HKSAR v. LAM MAN YING AND ANOTHER

CACC 357/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 357 OF 2014

(ON APPEAL FROM HCCC NO. 491 OF 2013)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicants seek leave to appeal againsttheir convictions at trial by Deputy High Court Judge D’Almada Remedios, as she was then, and a jury on a count of unlawful trafficking on 25 May 2013 at Hong Kong International Airport in 5.62 kilogrammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Count 1).

2.  At the hearing on 29 April 2016, the applicants were unrepresented, having been refused the grant of legal aid on 15 January 2015.  Further, on 27 May 2015, the Hong Kong Bar Association’s Free Legal Service Scheme declined the 2^nd applicant’s request for assistance.  At that hearing, at the request of the 2^nd applicant we received and considered a letter dated 26 April 2016 written on behalf of the 2^nd applicant by Ms Amanda Clift-Matthews in which, having noted that the 2^nd applicant had been refused a grant of legal aid and had been unable to obtain pro bono representation, she invited the Court to have regard to various matters in hearing the 2^nd applicant’s application.  In the result, we granted legal aid to both applicants.

3.  At the hearing on 10 February 2017, we reserved our judgment, which we give now.

The trial

4.  There was no dispute that at about 6 p.m. on 25 May 2013 the applicants were intercepted by Customs & Excise officers at a departure gate of Hong Kong International Airport.  Having been brought to a nearby nursing room their respective suitcases were searched and found to contain the 5.62 kg of Ice, the subject of the count on the indictment of which they were convicted, the retail value of which was $4,450,230.

5.  The two suitcases, a Polo Club and a Diplomat suitcase respectively, had been retrieved earlier by Customs officers from the checked-in baggage destined for flight NZ080, which was due to depart at 7:10 p.m. that day.  Tied to the handle of the Polo Club suitcase was a luggage tag in the full name of the 1^st applicant, whereas tied to the handle of the Diplomat suitcase was a luggage tag in the full name of the 2^nd applicant.  Each of the suitcases had been checkedin by the respective applicant.  As requested, each of the applicants opened their respective suitcase using a combination code for the lock.  In each suitcase three packages of Ice were found wrapped inside three sweaters.  They were attached to the inside of the sweaters by ‘Good morning’ towels, which were stitched with thread to the sweaters.

6.  On 25 May 2013, Law Lai Ho (“Law”) checked in a suitcase at the Air New Zealand counter at Hong Kong International Airport for flight NZ080.  Subsequently, that suitcase was retrieved by Customs officers and searched, but no dangerous drugs were found.

The prosecution case

7.  It was the prosecution case that on 23 May 2013 the two suitcases had been bought by Law and a man with a ponytail (referred to at trial as “ponytail man”) from a shop in Hau Tei Square, Tsuen Wan and taken to a flat at Block 2, Discovery Park. At about 9:10 a.m. on 25 May 2013, Law and the ponytail man left Block 2, Discovery Park and took the two suitcases to a light blue van, which the ponytail man boarded before it was driven off.  The two suitcases were delivered to the Novotel Hotel at Tung Chung, where the 1^st applicant and a man he described as being known as Fei Kuen, collected them and brought them into the hotel.

8.  At about 21:00 hours on 25 May 2013, a search of Law’s home at Block 2, Discovery Park, Tsuen Wan revealed the presence of 79.86 grammes of cocaine contained in 184 plastic bags.  In addition, the paraphernalia for packaging dangerous drugs was found on the premises, together with a plastic container in which was a needle and white thread.  Two identity card-style photographs of the applicants respectively were found in the premises. It was an admitted fact that the thread matched in colour and fibre type on microscopic appearance, the thread used to attach the ‘Good morning’ towels enclosing three of the six plastic bags containing Ice to the sweaters.  Having pleaded guilty on 24 July 2014 to unlawful trafficking in the cocaine found on the premises, Law was sentenced to 5 years and 8 months’ imprisonment.

9.  Following the discovery of the dangerous drugs in his suitcase, the 1^st applicant was arrested and cautioned on suspicion of having contravened the Dangerous Drugs Ordinance. The 1^st applicant said that he did not know what the “things” were or to whom they belonged.  When asked, “What the things were for”, the 1^st applicant said “I would take them to someone”.  He said that he did so for NZ$8,000 remuneration. Of the 2^nd applicant, he said “We are friends.”  At about 23:15 hours that evening, the 1^st applicant signed a declaration that a post‑recorded entry in the Customs officer’s notebook of that conversation was true. Then, the 1^st applicant wrote:[1]

“ Actually, these two suitcases were transported to me in a goods vehicle approximately between nine o’clock and 10 o’clock this morning. Then I pulled these two suitcases back to the room where I stayed, (i.e.) Room 1819, Novotel (Hong Kong) Citygate.”

The defence case

10.  The applicants elected to give evidence.  Each of them testified that they did not know there were dangerous drugs in the two suitcases.

The 1^st applicant

11.  The 1^stapplicant said that Fei Kuen[2] was his friend and employer who lived on the Mainland, whom he had known for more than two years.  Fei Kuen operated a parallel goods business. He worked for Fei Kuen on a daily basis buying goods in supermarkets in Hong Kong, carrying them across the border into the Mainland and delivering them to Fei Kuen, for which he was paid.

12.  The 1^stapplicant said that at Chinese New Year he had agreed to Fei Kuen’s request that he deliver something for him to New Zealand in March or April. Fei Kuen told him that he would pay him $1,000 a day to deliver Dong Chong Cao, a Chinese medicine produced in Tibet.  Fei Kuen said that he would arrange and pay for the cost of the flight and the hotel.  Also, he suggested that he find someone, perhaps a girlfriend, with whom to travel, because as a single man travelling alone he would be stopped and searched by Customs officers. At the end of the day, it was agreed between them that Fei Kuen would pay all of the costs of the second person’s travel expenses and the 1^st applicant would forego payment for his services.

13.  The 1^st applicant said that he understood that possession of Dong Chong Cao was not illegal, but he understood that it would be subject to tax, if declared.  He was to carry HK$100,000 worth of Dong Chong Cao which, if it became necessary, he would declare to be worth HK$50,000 on which a tax of NZ$6,000 would be levied.

