Case Detail

CACC 39/2020

[2022] HKCA 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 39 OF 2020

(ON APPEAL FROM HCCC NO. 151 OF 2019)

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BETWEEN
	HKSAR	Respondent
	and
	WU Chi-ki (胡志奇)	Appellant

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Before: Hon Macrae VP, Zervos and Anthea Pang JJA in Court

Date of Hearing: 17 June 2022

Date of Judgment: 17 June 2022

Date of Reasons for Judgment: 26 August 2022

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R E A S O N S F O R J U D G M E N T

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Hon Anthea Pang JA (giving the Reasons for Judgment of the Court):

Introduction

1. The appellant was convicted of one count of trafficking in a dangerous drug[1]after trial before Campbell-Moffat J (“the judge”) and a jury. He was then sentenced to 28 years’ imprisonment. He sought leave to appeal against both conviction and sentence.

2. With leave obtained from a single judge^{^[2]}, the appellant advanced three grounds of appeal against conviction. In respect of the sentencing application, leave was granted as to the totality of the sentence imposed.

3. Before us, Mr Wong Hay Yiu, counsel for the appellant, but not in the proceedings below, argued that the conviction appeal should be allowed based on the grounds in respect of which leave was granted. In the event that the conviction was to stand, Mr Wong submitted that the judge had adopted the wrong tariff and had excessively enhanced the sentence. He therefore invited this court to reduce the sentence passed.

4. At the conclusion of the hearing, we dismissed the appeal against conviction but allowed the appeal against sentence, substituting the original term with one of 24 years. These are our reasons.

The prosecution case

5. The prosecution alleged that the appellant recruited Cheng San Faat (PW1) and Tjeng Julianto (PW4) as drug couriers and arranged for them to join an organised tour so as to smuggle the Ice in question to New Zealand^{^[3]}. The drugs were concealed in custom-made underwear worn by PW1 and PW4. On 23 October 2013, the duo were arrested at the Hong Kong airport prior to departure. Under caution, both admitted smuggling the drugs for a reward and provided information about the appellant’s involvement.

6. The appellant was arrested on 3 July 2017. At trial, the prosecution mainly relied on the testimony of PW1 and PW4, who by then had pleaded guilty to the offence and were serving terms of imprisonment. They described how they became acquainted with the appellant and how they were tempted by the reward and the opportunity to travel overseas to accept the offer to carry drugs to New Zealand. In addition, PW1’s and PW4’s telephone records, which showed multiple calls between them and the appellant, were adduced to prove the appellant’s involvement in the drug trafficking.

7. The appellant elected to testify and called his girlfriend Ms Tong (DW2) as an alibi witness and another witness (DW3) to testify on the appellant’s tattoos. The defence case was that while the appellant knew PW1 and PW4, he had nothing to do with the drug trafficking. It was suggested that the two prosecution witnesses merely named the appellant as the recruiter in order to obtain a reduction in sentence.

Reasons for Sentence

8. In sentencing, the judge referred to the tariff in HKSAR v Abdallah Anwar Abbas^{^[4]}and adopted a starting point of 23 years and 6 months. She then enhanced it by 2 years on account of the international element. Further, in view of the appellant’s role which the judge considered to be an aggravating factor, the sentence was increased by another 2 years and 6 months, resulting in a term of 28 years.

Grounds of appeal against conviction

9. At the hearing before us, Mr Wong sought to argue the following grounds in respect of which leave was granted.

10. By ground 1, it was submitted that the judge’s summing-up was unbalanced and unfair in that: (i) it contained strong adverse comments on the appellant and his witnesses which were unnecessary and inappropriate, and (ii) part of the summing-up appeared to be a second speech for the prosecution.

11. By ground 2, it was complained that there was material irregularity in the course of the trial in that: (i) at the end of the examination-in-chief of PW1, the judge, despite objection from the defence, wrongly permitted the prosecution to ask the witness how he felt after pleading guilty and being imprisoned to which PW1 gave a “long, self-pity and very emotional answer”, and (ii) the judge failed to direct the jury that they should put aside any sympathy and emotion which they might have for PW1.

