Case Detail

HKSAR v. MOHAMED HUSSAIN MOHAMED IMRAN AND ANOTHER

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Files (3)

[2021] HKCA 1247-EN-2021-09-14

HKSAR v. KALAWILA WITHANAGE KALUM SIRI VITHANA

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CACC 38/2018

[2021] HKCA 1247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2018

(ON APPEAL FROM HCCC NO 55 OF 2017)

__________________________

BETWEEN

	HKSAR	Respondent
and
	KALAWILA Withanage Kalum Siri Vithana	Applicant

__________________________

Before: Hon Macrae VP, Zervos and M Poon JJA in Court

Date of Hearing: 10 August 2021

Date of Judgment: 10 August 2021

Date of Reasons for Judgment: 14 September 2021

_____________________________

REASONS FOR JUDGMENT

_____________________________

Hon M Poon JA (giving the Judgment of the Court)

A. Introduction

1. The applicant and his co-defendant (Mohamed HM Imran, hereafter referred to as D1) were jointly charged with one count of trafficking in a dangerous drug, namely 410 grammes of a powder containing 261 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the charge”).

2. The applicant pleaded not guilty to the charge and stood trial before Deputy High Court Judge Lee (“the judge”) and a jury. D1 pleaded guilty and testified against the applicant. On 17 January 2018, the applicant was convicted by unanimous verdict of the jury and was sentenced to 14 years and 2 months’ imprisonment.

3. On 4 November 2019, the applicant was refused leave to appeal against conviction by the Single Judge^{^[1]}. On 15 November 2019, he filed a Notice of Renewal of Application and sought to renew his application for leave to appeal against conviction. It was not until 22 June 2020 that the Bar Free Legal Service Scheme took up this case and counsel was instructed. Amended perfected grounds of appeal against conviction were filed on 4 September 2020 advancing two new grounds. At the hearing, Mr McGowan agreed that this was in essence an application for an extension of time to apply for leave to appeal on grounds that were not argued before. A Notice of Motion to admit fresh evidence in support of the renewal application was filed on 11 January 2021, which was received on a de bene esse basis.

4. Having heard the application, we granted the extension of time to appeal in which to file grounds of appeal but refused leave to appeal against conviction on those grounds and we dismissed the appeal. We now give our reasons.

B. The prosecution case

5. The prosecution case was primarily based on the evidence of D1 and the Customs officers. It was the prosecution case that upon instructions of a person referred to as the “black man”, the applicant arranged for D1 to prepare false identity documents to collect a parcel containing cocaine (“the parcel”) from the Sham Shui Po Post Office (“the post office”).

6. It was not in dispute that the parcel from Panama was addressed to a “LAM Kam Sun”, care of an address in Sham Shui Po with the contact telephone number 9800-4832, which arrived in Hong Kong by air on 6 August 2016 and was intercepted by the Customs and Excise Department. Upon examination, the parcel was found to contain a thermos flask concealing 410 grammes of a powder containing 261 grammes of cocaine.

7. It was later discovered that the address was a vacant building in Sham Shui Po which was to be redeveloped.

8. D1 testified that he came to Hong Kong in 2005 from Sri Lanka as an asylum seeker^{^[2]} and became acquainted with the applicant^{^[3]} in 2009. They became close friends only when they both moved to Yuen Long^{^[4]}.

9. D1 said that he was told by the applicant in early July 2016, that there was a job to collect a parcel of cocaine^{^[5]} from Panama which belonged to the “black man”^{^[6]}. D1 was promised a sum of $2,000 for preparation of the documents and collection of the parcel at the post office^{^[7]}. D1 admitted to have prepared a false passport copy and a false electricity bill bearing the name “Lam Kam Sun” and false delivery address. He said that he acted in accordance with instructions sent to him by the applicant via mobile telephone SMS messages^{^[8]}.

10. D1 described how he met up with the applicant and the “black man” on 26 August 2016 at Long Ping MTR Station. From there they took the MTR and then a bus to Sham Shui Po^{^[9]}. D1 said that he and the applicant went to the post office at Sham Shui Po together. He went inside but was told by the postal officer that the parcel had not yet arrived. When he was asked to leave a contact number, he gave the number 9800-4832^{^[10]} which was the number appearing in one of the text messages sent by the applicant to him^{^[11]}. During this time, the applicant stayed inside the post office^{^[12]}. D1 identified the applicant in the CCTV footage from the post office as the other person waiting inside the post office^{^[13]}.

11. The parcel was then arranged to be collected on 29 August 2016, and a controlled delivery was mounted by Customs officers. A Customs officer posed as a postal employee at the counter of the post office and other Customs officers in plain clothes mounted surveillance in and outside the post office.

12. It was the evidence of D1 that he went to Sham Shui Po with the applicant and the ‘black man”^{^[14]}. He went inside the post office to collect the parcel, while the applicant waited outside^{^[15]}. When he was collecting the parcel, he received three telephone calls from the applicant enquiring about the progress of the collection and instructing him what to do after collection^{^[16]}. When D1 left the post office, he and the applicant were separately intercepted and arrested by Customs officers. It was also not disputed that D1’s mobile telephone had received three telephone calls from the applicant’s mobile telephone while D1 was inside the post office collecting the parcel.

13. Under cross-examination, D1 said that he testified against the applicant because of the interest of the public and his self-interest^{^[17]}. Although no one had promised him any benefit^{^[18]}, he was expecting some reduction of sentence by giving evidence^{^[19]}. D1 disagreed with the suggestion that he was lying to incriminate the applicant in order to get a significant reduction on his sentence^{^[20]}.

C. The defence case

14. The applicant’s case was that he had nothing to do with the parcel and he did not know that it contained drugs. He had known D1 for about 6 years and they started working together 2 years before the offence^{^[21]}.

15. The applicant denied he had been to the post office with D1 on 26 August 2016^{^[22]}. He said that he met up with D1 on 29 August 2016 to retrieve the mobile telephone of his sister-in-law which D1 was to repair but could not do so. He went with D1 to Sham Shui Po to repair the mobile telephone. He said that his mobile telephone was used by D1 to run his handyman business^{^[23]} as D1 spoke better English^{^[24]}. He said he saw D1 chatting to his friend, the “black man”, at the Long Ping MTR Station for one or two minutes^{^[25]} but paid no attention as to whether the “black man” went with them on the same train to Sham Shui Po. When he and D1 arrived at the Sham Shui Po MTR Station, he saw the “black man” again who gave something to D1 and left^{^[26]}. He waited for D1 but did not see him entering the post office^{^[27]}. He said that the calls he made to D1 were to inform him that a mobile telephone repair shop had opened^{^[28]} and to ask him what he was doing^{^[29]}. The applicant said he could sense the presence of the police in the vicinity because of his concern about his status as an illegal worker^{^[30]}. He was talking to his wife over the telephone when he was arrested^{^[31]}.

16. It was the evidence of the applicant that during the confrontation arranged by the Customs officers for them to recognise each other, he was asked whether he knew D1, which he denied. He said that, at the time, he saw D1 was moving his head from side to side and he thought D1 was indicating to him that he should not acknowledge D1^{^[32]}.

D. Grounds of appeal and fresh evidence on appeal

17. The applicant sought leave to adduce the following evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221, namely, the judgment in D1’s renewed application for leave to appeal sentence^{^[33]} and a redacted copy of his “proof of evidence”^{^[34]} dated 19 October 2017 which, as he deposed, served as his instructions to his trial counsel^{^[35]}. It is submitted that the former could show a post-conviction finding of adverse credibility which could have been a factor for the court to decide the credibility of the key witness. The latter goes to the issue of lack of puttage.

18. Three grounds of appeal against conviction were advanced in the “Amended Perfected Grounds of Appeal” dated 3 September 2020.