14.  For his part, the 1^st applicant recruited the 2^nd applicant to travel with him to New Zealand.  He had known her for about 20 years.  Their relationship could have been that of boyfriend and girlfriend, but she got married and he treated her as a younger sister. He did not tell the 2^nd applicant about the Dong Chong Cao or that Fei Kuen would pay for all their expenses of the trip to New Zealand.  At Fei Kuen’s request he and the 2^nd applicant went to a branch of the Miramar travel agency in Mongkok with their passports, passport photographs and their identity cards.  Whilst they were there, Fei Kuen paid the balance of the tour fee of about $30,000 in cash directly to the travel agency.

15.  At Fei Kuen’s suggestion, to avoid any risk of missing his flight as a result of delays in crossing the border, he travelled from the Mainland on 24 May 2013. Again at Fei Kuen’s suggestion, he agreed to stay at the Novotel Hotel in Tung Chung, the arrangements for which were left to Fei Kuen.

16.  The 1^st applicant said that on 24 May 2013 he went to Fei Kuen’s home, where Fei Kuen gave him two packets of Dong Chong Cao, which the 1^st applicant placed into the purple suitcase he intended taking to New Zealand, and NZ$8,000, of which NZ$6,000 was to pay any tax that might be levied on the Dong Chong Cao.  Then, the two of them crossed the border from the Mainland into Hong Kong, after which they travelled by taxi to Shatin where they met the 2^nd applicant.  She had no suitcase, but was carrying hand luggage.  All three of them travelled to the Novotel Hotel, where they checked into Room 1819.  Having gone up to the room, Fei Kuen left them.

17.  The 1^st applicant said that during the evening Fei Kuen telephoned him and informed him that his clients wanted the delivery of more Dong Chong Cao. In face of the 1^st applicant’s protestation that his suitcase was full, Fei Kuen said that he would make arrangements.  He and the 2^nd applicant slept in the hotel room overnight.

18.  At about 9 a.m. the following morning, the 1^st applicant admitted Fei Kuen to the bedroom, where he gave the 1^st applicant an extra packet of Dong Chong Cao, telling him that arrangements had been made for suitcases to be delivered.  About 20 minutes later, after Fei Kuen received a telephone call, he and Fei Kuen went down to the lobby of the hotel and walked outside the hotel, where Fei Kuen went up to a goods van and took delivery of two suitcases. They were the suitcases in which he and the 2^nd applicant were in possession at the time of their arrest later that day.  At Fei Kuen’s request he wheeled the suitcases into the hotel and the two of them returned with them to the hotel room, where the 2^nd applicant was asleep.  Fei Kuen explained that he was providing two suitcases, rather than one, because he wished the 1^st applicant to buy milk powder or baby formula in New Zealand and return with that to Hong Kong.

19.  The 1^st applicant placed the contents of his own suitcase into one of the suitcases and transferred the contents of one of the 2^nd applicant’s handbags into the other suitcase.  Then, he slept on the same bed as the 2^nd applicant, whilst Fei Kuen slept on another bed. Having awoken in the early afternoon, he woke the 2^nd applicant so that they could go out to have a meal. Fei Kuen said that he would sleep some more, but asked that the 1^st applicant telephone him to inform him of their whereabouts.

20.  He and the 2^nd applicant left the hotel room, but whilst they were in a shopping mall he received a telephone call from Fei Kuen who told him that he had another matter with which to deal and would not be joining them.  For their part, he and the 2^nd applicant went to the Fairwood restaurant.  Eventually, as a result of telephone conversations between them, he and the 2^nd applicant met Fei Kuen in the shopping mall at about 4:00 p.m. and returned to the hotel room together.

21.  Fei Kuen having explained that he was to be joined by his wife at the hotel and that he did not wish a misunderstanding to arise because of the presence of the 2^nd applicant, he and the 2^nd applicant took their respective suitcases and left the hotel room, leaving Fei Kuen alone in the room.  For their part, he and the 2^nd applicant boarded a shuttle bus outside the hotel and went to the Air New Zealand check-in counter, where they checked in the two suitcases.

The 2^ndapplicant

22.  The 2^ndapplicant confirmed that she had known the 1^st applicant for about 20 years.  He was a very close friend, but they were not intimate.  She said that after the Chinese New Year, in a telephone conversation with the 1^st applicant, she accepted his invitation to join him as his guest on a tour to New Zealand.  She left all the arrangements to him.

23.  She did not know Law.  The first time that she had met Fei Kuen was at the Miramar travel agency in Mongkok, when she and the 1^st applicant had brought along their passports.  She did not see them pay monies to the travel agency. She left the travel agency with three Miramar travel bags.

24.  The 2^nd applicant confirmed that on 24 May 2013, after telephone contact between the two of them, she had met the 1^st applicant’s taxi near her home.  She took two of the Miramar travelling bags with her, into which she had placed her clothing.  Fei Kuen was also on board the taxi.  First, the three of them went for a meal.  Then, all three of them travelled by another taxi to the Novotel Hotel in Tung Chung.  There, they checked into a hotel room, to which all three of them went.  She had no idea that Fei Kuen had played any part in making arrangements for their tour to New Zealand or in the arrangements to stay in the Novotel Hotel. Later, Fei Kuen left them. For their part, she and the 1^st applicant went out to shop and bought food to eat.  Having returned to the hotel room, she and the 1^st applicant went to bed between 4:00 and 5:00 a.m.

25.  The 2^nd applicant said that when she awoke, she was aware of the presence in the room of Fei Kuen and two additional suitcases. She was surprised to find Fei Kuen in the bedroom and asked the 1^st applicant why he was there and when he had come to the bedroom.  The 1^st applicant explained that Fei Kuen had come to the room in the morning and that, having played mah-jong nearby all night, it was convenient for Fei Kuen to come to the room.  The 1^st applicant explained that the two suitcases would be used by them in their trip to New Zealand, whereas Fei Kuen would take away the purple suitcase that the 1^st applicant had brought to the hotel.

26.  Having been told by the 1^st applicant that he had arranged to meet someone for lunch, she and the 1^st applicant left the hotel room, leaving Fei Kuen behind. He explained that he was very sleepy.  For their part, she and the 1^st applicant went for lunch. No one met them for lunch.  So, she realised that the 1^st applicant had lied to her to get her to wake up and leave the room.  After lunch, the 1^st applicant changed some money and they went shopping.