12. Ground 3 relates to the judge’s alleged failure to give proper directions on the post-offence conduct relied on by the prosecution to show a consciousness of guilt on the part of the appellant, namely: (i) the appellant changing his mobile telephone number not long after the arrest of PW1 and PW4 and a further change of that number to an unregistered telephone number in mid-2015 to early 2016; and (ii) the appellant’s sending of a letter to PW4 through PW3.

Grounds of appeal against Sentence

13. Mr Wong submitted that, whilst the judge adopted an initial starting point of 23 year and 6 months by reference to HKSAR v Abdallah^{^[5]}, on the date of the offence, the applicable guidelines were those in AG vChing Kwok Hung^{^[6]}. In the circumstances, Mr Wong suggested that the appropriate starting point should be one of 20 years.

14. Further, Mr Wong contended that the total enhancement of 4 years and 6 months for the international element and the appellant’s role, which represented an enhancement of 19% from the erroneous starting point of 23 years and 6 months, was manifestly excessive and there was no evidence to suggest that the appellant was more than a mere recruiter of couriers.

Discussion

Appeal against conviction

Ground 1: Unbalanced and Unfair Summing-up

15. The impugned comments which were said to be adverse and unnecessary arose in the following passages of the summing-up (emphasis supplied by Mr Wong):

“Photographs. You have got photographs. You have got photographs of the drugs, of the underpants, etc. You know there was trafficking in dangerous drugs. It might be quite interesting to know how some people think they can get away with trafficking in dangerous drugs, but it most probably is not going to make any difference whatsoever really to your decision-making, which is, was it the defendant who recruited PW1 and PW4.^{^[7]} (the 1^st impugned comment)
There are other photographs from the defendant, D1 and D5, the ‘Oh My Case’ shop, which is not really helpful one way or the other, but you know what happened in his life, and the tattoos. I am going to say to you, and I will say throughout, I think the whole tattoo - this is purely my view - the whole tattoo issue is a red herring.
What is a red herring? It is something which is not relevant. You, of course, may take a wholly different view, but it may be why I am not going to go there very much on the tattoos. Because the point is they know each other. …”^{^[8]} (the 2^nd impugned comment)
“…that given these two witnesses [PW1 and PW4], there was a setting up of the recruitment of these - I would like to call them ‘idiots’ personally - these two very naïve, stupid and greedy young men who are paying the price for that now.”^{^[9]} (the 3^rd impugned comment)
“… So that part of it, the fact that he is saying ‘Well, I changed my phone number because I didn’t like the number and I changed my actual supplier to this provider because I didn’t think the reception was good.’ I would ask you to remember this is Hutchison. I do not know if your Hutchison phone is rubbish or not. Certainly, my email system does not seem to be particularly brilliant. He cannot give - if he is innocent of this, he cannot give evidence about dates and times if he is innocent, all right. If he is not innocent, he has chosen not to give evidence about dates and times, that is a matter for you. But I am reminding you that if he is actually innocent of this, he would go ‘Well, you can ask me as many questions as you like, I don’t know.’”^{^[10]} (the 4^th impugned comment)

16. Mr Wong submitted that, given the way in which the comments were made, the jury would have been left with no choice but to adopt what the judge said, thus causing unfairness to the appellant.

17. We have said time and again that a judge’s summing-up should be read as a whole^{^[11]}. This important observation was exemplified in the present complaint as Mr Wong sought by ground 1 to highlight the comments and to suggest adverse effect without putting them in context.

18. At the time when the judge made the 1^st impugned comment, she was looking at the photographs with the jury. If one looks at the photographs to which the judge referred, one could see that they were close-ups of the underpants in question and they depicted how several packets of the drug were concealed, which made the underpants rather bulky and awkward-looking. In the circumstances, and since the judge was correct to say that the jury already knew drug trafficking was involved, the comment, based on what the photographs depicted, was innocuous. We do not see how unfairness could have been caused to the appellant, although the comment was perhaps unnecessary.

