ten packets handled by her on 2 August 2020 were not the same as those found by the police in Room 29 on 6 August 2020. She believed the packets contained insecticide and denied knowledge of the nine gumboots and concealed the cocaine inside.[14]

10.  The applicant testified that after losing her previous job in the beauty industry in 2019, she was employed in mid June 2020 by a middle-aged woman called “Mary” as a part time warehouse worker earning HK$65 per hour (which was increased to HK$100). Her duties included sorting and packing goods such as clothing, beauty and household items at different warehouses. Mary informed her that Ken would manage her work, and she had been following his instructions, which were given via Telegram and WeChat messages and telephone calls, since early July 2020. The applicant said she had attended Room 29 on 2, 4 and 6 August 2020. On 2 August 2020, Ken instructed her to take a photograph of ten packets of insecticide and pack them into four separate carton boxes, after which she contacted a woman to collect them. She never saw the boxes again. She was not aware of whether those boxes were still inside Room 29 when she returned on 4 and 6 August 2020 to pack and take stock of the goods as instructed by Ken. On 6 August 2020, while retrieving a packet of insecticide from a carton box, she found a vacuum sealed packet containing white solids underneath two pillows. She was arrested shortly after this occurred.[15]

11.  Regarding her WeChat message to Ken, the applicant explained that the expression “orange” referred to the orange flavour of an essence oil, and the figure “11.5” referred to the number of the essence oil, but not the weight of cocaine[16]. In cross-examination, she said she had HK$10,000 to HK$20,000 in savings but could not afford her rent after separating from her boyfriend in June 2020. She had a HK$45,000 loan requiring monthly repayments of HK$2,000 over two years. She had reminded Ken to pay her wages via text messages, but kept no record of her work schedule. She had never met Ken in person, nor did she know the full names of Ken or Mary. She did not see any warning labels for insecticide on the packets and noted that insecticide was sold in powder form by hardware stores.[17]

The conviction appeal

12.  In her notice to apply for leave to appeal against conviction, the applicant did not provide any grounds of appeal, nor did she file any subsequent grounds. Notwithstanding having been notified of the leave hearing and directed to file grounds of appeal and a written submission in support, she has failed to do so. At the leave hearing, the applicant filed a single ground of appeal against conviction, in which she alleged that a CCTV camera in Room 29 was not adduced into evidence and this prejudiced her fair trial. I will address this ground after I provide a brief overview of the case against the applicant.

13.  As is apparent from the prosecution and defence cases, the issue at trial was whether the applicant knew she was handling and packing dangerous drugs in Room 29 at the time of the offence, which had been properly put before the jury to consider[18].

14.  In his summing-up, the judge gave usual directions to the jury as to their functions[19]; burden and standard of proof[20]; and elements of the offence[21]. He provided a comprehensive overview of evidence relied on by the prosecution and highlighted the points made by the defence[22].

15.  When addressing the applicant’s evidence, the judge gave a full summary of her testimony and the standard directions that she was not obliged to give evidence and did not have to prove her innocence[23]. Throughout his summing-up, he repeatedly reminded the jury that if they found her account to be true or may be true, they had to consider the issue on the basis of the evidence in her favour[24].

16.  As to the issue of knowledge in relation to the nature of the substance inside the ten vacuum sealed packets in question, the judge explained at length matters relied on by the prosecution to draw the irresistible inference of guilt[25] and the defence response[26]. He reminded the jury not to speculate about the reason why the applicant switched from WeChat to Telegram to communicate with Ken, and that insecticides would not necessarily be available in powder form.[27] He also reminded them that even if they entirely rejected her claim of lack of knowledge, they had to consider whether they could be sure that she knew the substance was a dangerous drug, and had dealt with or even concealed it.[28]

17.  In respect of PW6’s interpretation of the expressions used by the applicant in her WeChat message to Ken, apart from giving directions on expert evidence in accordance with the specimen direction,[29] the judge reminded the jury to consider her explanation on the matter and stressed the importance of assessing her credibility[30].

18.  The respondent submitted that the jury, by its unanimous verdict, had clearly rejected the applicant’s explanation. The judge had given proper directions to the jury in his summing-up, which were fair and balanced[31], and thus the conviction was neither unsafe nor unsatisfactory.

