A A

B B
CACC 159/2017
C [2020] HKCA 870 C

IN THE HIGH COURT OF THE

D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E COURT OF APPEAL E

CRIMINAL APPEAL NO 159 OF 2017

F F

(ON APPEAL FROM HCCC NO 376 OF 2016)

G G

H
BETWEEN H

HKSAR Respondent
I I
and
J Lin Chi Man (練志文) (D1) 1st Applicant J

Lin Shu Kei (連樹基) (D2) 2nd Applicant

K K

L L
Before: Hon Macrae VP in Court
M Dates of Hearing: 14 July 2020 and 20 October 2020 M

Dates of Judgment: 20 October 2020 (in respect of the 1st Applicant); 23

N ‍October 2020 (in respect of the 2nd Applicant) N

Date of Reasons for Judgment: 23 October 2020 (in respect of the 1st ‍Applicant)
O O

P JUDGMENT & REASONS FOR JUDGMENT P

Q Q
1. The two applicants (who will be referred by their trial
R designations as “D1” and “D2” respectively) were jointly charged with R

one count of conspiracy to traffick in a dangerous drug, contrary to

S S
sections ‍4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and
T sections 159A and 159C of the Crimes Ordinance, Cap 200. The T

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B B
‍particulars of the offence were that they, between 12 and 27 ‍November
C ‍2013 inclusive, conspired with Cheung Chi-yuen (“Cheung”) to C

unlawfully traffick in a dangerous drug, namely 11,910 grammes of a

D D
solid containing 10,250 ‍grammes of cocaine.
E E

2. Having indicated his plea some 11 days prior to trial, D1

F F
pleaded guilty on the first day of trial, which was 2 May 2017. D2
G pleaded not guilty and stood trial alone before Deputy Judge ST Poon (as G

‍he then was) (“the judge”) and a jury. On 15 May 2017, D2 was
H H
unanimously convicted on the indictment. On 16 May 2017, D1 was
I sentenced to 22½ years’ imprisonment, with 5½ years of an existing I

sentence for drug trafficking being ordered to run consecutively to the

J J
22½ ‍years’ imprisonment. D2 was sentenced to 30 years’ imprisonment.
K K
3. Having filed their respective Notices of Application for
L L
Leave to Appeal (“Form XI”), D1 now applies for leave to appeal against
M sentence, whilst D2 applies for leave to appeal against conviction only. M

N The undisputed background of the case N

O O
4. It was admitted by D1 in pleading guilty, and by D2 at his
P trial, that on 27 November 2013, Cheung had been intercepted when he P

arrived ‍at Hong Kong International Airport from Abu Dhabi in the United
Q Q
‍Arab ‍Emirates. Upon a search of his luggage, 11,910 grammes of a solid
R containing 10,250 grammes of cocaine (the same batch of dangerous drug R

as particularised in the conspiracy count alleged against D1 and D2),

S S
were found in his luggage. The estimated street value of the drugs in
T question, as at November 2013, was HK$16,912,000. Cheung was duly T

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B B
arrested and subsequently charged with an offence of trafficking in a
C dangerous drug. In due course, he pleaded guilty to that charge and was C

sentenced to 20 years’ imprisonment. Cheung gave information to the

D D
police implicating D1 and D2 in respect of the offence with which he had
E been charged. E

F F
D1’s appeal against sentence
G G
Admitted facts by D1
H H

5. Apart from the undisputed background recited above, D1

I I
admitted and agreed with Cheung’s account of the conspiracy to traffick
J in a dangerous drug between Cheung, D1 and D2, which was contained in J

Cheung’s non-prejudicial statements to the police following his sentence.

K K

L 6. In April 2013, Cheung had been approached by a woman L

and asked to bring something back to Hong Kong from Brazil for a
M M
reward of at least HK$40,000. The exact figure was not stated. Cheung
N subsequently accepted the offer in August 2013. On 17 November 2013, N

Cheung met with D2 and received a suitcase and a Nokia mobile

O O
telephone from him. On 19 November 2013, Cheung further received
P from D2 a printout of an electronic air ticket to Abu Dhabi as well as cash P

of US$1,300. Cheung then flew to Abu Dhabi later on the same day and
Q Q
maintained telephone contact with D2 whilst he was in Abu Dhabi.
R R
7. On 15 November 2017, D1 flew from Hong Kong to Brazil,
S S
via Abu Dhabi. On 23 November 2017, D1 left Brazil with a suitcase