27.  Eventually, they returned to their hotel room.  There, she saw Fei Kuen was still sleeping.  He explained that he was waiting for his wife to arrive and, to avoid any misunderstanding, it would be better if the 2^nd applicant left.  Then, the 1^st applicant told her that he had placed her clothing into one of the two new suitcases.  So, without looking into either of the suitcases, she and the 1^st applicant left the hotel room, each pulling along one of the suitcases. They made their way to the airport travelling on a shuttle bus to do so.  There, they checked in their respective suitcases.

28.  Of the photograph of herself that had been found in Law’s home by Customs officers, she said that it was one of the photographs that she had provided the 1^st applicant at the time that they had gone to the Miramar travel agency to join the tour to New Zealand. She had no idea why it was found in Law’s home.

29.  Of the 1^stapplicant’s evidence that he had agreed to take Dong Chong Cao into New Zealand, the 2^nd applicant testified that the first she had ever heard of that was at the time of his testimony at trial.

Grounds of appealagainst conviction

The 1^st applicant

30.  In the grounds of appeal against conviction advanced on behalf of the 1^st applicant, Ms Karen Cheung submitted that the prosecution had failed to discharge its duty of disclosure, in particular in failing to disclose to the 1^st applicant all of the CCTV footage of the Novotel Hotel CCTV cameras recorded on 24 May 2013 and 25 May 2013.  In consequence, the 1^st applicant had been deprived of his right to a fair trial and his conviction was thereby unsafe and unsatisfactory. Secondly, she submitted that the judge failed to give the jury a direction that they must consider the evidence in respect of each of the applicants individually and separately.

The 2^ndapplicant

31.  On behalf of the 2^ndapplicant, MrJeremy Cheung submitted that the prosecution had failed in its duty to ascertain and disclose to the 2^nd applicant material relevant or possibly relevant to an issue in the trial, in particular in failing to seize and then disclose all the CCTV film recorded on the CCTV cameras in the Novotel Hotel on 24 and 25 May 2013.  Secondly, it was submitted that the judge had failed to direct the jury to consider the evidence in respect of each applicant separately. Thirdly, it was contended that the judge had erred in failing to give the jury adequate directions as to the drawing of inferences from circumstantial evidence.  Fourthly, it was suggested that the judge had inaccurately summarised the evidence against the 2^nd applicant, in particular in stating to the jury wrongly that the 2^nd applicant had not questioned why Fei Kuen was present in the Novotel Hotel bedroom on 25 May 2013. In fact, the 2^nd applicant had testified that she questioned the presence of Fei Kuen in that hotel room.

32.  At the hearing, we granted the 2^nd applicant leave to re‑amend the grounds of appeal to argue that the judge erred in law in failing to direct the jury to have regard in favour of the 2^nd applicant to the 1^st applicant’s out-of-court statement to Chief Customs Officer Poon Kwok Leung, on 26 May 2013, that the 2^nd applicant had no knowledge of the presence of dangerous drugs in either of the two suitcases.

A consideration of the submissions

CCTV

33.  At the trial, copies of CCTV recordings made at the Novotel Hotel were admitted into evidence by way of Admitted Fact.  The CCTV depicted scenes during three periods of time at various places in the hotel: the hotel lobby; the entrance to the hotel lobby; the exterior area immediately outside the lobby; part of the corridor of the 18^th floor and the interior of a hotel lift at various times on 24 and 25 May of 2013.

24 May-6:08 and 6:24 p.m.

34.  In CCTV recordings of the lobby between 6:08 and 6:23 p.m., a hotel lift and the 18^th floor corridor on and between 6:22 and 6:24 p.m., the 1^stand 2^ndapplicant, together with a man they testified was Fei Kuen, are depicted as they checked into the hotel and made their way to Room 1819.

25 May-9:43 and 9:50 a.m.

35.  Then, in the period on and between 9:43 and 9:50 a.m., CCTV recordings from the 18^th floor corridor; a hotel lift; the hotel lobby; and the area immediately beyond the hotel lobby depicted the 1^st applicant and Fei Kuen making their way from the 18^th floor, through the lobby and beyond the hotel building, after which they returned. On his return to the lobby the 1^st applicant was seen to be wheeling two suitcases as they returned to the 18^th floor.

25 May -4:33 and 4:44 p.m.

36.  Finally, in the period 4:33 and 4:44 p.m., the 1^stand 2^ndapplicants were seen each wheeling a suitcase making their way from the 18^th floor, down in the lift to the lobby, which they exited and boarded a shuttle bus.

37.  There was no dispute that a person checked out of Room 1819 at 5:37 p.m. on 25 May 2013, to whom the balance of the deposit on the room was repaid.  So, Room 1819 had been occupied in total for more than 23 hours.

38.  The nub of the complaint made on behalf of the applicants was that the Customs officers had failed to ascertain and seize all the CCTV recordings relevant to the occupation of Room 1819, not only of all the movements to and from the room but also the circumstances in which the two suitcases were obtained after the 1^st applicant and Fei Kuen had left the lobby of the hotel at about 9:45 a.m. on 25 May 2013. Having failed improperly to seize all the relevant CCTV recordings, the prosecution had rendered itself incapable of discharging its duty of full disclosure.

The law

39.  The duty imposed on the law enforcement authorities in England and Wales, inter-alia, to pursue all reasonable lines of enquiry, ascertain and retain all material relevant to the investigation is stipulated in the Criminal Procedure and Investigations Act, 1996 (CIPA), as amended, and supplemented by the Code of Practice. In Hong Kong, we have no such legislation.  However, as Brooke LJ observed in the judgment of the Divisional Court in R (Ebrahim) v Feltham Magistrates’ Court [3] the provisions of the Code “preserve and amplify common law rules which were prescribed by the judges before the Code came into force.” [4] He went on to note that one such judgment was that of the Court of Appeal of England and Wales in R v Reid [5]:

“ Owen J said, in effect, that: (i) there is a clear duty to preserve material which may be relevant; (ii) there must be a judgment of some kind by the investigating officer, who must decide whether material may be relevant; (iii) if he does not preserve material which may be relevant, he may in future be required to justify his decision; (iv) if his breach of duty is sufficiently serious, then it may be held to be unfair to continue with the proceedings.” [6]

40.  In R v Reid, the appellant had been convicted after trial of one count of robbery and two counts of unlawful wounding.  The Court of Appeal held that the judge was entitled to have refused an application for stay,based on the failure of the investigating police officer to retain CCTV recordings.  Of the issues relevant to that determination, Brooke LJ said:[7]

“ A police officer told the court that he saw a video film which contained nothing of relevance, and that one of the cameras did not cover the particular area. He said that if the recording had been relevant it would have been seized. The trial judge refused a stay, and the Court of Appeal dismissed a challenge to his decision.”