D1. Ground 1: The judge failed to direct the jury that they should treat D1’s evidence “with care” and explained why

19. Mr McGowan complains that the judge, in telling the jury to assess the credibility, truthfulness and reliability of the Customs officers in the same manner as other witnesses, failed to highlight the danger of relying on the accomplice evidence of D1. Whilst accepting there is no magic wording for such a warning, it is submitted that the words and phrases used by the judge such as “take heed of”, “bear in mind”, “attached whatever weight” and “form your own view”, failed to sufficiently warn the jury against the risks of relying on the evidence of D1. Reliance is placed on the cases of HKSAR v Yu Wing Fung^{^[36]} and HKSAR v Ngie Hon Miu^{^[37]} that the evidence of D1 which, taken at its highest, revealed a vague hope that he might get some reduction for giving evidence against the applicant but without mentioning any additional discount that he would receive, would have led the jury to assess his credibility in a vacuum.

D2. Ground 2: the judge failed to properly direct the jury on the “lack of puttage” of the applicant’s denial of knowing D1 at the post-arrest confrontation

20. Mr McGowan accepts that whilst the applicant’s denial of knowing D1 was mentioned in the prosecution’s closing speech, the lack of puttage by defence counsel to D1 was not raised. It is submitted the applicant’s credibility was a critical feature. Relying on HKSAR v Chan Hing Kai^{^[38]}, Mr McGowan argues that the judge’s direction in respect of the confrontation invited the jury to consider making an adverse finding on the applicant’s credibility because of defence counsel’s failure to put the applicant’s case to D1, thereby creating a “real possibility of the jury engaging in impermissible reasoning”. Such invitation to the jury to consider its effect on the applicant’s credibility is not appropriate, particularly without further explanation, and indeed is an irregularity.

21. Mr McGowan adds that the judge’s approach to this “Not Putting” is in contrast to how he dealt with the reference in prosecuting counsel’s closing speech concerning the SMS messages in the applicant’s mobile telephone which had also not been put to the applicant. In prosecuting counsel’s closing speech, the jury was invited to use the SMS messages against the applicant. In the summing-up, the judge told the jury that since the applicant had not been asked about the messages, the jury should not speculate whether the sender and the intended recipient were in some kind of business by relying on their contents.

D3. Ground 3: Conviction unsafe and unsatisfactory (a catch-all ground)

E. The respondent’s submissions

E1. On Ground 1

22. Mr Cheung, on behalf of the respondent, submits that it is clear from the evidence that D1 accepted he was expecting a reduction of sentence for giving evidence against the applicant. The present case is distinguishable from Ngie Hon Miu because the jury were expressly told D1 could expect a discount for testifying against the applicant. What was put to D1 was that he lied to get a significant sentence discount and the allegation against D1 was repeated in defence counsel’s closing speech. The issue of D1’s credibility was a live one for the jury. Mr Cheung fails to see how the Court of Appeal’s judgment dismissing D1’s appeal against sentence could be relevant to the present renewed application by the applicant. The judge’s direction had fairly and squarely set out the nature of the challenge to D1’s evidence. Reminding the jury that law enforcement officers should not be treated as deserving more credibility, which merely meant that they were not placed in any special category when it came to credibility, did not diminish in any sense the warning given to the jury about the danger of relying on D1’s evidence.

E2. On Ground 2

23. Mr Cheung points out that without any evidence from trial counsel, it is unclear whether the redacted and incomplete pages of the applicant’s instructions in October 2017 were the sole instructions given. The preliminary threshold for admission of this new evidence has not been met.

24. Mr Cheung submits that in respect of the non-puttage of the applicant's case about the confrontation to D1, the course proposed by the judge that this was a matter which went to weight only arose after discussion in which both counsel agreed. It is not for the applicant to gainsay the course adopted by the judge in the appeal. In any event, firstly, the judge correctly directed the jury that they could take into account the lack of puttage in assessing the weight to be attached to the applicant’s evidence on this matter. Secondly, no adverse comment that the jury might draw an adverse inference as to his credibility was made.

25. Mr Cheung adds that the judge directed that the applicant’s denial of knowing D1 “is the matter which goes to his credibility only”. He then went on to say whether what the applicant said was or might be true was a matter for the jury’s decision. He then talked about the effect of the non-puttage affecting weight to be given to this part of the applicant’s evidence which had not been put to D1. Lastly, the judge had clearly directed the jury that even if they refused the applicant’s evidence, the jury still had to consider the prosecution evidence and be satisfied to the requisite standard.

26. Ground 3 was merely a catch-all ground.

F. Discussion

F1. Ground 1

27. In respect of the credibility of D1, the judge highlighted the submission of counsel for the applicant^{^[39]}:

“… I now come to the evidence of Imran, who, you may take the view, is the most important prosecution witness. However, before I do that, take heed of the matters which Mr Stephenson mentioned in his closing submissions including: (1) Imran is a self-confessed offender; (2) he hopes for a reduction of sentence by giving evidence for the prosecution. Therefore he may have incentive to give false evidence against the defendant; (3) he admits that what he told the Custom officers at his video recorded interview, the transcript of which is P37 and the certified translation P37A, contains exaggerations. In fact, he admits that he made untrue statements in that interview including the assertion that he was threatened by the defendant into committing this offence; and (4) it is put to him, which he denies, that given his education, language ability and computer knowledge, it is unreasonable that he would have taken the risk of committing the offence for just HK$2,000 at the time when he was expecting to be returned to Sri Lanka for a better future than remaining in Hong Kong. However, as I have said yesterday you are entitled to consider whether Imran’s credibility has been undermined by this cross-examination.
You would also remember that when Imran was cross-examined about the false copy passport (P10) and false electricity bill P11, he admitted that this was not the only occasion that he had made false documents. He said that the present case was the third occasion that he made false documents. You are not to speculate what those other false documents were about. The point, however, is that he admits that he had on other occasions committed dishonest acts by making false documents.
Members of the jury, bear those matters in mind when you assess Imran’s credibility and reliability as a witness and attach whatever weight to those matters as you consider appropriate. Bear in mind also what I directed you yesterday on how to assess the evidence of a witness. Form your own view whether, in the end of the day, you accept or reject Imran’s evidence in court.”

28. It is noted that the judge did not just repeat the submission of defence counsel. He did add on all that could possibly be considered in respect of D1’s credibility: D1’s admission of having made false documents and his dishonesty.

29. Chan PJ in Wong Chi King v HKSAR^{^[40]}:

“16. A trial judge has charge of the trial. He has heard the evidence of the witness and is well aware of the issues involved, the relevance and importance of the evidence to those issues and other relevant circumstances. He is thus in a position to assess whether there is any need to give a caution warning and if so, in what terms.”

30. The present case is one where the risk or danger of relying on the evidence of D1 was obvious from the cross-examination of D1 and the defence submission. During cross-examination, the judge asked D1 whether he was expecting some reduction of sentence by giving evidence against the applicant and he agreed he was^{^[41]}. He said he was clear that no one could make him any promise as to his sentence^{^[42]}. It was expressly put to D1 that he was lying to incriminate the applicant so that he could get a significant reduced prison sentence^{^[43]}. This is not a case where the inherent reliability of the witness may not be apparent to the jury. The judge was directing the jury on matters to which they were already very much alive and asking them to “take heed” in assessing D1’s evidence.

31. Mr McGowan, whilst accepting that there is no hard and fast rule as to how a judge should direct a jury in this regard, submits that without knowing the additional discount that D1 would be receiving, the jury could not realistically determine whether D1 was telling the truth on this issue and, if he was not, how seriously it impacted on his credibility generally: see Ngie Hon Miu^{^[44]}. We are of the view that this submission has fallen into error in the following aspects. Firstly, this is taken out of context. In Ngie Hon Miu, unlike the present case, there was no evidence to contradict the assertion of the accomplice that he did not know and did not expect that by successfully giving evidence against the appellant he would receive a further significant discount in sentence. Similarly, in Yu Wing Fung, defence counsel did not ask about the expectation of a reduced sentence for giving evidence against the appellant at the trial, nor was there any admitted fact to that effect^{^[45]}.