19. In respect of the 2^nd impugned comment, it is important to note what defence counsel at trial said about the evidence in his closing speech:

“… And my learned friend was right when he said [DW3’s] evidence is not relevant directly to the issue. … His only purpose was to talk about tattoos. And, again, whether the defendant had tattoos on one arm or two arms is not really relevant in his description or in his identification because we are dealing with people who knew each other.
…
But the purpose of [DW3’s] evidence is just this: To prove that what PW1 and PW4 told us, that in 2013 when they met the defendant he had tattoos on both arms, was incorrect. And that goes only to the creditworthiness of PW1 and PW4, no more.”^{^[12]}

20. Plainly, whether the appellant had tattoos on one or both arms was a peripheral and minor matter. Even if the jury found that PW1 and PW4 were incorrect in their descriptions, the impact such might have on the witnesses’ credibility would be insignificant and the judge was entitled to say so to the jury. We also note that the judge had, at the same time, reminded the jury that such was “purely my view”. We do not find anything objectionable about the 2^nd impugned comment.

21. In respect of the 3^rd impugned comment, while it was again unnecessary, it would not have done any harm to the appellant. The jury was aware of the pleas of both witnesses and that both were serving their sentences. The prosecution case that they were recruited as drug couriers was also not disputed. The issue before the jury was merely this: was the appellant their recruiter. In the circumstances, the judge’s descriptions of “idiots” and “naïve, stupid and greedy young men who are paying the price” were not anything new to the jury and the jury’s attention would not have been drawn away from the central issue of whether the appellant was the recruiter. Further, the comment generally reflected the witnesses’ evidence about themselves.

22. Finally, in relation to the 4^th impugned comment, while we agree that the “Hutchison bit” was unnecessary, it was, at the end, beneficial to the appellant for it tended to support the appellant’s claim that the reception was not good. No criticism could therefore be levelled against the judge on this matter.

23. As regards the “not innocent” part, again, the context is important. In his closing speech, defence counsel had emphasised that:

“… Because, in essence, what the defendant had said in the video-recorded interview and his evidence in court is simply, ‘I was not the recruiter. I don’t know anything about their drug trafficking.’ And when he was asked in July 2017, 3 July, about matters dating back four years, a lot of his replies, as you will see in his video-recorded interview, indeed, in court, were truthfully, ‘I don’t remember.’ He didn’t try to make up as some people do -- or if, for example, he was really the recruiter and he really knew, ‘Oh my God, I was involved’, some people try to make up evidence to show the contrary. But the defendant did nothing like that. He didn’t even try to make up, ‘Oh, on that day I was’ – ‘I’m sure on the 15^th, I didn’t call them. I was here.’ He plainly gave answers that, ‘I really don’t remember.’ And that’s as truthful as one can be. A plain answer, ‘I don’t remember.” ^{^[13]}

24. It is therefore obvious that the judge’s “not innocent” comments were derived from the defence closing speech and followed the same theme of the defence argument that the appellant would not be able to say anything further other than to give the “truthful” answers, as described by defence counsel, of “I don’t know” or “I don’t remember”.

25. In respect of the other aspect of this ground, the parts of the summing-up which Mr Wong said amounted to a second speech for the prosecution were the following (emphasis supplied by Mr Wong):