T
containing the dangerous drugs particularised in the charge against him T
and flew back to Abu Dhabi.
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B B
8. On 24 November 2013, Cheung met with D1 in Abu Dhabi.
C They swapped their respective suitcases, with Cheung receiving the one C

brought by D1 from Brazil containing the dangerous drugs. Cheung and

D D
D1 became friendly with each other in Abu Dhabi. Eventually, D1 left
E Abu Dhabi for Hong Kong on 26 November 2013, while Cheung returned E

to Hong Kong on 27 November 2013. F

F

G Mitigation G

H H
9. In mitigation, the judge was informed that D1 suffered from

I
diabetes, which required him to inject himself four times a day. As far as I
his role in the conspiracy was concerned, it was said that it was similar to
J J
Cheung’s role and he was nothing more than a courier. His counsel urged

K the judge to adopt an enhanced starting point similar to that accorded to K

Cheung.
L L

10. The trial had been fixed from 4 to 17 May 2017, the listing
M M
hearing having taken place on 28 September 2016, which was 26 days
N after the delivery of the judgment in HKSAR v Ngo Van Nam1. D1 did N

not indicate his plea at the ‍listing hearing but gave notice of his plea of
O O
guilty by letter on 21 ‍April ‍2017, which was 14 days before the trial was
P due to take place. D1’s counsel at trial, however, accepted that the new P

approach to sentencing discounts set out in Ngo Van Nam should be

Q Q
2
applied to D1 , and that in consequence he should receive a discount of
R R
between 20% and 25% for what was a late guilty plea3.

S S

1
T HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. T
2
AB, p 33F-H.
3
AB, p 33K.
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B B
11. At the time of his sentencing, D1 had six previous
C convictions. Although five were unrelated to dangerous drugs and dealt C

with in a magistrate’s court, the last one was a conviction in the High
D D
Court in December 2015 for trafficking in a dangerous drug, for which he
E was sentenced to 16 years’ imprisonment4. D1 committed that offence in E

December 2014, after the date of the offence in the present case. At the F
F
time of sentencing for the present offence, he was, therefore, already
G G
serving that sentence. Counsel urged the judge to order one third of the

H
then existing sentence to run consecutively to the sentence for the count H
in the present case.
I I

Reasons for sentence

J J

K 12. The judge found that the role played by D1 in the conspiracy K
5
was similar to that played by Cheung . In view of the quantity of cocaine
L L
involved, he adopted 28 years’ imprisonment as the starting point for
M sentence, which he then enhanced by 2 years for the international element M

involved in bringing such a large consignment of drugs across the border

N N
into Hong Kong. Since he was of the view that the guidelines under Ngo
O ‍Van Nam governed the present case, he gave D1 a reduced discount of O

25% for his guilty plea and sentenced him to 22½ years’ imprisonment.
P P

13. Since the present case was unrelated to the offence for which
Q Q
D1 was already serving a sentence of 16 years’ imprisonment, the judge
R R
considered that an appropriate overall sentence for the two offences

S
should be 28 years’ imprisonment6. In achieving that totality, the judge S

4
T AB, p 138. T
5
AB, p 30K.
6
AB, p 31C.
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ordered that 5½ years of the sentence he was already serving should run
C consecutively to the 22½ years’ imprisonment in the present case, with C

the remainder running concurrently.

D D

E D1’s grounds of appeal and submission E

F F
14. In his Form XI, D1 complained that the sentence passed was

G
excessive and “too few (of the prison term) ran consecutively”, by which G
I think he meant concurrently.
H H

15. In both of his letters to the court, dated 20 ‍March ‍2020 and
I I
15 ‍May 2020, D1 referred to the reasons for sentence of HKSAR v
J Cheung ‍Kam Shing7 and attached a document which appears to be an J

extract of a written submission by counsel for a defendant in an unknown

K K
case in 2017.
L L

Respondent’s submission
M M

16. In her written submissions dated 5 June 2020, Ms Fung for

N N
the respondent relies on the sentencing guidelines in HKSAR v Abdallah
O ‍Anwar ‍Abbas8 and submits that it is not reasonably arguable that the O

starting point of 28 years’ imprisonment, duly enhanced by 2 ‍years for

P P
the international element to 30 years’ imprisonment, is manifestly
Q excessive. Q