32. Secondly, a fixed formula and a unified approach to inform the jury of the additional discount that an accomplice witness would expect to receive is simply unrealistic. Fok PJ, in the decision of the Appeal Committee in HKSAR v Wong Lin Hung and others^{^[46]}, declined to entertain a similar argument. Apart from holding that Ngie Hon Miu was distinguished as it “turned on its unusual facts of an accomplice witness who denied he was aware of any such practice or entitlement to a sentence discount”^{^[47]}, Fok PJ said:

“7. …As the Court of Appeal held in HKSAR v Cheng Lung Cheong Brian, unrep, CACC 174/2011 (21 March 2012) at paragraph 43, the sentence discount is not something that can be quantified with any precision. As Mr Bruce frankly accepted, it would be speculative for the judge to indicate what range of discount or other advantage to the witness might be applicable in any given case since this would be highly dependent on the facts of the individual case which the judge would not then be apprised of.”

33. Ground 1 fails.

F2. Ground 2

34. The applicant gave evidence that when D1 was taken to him for confrontation, D1 moved his head side to side indicating he should not acknowledge him^{^[48]}. When the judge clarified with him whether he denied knowing D1, he said:

“He also told me that he doesn’t know me. I also said I don’t know him.”^{^[49]}

35. The judge was concerned about this as this did not accord with the post record of D1 which was admitted into evidence by admitted facts. He raised this matter with counsel in the absence of the jury.^{^[50]} As a result, prosecuting counsel clarified with the applicant^{^[51]} and the applicant replied:

“Because when he came in front of me, he did like this, indicating no.”^{^[52]}

36. The applicant’s evidence of D1 moving his head from side to side during the confrontation was never put to D1. The judge had a discussion with counsel on this issue before he embarked on the evidence of the applicant in the summing up.^{^[53]} (the “no puttage” argument)

“COURT: All right. Now, just one thing that I would like to seek your -- I would like to confirm with you that’s about the confrontation. You remember that this defendant denied knowing Imran at the confrontation and he explained that on the basis that Imran had at the time moving his head side to side indicating that Imran want this defendant to say that he did not know him. Now, this part of the evidence has not been put to Imran in his cross-examination, is that correct?
MR WRIGHT: Yes.
COURT: So I’m correct.
MR WRIGHT: You are correct.
COURT: So I think this actually goes to weight, isn’t it?
MR WRIGHT: Yes.
COURT: Go to weight as to how much weight should be attached to this part of the defendant’s evidence, but in any -- is it not?
MR STEPHENSON: Well, it does go to weight. The inference -- the possible inference the jury might take is nodding the head like that is to say, “Deny knowledge of me”.
COURT: Yes, that’s what how this defendant understands it.
MR STEPHENSON: Yes.
COURT: So but the fact that this has not been put to Imran goes to any weight, goes to weight of this part of the defendant’s evidence, isn’t it?
MR STEPHENSON: Yes.
MR WRIGHT: Yes.
COURT: But in any event the denial only goes to credibilityof this defendant and nothing more.
MR WRIGHT: Correct, I think that’s all.
MR STEPHENSON: Yes.
COURT: Yes, I will direct the jury accordingly.
MR WRIGHT: And even if you add, you know, it might be an understandable reaction if somebody is caught by surprise, arrested and it’s just a reaction.
COURT: I think it’s a matter of common sense...
MR WRIGHT: Yes, yes.
COURT: ...rather than say that, well, it’s a matter of weight to be attached. It’s a matter entirely.
MR WRIGHT: Yes.
MR STEPHENSON: Yes, that’s right.
COURT: All right, agreeable?
MR WRIGHT: Yes.
MR STEPHENSON: Yes.” (Emphasis added)

37. The judge directed the jury on how they should approach the evidence on the post-arrest confrontation^{^[54]} as follows:

“The defendant agrees that later, when Imran was brought in front of him for confrontation, he said he did not know him. The defendant explained that it was because he saw Imran moving his head from side to side and he thought that Imran was indicating that the defendant should not say that he knew him. Members of the jury, you would remember that when Imran gave evidence this was not put to him in cross-examination. Therefore, we do not know what Imran would say about this. Members of the jury, the defendant’s denial of knowing Imran at the confrontation is the matter which goes to his credibility only. Whether what the defendant said is true or may be true is a matter for you to decide. The fact that Imran does not have opportunity to respond to this part of the defence case is a factor that you may wish to take into account in assessing the weight, if any, to be given to this part of the defendant’s evidence.” (impugned direction)

38. Mr McGowan takes issue with this direction. It is submitted remedial measures such as having D1 recalled to minimize any unfairness occasioned by the lack of puttage should have been done. As the credibility of the applicant was a key issue at the trial, the impugned direction implicitly asked the jury to consider making an adverse finding as to the applicant’s credibility based on the lack of puttage.

39. Mr McGowan seeks to pray in aid an extract from the applicant’s proof of evidence to counsel to show that his evidence relating to the confrontation was not a recent invention. Zervos JA in quoting R v Foley, recognized that “there being many explanation of such omissions which do not reflect upon the credibility of the witnesses”^{^[55]}. He went on to say:

“45. …There are many possible explanations of a failure by counsel to observe the rule (Browne v Dunn), and some of these do not reflect upon the credibility of the client. Counsel, for example, may have misunderstood the instructions, or the failure may be through oversight. … If then a jury is to be instructed in a way which will permit adverse inferences to be drawn against the credibility of a defence witness, there must be at least some explanation of these factors, and particular mention of the possibility of other explanations such as misunderstanding of error on the part of counsel. It should also be made clear that before drawing an adverse inference against the accused, the jury should be satisfied that there is no other reasonable explanation for the omission to cross-examine.”

40. The first observation from this passage is that courts should not lose sight of the fact that there is a “wide discretion available to counsel as to the manner in which a trial may be conducted”: see R v Birks^{^[56]}. Secondly, the question is: whether the impugned direction was given in a way which will permit adverse inferences to be drawn against the credibility of a defence witness.

41. In Chan Hing Kai, the way the jury was directed as to the lack of puttage was this:

“91. …He directed the jury that because the matter had not been put to the relevant witness for him to respond (a reference to Wong), it was a matter that they were entitled to take into account in their assessment of the credibility of the applicant. He then invited the jury to consider whether it was an indication that the applicant was “making up a false story”. He finally told them that if they found the omission of not putting the “factual scenario” affected their assessment of the applicant’s credibility, it was up to them to decide whether it was confined to what the applicant said or went to his overall credibility.”

42. The Court of Appeal in Chan Hing Kai noted that there had been no further discussion about the lack of puttage either at the time when it arose, or prior to, during or after the judge’s summing up to the jury. There was no discussion about the directions to be given to the jury on this aspect to the applicant’s evidence^{^[57]}.

43. To the contrary, as quoted in the above paragraph 36, there has been such a discussion in the present case. The proposed direction met with no demur from defence counsel. Furthermore, the judge was cautious not to comment or direct the jury to the possibility of drawing an adverse inference from the lack of puttage. The jury was told that because of the lack of puttage, D1 was denied the opportunity to respond to the challenge, and they had therefore been deprived of the opportunity of hearing his evidence in response. It was directed that the evidence of the applicant denying knowing D1 at the confrontation went to his credibility, whilst the lack of puttage went to the weight to be given to this part of the applicant’s evidence.