“… I mean, [DW2] is telling you ‘I think I was window shopping. I think I took a picture of these socks because they were comfy.’ The only difficulty with this, ladies, is if you were with your partner, why would you take a picture of it? Because you can both see. So were they for somebody else? It all just sort of begs the question as to why on earth you would take a picture of a pair of socks. But maybe some of you do, I do not know. Maybe you go around taking pictures so you can look at them later because you do not buy them there and then; there might be all sorts of reasons.”^{^[14]}
“And PW1 and PW4 are, you might think, were being fairly honest with you in saying, ‘You know, it was just tempting and we started to think about it. And of course, once we’d been told we were going to have our expenses paid for and we’re going to get the 50,000’ - most probably the 50,000 was the trigger, you know – ‘okay, now we’re going to balance that against the risk.’
…
But again the impression of their evidence you might think was that it was not until the day they were sentenced that it hit home how much of their lives they were going to give up because of what they had agreed to do. And that was the overriding motivation, they said, for why they decided they were not going to sit back and take this. Along with other things, you know, ‘I had the time to talk to my parents.’ No doubt, their parents shamed them about what they had done. ‘And I was looking at the people involved in prison and I was looking at people who were drug addicts and the state of drug addicts’, etc ‘and guilt got the better of me.’ That is what both of them said in different ways in their evidence. That they were feeling truly guilty.
But at the end of the day I think if we were going to be fair, a little bit of revenge was coming in there once they realised how long they were getting in prison. And they pointed the finger at the person they say was the person that put them there and they fought back so to speak. Whether that is right or wrong, I do not know, but that is certainly the impression I got from putting all of their evidence together. … Which is why you would look at their motivation for doing it in the first place because they are criminals. You know, they are convicted criminals. I have said that more than once and I think it is very important to say, so you have to take special care with their evidence. But you need to understand it. And you need to understand what they said and decide whether you believe that that is why they find themselves before you in this trial. And that is why again I gave you that chronology so you can see the way things happened to them as well as the way things have happened to the defendant to try and understand their thinking from the perspective of the prosecution and from the perspective of the defendant who is still saying, ‘Okay, maybe there wasn’t a grudge match here because of some fight we had, but nevertheless they’ve picked on me and it’s not me.’ But we do not know why else they picked on him.”^{^[15]}

26. With respect, we fail to see how the above could be termed a second prosecution speech. Not only did the judge repeatedly remind the jury that PW1 and PW4 were “convicted criminals” and urged the jury to take special care in assessing their evidence, she also told the jury that the witnesses might have testified against the appellant because of “a little bit of revenge”.

27. In relation to the comment “But we do not know why else they picked on him”, it is important to note that defence counsel, in his closing speech, had suggested to the jury that there could be other reasons for PW1 and PW4 to lie about the appellant’s involvement apart from getting a reduction in sentence:

“Motive is not important in criminal cases. We don’t always understand why A killed B or why A deceived somebody else or why PW1 and PW4 are lying. Why are they fabricating against the defendant? Is the defendant an easy target? He fits into something they can fabricate. Is he less dangerous than the real Kyle and Jeff and all those dangerous drug traffickers? So easy target. Why? Sometimes we never understand in a case why. And in this case is discount the only reason, more discount the only reason? To be frank, I don’t know. And I think we will never know.There could be other reasons for them to lie. But you’ve got to be careful when dealing with their evidence, especially them, they have a clear motive to lie and they have proven, they have told you ‘we have lied in the VRI’. They are people who know how to lie.” ^{^[16]} (emphasis added)

28. When put in context, what the judge did in the quoted passages above was merely to set out the background for the jury to properly understand the evidence and the arguments for both sides, issuing the necessary caution, and concluding with the defence’s own observation that there could be other reasons for the witnesses to lie but “we will never know”.

29. Therefore, there is nothing objectionable about the comments made and in any event, the jury had been repeatedly reminded that they were not required to adopt the judge’s views of the evidence.^{^[17]}

30. In short, using the words in HKSAR v Punsalany Elmer Umali^{^[18]} relied on by Mr Wong, when assessing whether a summing-up is unbalanced and unfair, “Ultimately, it is a question of context, degree and “feel” of the summing-up as a whole”. In addition, as in the present case, regard should also be had to counsel’s closing speeches when considering whether the summing-up is unbalanced. If things are taken out of context without reference to what has already been submitted to the jury in counsel’s speeches, it may result in unjustified criticism or an unwarranted attack on a summing-up which, when examined in context, is in fact entirely proper and balanced.

Ground 2: PW1’s “self-pity” account

31. In relation to ground 2, Mr Wong submitted that it was a material irregularity for the judge to permit the prosecution, despite the defence objection, to ask how PW1 felt having pleaded guilty and been imprisoned.