41.  Brooke LJ went on to note, in the context of the determination of the issue of whether or not a trial ought to be stayed, in circumstances in which the prosecution had failed to obtain or retain arguably relevant evidence, that:[8]

“ In one of the unreported cases we were shown, R v Swingler (unreported) 10 July 1998, it was said that there had to be either an element of bad faith or at the very least some serious fault on the part of the police or the prosecution authorities for this kind of challenge to succeed.”

42.  Having observed that there were two well-known principles relevant to the stay of proceedings for an abuse of process, Brooke LJ said:[9]

“ (i) The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, because the fairness of a trial is not all one-sided; it requires those who are undoubtedly guilty should be convicted as well as those about whose guilt there is any reasonable doubt should be acquitted. (ii) The trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.”

43.  Finally, Brooke LJ observed:[10]

“ It must be remembered that it is a commonplace in criminal trials for a defendant to rely on “holes” in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination.  If, in such a case, there is sufficient credible evidence apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his.  Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence.”

44.  The 1^stapplicant complained that the prosecution’s failings were relevant to the critical time during which the 1^stand 2^ndapplicants were absent from Room 1819 in the early afternoon of 25 May 2013, leaving Fei Kuen in occupation of the room, during which time they had lunch at the Fairwood restaurant before returning to the room some hours later. It was the 1^st applicant’s case that the dangerous drugs had been placed in each of the two suitcases during that period of time and the parcels of Dong Chong Cao removed.

45.  The provenance of the copies of the CCTV recordings and the circumstances in which the excerpts were chosen from the overall CCTV recordings made at the Novotel Hotel was explained to some extent in the testimony of Mr Kwan Ka Man, a security officer who worked in the Security Control Room and monitored the CCTV system.  No transcript of his evidence was provided to the Court.  However, in summing up the judge said of his evidence:[11]

“ He assisted the Customs officers in reviewing the CCTV on 24 and 25 May 2013. As a result of the Customs officer’s request, he looked through all the CCTV. He did this in the presence of some Customs officers, which he recalls, one was the exhibits officer.

He watched the CCTV for a certain period of time.  The excerpts or the CCTV, he said, were chosen by the Customs officers.  They provided an approximate time and he would locate the time on the CCTV.  In cross-examination by Mr Marray he said he just copied the timeframe that he was told to copy by the Customs officers.  He said the rest of these recordings had been destroyed.  He copied the disks on about 30 May 2013.  He spent around an hour reviewing the videos.”

46.  As the judge went on to remind the jury, Customs Officer 669, the exhibits officer, testified that he had collected the copies of the CCTV recordings from the Novotel Hotel on 3 June 2013.  He did not review the tapes [12].

47.  Although no evidence was adduced from any Customs officer as to the basis on which material had been selected for copying from the CCTV recordings, it is clear that counsel for the 1^st applicant was aware of their identities. In his closing speech, Mr Marray criticised the absence of any evidence from a Customs officer explaining the basis of the selection, for example: “We selected this for that reason” or even, “We selected it.”  Of Mr Kwan’s evidence, Mr Marray said:[13]

“ Now, he said that three Customs officers viewed the CCTV and told him what they wanted copied, and he said those officers viewed the CCTV for about three hours and were called Kwot Chu-kin, Lai Mu-sin and Au Wai-hung. Of course, Au Wai-hung is PW7, the exhibits officer.”

48.  The applicants were committed for trial from Eastern Magistracy on 15 November 2013.  Amongst the witness statements in the committal bundle was a statement from Mr Kwan Ka Man, in which he said that the CCTV recordings were kept for a period of 11 days to 52 days. By a letter dated 21 November 2013 the Legal Aid Department wrote to the manager of the Novotel Hotel asking to be provided with copies of CCTV recordings for the following locationsandtimes:

“ 1. Taxi stands outside of your hotel (from 8:00 a.m. to 11:00 a.m. on 25.5.2013); and

2. check-in/check-out counter at the lobby of your hotel (from 4:00 p.m. to 10:00 p.m. on 25.5. 2013).”

Also, the writer asked that the hotel retain, not delete or destroy, any such CCTV records.

49.  In reply, in a letter dated 28 November 2013, the manager of Novotel Hotel said “…our hotel maintains CCTV records for only one month, and therefore is not able to provide any records for May 2013.”

50.  Apart from that request directly of the hotel, Ms Cheung put no material before us of any requests made of the prosecution before or at trial for disclosure of material relevant to the CCTV recordings. For example, requests for the disclosure of notebook entries or statements made by any of the three Customs officers involved in selecting the material to be copied from the CCTV recordings.  Or, as another example, any request of the prosecution that those officers be made available to be interviewed by the defence or made available to be cross-examined at trial. Furthermore, no application was made for a stay of the trial based on the absence of the CCTV recordings.

51.  The evidence of the 1^st and 2^nd applicants that, in the early afternoon of 25 May 2013 they had left Room 1819, leaving Fei Kuen in occupation of the room, in which was contained all their possessions and the two suitcases, was unchallenged in cross-examination by counsel for the prosecution.  Nevertheless, Ms Cheung suggested that in his closing speech counsel for the prosecution sought to undermine that evidence:[14]

“ Now, the suggestion made by the 1st defendant, and it’s a suggestion you’ll look at with great care, is that he left Fai Kuen in the room sleeping and then Fai Kuen had to go off at some stage and wasn’t able to get back to the room in time and that delayed them.  Now, the 2nd defendant’s evidence on this point was odd because at one point you will recall she said that, “When we got back to the room, Fai Kuen was asleep”, and the 1st defendant had to pat him to wake him up.  Then she was cross-examined by Mr Marray and then she seemed to slightly change her story, significantly change her story and say he was then downstairs, and subsequently, on re-examination, she couldn’t really give a further explanation for that and nor could she in cross‑examination.”