R R
17. The relevant chronology of events leading to D1’s plea of
S guilty is as follows: S

T 7
T
HKSAR v Cheung Kam Shing (Unrep. HCCC 438/2016, 7 September 2017).
8
HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.
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B B
Date Event
C 19 August 2016 D1 pleaded not guilty on the Return Day and C
the case was committed to the High Court for
D trial. D

2 September 2016 The judgment in Ngo Van Nam was handed

E down. E

28 September 2016 The listing hearing for the present case was
F F
held. The trial was fixed to be heard from 4 to
17 May 2017, with a PTR on 24 February
G 2017. G

24 April 2017 D1 indicated his intention to plead guilty by

H letter, dated 21 ‍April 2017. H

4 May 2017 The 1st day of trial, at which D1 formally

I I
pleaded guilty.

J J
18. Thus, on 24 April 2017, when D1 indicated his intention to
K plead guilty, the trial dates had already been fixed. In those K

circumstances, Ms Fung submitted that, under the Ngo Van Nam

L L
guidelines, the 25% discount for plea adopted by the judge was the
M maximum that could have been given: indeed, it could well have been M

less.
N N

O 19. The judge had been invited in mitigation to order one third O

of his existing sentence to run consecutively to the sentence in the present

P P
‍case. In fact, the judge ordered 5½ years’ imprisonment of that sentence
Q to run consecutively to the 22½ years’ imprisonment, which was Q

equivalent to 34.4% of the sentence he was imposing for the present

R R
offence. It was, therefore, close to what D1’s counsel had advocated.
S S
20. Ms Fung contended that the judge had sufficiently taken
T T
totality into account and that it was not reasonably arguable that the final

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term of 28 years’ imprisonment after plea (from a notional starting point
C of 42 years’ imprisonment for the two cases) was manifestly excessive. C

D D
Discussion
E E
21. On the last occasion when this matter was before me, I
F F
raised the issue of whether the new sentencing guidelines in Ngo Van

G
Nam did in fact have any application to the case of D1, since the offence G
was committed almost three ‍years before Ngo Van Nam was decided.
H H
Article ‍12(1) of section 8 of the Hong Kong Bill of Rights Ordinance,

I
Cap ‍383 stipulates that: I

“No one shall be held guilty of any criminal offence on account

J of any act or omission which did not constitute a criminal J
offence, under Hong Kong or international law, at the time
K when it was committed. Nor shall a heavier penalty be K
imposed than the one that was applicable at the time when the
criminal offence was committed. …” (Emphasis supplied)
L L

22. It seems to me reasonably arguable that D1 was entitled to a

M M
full one third discount, since the reduced discounts under Ngo Van Nam
N (and, therefore, the heavier penalties) would not have been part of the N

sentencing policy of the courts at the time when the criminal offence was
O O
committed by D1. If the respondent wishes to argue otherwise, the Court
P ‍of Appeal should determine the matter with the benefit of full argument P

from the parties.

Q Q

R
Conclusion (D1) R

S 23. Accordingly, I grant D1 leave to appeal on this matter, and S

in order that the point can be properly addressed, with the benefit of any
T T

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legal research, I shall grant D1 an appeal aid certificate in respect of his
C appeal against sentence. C

D D
D2’s appeal against conviction
E E
The prosecution case
F F

24. Whilst the prosecution called four prosecution witnesses, the

G G
prosecution case against D2 essentially relied on the evidence of Cheung
H (who gave evidence as PW3), which comprised his oral testimony, text H

messages extracted from a Samsung mobile telephone (“Exhibit P62”)

I I
and photographs extracted from a Nokia mobile telephone (“Exhibit
J P28”). The two mobile telephones were seized from Cheung upon his J

arrest.
K K

L 25. In 2011, Cheung had met a woman called “Kwai Che” inside L

an amusement game centre. In April 2013, Kwai Che asked Cheung if he

M M
was bold enough to travel to a foreign country and bring goods back for a
N reward of at least HK$40,000. At that time, Cheung did not accept the N

offer. However, in August 2013, Kwai Che mentioned the offer again to
O O
Cheung and, this time, he accepted it. One to two days later, a person
P called “Ah Kei”, who was identified by Cheung as D2, called Cheung and P

asked for the particulars of his passport and Home Visit Permit. D2 told
Q Q
Cheung to wait for further instructions about the trip. Cheung stored
R D2’s mobile telephone number under the name “Ah Kei” in Exhibit ‍P62. R