44. The summing up totally accords with the judgment of Chan Hing Kai, although it is noted that the former preceded the latter:

“93. . It was open to the Judge to direct the jury that they could take into account the lack of puttage in assessing the weight to be attached to the applicant’s evidence on this matter.
94. However, this did not mean that it was generally appropriate for the Judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the applicant.”

45. It was for that reasons that the appeal was dismissed.

G. Post-script

46. As we have said in the beginning, this is an application for extension of time to file new grounds of appeal disguised as a renewal. This practice should not be encouraged. More stringent rules of practice apply to out-of-time applications. The Court will have to be satisfied, as a prerequisite, that there is a valid explanation for the delay. This appeal was heard on a provisional basis to consider the grounds to ensure that we are not shutting up reasonably arguable grounds.

(Andrew Macrae)	(Kevin Zervos)	(Maggie Poon)
Vice President	Justice of Appeal	Justice of Appeal

Mr Ivan Cheung, SPP of the Department of Justice, for the respondent

Mr James McGowan and Mr Ivan Lam, instructed by the Bar Free Legal Service Scheme, Hong Kong Bar Association, for the applicant

[1] Zervos JA.

[2] Appeal Bundle, p 50C-J.

[3] Appeal Bundle, p 54E.

[4] Appeal Bundle, p 54J-K.

[5] Appeal Bundle, p 57H.

[6] Appeal Bundle, pp. 54P-55L.

[7] Appeal Bundle, p 55M-O.

[8] Appeal Bundle, pp 62K-63I.

[9] Appeal Bundle, p 70B.

[10] Appeal Bundle, p 74R.

[11] Appeal Bundle, pp 73S-74D.

[12] Appeal Bundle, p 73D.

[13] Appeal Bundle, pp 88J-89K.

[14] Appeal Bundle, p 83R-S.

[15] Appeal Bundle, p 84G-M.

[16] Appeal Bundle, p 85D-J.

[17] Appeal Bundle, p 126R-S.

[18] Appeal Bundle, p 126T-U.

[19] Appeal Bundle, p 127A-B.

[20] Appeal Bundle, p 127F.

[21] Appeal Bundle, p 135E-F.

[22] Appeal Bundle, p 136O-P.

[23] Appeal Bundle, p 137M-O.

[24] Appeal Bundle, p 155R.

[25] Appeal Bundle, p 138S.

[26] Appeal Bundle, p 140E-H.

[27] Appeal Bundle, p 142J-K.

[28] Appeal Bundle, p 142F.

[29] Appeal Bundle, p 146H.

[30] Appeal Bundle, p 143B.

[31] Appeal Bundle, p 147O.

[32] Appeal Bundle, pp 160U-161A.

[33] HKSAR v Mohamed HM Imran[2020] HKCA 723.

[34] Exh. KW-2 to the 1^st affirmation of the applicant sworn on 7 January 2021.

[35] 1^st Affirmation of the applicant sworn on 7 January 2021, para. 11.

[36] [2017] 5 HKLRD 863.

[37] [2012] 1 HKLRD 137.

[38] [2020] 1 HKLRD 1082.

[39] Appeal Bundle, pp 220D-221D.

[40] (2009) 12 HKCFAR 481 at paragraph 16.

[41] Appeal Bundle, p 127 A-C.

[42] Appeal Bundle, p 127D.

[43] Appeal Bundle, p 127F.

[44] CACC 357/2010 at paragraphs 15, 17.

[45] at paragraph 37.

[46] FAMC 26/2013.

[47] at paragraph 8.

[48] Appeal Bundle, p160T-U.

[49] Appeal Bundle p 161 D-E.

[50] Appeal Bundle p 161R-162B.

[51] Appeal Bundle p 163P-Q.

[52] Appeal Bundle p 163Q.

[53] Appeal Bundle, pp 217P-218V.

[54] Appeal Bundle p 231B-J.

[55] Chan Hing Kai at paragraph 47 [112].

[56] (1990) 48 A Crim R 385.

[57] at paragraph 96.

CACC 38/2018

[2019] HKCA 1124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2018

(ON APPEAL FROM HCCC NO 55 OF 2017)

________________________

	HKSAR	Respondent
	v
	MOHAMED Hussain Mohamed Imran (D1)	1^st Applicant
	KALAWILA Withanage Kalum Siri Vithana (D2)	2^nd Applicant

________________________

Before:

Hon Zervos JA in Court

Date of Hearing:	11 October 2019
Date of Judgment:	4 November 2019

________________________

J U D G M E N T

________________________

1. The 1^st and 2^nd applicants (who will be referred by their trial designations as D1 and D2 respectively) stood trial before Deputy High Court Judge Lee (as he then was) (the judge) and a jury on a charge of trafficking in a dangerous drug, namely 410 grammes of a powder containing 261 grammes of cocaine.

2. Prior to trial, D1 pleaded guilty to the charge and testified for the prosecution in the trial against D2, who had pleaded not guilty to the charge. At the conclusion of D2’s trial, D1 was sentenced to 7 years and 1 month’s imprisonment, having had a starting point of 14 years and 2 months’ imprisonment reduced by 50% for his assistance to the authorities. He now applies for leave to appeal against his sentence.

3. As for D2, he was convicted after trial and sentenced to 14 years and 2 months’ imprisonment. He originally applied for leave to appeal against his conviction and sentence but subsequently abandoned his application in respect of his sentence.

4. The applications of D1 and D2 were fixed to be heard together but I directed that they be heard separately because D1 had given evidence against D2 and was alleging that he had received threats from D2. I also took into account that the respective applications of D1 and D2 involved different issues and considerations and did not have a bearing on each other.

D2’s appeal against conviction

The prosecution case

5. The prosecution case against D2 can be briefly stated as follows. It was alleged that at the behest of a person referred to as the “black man”, D2 arranged for D1 to prepare false identity documents in order to collect a parcel containing cocaine (the parcel) for the “black man” from the Sham Shui Po Post Office (the Post Office).

6. It was not in dispute that the parcel was from Panama and was intercepted by the Customs and Excise Department when it arrived in Hong Kong by air on 6 August 2016. The parcel was addressed to “LAM Kam Sun”, care of an address in Sham Shui Po with the contact telephone number 852 98004832. It was later discovered that the address was a vacant building in Sham Shui Po which was to be redeveloped. Upon examination, the parcel was found to contain a thermos flask concealing 410 grammes of a powder, containing 261 grammes of cocaine.

7. On 26 August 2016, D1 attended the Post Office to collect the parcel but he was told that it had not yet arrived and he was asked if he could leave a contact name and telephone number which he did. He gave the name “Sir” and the telephone number 5588 9104.

8. The parcel was arranged to be collected on 29 August 2016, and a controlled delivery was mounted by Customs officers. A Customs officer posed as a postal employee at the counter of the Post Office and other Customs officers in plain clothes mounted surveillance in and outside the Post Office. Customs officers observed D1 and D2 walking to the Post Office. However, only D1 entered the Post Office, while D2 remained outside. D1 went to the counter and asked for the parcel, presenting false documents bearing the name “Lam Kam Sun” and the delivery address of the parcel. D1 was given the parcel and upon leaving the Post Office he was intercepted and arrested by Customs officers. At the same time, D2 was also intercepted and arrested by Customs officers outside the Post Office.

9. D1 and D2 were searched by the Customs officers. They found in D1’s possession a Samsung mobile telephone with the number 9013 0241, and in D2’s possession a HTC mobile telephone and a Samsung mobile telephone with the number 9171 5214. It was an admitted fact that D1’s telephone had received 3 calls from D2’s telephone while D1 was inside the Post Office collecting the parcel; that D1 had saved D2’s telephone number and the parcel number on his mobile telephone; and that on 25 August 2016, D1’s mobile telephone received 2 forwarded text messages from D2’s telephone which originated from telephone numbers 5588 9104 and 5484 8237.