The CCTV camera

19.  As I have already stated, this is the applicant’s sole ground of appeal which was produced at the last minute at today’s hearing. The basis of her complaint concerns a CCTV camera in Room 29. In the voir dire regarding the admissibility of the applicant’s post recorded statement, Sergeant 54367 (PW1) was questioned about the camera, and he stated that he pulled it down from the air conditioning unit when they entered the room. There were no follow-up questions. The issue of the camera in the room was not a ground of objection in the voir dire. At the conclusion of the voir dire, the judge ruled the applicant’s post record statement inadmissible. She claims that PW1 said that he threw the camera onto the floor and that it was of no use. She further claims that this evidence would have shown that she was not dealing directly with the drugs contained in the various items in the room. She complains that the CCTV camera was not adduced into evidence at trial, nor was it part of the unused material.

20.  It is appropriate to note that in the trial, PW1 was not cross-examined regarding the camera in the room. No issue was made about the existence of the camera at trial. There was also nothing to suggest that the camera had a recording function. It would appear that the defence decided not to raise the issue of the camera at trial, nor did they make any effort to examine it or have it produced.

21.  I am not persuaded that this ground is reasonably arguable. The key evidence against the applicant related to the time she spent in Room 29, accepting that she was responsible for packaging the items in the room, and the messages with Ken and Mary, particularly the message to Ken, which the prosecution submitted was a reference to the quantity of drugs.

The sentencing appeal

22.  At the time of sentencing, the applicant was 38 years of age, educated up to Form 4 level, and had been working as a beautician, earning a monthly income of HK$10,000 to HK$20,000 before she lost her job due to the pandemic in 2020. She had one previous conviction of possession of dangerous drugs on 8 July 2002, for which she had been sentenced to probation for 18 months.[32] In mitigation, counsel on her behalf submitted that her role was equivalent to a courier or storekeeper, which was at the lower end of the scale of criminality for drug trafficking.[33]

23.  The judge adopted a starting point of 23 years and 11 months’ imprisonment for the 2,119 grammes of cocaine in application of the guidelines in HKSAR v Abdallah[34]. After referring to HKSAR v Herry Jane Yusuph[35], he found that the applicant’s role as a storekeeper and identified no aggravating factor for her previous conviction of drug possession, because it was a spent conviction 21 years ago. Having considered there was no meaningful mitigation in her favour, he sentenced the applicant to 23 years and 11 months’ imprisonment.

24.  It is noted that, in accordance with the new sentencing guidelines laid out in the case of Huang Ruifang, the starting point adopted by the judge would be significantly lower, namely 20 years and 8 months’ imprisonment for 2,119 grammes of cocaine.[36]

25.  The applicant applied for leave to appeal against her sentence out of time during the currency of her appeal proceedings against conviction and after she received legal advice in respect of her sentence. As a general principle, an offender should be sentenced on the basis of the laws that applied at the time of the commission of the offence, and this includes any applicable sentencing guidelines: Secretary for Justice v Wong Chi Fung[37]. Whilst the applicable sentencing guidelines at the time of the offence and the lapse of time in seeking to appeal a sentence are relevant considerations when deciding whether or not to grant leave to appeal, the change to the sentencing guidelines and whether it will have a significant bearing on the sentence being served by an offender are also matters to be taken into account. The applicant received a substantial sentence, albeit for a serious crime, which will be significantly reduced under the new guidelines. Refusing her leave to appeal against her sentence, would be denying her the chance to argue a substantial and plainly arguable ground of appeal that has a reasonable prospect of success, which would result in a significant reduction to her sentence: HKSAR v Sithole Palesa Donetie Yvette[38]. The respondent opposes the application, but I consider that in the circumstances and the interests of justice, the applicant should be granted leave to appeal against her sentence even though she is out of time. For this purpose, I grant her an appeal aid certificate to be legally represented in her appeal against sentence.

Conclusion

26.  For the foregoing reasons, I refuse the applicant leave to appeal against her conviction but grant her leave to appeal against her sentence.