52.  However, it is clear from the subsequent submissions of counsel for the prosecution that challenge was to the 1^st applicant’s evidence that the two suitcases were empty when he brought them to Room 1819, not that he and the 2^nd applicant had left Fei Kuen in sole occupation of the room when they went to lunch in the early afternoon of 25 May 2013:[15]

“ If the defence is right and Mr Law and pony-tail were behind this, would they have delivered the suitcases empty so that Fai Kuen had to go back to some source, same source, to collect the dangerous drugs? On reflection, we say that really doesn’t make sense. Those drugs must have been in the suitcases when they arrived at the hotel and the suggestion that they were empty at that time, from D1, the cross-examination, cannot be right…”

53.  Although, as noted earlier, in his closing speech counsel for the 1^st applicant was critical of the absence in the prosecution case of an explanation for the basis on which the CCTV excerpts had been selected and of the fact that the original CCTV had been deleted, Ms Cheung accepted that counsel did not invite the judge to give any direction to the jury as to any alleged resulting handicap to the defence nor was any request made to address that omission after the summing up had been delivered.[16]  She submitted, the need for such a direction was made obvious by the closing speech of counsel for the 1^st applicant.

54.  Of the identity of the person who had checked out of Room 1819 and received repayment of the deposit, counsel for the 1^st applicant suggested to the jury:[17]

“ …some things obviously stand out, like the checking out room 189 (1819) is not covered, but that would be easy to find because we know the exact check-out time. That’s in the computer records of the hotel. And we know that when you check out, you have to go to the counter, and we know in this case that when the check-out was made, completed, the deposit was returned. So it would be very easy to find that person checking out, very easy, but it wasn’t done. Of course, this is of some importance, especially as we know that D1 and D2 were at the airport at that time.”

55.  Of the movements of persons in and out of Room 1819, counsel said:[18]

“ What is also surprising is that the records… they didn’t look through the whole records to find out any movement of persons going in and out of room 1819. Now, why is that? One would have thought that would be something that would be of some significance, especially they knew that three people went into the room, so why didn’t they get coverage of the times they went in and out of the room? ”

56.  Of the collection of the two suitcases by the 1^st applicant and Fei Kuen from the goods van outside the hotel on the morning of 25 May 2013, counsel said:[19]

“ It’s also a little bit surprising that the Customs did not get the CCTV coverage which was outside the hotel. Nobody saw the CCTV coverage of where the shuttle bus is and it shows quite a considerable area outside the hotel. That’s where D1 and Fai Kuen collected the suitcases, so why didn’t they get the coverage of D1 or D2 and Fai Kuen, picking up the suitcases from the blue van? ”

57.  In the result, counsel suggested to the jury “The only logical, the only conclusion is that the Customs were protecting someone.” [20]  In her oral submissions, Ms Cheung submitted that the failure of the Customs officers to obtain and retain CCTV of movements in and out of Room 1819 and the area outside the hotel evidence “foul play” by them.

58.  In the course of her oral submissions, Ms Cheung acknowledged that Mr Marray was clearly aware of the selective nature of the CCTV recording adduced at trial, in particular that it was selected from a much greater volume of such material and likely depicted movements in and out of Room 1819 and the relevant area outside the hotel.  She accepted that, in those circumstances, it was to be accepted that the fact that he made no application for a stay of proceedings was an informed decision.  Sensibly and realistically, she made it clear that she did not allege that he acted incompetently.

59.  We are satisfied that, in conducting the trial in the manner in which he did, Mr Marray, a very experienced criminal advocate, made informed tactical decisions which he judged were in the best interests of the 1^st applicant.  The identity of the three Customs officers involved in the viewing of the CCTV was established in the evidence of Mr Kwan Ka Man.  No application was made to seek the notebooks or any statements of those Customs officers, or any request made that they be tendered for cross-examination.  Clearly, that was an informed decision.  No doubt, on a similar basis, Mr Marray did not seek a stay of the trial.  That was realistic. He was content to suggest to the jury that the Customs officers had ulterior motives in making their selection of the CCTV recordings, in order to protect someone.  The innuendo was clear, the applicant had been ‘set up’ and the person(s) who had done that had been protected by the Customs officers.

60.  Those tactical decisions resonated with his submission to the jury that the 1^st applicant believed that, whilst he and the 2^nd applicant were out of the bedroom, Fei Kuen had repacked the suitcases, removing the Dong Chong Cao and replacing it with dangerous drugs and clothing.[21]  Also, it was suggested that Law, at whose home passport photographs of the 1^st and 2^nd applicants had been found, was accompanying them on their journey to New Zealand “…keeping them under observation”.[22]

61.  Perhaps, it was because the 1^st applicant chose to make an issue of the selectivity of the CCTV recordings primarily in his closing speech, that no evidence was led from the Customs officers involved as to what CCTV recordings they had viewed and on what basis the selections were made.  At all events, no evidence was led at trial in respect of those issues.  It is not known what was depicted in the CCTV recordings, how much of it they viewed or why they selected material that they did select, but not other material.  Not having been explored in evidence at trial in any way whatsoever, when the clear opportunity was available to the defence to have required that evidence to be led, there is no question of it being possible to establish that the Customs officers acted in bad faith.

62.  As noted earlier, the evidence of the 1^st and 2^nd applicants that in the early afternoon of 25 May 2013 they left Room 1819 in the occupation of Fei Kuen and the evidence of the 1^st applicant that Fei Kuen had taken delivery of the two suitcases from a goods van at about 9:45 a.m. on 25 May 2013 was not challenged in cross-examination by the prosecution.  Confirmation of the latter event, if it was depicted in a CCTV recording, added little weight to the unchallenged evidence.  Similarly, confirmation of the earlier event, if the CCTV depicted the departure of Fei Kuen from Room 1819 after the applicants had left the room, added little weight to that unchallenged evidence.

63.  If the judge had been asked to remind the jury of the alleged disadvantage to the defence caused by the lost CCTV recordings, or if she had chosen to do so herself given the closing speech made on behalf of the 1^st applicant, no doubt the judge would have said of the two points raised in this Court, that the evidence was unchallenged.

64.  As it was, the judge directed the jury:[23]

“ You have been presented with all the evidence and there will be no more evidence. You must now decide the case on the evidence that you have seen and heard. You must not speculate about what other evidence there might or could have been called.”

65.  Of counsels’ speeches, she said:[24]

“ A reminder that counsels’ speeches is not evidence. You will obviously take into account what they have urged upon you in their speeches. Remember, you are in no way bound by their opinion. It is your sole responsibility to decide the facts of this case.”

Conclusion

66.  We are satisfied that there is no merit in these grounds of appeal.

Separate consideration of the applicants’ cases

67.  There is no dispute that the judge did not give the jury the simple direction set out in the Specimen Directions of the Judicial Institute:[25]

“ You must consider the case against them for each defendant separately. The evidence concerning each defendant is different and therefore your verdicts need not be the same.”

