HKSAR v. TSUI LOK HIN

CACC 194/2019

[2021] HKCA 1317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 194 OF 2019

(ON APPEAL FROM HCCC NO 305 OF 2018)

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J U D G M E N T

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1.  The applicant was charged with two counts of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of the first count averred that on 30 January 2018, at the passage between lift 33 and lift 34 of Tower 5, Platform Level, Mont Vert, No 9 Fung Yuen Road, Tai Po in Hong Kong, together with Lau Lee-yung, the applicant unlawfully trafficked in a dangerous drug, namely 1,034 grammes of a solid containing 757 grammes of cocaine. The particulars of the second count averred that on 31 January 2018, at Flat B, 11^th Floor, Tower 6 of Mont Vert, the applicant unlawfully trafficked in a dangerous drug, namely 35.0 grammes of a solid containing 27.1 grammes of cocaine. To these counts he pleaded not guilty and stood trial before Campbell-Moffat J (“the judge”) and a jury. On 12 June 2019, he was convicted on Count 1 by a majority verdict and on Count 2 by unanimous verdict. Subsequently, he was sentenced to an overall sentence of 20½ years’ imprisonment.

2.  The applicant filed a Notice of Application for Leave to Appeal (by way of Form XI) on 26 June 2019, and now applies by counsel for leave to appeal against conviction.  The sole ground of appeal before the court (particularised in two sub-grounds) avers that the judge’s directions undermined the applicant’s right of silence.

3.  Having heard submissions, succinctly put by both Mr Chau SC for the applicant and Mr Wong on behalf of the respondent, I have concluded that the ground of appeal advanced, which Mr Chau acknowledges is a narrow one, involves a question of law alone.  As such, it does not require the leave of the court.  The point sought to be argued is not one of mixed law and fact: indeed, it is not dependant on the facts of the case at all.  It is simply concerned with the correctness of the judge’s directions in law and, more particularly, whether or not what she meant by those directions impinged on the applicant’s right of silence.

4.  For that reason, I am not required as a Single Judge under the provisions of section 82 of the Criminal Procedure Ordinance, Cap 221 to consider the grant of leave to appeal.  The applicant may appeal as of right on a question of law alone under section 82(2)(a) of the Ordinance.