10. The prosecution case was primarily based on the evidence of D1 and the Customs officers. The Customs officers testified as to the events surrounding and including the controlled delivery on 29 August 2016. They also produced CCTV footage from the Post Office and telephonic communications between the defendants. D1 testified that in July 2016, D2 told him there was a job to collect “a packet from Panama” containing cocaine. In August 2016, D1 accepted D2’s job and prepared the false identity documents in accordance with instructions sent to him by D2 via mobile telephone messages. D1 admitted that he was the person who made the inquiry at the Post Office on 26 August 2016, and that he went to the Post Office with D2 on 29 August 2016. Once he entered the Post Office, he received instructions from D2 on his mobile telephone. The admitted call records and messages between D1 and D2 supported D1’s evidence against D2.

11. D1 stated that the collection of the parcel had been arranged by D2 together with another person, whom D1 referred to as the “black man”.

12. D1 testified that he came to Hong Kong in 2005 as an asylum seeker. Later in 2009, he became acquainted with D2 but it was not until they both moved to Yuen Long that they became close friends.

13. In around early July 2016, D2 told D1 that there was a job to collect a parcel of cocaine from Panama which belonged to the “black man”. D2 asked D1 to prepare false documents to collect the parcel from the Post Office. D2 promised D1 the sum of $2,000 if he prepared the documents and went to the Post Office to collect the parcel. Initially, D1 said he did not want to get involved, but later from 16 August 2016 onwards he received messages from D2 urging him to do the job. He eventually agreed. On 25 August 2016, D1 received voice and text messages from D2 asking him if he had prepared the documents. On 26 August 2016, D1 went to the Post Office at about 4:18 pm with the intention to collect the parcel. He showed the postal officer at the counter the parcel number which was recorded on his mobile telephone. He was told by the postal officer that the parcel had not yet arrived and was asked to leave a contact number. He gave the number 852 98004832 which was the number mentioned in one of the text messages.

14. D1 said that on 26 August 2016 he met D2 at around 2 pm in Hop Yick Plaza in Yuen Long for the purpose of collecting the parcel from the Post Office and arranging a stamp chop and name cards which he designed for D2’s handyman business. They had something to eat while D2 was waiting for a call from the “black man”. After receiving a telephone call, D1 and D2 went to Long Ping MTR Station where the “black man” was waiting for them. The three men then took the MTR to Austin Station where they got off and took a bus to Sham Shui Po. During the bus journey, the “black man” keyed into the mobile telephones of D1 and D2 the parcel number. When they arrived at Sham Shui Po, D1 and D2 went to the Post Office. The CCTV footage from the Post Office depicts D1 inside the Post Office at various times while there is the appearance of another man waiting outside the Post Office. D2 at trial denied that he was the other man. D1 said the other man was D2 and they left the Post Office together. They subsequently met the “black man” and explained to him what had happened. It was an admitted fact that the contact number left at the Post Office was 55889104, which was mentioned in one of the text messages sent to D1 from D2’s mobile telephone the night before.

15. On the morning of 29 August 2016, D1 said that he met D2 at Hop Yick Plaza, and like before D2 waited for a telephone call from the “black man”. After receiving the call, D1 had to go to his home to retrieve the relevant documents to collect the parcel because he had forgotten to bring them. D1 and D2 then went to Long Ping MTR station where they met the “black man”. From there the three men went to Sham Shui Po. D1 went inside the Post Office to collect the parcel, while D2 waited outside. D1 produced the identity documents and collected the parcel. He received 3 telephone calls from D2 who enquired about the progress of the collection of the parcel. In the last telephone call, D2 told D1 that after he had collected the parcel he was not to give it to him but instead he would follow D1 after he left the Post Office. Customs officers arrested D1 upon leaving the Post Office and D2 in the vicinity of the Post Office.

D2’s case

16. D2’s case was that he had nothing to do with the parcel and he did not know that it contained drugs. He testified that he came to Hong Kong in 2005 and was a torture claimant. Both his wife and sister-in-law were working in Hong Kong as domestic helpers. He said he had known D1 for about 6 years and they started working together 2 years before the offence.

17. D2 denied he had been to the Post Office with D1 on 26 August 2016. He said that he had given his sister-in-law’s HTC mobile telephone to him to repair but he was unable to do so. He said he met up with D1 on 29 August 2016 to retrieve the HTC mobile telephone. He intended to go with D1 to Sham Shui Po to have the HTC mobile telephone repaired and then to Jordan to obtain a stamp chop and name cards for his handyman business. After that they were to go to Sai Kung to collect payment for a building job. He said that D1 had an interest in his handyman business and D1 would use D2’s mobile telephone for that purpose because he spoke better English than he did. He said that before they set off they had something to eat and during this time D1 used D2’s mobile telephone. They then went to Long Ping station and during the journey D1 asked to use D2’s mobile telephone in order to check if there were any messages. He said that at the station they saw D1’s friend who was a “black man”. D1 and the “black man” chatted together for one or two minutes. He and D1 then took the train to Sham Shui Po but did not notice if the “black man” also got on the train. When they arrived there he said he saw the “black man” again who gave something to D1. The black man left them and D1 told him that he had something to do at the Post Office. He said he waited for D1 but did not see him entering the Post Office. He said that he telephoned D1 to inform him that he had located a mobile telephone repair shop and to ask him why he was taking so long.

18. D2 said because he was an illegal worker he sensed the presence of police in the vicinity, but did not leave as he was not doing anything illegal at the time.

19. When D2 was arrested, Customs officers brought D1 to him but he denied knowing him. He said he did so because D1 was moving his head from side to side and he thought D1 was indicating that he should not acknowledge him.

D2’s submissions

20. In his Form XI, filed on 7 February 2018, D2 advanced no grounds of appeal, claiming that he would set out his grounds once he had received the Appeal Bundle. The Court eventually received an affirmation from D2 dated 2 August 2019, advancing nine purported grounds of appeal. They are as follows:

Ground 1:   D2 has suffered grave and substantial injustice and had not received a fair trial.
Ground 2:   The judge was barely audible during the summing-up and it was doubtful whether the jurors could fully understand what was being said, and the summing-up was unfair and in favour of the prosecution.
Ground 3:   The judge in his summing-up repeated on many occasions the prosecutor’s points and was wrong to refer to D1 as an important witness.
Ground 4:   The judge said in the summing-up that D2’s evidence was true or may be true which was an incorrect direction in law.
Ground 5:   The judge had been unfair to D2 in his summing-up by failing to refer to D2 with a short name, instead referring to him as the “defendant” in the summing-up, and telling the jury that if they “did not follow his direction your verdict will be set aside by the appeal court and your effort will be wasted.”
Ground 6:   The judge noted in the summing-up that D2’s counsel never objected to or asked questions of several witnesses and that D2’s counsel failed to follow D2’s instructions and therefore D2’s counsel may have colluded with the prosecution, leading to the judge supporting the prosecution points, and D2 failing to secure a fair trial.
Ground 7:   On the first day of the trial a juror said to the judge he had no experience in “drugs cases” and his English was not good so he did not wish to serve as a juror but the judge compelled him to sit on the jury.
Ground 8:   The judge failed to pay attention to the jury during the trial, because on occasions two or three jurors fell asleep, but the judge did not ask them to wake up.
Ground 9:   The police had not arrested a third person who was referred to in the evidence of D1 and D2 and the judge had failed to raise this matter with the prosecution.

21. The Court directed that these grounds should stand as D2’s perfected grounds of appeal. The Court also noted that D2 in Ground 6 made allegations of incompetence against his trial counsel and solicitors. However, despite numerous directions to D2 to file an affirmation waiving legal professional privilege, he has not done so. This meant that trial counsel and the solicitors have not had an opportunity to respond to D2’s allegations. In order to have an appreciation of the non-compliance by D2 of the Court’s directions, a chronology of the procedural history of this case is delineated in an annexure to this judgment.