Cheung then followed up with Kwai Che and D2 about the trip he was to
S S
make, during August and September 2013. In September ‍2013, D2 called
T Cheung and asked for the particulars of his passport once again. T

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B B
26. On 10 November 2013, Cheung again sent the particulars of
C his travel documents to D2 at D2’s request made during a further C

telephone call. At about 10 pm on 17 November 2013, inside Neway

D D
Karaoke in Mongkok, D2 gave a suitcase and Exhibit P28 to Cheung and
E told him to take them with him when he went overseas. Exhibit P28 was E

for the purpose of communication between D2 and Cheung whilst he was F

F
overseas. D2 then said that Cheung would be leaving one or two days
G G
later and that he would call him again. On 19 November 2014, Cheung

H
had a further meeting with D2, at which D2 gave him a print-out of an H
electronic air ticket to Abu Dhabi, the address of a hotel in Abu Dhabi
I I
and US$1,300 in cash with which to rent a room during his stay. Cheung

J
was told that the destination had been changed to the Middle East because J
of the lower risks involved; accordingly, his reward was to be reduced to
K K
HK$25,000.

L L
27. During his stay in Abu Dhabi, Cheung maintained contact
M with D2 via Exhibit P28 using D2’s two telephone numbers in Hong M

‍Kong. One of the numbers was the same telephone number that Cheung
N N
had communicated with D2 when he was in Hong Kong. On 24
O ‍November 2013, Cheung received a telephone call from D2, who said O

that he was to meet a person in the lobby of the hotel where he was
P P
staying, and that that person would give him something.
Q Q

28. Subsequently, Cheung met D1 and they swapped their

R R
respective suitcases, with Cheung receiving the suitcase containing the
S dangerous drugs (“Exhibit P1”). On the same day, D2 sent Cheung a S

photograph of an electronic air ticket and informed him that he would be

T T
flying back to Hong ‍Kong later that evening. Subsequently, D2
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re-scheduled Cheung’s return flight to 27 November 2013 because of a
C visa problem. On one occasion during Cheung’s stay in Abu Dhabi, D2 C

had remitted HK$1,000 to Cheung via Western Union for expenses. On

D D
27 ‍November 2017, Cheung flew back to Hong Kong with Exhibit P1
E and was arrested. E

F F
29. D2 was arrested on 16 September 2015 for conspiring to
G traffick in dangerous drugs with Leung Kwai Ho, D1 and Cheung. Under G

caution, D2 said “I do know the three of them, but I do not know they
H H
trafficked in (dangerous) drugs”9. In a subsequent video recorded
I interview under caution10, D2 said he had known D1 from childhood 11. I

He had become acquainted with both Leung Kwai-ho, whose nickname

J J
was Kwai Che12, and Cheung13 in a video game centre in To Kwa Wan.
K He had come to know Kwai Che in about July 2012 14. In August ‍2012, K

Kwai Che introduced Cheung to D215. On about 17 ‍November 2013, he

L L
assisted his friend, Eddie, to hand over a newly purchased suitcase 16 and a
M printout of an electronic air-ticket17 to Cheung in Neway Karaoke in M

Mongkok. D2 further said he had two mobile telephone numbers in use 18.
N N
He said he did not have any recollection19 of the telephone number which
O Cheung allegedly communicated with D2 both in Hong Kong and in Abu O

‍Dhabi. He denied meeting Cheung on 19 ‍November 2013.

P P

Q Q
9
AB, p 42.
10
Exhibit P56B: Transcript of video recorded interview.
11
R Counter 30: AB, p 98. R
12
Counters 38-42, AB, pp 98-99.
13
Counters 51-54: AB, p 99.
14
S Counter 96: AB, p 100. S
15
Counter 120, AB p 101.
16
Counters 183-184: AB, pp 104-105.
17
T Counters 318-322: AB, p 112. T
18
Counters 155-160: AB, p 103.
19
Counters 177-178: AB, p 104.
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B B
Defence case
C C

30. D2 elected not to testify or call witnesses. By way ‍of a set

D D
of ‍Admitted Facts, made pursuant to section 65C of the Criminal
E ‍Procedure ‍Ordinance, Cap 221, D2 admitted most of the prosecution case E

including D1’s itinerary to and from Brazil and Hong ‍Kong via Abu
F F
Dhabi between 15 and 27 November 2013. The voluntariness of D2’s
G record of interview was not challenged. G