68.  Of course, in giving the jury that direction, it may be necessary to remind the jury of the more significant differences in the evidence relevant to the respective defendants.

69.  The context in which the judge directed the jury was that the indictment contained three counts.  By Count 1, it was averred that the applicants had unlawfully trafficked together in the total amount of Ice found by Customs officers in the two suitcases.  In the alternative, by Count 2, it was alleged against the 1^st applicant only that he trafficked unlawfully in the dangerous drugs in the suitcase bearing the luggage tag in his name, namely 2.78 kg of Ice.  Similarly, by Count 3 it was averred, in the alternative that the 2^nd applicant had unlawfully trafficked in the dangerous drugs in the suitcase bearing the luggage tag in her name, namely 2.84 kg of Ice.

70.  In those circumstances, at the outset of her summing up, the judge directed the jury:[26]

“ the main issue for you to decide in this case is whether the defendants had knowledge that the drugs were in the two suitcases, or if not in both suitcases, then in each of their own suitcases.”

71.  In respect of Count 1, the judge said:[27]

“ If you are sure the defendants knew there were drugs in both suitcases and were taking them out of Hong Kong to New Zealand, then they intended to commit the offence with the other defendant and they would be sharing a common intention to commit the offence of trafficking. So if that is the case, then they would be committing this offence together and jointly and would be guilty of the offence.

If, however, you are not so satisfied that the defendants had a common intention to commit the offence with each other, then you consider if they had committed it on their own or without the other.  And that is when you would turn to consider the 2nd and 3rd count.”

72.  The judge went on to illustrate the direction:[28]

“ If say D1 knew there were drugs in both suitcases, but D2 you find, did not know, you may still convict D1 in respect of Charge 1 provided you are sure he knew that all of the drugs were in both suitcases. And, of course, that the element of trafficking is satisfied.

  The same applies the other way round.  If you find D1 did not know, that D2 knew that there were drugs in both suitcases, provided you are sure she knew there were drugs in both suitcases and the element of trafficking is satisfied, she would be guilty of Charge 1.”

73.  Earlier, the judge had identified the nub of the case of each applicant.  Of the 1^st applicant, she said:[29]

“ The 1st defendant believed, it is his case, that he was taking Chinese medicine or Dong Chong Cao. I will just call it DCC -- to New Zealand on behalf of his friend called Fai Kuen or Ah Kuen. He regarded Ah Kuen as his part-time employer and friend.

  It is the 1st defendant’s case, that he was duped, tricked by Fai Kuen.  Fai Kuen had taken out the Dong Chong Cao from his suitcase when the suitcase was at the hotel and replaced that with the drugs whilst the 1st defendant and 2nd defendant were outside of the hotel room having their lunch.”

74.  Of the 2^nd applicant, she said:[30]

“ D2’s case, similarly, is that she did not know that there were drugs in the suitcase. She was just going on a holiday with her close friend of 20 years, D1. Though she referred to him as her boyfriend, he was not her boyfriend. She believed that all there was in the suitcase was her Miramar bag with all her clothes and personal care items, including the cosmetics, the normal things one brings on a holiday.”

75.  Having given the jury directions in respect of the drawing inferences, the judge said of the prosecution case:[31]

“ The prosecution says, looking at all the circumstances of this case, you can infer the defendants had knowledge that drugs were in their suitcases. In this case, for example, the prosecution say look at the quantity of ‘ice’ found, almost 6 kilogrammes of ‘ice’ of which the estimated street value was about HK$4.5 million. A very large value of drugs to be found in the possession of these two defendants.

The prosecution say they were not just innocent people used to take over to New Zealand that amount of drugs. They must have been given these drugs knowing they had these drugs in their possession, in their suitcase, given the high value of these drugs. The prosecution has said would the defendants be given nearly $4.5 million of “ice” if they were innocent couriers, if they did not know they were carrying drugs? There was just too much risk in giving that value of drugs to innocent couriers.”

76.  On occasions, in her summing up the judge adverted to what she described as the “defence case”.  Obviously, that was an unobjectionable shorthand reference to the cases of the 1^st and 2^nd applicant’s evidence that “…they did not know that there were drugs inside the suitcases.” [32]  However, given the significant differences in the evidence relevant to the case of the 1^st applicant as opposed to that of the 2^nd applicant, there were dangers in employing that approach more generally.  For example, later the judge said:[33]

“ It is the defence case that this is well planned by Fai Kuen or other people. Law was there to watch the 1st and 2nd defendants because Law had their photos in his flat.”

77.  It is be noted that, although the judge made that observation in the immediate context of her review of the 1^st applicant’s case that he had been tricked by Fei Kuen into taking the two new suitcases in which the dangerous drugs were found, it was made together with a reference to the fact that both the 1^st and 2^nd applicants said that they did not know Law.[34]

78.  In his closing speech for the 1^st applicant, Mr Marray had made submissions which resonated with the judge’s statement:[35]

“ Now, D1 has maintained that Fai Kuen is the person who arranged everything. He was the controller and telling him what to do and one may think that, looking at the CCTV coverage, that that seems to be borne out. Fai Kuen seems to be the organiser.”

79.  Earlier he had said:[36]

“ Inference could be drawn that Fai Kuen was acting together with another man, this Law Lai-ho, to traffic the dangerous drugs using D1 and D2 as innocent stooges, people that could be tricked, simple people.”

80.  There was no dispute that Fei Kuen was well known to the 1^st applicant, but not to the 2^nd applicant. It was the 1^st applicant’s case that he had been duped by Fei Kuen into carrying the dangerous drugs in the two suitcases by the elaborate pretence that he was carrying Dong Chong Cao, which had been removed and replaced by the Ice in his absence from the hotel bedroom.  The 2^nd applicant’s case was quite different.  So, not surprisingly, no suggestion was made in the closing speech for the 2^nd applicant that the enterprise was well planned by Fei Kuen.