22. No further submissions have been submitted by D2 to support the grounds of appeal that he has advanced. He submitted another affirmation dated 28 August 2019, in which he complains about his past legal representation and the lack of current legal representation, without referring to the other matters he has raised in the present application. He said he had strong evidence “from his wife, his sister and his sister’s employer” without saying what that evidence entailed.

23. At the hearing, D2 applied for an adjournment because a solicitor, Mr Simon Cleves, whom he wished to represent him was away overseas. No notice to act has been filed by the solicitor on behalf of D2.

Respondent’s submissions

24. The respondent has filed written submissions dated 4 July and 10 October 2019.

25. The respondent’s submissions contend that the judge had properly directed the jury on all salient issues. The jury had reached a unanimous verdict rejecting D2’s evidence and accepting the prosecution evidence. It was submitted that there was nothing to show that the conviction was unsafe or unsatisfactory.

26. In respect of the grounds of appeal the respondent makes the following submissions. As for Grounds 1, 3, 4 and 5 that allege that the judge’s summing-up was unfair, the respondent submits there is no substance to the complaint. There was nothing wrong for the judge to tell the jury that if D2’s evidence was true or might be true he should be acquitted. There was nothing improper by the judge referring to D2 as “the defendant” and using the first name of D1 in his summing-up to the jury. The judge explained to the jury that he did this for ease of reference. The judge did not say to the jury “if the juries not follow his direction your verdict will be set aside by the appeal court and your effort will be wasted”.

27. As for Ground 2 that the judge was inaudible when summing-up to the jury, the respondent submits that there is no substance to this complaint. At no time was any complaint made during the course of the summing-up that the judge could not be heard.

28. As for Ground 6 that defence counsel had failed to cross-examine witnesses in accordance with the defence case, the respondent submits that no particulars have been provided and in any event the defence case was presented to the jury and put to witnesses when appropriate.

29. As for Grounds 7 and 8 that a juror was reluctant to sit on the jury and during the course of the trial jurors were sometimes asleep, the respondent submits that there is no substance to these complaints. It is pointed out that upon the empanelling of the jury each juror took an oath and was appropriately directed by the judge as to their role and responsibilities. There is nothing to suggest that jurors were asleep during the course of the trial. No complaint was made to the court about such a matter.

30. As for Ground 9 that the “black man” had not been arrested and the judge had failed to raise this matter with the prosecution, the respondent submits that the absence of this person did not in any way affect the fairness of the trial of D2. Ultimately, the issue the jury had to decide was whether, on the evidence, D2 was involved in the collection of the parcel of drugs as alleged against him. That was made abundantly clear to the jury by the judge’s directions to them.

Discussion

31. I agree with the respondent’s submissions rejecting the litany of complaints by D2 on the basis that they are without substance or foundation. They are clearly not reasonably arguable.

32. Of D2’s complaint that his trial counsel and solicitors were flagrantly incompetent, I am also of the view, on the material submitted (or lack of material), that this ground is not reasonably arguable.

33. In his affirmation dated 2 August 2019, D2 makes a number of points under Ground 6. He alleges that the judge said to his counsel that he never objected or asked any question of several witnesses, but because he was not allowed to talk to his counsel during the trial he could not give him instructions. He also alleges that he told his counsel many things for him to say but he did not do so and he believes that there was collusion between his counsel and prosecuting counsel. He complains that the judge always supported the prosecution case and his summing-up to the jury was unbalanced and unfair.

34. In his affirmation dated 28 August 2019, D2 complains that he gave a number of documents to his solicitor to produce at trial but he did not do so. He provides no particulars in relation to these documents and how they were relevant to his case. He further complains that he had “three strong evidence”, his wife, his sister and his sister’s employer. He claims that he instructed his lawyers to call these persons as witnesses but they did not do so. Again, he provides no particulars in relation to the relevance of these witnesses to his case.

35. At the hearing of D2’s application, it was clarified with D2 that his complaint was essentially against defence counsel for not addressing matters at his trial as instructed. When asked to particularise the matters, D2 stated that: (1) counsel did not raise as a defence that he was not the person on the CCTV footage of 26 August 2016; (2) counsel did not submit his record of interview in order to reveal that Customs officers showed him a different quantity of drugs from the quantity particularised in the charge; and (3) counsel did not call the three witnesses to give evidence on his behalf.

36. D2’s complaint that counsel did not raise in his defence that he was not the person on the CCTV footage in the Post Office on 26 August 2016 is not correct. It is apparent from the judge’s summing-up to the jury that the defence case presented by counsel was that D2 had not been to the Post Office on that day, and he was not the person, whom D1 claimed was depicted in the CCTV footage. D1 testified that a man carrying a shoulder bag in the CCTV footage was D2.

37. The judge in summarising the defence case noted that there was no close-up shot of the man’s face and also that D1 and the man did not acknowledge each other inside the Post Office. The judge directed the jury’s attention to whether they could believe the evidence of D1 that the other person was D2 in the Post Office. It is clear that this matter was very much a part of the defence case as presented on D2’s behalf by his counsel, which was reflected in the judge’s summing-up to the jury. There is no substance to this complaint.

38. D2’s complaint about his counsel not putting into evidence his record of interview is without merit. He seems to be suggesting that Customs officers showed him a different quantity of drugs and therefore this reflected on their credibility. He said he was shown 200 grammes of drugs but the charge stated there were 465 grammes of drugs. As specified in the charge, the total quantity of powder was 410 grammes and the total quantity of cocaine narcotic was 261 grammes. In any event, the nature and quantity of the drugs, and that they had not been tampered with or altered, were admitted facts and not in issue at trial. The post record of D2’s arrest and caution was produced as exhibit P35 as an admitted fact. D2’s record of interview was not put into evidence as he exercised his right of silence and did not answer any of the questions asked of him. There is no substance to this complaint.

39. D2’s final complaint is that he had three witnesses to testify as to his whereabouts on 26 August 2016, but they were not called in his defence. He claims that the judge refused his wife to give evidence on his behalf and that the other two witnesses were not called by his counsel. No particulars have been provided about the nature and relevance of their evidence to his case. In addition to the testimony of D1, evidence of significance against D2 was his attendance at the Post Office on 29 August 2016 and the telephonic contact between he and D1 while D1 was inside the Post Office collecting the parcel as well as other calls and messages recorded on his mobile telephone.

40. The non-compliance of court directions by D2 has unnecessarily occupied court resources and seriously delayed these proceedings. He was specifically requested on numerous occasions to waive legal professional privilege in order to address his complaint against his trial counsel and solicitors but has failed to do so. I do not consider that this is a reasonably arguable ground in light of the nature of the complaint, and his failure to properly particularise and address the complaint as required. See HKSAR v Apelette Kokou Afla, unreported, CACC 176/2017.

41. I am of the view that D2 does not have any reasonably arguable grounds of appeal against his conviction. I therefore refuse his application to adjourn the leave application, and refuse him leave to appeal against his conviction.

D1’s appeal against sentence

42. In pleading guilty to the drug trafficking charge, D1 agreed a summary of facts consistent with the evidence that he gave at the trial of D2.

43. In mitigation, counsel for D1 submitted, amongst other things, that D1 had assisted in Father John Wotherspoon’s campaign by submitting a letter for publication warning others not to be involved in the drug trade; that he had assisted the authorities by providing information and giving evidence against D2 at his trial which led to his conviction; and that he entered a timely plea in the circumstances.