H H
31. Through questions put to the witnesses, D2’s case was that

I
he had no knowledge of any trafficking activities involving Cheung and I
D1. D2 did not take part in arranging the return air ticket from Abu
J J
Dhabi. Ultimately, Cheung was not a credible witness and should not be

K relied upon to convict D2. K

L Summing-up L

M M
32. The judge set out the core factual issues which the jury had
N to decide20: N

“The first question you need to consider is whether you accept

O O
the evidence of Cheung Chi-yuen that the defendant is that Ah
‍Kei. If you are not sure the defendant is that Ah Kei, there will
P be insufficient evidence against the defendant and you must P
acquit the defendant. If you are sure the defendant and that Ah
‍Kei is the same person(,) (y)ou must first consider whether you
Q are sure Cheung Chi-yuen’s evidence regarding the Q
participation of that Ah Kei is true. If not, you cannot rely on
R his evidence to draw any inference. If you are sure, you should R
then move on to consider whether taking all the evidence
together the only reasonable inference you can draw is that
S there was an agreement to traffic in dangerous drugs and that S
Ah Kei, the defendant, was a party to the agreement and also he
intended to carry it out at the time he agreed. Members of the
T T
20
AB, pp 9T-10H.
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jury, you are the sole judges of fact and it is a matter for you
whether the evidence is sufficient to make you sure.”
C C

He gave a direction in similar terms shortly before the jury retired to

D D
21
consider their verdict .
E E

33. The judge provided an extensive summary of Cheung’s

F F
evidence22 in his summing-up. In particular, he highlighted various
G inconsistencies and queries in Cheung’s evidence, which had been G

canvassed by D2’s counsel at trial23 and in his closing speech24.

H H

D2’s grounds of appeal

I I

J 34. D2’s grounds of appeal against conviction have taken J

several forms since his original grounds of appeal were set out in his
K K
Form XI on 18 May 2017, more than three years ago. His first series of
L grounds of appeal may be said to comprise his Form XI grounds, his L

subsequent letter to the Court dated 4 September 2017 and his two
M M
affirmations, sworn respectively on 24 November 2017 and 14 June 2018.
N This first series of grounds of appeal essentially focused on three main N

grounds.
O O

P
35. It is not necessary to say anything further about this first P
series of grounds of appeal because, on 3 July 2020, the Court received a
Q Q
voluminous bundle of documents, hand written by a fellow prison, Mr

R ‍Rurik Jutting, on the applicant’s behalf, withdrawing and abandoning all R

S S
21
AB, pp 22R-23O.
22
T AB, pp 16C-20S. T
23
AB, pp 20T-22F.
24
AB, pp 20G-22I.
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B B
previous grounds of appeal and substituting nine grounds of appeal
C accompanied by a list of no less than 32 authorities. C

D D
36. Nor is it necessary to say anything further about this second
E set of grounds of appeal because, on 31 August 2020, the Court received E

yet a third bundle of 20 pages of handwriting, this time in a different

F F
script, enclosing 11 pages of grounds of appeal identifying 10 grounds of
G appeal, although in reality there were also a number of sub-grounds, G

which were said to be “in substitution for all other grounds and
H H
submissions filed to date”. Attached to the new grounds of appeal were
I also what appeared from the handwritten pagination to be 7 out of 15 I

pages of written submission. A further case authority was also attached

J J
to the submission.
K K
37. At the hearing before me, D2 produced another letter, dated
L L
12 October 2020, obviously also written by Mr Jutting on D2’s behalf
M since the handwriting corresponds to the second set of grounds of appeal, M

referring to a further Court of Appeal decision from England and Wales.

N N

38. It is the third set of grounds of appeal with which I shall

O O
deal, although I am bound to point out that Ms Fung, for the respondent,
P has had to prepare three different written arguments to meet the evolving P

cases of the applicants. Her latest written argument, dated 15 October

Q Q
2020, deals with D2’s third set of grounds of appeal, although she points
R R
out that she has not been able to deal with the other 8 pages of the 15

S
pages of submission because neither she nor the Court have received S
them. Upon my specific enquiry at the hearing about the apparently
T T
missing pages, no further pages were produced by D2.