32. The relevant questions and answers are:

“Q: Now, did you bear any grudges against the defendant?
A: No.
Q: Can you tell the members of the jury now that you have pleaded guilty to the charge of trafficking in dangerous drugs and found yourself being imprisoned, how did you feel about the whole thing?
A: In fact, right at the very beginning when I arrived at Lai Chi Kok, I saw that many people were having -- many people had all their teeth gone and injured legs and also when they urinated, their urine was red, so at that time I reckoned that I myself trafficked in dangerous drugs -- I reckoned that if I traffic in dangerous drugs, I would cause people to be like that, and in fact, the people who were hurt most would be my family members. In fact, regarding my family, every time when I had to appear in court, they would come to the court to see me. That is, I have done something wrong and then they had to pay so much and that means I have guilty conscience, and I also was very angry with myself for that moment of being so foolish, and also I believed other people so easily and to engage in such a serious matter. In fact, after I had been imprisoned, every day I had to look back to what I had done and regarding those memories, every day when I got back to my room, they would come back to me…
MR KHOSA: My Lady, can I address you in the absence of the defendant [witness] and the jury?
COURT: Yes, of course you can. Yes, ladies, I’m going to write it here so that I use it. Would you mind very much giving us five minutes?
MR CHAN: My Lady, it seems that this witness is -- haven't finished.
COURT: No, no, no, but Mr…
MR KHOSA: No, I don’t want him to finish.
MR CHAN: All right.
COURT: …no, we’ll stop. I think it suits everybody to stop. Five minutes.
JURY LEAVES COURT – 4.08 PM”^{^[19]}

33. First of all, it is not entirely correct for Mr Wong to say that this part of the evidence was led “despite the defence objection” because although it is true that defence counsel did ask to address the judge in the absence of the jury, what transpired from the relevant audio recording was that after the jury had left the courtroom, defence counsel merely raised with the judge that he did not know where the evidence was taking them to which the judge said it went to “motivation” and PW1 was explaining why he was giving the evidence. Further, the judge said that there was nothing improper in what was being asked for otherwise she would have said so. Defence counsel, after hearing what the judge said, did not raise any more objection or proffer any other views but simply replied that he would deal with it.

34. We should also mention that while Mr Wong criticised prosecuting counsel for repeating PW1’s “emotive answer” in the closing speech to elicit sympathy, what prosecuting counsel said was:

“Why agree to assist the police? Well, Fat Chai [PW1] said he agreed to assist the police and testify because right at the beginning of being detained in Lai Chi Kok, he saw many people with missing teeth, injured legs and red urine. He reckoned that if he trafficked in dangerous drugs, it would cause people to be like that. He had done something wrong, he said. He has a guilty conscience, he said. Every day in prison he has to look back to what he had done, he said. The memories of what he had done come -- came back to him every day, he said. A few weeks after his arrest, after discussion with his family about his worries, his family thought that he should be frank to tell the police everything and show them his own responsibility.”^{^[20]}

35. Given that PW1 was said to have testified against the appellant possibly because of wishing to get a reduction in sentence, we consider the above submission to be relevant to the issue of PW1’s motive of giving evidence and that the judge was quite entitled to have allowed the question.

36. Mr Wong’s other complaint relating to this ground was that the judge failed to direct the jury to ignore any sympathy they might have for PW1. It is, however, noted that the following exchange took place when the judge invited comments from counsel after she had dealt with the bulk of her summing-up:

“COURT: Is there anything else you’d like me -- that I didn’t mention, Mr Khosa, that you think is not fair or unbalanced, or?
MR KHOSA: There are two points. …”^{^[21]}

37. However, those two matters had nothing to do with the complaint now made by Mr Wong. Further, on the following morning before the jury was brought back to the courtroom, there were these exchanges:

“MR CHAN: And just one last point and perhaps if I may…
COURT: Yes.
MR CHAN: …hand up a case. Just a paragraph about demeanour. I get this from other summing-ups and hopefully we did not…
COURT: Yes, yes, but there’s some Court of Appeal authority on it.
MR CHAN: Yes, that’s right. It’s just a sample; a sample see if you would like to say something about that.
COURT: Yes. I’m not going to say any more about it. I have gone over this time and again in other cases and the difficulty with it is that the balance of the authorities, both here and abroad, is that whilst demeanour is a point you should take into account, too much reliance on it is dangerous.
MR CHAN: Yes, that’s right. That’s exactly right.
COURT: Yes. Yes, that’s why I only mentioned it momentarily.
MR CHAN: Right.
COURT: Thank you very much, Mr Chan. Let’s have the jury in.”^{^[22]}

38. In other words, defence counsel was effectively given two chances to ask for a specific direction from the judge in relation to PW1’s “emotive answer” as described by Mr Wong but he saw no need to do so. We do not see anything improper or objectionable about counsel’s decision so made, and in any event, it was not suggested by Mr Wong that there was any flagrant incompetence on the part of trial counsel in not seeking the direction now said to be so necessary.