81.  There is no dispute that, having averted several times to the nub of the separate cases advanced by the two applicants [37], the judge reviewed their evidence at considerable length.[38]  However, in the context of the judge’s failure to give the jury the simple direction as to the need to approach the case of each applicant separately, it is to be noted that the judge failed to give focus to the fact that the evidence for and against each applicant was different.  That was material to the drawing of inferences adverse to the 2^nd applicant in respect of the issue of her knowledge of the presence of dangerous drugs in the two suitcases.  The need to give focus to the differences in the evidence relevant to the separate case of each of the applicants was made all the greater by the very lengthy summing up, which occupied over 77 pages of transcript.  Finally, it is to be noted that, understandably, counsel for the prosecution conceded in his closing speech that the position of each of the applicants was different.[39]

82.  The 1^st applicant accepted that he was travelling to New Zealand to smuggle Dong Chong Cao into that country.  Whilst he asserted that possession of the substance was not illegal, nevertheless he conceded that he was trying to avoid paying duty that would otherwise be levied on that product on importation into New Zealand. Further, he said that he had been provided with NZ$6,000 by Fei Kuen to pay such duty, in the event that he was discovered smuggling it into the country.  Also, he had recruited the 2^nd applicant to accompany him on the tour at Fei Kuen’s suggestion, in effect that travelling with a female companion would deflect attention that might otherwise result in the New Zealand Customs authorities searching his luggage.  Furthermore, all the expenses of the tour of both the 1^stand 2^ndapplicants had been provided by Fei Kuen.  The 1^st applicant said that in the evening of 24 May 2013 Fei Kuen had told him on the telephone that he wished him to carry more Dong Chong Cao to New Zealand and that it was in those circumstances that Fei Kuen provided the two suitcases the following morning.  At that time, he explained that he wished the 1^st applicant to return to Hong Kong with milk powder or baby formula.  On the evidence of the 1^stand 2^ndapplicants, none of that was known to the 2^nd applicant.

83.  Relevant, in the context of that evidence, was the undisputed evidence of the 2^nd applicant that the 1^st applicant had lied to her in asserting to her that he had arranged to meet someone for lunch on 25 May 2013.  The effect of the lie was that the applicants left the hotel bedroom in the occupation of Fei Kuen.  Of similar relevance, was the 1^st applicant’s evidence that he had taken it upon himself to place the 2^nd applicant’s personal items into one of the two suitcases provided by Fei Kuen.

84.  On that evidence, the 1^st applicant had duped the 2^nd applicant into accompanying him on the tour to New Zealand.  Unwittingly, she was to provide him ‘cover’ to facilitate his entry into New Zealand.  He had his own agenda of which she knew nothing.  For the reasons we have set out, that was of particular significance to the case of the 2^nd applicant.

Conclusion

85.  We are satisfied that the judge’s failure to give the jury the direction that they must consider the case of each of the applicants separately and to identify for them, in the context of that direction, the evidence relevant to each of the applicants was a non-direction in respect of a matter of law in which a direction was required. It was a material non-direction in respect of the 2^nd applicant, given the very different nature of the evidence relevant to a consideration of her case.  It was not a material non-direction in respect of the 1^st applicant.

The judge’s incorrect description of evidence relevant to the 2^nd applicant

86.  The complaint made on behalf of the 2^nd applicant that the judge was in error when she said “…the 2^nd defendant never questioned why Fei Kuen was there at the time…that he appeared at the hotel.  Is it not strange that Fei Kuen would be sleeping in the hotel room on the morning of 25 May? ” [40] is made good by the judge’s subsequent reference to the 2^nd applicant’s evidence:[41]

“ When D2 woke up she saw Fai Kuen was sleeping in the room. D1 told her to wash her face and brush her teeth and they would go out and have lunch. She noticed there were two more suitcases in the room and one more person in the room. D1’s suitcase, the purple one he had carried the previous day, was still there. After she brushed her teeth and washed her face, D1 told Fai Kuen to wake up. D2 asked D1 what Fai Kuen was doing there. D1 said in the morning he had gone downstairs to pick up Fai Kuen. She did not know why Fai Kuen was sleeping in the hotel.”

87.  The latter description accurately reflects the 2^nd applicant’s evidence.[42]  At the hearing, Mr Cheung accepted that no request was made of the judge to correct her earlier incorrect reminder of the 2^nd applicant’s evidence to the jury.

Circumstantial evidence: the drawing of inferences

88.  The criticism by Mr Cheung of the judge’s directions in respect of the drawing of inferences from circumstantial evidence is misplaced. Having directed the jury that there was “an absence of any direct evidence” that the applicants knew that the suitcases contained dangerous drugs, the judge said:[43]

“ But there is other evidence which enables you to find out a person’s intention indirectly, and that is evidence of all the circumstances which you can draw an inference from.

  The prosecution is asking you, the jury, to infer, make an inference -- not speculate or guess that the defendants knew there were drugs in the suitcase.  The prosecution intends to prove knowledge upon the drawing of inferences against the defendants.  Drawing an inference means, if you find certain facts proved either from oral evidence of witnesses or from Admitted Facts or from physical exhibits produced, you are entitled to infer from those facts, the existence of other facts.”

89.  Subsequently, the judge went on to direct the jury:[44]

“ So you must not draw an inference on mere speculation or suspicion. You must draw an inference only on a fact proved to your satisfaction.

   In criminal cases, an inference you wish to draw must be the only reasonable inference to be drawn in the circumstances.  It must be an inference that no reasonable person could fail to draw from the established facts.  So if, from a set of facts which you find proved, there is a reasonable inference to draw against the accused, as well as one in his favour or her favour, then you must not draw that adverse inference against the accused.  You must not do that.”

90.  Then, the judge pointed to the evidence relied on by the prosecution in their invitation to the jury to draw the inference that the “defendant had knowledge that drugs were in the suitcases”.[45]  Next, the judge said:[46]

“ On the other hand, the defence says that another inference might reasonably be drawn from the matters relied upon by the prosecution. And that is that the defendants did not know that there were drugs in the suitcases. There are equally consistent facts which show the defendants did not know.”

91.  Then, the judge pointed to the evidence relied on by the applicants in respect of the drawing of inferences.[47]  Of the 2^nd applicant, the judge said:[48]

“ …she believed she was going on holiday. Mr Sadhwani has shown you the two videos this morning, the recordings. He said look how happy she is when she was checking into the hotel, laughing, joking with Fai Kuen. And when she was about to leave the hotel with the suitcases she was calm and carefree with the suitcases. If she had known there were drugs, she would not be so carefree, calm. He says she would be nervous, she would be anxious.”