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B B
39. On 16 October 2020, the Court received notification from
C the Legal Aid Department that D2 had made what was said to be a “4 th C

legal aid ‍application” and that time was needed to process his application
D D
before a decision could be made. In fact, to be strictly accurate, this is
E D2’s 5th ‍application for legal aid, the relevant dates of his applications E

being: 12 ‍June 2017 (refused on 28 August 2017); 26 ‍March ‍2019 F

F
(initially granted on 11 April 2019, but discharged on 28 ‍October 2019);
G G
15 ‍November 2019 (refused on 7 February 2020); 24 ‍June 2020 (refused

H
on 24 August 2020); and 16 October 2020 (the ‍present application, to ‍be H
‍determined). Meanwhile, the Hong Kong Bar Association Free ‍Legal
I I
‍Service and the Clinical Education Unit of the Faculty of Law of Hong

J
‍Kong University have both declined to assist D2, on 15 ‍November ‍2018 J
and 24 August 2020 respectively.
K K

40. I am now told by D2 that the reason for his latest application
L L
for legal aid is a new ground of appeal, of which neither the Court nor the
M respondent was hitherto aware. The new ground, which has not been M

filed with the Court, alleges incompetence of counsel. There is also

N N
apparently a further ground of appeal in the pipeline, as yet unformed or
O reduced to writing. I have pointed out to D2 that nowhere in any of the O

three sets of grounds of appeal he has provided to the Court is there any
P P
complaint of flagrant incompetence against his trial counsel. Indeed, in
Q Q
his latest grounds of appeal, he expressly says that he is not making any
specific complaint of flagrant incompetence against counsel. It is true R
R
that the remark is made in respect of a particular issue concerning Ground
S S
5: nevertheless, D2 is clearly conversant with flagrant incompetence as a

T T

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B B
species of ground of appeal, yet he has never in more than 3 years since
C his conviction made such a complaint before. C

D D
41. Whilst I understand the position of the Legal Aid
E Department and the need to process applications made for legal aid E

properly, from the Court’s perspective D2’s conviction took place more
F F
than 3 years ago, while the offence giving rise to that conviction took
G place almost 7 years ago. If there were ultimately to be a successful G

appeal and an order for retrial by the Court of Appeal, such retrial would
H H
be taking place 8 or, conceivably, 9 ‍years after the offence, in
I circumstances where the principal witness is a civilian within sight of the I

end of his own sentence of imprisonment25. Such extraordinary delays

J J
are not in the public interest. There is also the position of D1, whom I
K have determined has a reasonably arguable ground of appeal against K

sentence: he is entitled to know where he stands in terms of the length of

L L
his sentence, complicated as it is by the existence of the earlier period of
M imprisonment. M

N N
42. Moreover, this is the third time this application for leave has
O been listed for hearing, although it is the second time the case has been O

brought before me. I am not prepared to let this matter drag on with
P P
another adjournment. I will, however, say that if I am to grant leave to
Q D2, I will inevitably also grant D2 an appeal aid certificate: if I refuse Q

leave, I shall not, of course, be granting an appeal aid certificate but it

R R
does not stop the Legal Aid Department taking its own course in deciding
S whether to grant legal aid should the applicant renew his application for S

25
T In HKSAR v Cheung Chi Yuen (Unrep., CACC 288/2015, 16 May 2018), Cheung’s sentence was T
reduced from 20 years’ to 13½ years’ imprisonment for his assistance to the authorities in the case
against D1 and D2.
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B B
leave, as he is entitled to do. Accordingly, I decided that this matter must
C proceed. C

D D
Consideration
E E
43. The foundation stone of a large number of the grounds of
F F
appeal put forward by D2 is that Cheung may not have been a conspirator

G
because he did not know, or may not have known, that he was carrying, G
and that the conspiracy therefore concerned, dangerous drugs. On this
H H
foundation, the applicant has constructed an elaborate argument that,

I
since there was insufficient evidence that Cheung knew he was trafficking I
in dangerous drugs, D2 could not have been party to any conspiracy with
J J
Cheung to traffick in dangerous drugs. Nor could he have been party to a