44. Counsel acknowledged that D1’s status as an asylum seeker did not help his case. However, he noted that D1 had prior to the commission of the offence withdrawn his non-refoulement claim because he wished to return to Sri Lanka. As a consequence, he argued that D1’s immigration status should not be treated as an aggravating factor.

45. Counsel further acknowledged that there was no objective evidence that D1 was subject to substantial personal risk for having testified against D2, noting that they were segregated in prison custody.

Reasons for sentence

46. The judge applied the tariff case of R v Lau Tak Ming & Others [1990] 2 HKLR 370 and adopted a starting point of 12 years and 11 months’ imprisonment for trafficking in 261 grammes of cocaine narcotic.

47. The judge noted that the culpability of D1 and D2 in this case was similar.

48. The judge rejected D1’s contention that the withdrawal of his non-refoulement claim prior to the offence meant it was not an aggravating factor. He relied on Court of Appeal decisions in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 and HKSAR v Mahabul Alam Kham, unreported, CACC 116/2016, 8 September 2017, and considered the sentence should be enhanced by 15 months for the fact that “D1 committed a serious offence which strikes at the social fabric and tarnishes the reputation of the very place which extended hospitality to him by permitting him to stay and to remain in liberty.” This resulted in a sentence of 14 years and 2 months’ imprisonment.

49. The judge considered the revised discount regime for guilty pleas in HKSAR vNgo Van Lam [2016] 5 HKLRD 1 and noted that it did not address the situation where the accused pleaded guilty after committal and also assisted the prosecution by testifying against a co-accused. He took into account that D1 had given crucial evidence in the trial against D2 which led to his conviction, as well as other mitigating factors that had been advanced on his behalf.

50. The judge decided to “temper justice with mercy” in giving a 50% discount to D1 for all the factors in his favour and sentenced him to 7 years and 1 months’ imprisonment.

D1’s submissions

51. In his Form XI, filed on 6 February 2018, D1 advanced two grounds of appeal against sentence.

52. In the first ground, D1 submitted that as a result of his testimony against D2, D1’s family in Sri Lanka were in danger because D2 comes from an influential and prominent family and that D2’s family members could easily locate his family and cause them harm. He argues that he should be categorised as a “supergrass” for which he should be awarded the maximum discount of two thirds. He elaborated upon this ground in a letter dated 24 May 2019 in which he submitted that D2, through two prison inmates, had conveyed threats of killing him and harming his family because of his betrayal. He referred to the case authorities of R v Chan Fu Kui [1976] HKLR 967 and R v Suen Shek [1998] 1 HKLR 524.

53. In the second ground, D1 submitted that his sentence should not be enhanced due to his immigration status as a non-refoulement claimant, arguing that it did not apply to anyone else with a different immigration status and was therefore unfair. However, at the hearing of the leave application, D1 abandoned this ground of appeal.

Respondent’s submissions

54. The respondent in its submissions notes that the starting point adopted by the judge of 12 years and 11 months’ imprisonment was in accordance with the sentencing guidelines for the quantity of cocaine narcotic involved in the present case.

55. It is submitted that the discount of 50% for the assistance D1 rendered to the authorities and other mitigating factors was generous in the circumstances of the case.

56. It was further submitted that D1 did not fall into the category of a “supergrass” and that it had not been shown as claimed by D1 that he and his family were placed in considerable personal risk because of him having testified against D2.

Discussion

57. The sole ground of appeal against his sentence is that he should have been categorised as a “supergrass” and that his sentence should have been discounted by more than the 50% the judge gave him.

58. D1 claims that he and his family are at personal risk because he testified against D2 who was a close family friend in Sri Lanka until the time of this offence. He claims that D2 comes from a prominent family, and as they know the whereabouts of his family they will harm them as a form of reprisal against him. The connection between their families is not quite clear because D1 said in his evidence that he became acquainted with D2 in Hong Kong in 2009 and it was when they moved to Yuen Long that they became close friends. It is also to be noted that both D1 and D2 left Sri Lanka in 2005 and have been residing in Hong Kong ever since. D1 said at the hearing of this application that he had seen D2 in prison without incident, although he claims that others had made threats to him on D2’s behalf. He confirmed that there has been no incident of reprisal either here or abroad.

59. The applicant does not fall in the category of a “supergrass” which is normally designated to a person in exceptional circumstances where the nature and level of the assistance is substantial and the risk to himself and to his family is considerable. As observed by this Court in R v Chiu Pak Wing [1995] 2 HKC 819 at 821 and R v Suen Shek and others [1988] 1 HKLR 524 at 526, a “supergrass” is a person who has given substantial assistance or placed himself at considerable risk for doing so.

60. It is usually the case that an accused who has given evidence against a co-accused at trial would receive a 50% reduction to his sentence (incorporating the one third discount for a plea of guilty). See Z v HKSAR (2017) HKCFAR 183 and HKSAR v Lo Sze Tung Stephanie, unreported, CACC 190/2017.

61. It was noted by the judge that in accordance with Ngo Van Nam, D1 would be entitled to a 25% discount for his guilty plea after committal but before the case was listed, although there was the added circumstance that he rendered assistance to the authorities soon after committal. The judge nevertheless gave D1 the benefit of the 50% reduction to his sentence, which incorporated a one third discount that is usually given for a timely guilty plea. In the circumstances, D1 has no cause for complaint for the 50% reduction that he received to his sentence. Accordingly, I am of the view that this ground is not reasonably arguable.

Conclusion

62. In light of the foregoing, I do not consider that D1’s sole ground of appeal against sentence is reasonably arguable and therefore leave to appeal is refused. I also do not consider D2’s grounds of appeal against conviction are reasonably arguable and therefore leave to appeal is refused.

63. D1 and D2 are reminded of their right to renew their respective applications for leave to the Court of Appeal, but they are also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending their respective appeals, if the Court were to come to the view that there was no justification for the renewal of their respective applications.