92.  There is no merit in this ground of appeal.

The out-of-court statement of the 1^st applicant

93.  In the prosecution case, Chief Customs Officer Poon Kwok Leung said that in May 2013 he was attached to the Dangerous Drugs Operations Intelligence unit of the Customs and Excise Department.  On 26 May 2013, he interviewed the 1^st applicant.  He did so in order to obtain information about dangerous drugs other than in respect of the case for which the 1^st applicant had been arrested.  Not having administered a caution first, he accepted that his evidence of what the 1^st applicant said was not admissibleat the behest of the prosecution.[49]

94.  However, in cross-examination by counsel for the 1^st applicant, Chief Customs Officer Poon said that the 1^st applicant “…insisted to us that the female who went together with him to Australia had no knowledge.” [50]  In cross-examination by counsel for the 2^nd applicant, he confirmed that his reference to the “knowledge” of the 2^nd applicant was in respect of the dangerous drugs found in the two suitcases of the applicants.[51]  He agreed with the suggestion that he had not interviewed the 2^nd applicant because he believed the 1^st applicant’s statement that she had no knowledge about the dangerous drugs.[52]  It is to be noted that no objection was taken to the questions asked in cross‑examination of Chief Customs Officer Poon or to his answers.

95.  In cross-examination of the 1^st applicant by counsel for the 2^nd applicant, the following exchange ensued:[53]

“ Q. Now, do you know that the 2nd defendant knew that the drugs found in both the Polo Club bag and the Diplomat bag, did she have any knowledge prior to both of these bags being opened...

COURT: How can he answer this question?

MR SADHWANI: I’m sorry?

COURT: How can he answer this question?

MR SADHWANI:   Very well.  I have no further questions, thank you.”

96.  Of the issue of the Chief Customs Officer Poon’s belief, the judge directed the jury:[54]

“ Mr Sadhwani also mentioned that the Intelligence officer, that is the Chief Customs officer, after interviewing the 1st defendant believed the 2nd defendant did not have knowledge of the drugs, so he did not interview her. He asked you to arrive at the same belief. Of course, you must arrive at your own belief, not one which the Intelligence officer holds.

         The Intelligence officer was not in this case, he has not heard all the evidence that you have. You, the jury, must base your conclusion and your decision on the evidence that you have heard in this trial and you must arrive at your own conclusion, whether you believe the 2nd defendant did not know.  You are not to rely on the belief of the Customs officer.”

97.  Of the evidence of Chief Customs Officer Poon of his conversation with the 1^st applicant, the judge said:[55]

“ the 1st defendant insisted to him that the 2nd defendant had no knowledge of the drugs.”

98.  Of cross-examination by Mr Sadhwani, the judge said:[56]

“ …after he met with D1, D1 insisted that D2, who was going to go to Australia, had no knowledge about the drugs. In those circumstances the Chief Intelligence Officer did not interview D2 after he interviewed the 1st defendant. As the Chief Intelligence Officer said the reason is that he believed that the 1st defendant, what the 1st defendant said to him that the 2^nd defendant had no knowledge about the drugs. Now, I have given you my directions about this yesterday.”

99.  As the judge reminded the jury, Chief Customs Officer Poonhad not made a record of what the 1^st applicant had said to him and gave his evidence “…according to his memory”.[57]  She reminded the jury that he agreed that the 1^st applicant “…appeared anxious to tell him about the person Fei Kuen.”  Further, the 1^st applicant said “…that he had been at the Novotel Hotel with Fei Kuen on 24 and 25 May and that he crossed the border with Fei Kuen.” [58]

100.  However, the judge gave the jury no direction at all as to what use they were to make of the evidence that the 1^st applicant had asserted that the 2^nd applicant had no knowledge of the presence of the dangerous drugs in the two suitcases.

101.  The judge’s interruption of the cross-examination of the 1^st applicant by counsel for the 2^nd applicant, when he sought to elicit from him confirmation that the 2^nd applicant had no knowledge that the suitcases contained dangerous drugs, was met without demur by counsel. 　That is not surprising.　 The 1^st applicant was entitled to testify only as to what he had seen and heard that was relevant to the knowledge of the 2^nd applicant, not to give his opinion.

102.  The out-of-court assertion of the 1^st applicant to Chief Customs Officer Poon as to the lack of knowledge in the 2^nd applicant that the suitcases contained dangerous drugs was hearsay, if tendered as proof of the truth of the statement. 　An out-of-court statement made by a defendant in a trial may be adduced in evidence if it contains an admission against interest. 　That is the case even if it contains some exculpatory statements. 　A defendant may cross-examine a witness to whom such an out-of-court statement was made by a co-accused and thereby adduce evidence of that statement at trial.[59]

103.  Thestatementsbythe1^st applicanttoChiefCustoms Officer Poon contained no admission against interest.  It did not fall within the exceptions to the rule against hearsay.  Evidence of the exculpatory statement made in respect of the 2^nd applicant was inadmissible.  Accordingly, the evidence ought not to have been admitted into evidence and, having been admitted into evidence, the judge ought to have directed to the jury to ignore it.

104.  However, the judge gave no such direction.  That was a matter that enured wrongly to the benefit of the 2^nd applicant.

Conclusion

105.  There is no merit in this ground of appeal.

Proviso

106.  If we are wrong in our determination that the failure to give a direction that the jury give separate consideration to the cases of the two applicants was not a material non-direction in respect of the 1^st applicant, we would unhesitatingly apply the proviso.  As is apparent from our recitation of the evidence, the evidence against him was overwhelming.

Conclusion

107.  For the reasons that we have given, we refuse the application for leave to appeal against conviction of the 1^st applicant.  Treating the hearing of the application for leave to appeal against conviction of the 2^nd applicant as the hearing of the appeal, we allow the appeal and quash her conviction.

Retrial

108.  In response to the Court’s enquiry, Mr Sean indicated that, if the Court was to allow the appeal of the 2^nd applicant and quash her conviction, the prosecution would seek a re-trial.  For his part, Mr Cheung indicated that he could not oppose such an application.  We are satisfied that he was correct.  Clearly, the alleged offence is very serious and there is more than sufficient evidence for the matter to go before a jury.

Conclusion

109.  We order that the 2^nd applicant be retried on a fresh indictment on what are Count 1 and Count 3 of the current indictment.  The indictment is to be filed with the Court within 14 days and the matter is to be listed before the Listing judge, for the fixing of trial dates, within 28 days hereof.  The 2^nd applicant is remanded in custody pending retrial.