K conspiracy with D2 alone, which was never the prosecution’s case. This K
foundational argument lies at the heart of Grounds 1A, 1B, 2A, 2B, 5, 6,
L L
7, 8A, 8B, 9 and 10. I shall therefore deal with this issue first.
M M
44. One of the specific grounds of appeal advanced (Ground 5)
N is that the judge erred in law in directing the jury that Cheung’s plea of N

guilty to trafficking in the very same quantity of cocaine particularised in

O O
the indictment against D2 was evidence of Cheung’s knowledge that he
P was trafficking in dangerous drugs. The judge directed the jury as P

follows26:
Q Q

“You may remember Cheung Chi-yuen said in his evidence

R that he guess(ed) what was contained in the suitcase was R
smuggled goods or drugs. But you may also remember he said
in his evidence that he knew there was drug inside the suitcase
S S
but he did not know the quantity of it. In any event, Cheung
Chi-yuen had pleaded guilty to (the) offence of trafficking in
T dangerous drugs and an essential element of that offence was T
26
AB, p 7J-O.
U U

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A - 18 - A

B B
that he had knowledge that what he was importing was
dangerous drugs. By pleading guilty to that offence, Cheung
C C
Chi-yuen has admitted that he knew of (sic) believed that there
was drug inside the suitcase.”
D D
45. I do not regard it as reasonably arguable that this direction
E E
was wrong, or that the judge was not entitled to give it. It was an

F
admitted fact, by which the jury were bound 27, that Cheung had been F
arrested at Hong ‍Kong International Airport and subsequently pleaded
G G
guilty to trafficking in the cocaine found in his baggage, namely 11,910

H
grammes of a solid containing 10,250 grammes of cocaine 28. Earlier, in H
directing the jury on the necessary elements of the offence of trafficking
I I
in dangerous drugs, which was the substantive offence in the conspiracy,

J the judge had directed the jury perfectly correctly that29: J

“… to commit the offence of trafficking in dangerous drugs,

K K
the person charged with the offence must have known what he
was importing was a kind of dangerous drugs.”
L L
If the jury were told that knowledge was an ingredient of trafficking in
M M
dangerous drugs (which it is), and that they were bound by the fact that

N
Cheung had pleaded guilty to such an offence (which they were), then N
they hardly needed to be told that by pleading guilty, Cheung had
O O
admitted knowing there were dangerous drugs inside the suitcase. The

P
judge was doing no more than stating an obvious fact which the jury were P
bound to find.
Q Q

46. Ground 5 is not reasonably arguable. Nor are any of the

R R
other grounds which are constructed upon the thesis that Cheung may not
S have been knowingly trafficking in the very dangerous drugs with which S

27
T AB, p 12A-E. T
28
AB, p XIV, paras 7 and 9.
29
AB, p 5L-N.
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A - 19 - A

B B
D2 had been charged. Quite apart from the admitted facts, the evidence
C that Cheung was a knowing party to a conspiracy to traffick in dangerous C

drugs was overwhelming, given the elaborate preparations and steps

D D
taken to send him to collect the dangerous drugs from D1 in Abu Dhabi
E and bring them back to Hong Kong. Once one realises that the jury E

would inevitably have found that Cheung was a conspirator, the grounds F
F
which are constructed on the premise that he was not, become
G G
unarguable, let alone not reasonably arguable. I do not find Grounds 1A,

H
1B, 2A, 2B, 5, 6, 7, 8A, 8B or 10 to be either realistic or reasonably H
arguable.
I I

47. Ground 3 takes issue with what are said to be leading

J J
‍questions asked by prosecuting counsel of Cheung both in
K examination-in-chief and re-examination. No objection was raised by K

defence counsel to any of these questions; the first of which did not
L L
concern D230; while the second actually assisted the defence, since
M Cheung might on one view have appeared to be trying to minimise his M

knowledge of the dangerous drugs, or at least his knowledge of the

N N
quantity of those dangerous drugs31. Ground 3 is not reasonably arguable.
O O

48. Ground 4 is a puzzling ground, because I can see nothing

P P
wrong with what prosecuting counsel had said to the jury. The impugned
Q passage forms part of his closing address and is neither factually wrong Q

nor prejudicial. Ground 4 is not reasonably arguable.