	(Kevin Zervos)
	Justice of Appeal

Mr Ivan Cheung, SPP of the Department of Justice, for the respondent

The 1^st and 2^nd applicants appeared in person

Chronology of D2’s appeal

No.	Date	Event
1.	19 January 2018	D2 was sentenced before the trial judge
2.	6 February 2018	D2 filed Notice of Application for Leave to Appeal (Form XI). He stated in his Form XI that he will file his grounds of appeal once he has received the Appeal Bundle.
3.	7 February 2018	The Registrar wrote to the clerk to the trial judge requesting the Appeal Bundle.
4.		D2 wrote to the Registrar requesting him to provide copies of the trial judge’s summing-up and verdict and reasons for sentence.
5.		The Director of Legal Aid wrote to the Registrar seeking appeal documents (D2’s first legal aid application).
6.	21 March 2018	Clerk to the trial judge provided 8 copies of the Appeal Bundle to the Registrar.
7.	26 March 2018	Appeal Bundle was provided to the Legal Aid Department by the Registrar.
8.	4 May 2018	D2’s first legal aid application was refused.
9.	7 May 2018	The Registrar forwarded the Appeal Bundle to D2 via the Commissioner of Correctional Services.
10.	1 June 2018	Notice of Hearing – mention fixed for 5 July 2018.
11.	5 June 2018	The Director of Legal Aid wrote to the Registrar seeking appeal documents as D2 applied for legal aid (D2’s second legal aid application).
12.	29 June 2018	Cheung CJHC directed the mention on 5 July 2018 be vacated and relisted for hearing after 3 months.
13.	3 July 2018	D2 was granted Appeal Aid Certificate in respect of his application for leave to appeal against conviction. D2’s application for legal aid in respect of his application for leave to appeal against sentence was refused.
14.	4 September 2018	Department of Justice wrote to D2’s solicitors (Messrs. F Zimmern & Co) reminding them to file the Perfected Grounds of Appeal within 14 days.
15.	17 September 2018	D2’s Appeal Aid Certificate was discharged pursuant to Rule 14A of the Legal Aid in Criminal Cases Rules.
16.	10 October 2018	The Director of Legal Aid wrote to the Registrar seeking appeal documents as D2 applied for legal aid (D2’s third legal aid application).
17.	10 October 2018	D2 filed a Notice of Abandonment abandoning his application for leave to appeal against sentence. The Registrar accordingly deemed his application for leave to appeal against sentence as dismissed.
18.	19 October 2018	Notice of hearing – mention fixed for 23 January 2019.
19.	9 January 2019	D2’s third legal aid application was refused.
20.	17 January 2019	The Director of Legal Aid wrote to the Registrar seeking appeal documents as D2 applied for legal aid (D2’s fourth legal aid application).
21.	18 January 2019	D2 wrote to the Department of Justice seeking to put the hearing date on hold as D2 had written to the Bar Free Legal Service Scheme to seek legal representation. Department of Justice forwarded a copy to the letter the Registrar.
22.	23 January 2019	Mention hearing took place before Macrae VPD2 was represented by Mr James McGowan of counsel who was instructed by Messrs. Mohnani & Associates.
23.	11 February 2019	The Director of Legal Aid wrote to the Registrar referring to D2’s allegation that insufficient direction was given in relation to D1 which may render the conviction unsafe. The Director seeks the transcript of D1’s testimony during cross-examination.
24.	26 February 2019	The audio recording of D2’s testimony was forwarded by the Registrar to the Director of Legal Aid (this was done so by mistake as D1’s testimony was sought).
25.	19 March 2019	The audio recording of D1’s testimony was forwarded by the Registrar to the Director of Legal Aid.
26.	30 April 2019	D2’s fourth legal aid application was refused.
27.	9 May 2019	The Bar Free Legal Service Scheme wrote to D2 requesting D2 to fill in the application form and provide the Appeal Bundle and other documents.
28.	15 May 2019	Master Cheung directed D1 and D2 to file their Perfected Grounds of Appeal and written submissions within 14 days. This was sent to D1 and D2 by mail. The letter noted D1 and D2’s legal aid applications were refused.
29.	27 May 2019	Notice of hearing – fixed for 11 October 2019.
30.	11 June 2019	Macrae VP gave the direction that D2 shall attend the hearing on 11 October 2019 and should be prepared to argue the application on his own in case his application to the Bar Free Legal Service Scheme is refused.
31.	4 July 2019	The Sri Lankan embassy in Beijing faxed to the Department of Justice a letter from D2 dated 28 May 2019, enclosing the statements D2 made to the Customs and Excise Department. The Department of Justice forwarded the letter to the Registrar.
32.		The Department of Justice wrote to the Registrar seeking the Court’s indulgence for the late filing of the written submissions, and applied to include in the Appeal Bundle the Summary of Facts admitted by D1 and the letter written by Father John Wortherspoon (for mitigation).
33.		The Department of Justice filed its written submissions.
34.	8 July 2019	The Sri Lankan embassy in Beijing faxed a letter to the High Court (cc. Macrae VP), enclosing the letter previously faxed to the Department of Justice.
35.	10 July 2019 (mailed 11 July 2019)	Master Cheung gave the direction to D2 in response to the letter from the Sri Lankan embassy in Beijing of 4 July 2019. D2 was directed to explain in writing within 7 days what was the purpose of the letter and its attachments. The Department of Justice’s application of 4 July 2019 was granted.
36.	11 July 2019	The Registrar wrote to the clerk to the trial judge seeking 8 copies of the additional pages to the Appeal Bundles. Clerk to the trial judge completed the request on the same day.
37.	15 July 2019	The Registrar forwarded the additional pages to the Appeal Bundle to D1 and D2 via the Commissioner of Correctional Services.
38.	16 July 2019	D2 wrote to the clerk to Master Cheung in reply to his direction of 10 July 2019.
39.	23 July 2019	(in response to D2’s letter of 16 July 2019) Master Cheung gave the direction to D2 to file an affirmation within 14 days setting out allegations of incompetence of his trial counsel and solicitors and whether he has waived his legal professional privilege in respect of the trial proceedings.
40.	28 July 2019	D2 wrote to the clerk to Master Cheung stating that he swears on oath what he told to the clerk, the Sri Lankan embassy and other government departments as to the betrayal of his legal representatives.
41.	2 August 2019	D2 filed his grounds of appeal contained in an affirmation.
42.	6 August 2019(mailed 7 August 2019)	(in response to D2’s letter of 28 July 2019) Master Cheung gave the direction to D2 to file an affirmation within 14 days setting out allegations of incompetence of his trial counsel and solicitors and whether he has waived his legal professional privilege in respect of the trial proceedings. (this is identical to the direction given on 23 July 2019)
43.	15 August 2019	(in response to D2’s affirmation of 2 August 2019) Master Cheung gave the direction to D2 to file an affirmation within 14 days setting out allegations of incompetence of his trial counsel and solicitors and whether he has waived his legal professional privilege in respect of the trial proceedings. (this is identical to the direction given on 23 July 2019) Master Cheung also directed page 6 onwards of the affirmation be returned and D2 be directed to apply by way of notice to adduce new evidence.
44.	22 August 2019	D2 wrote to the clerk to Master Cheung describing his complaints against his legal representatives at trial.
45.	28 August 2019	D2 filed an affirmation which was forwarded to the Registrar.
46.	30 August 2019	(in response to D2’s letter of 22 August 2019) Master Cheung gave the direction to D2 to file an affirmation within 14 days setting out allegations of incompetence of his trial counsel and solicitors and whether he has waived his legal professional privilege in respect of the trial proceedings. (this is identical to the direction given on 23 July 2019) Master Cheung also directed D2’s letter of 22 August 2019 be returned as it was in the form of a letter, and D2 is reminded that he must follow the above direction if he wishes to rely on incompetence of his trial counsel and solicitors.
47.	2 September 2019 (mailed 3 September 2019)	(in response to D2’s letter of 28 August 2019) Master Cheung gave the direction to D2 to file an affirmation within 7 days stating that he has waived legal professional privilege in respect of trial proceedings.
48.	5 September 2019 (received 9 September 2019)	D2 wrote to the clerk to Master Cheung complaining about his legal representatives at trial. He asked Master Cheung to only write to him in the Sri Lankan language otherwise he would not answer again.
49.	6 September 2019	D2’s application to the Bar Free Legal Service Scheme was refused.
50.	12 September 2019	D2 wrote to Macrae VP stating that a Mr Simon Cleves of Messrs. Krishnan & Tsang is ready to help him fight his case. D2 stated that he has applied for legal aid and seek Macrae VP’s help to obtain legal aid. D2 also seeks time around 6 months to prepare himself before attending the appeal. D2 says he needs 6 months to explain his case to his lawyer, and that he is unable to explain his case without a lawyer.
51.	13 September 2019 (mailed 16 September)	(in response to D2’s letter of 5 September 2019) Master Cheung gave the direction to D2 to file an affirmation within 7 days setting out in full his allegations of incompetence of his trial counsel and solicitors and whether he has waived his legal professional privilege in respect of the trial proceedings. D2 was reminded he must do so otherwise the single judge will be reluctant to grant leave to appeal on this point.
52.	17 September 2019	(referring to D2’s letter of 12 September 2019) Master Cheung refused D2’s application to vacate the hearing on 11 October 2019.
53.	18 September 2019	The Director of Legal Aid wrote to the Registrar seeking appeal documents (D2’s fifth legal aid application).
54.	3 October 2019	D2’s fifth legal aid application was refused.

Date of Hearing:	14 August 2020
Date of Judgment:	14 August 2020
Date of Reasons for Judgment:	28 August 2020

(Andrew Macrae)	(Ian Mcwalters)
Vice-President	Justice of Appeal