R R

S
49. Ground 6 also forms part of the series of grounds which are S
founded upon Cheung not being a conspirator knowingly trafficking in
T 30
T
AB, p 287Q-R.
31
AB, p 373B-Q.
U U

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A - 20 - A

B B
dangerous drugs. However, it also attacks the judge’s summing-up for
C not giving the jury a fair and balanced account of Cheung’s evidence in C

relation to what he knew or didn’t know about the contents of the

D D
suitcase. I do not think that is a fair criticism. Cheung had said different
E things at different times as to his state of mind, including his awareness E

of the suitcase containing dangerous drugs (which, judging by her F

F
32
subsequent question, defence counsel treated as knowledge ), albeit he
G G
did not know the quantity of drugs33, to his guessing that the suitcase

H
contained dangerous drugs34. The judge directed the jury as much in the H
passage already quoted above at paragraph 44. While these differing
I I
answers might have been useful in attacking Cheung’s consistency and

J
credibility as a witness, in reality the jury would inevitably have found J
that he must have known from the circumstances that the suitcase
K K
contained dangerous drugs and he had admitted as much by pleading

L guilty to trafficking. The evidence in this regard, both direct and L

inferential, was overwhelming.

M M

50. In respect of Ground 9, there is a further complaint that

N N
hearsay evidence was admitted, in which D1 had told Cheung that Ah Kei
O was D2, which was never the subject of any warning or direction to the O

jury by the judge. In the context of a conspiracy allegation between D1,

P P
D2 and Cheung, I do not accept that it would be hearsay under the
Q Q
co-conspirator’s rule. In any event, such an argument is completely
otiose and redundant. Defence counsel never objected to this evidence, R
R
no doubt because Cheung had several contacts with D2, as a result of
S S
which he was able to positively identify him as Ah Kei. It was an
32
T AB, p 319D. T
33
AB, p 318E-F.
34
AB, p 319D-E; p 317B-C.
U U

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A - 21 - A

B B
Admitted Fact that at an identification parade conducted on 5 October
C 2015, Cheung had positively identified both D2 and D1 “as the people he C

had named as his co-conspirators in his statements to the police”35.

D D
Furthermore, in his evidence-in-chief, Cheung gave the following
E evidence when identifying D236: E

F “Q. One man you identified on that identity parade was Ah F

Kei, is that correct?
G A. Yes. G

……
H H
Q. Where is he today?

I A. This one, the defendant. I

Q. Right. You’re pointing at the man in the dock.

J J
A. Yes.

K
Q. And that’s the man you know as Ah Kei. K
A. Yes.
L L
Q. And you met with a suitcase on 17 November.
A. Yes.
M M
Q. And did you speak to each other?
N A. Yes. N

Q. And did he confirm that he was Ah Kei?

O O
A. Yes.” (Emphasis supplied)

P P
This aspect of Ground 9, particularly in light of the last italicised question
Q and answer, is totally unarguable, let alone not reasonably arguable. Q

R R
51. In respect of Ground 10, I have already said that the
fundamental basis of this ground, as with others, is not reasonably S
S

T 35
T
AB, p XV, para 11.
36
AB, pp 272S-273J.
U U

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A - 22 - A

B B
37
arguable. The eponymously named Kevin Brown point simply does not
C arise. But even if the fundamental basis of these various grounds were C

correct, the point would still not arise: the essential ingredients of the
D D
offence alleged were the same whether it was a two-man or a three-man
E conspiracy. Ground 10 is not reasonably arguable. E

F F
52. Since there are a number of sub-grounds and sub-arguments
G in the grounds of appeal, I should say for the sake of clarity and G

completeness that I have considered them all, as well as Mr Fung’s

H H
helpful submissions in dealing with them. I have also considered the
I summing-up in the context of the evidence of Cheung and the closing I

addresses of both counsel. I can find no reasonable grounds of appeal

J J
against conviction.
K K
Conclusion (D2)
L L

53. The application for leave to appeal against conviction by D2

M M
is accordingly refused. I advise D2 that he has the right to renew his
N application for leave to the Court of Appeal, but he is also warned that N

one of the consequences of so doing may be that the Court of Appeal

O O
could make an order for the loss of any time which D2 has spent in
P custody pending his appeal, if the Court were to come to the view that P

there was no justification for the renewal of the application.

Q Q

R R

S S

T T
37
Derived from R v Kevin Brown (1984) 79 Cr App R 115.
U U

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B B

C (Andrew Macrae) C

Vice President
D D

Ms Mickey Fung SPP, of the Department of Justice, for the Respondent

E E
st
The 1 Applicant appeared in person
F F
nd
The 2 Applicant appeared in person
G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V