Ground 3: post-offence conduct

39. As for ground 3, Mr Wong, relying on HKSAR v Wang Jinwei^{^[23]}, sought to argue that the judge erred in allowing the prosecution to adduce evidence relating to two post-offence matters: (1) the changing of mobile telephone numbers by the appellant; and (2) the appellant’s contact with PW3, and through him, the mailing of a letter to PW4.

40. Firstly, in respect of the mobile telephone matter, there was extensive discussion between the judge and the parties^{^[24]} but at no stage did defence counsel raise with the judge that such records should not be admitted. Nor did counsel seek any specific direction on this matter from the judge.

41. That is so perhaps because, unlike the case of Wang Jinwei^{^[25]}, the mobile telephone matter was not about any propensity to commit an offence but was directly relevant to an issue at trial – whether the number 6805 4627 was used by the appellant to call PW1 and PW4 on 23 October 2013, the day of the offence.

42. The evidence at trial was this: on the one hand, both PW1 and PW4 told the jury that on 23 October 2013, the appellant did not use his personal telephone number but instead, used the number 6805 4627, to call them. The records also showed that 23 October 2013 was the only day during the relevant period when the appellant’s personal telephone number was not used. On the other hand, the appellant denied that he had used the number 6805 4627.

43. In his closing speech, prosecuting counsel said:

“Both Fat Chai and Yeung Chung told you in court that it was the defendant who called them on 68054627 on 23 October. Is it just a coincidence that the defendant could not be reached on his personal phone number on 23 October or the situation was that the defendant had switched from using his personal phone number to 68054627 just as what he had intended to do and what he had told Fat Chai and Yeung Chung before? That’s a matter for you to decide, members of the jury.
… It was revealed during cross-examination of the defendant that he changed his phone number, 67527922 to another number starting with the digits 5-9-0, and he said that that took place between mid-2013 and beginning of 2014. But, of course, since the phone record of 67527922 showed that the number was still in operation on 23 October the defendant must have changed his phone number to 590 between 24 October, that is the day after the D-Day, and early 2014.
Why did he change? … The changing of the defendant’s phone number to a new number subscribed by his friend, Ah Ping, 590, not long after the arrest of Fat Chai and Yeung Chung, is it just another coincidence or is it the case that the defendant was trying to cut himself off and not to be traced by the police following Yeung Chung and Fat Chai’s arrest?
In mid-2015 to early 2016, the defendant again changed his phone number, 590, to another number, 63123435, until his arrest in July 2017. 63123435, of course, was an unregistered phone card. We don’t know why the defendant chose to use an unregistered phone card for so long, one and a half to two years. But we do know that he knew the owner of an unregistered phone card cannot be traced and, more importantly, he knew that back in 2013. Now, members of the jury, this knowledge alone does not allow you to infer that the defendant had used 68054627 on 23 October, which is also an unregistered phone card. But it is something that you can take into account when you consider the evidence of Fat Chai and Yeung Chung and consider why an unregistered phone card was used on 23 October to communicate with Fat Chai and Yeung Chung’s new SIM card.”^{^[26]}

44. It is clear from the above that although prosecuting counsel referred to the appellant’s subsequent changes of telephone numbers, he was not relying on the mere change (the post-offence conduct) to show that the appellant was guilty of the offence. Instead, his focus remained this: given the appellant’s pattern of changing mobile telephone numbers and his use of unregistered SIM cards, was he the one who used 6805 4627 to communicate with PW1 and PW4 on the day in question as testified by the witnesses.

45. In his closing speech, defence counsel also made reference to the changes of telephone numbers:

“Now, it was suggested that the defendant had used an unregistered SIM 63123435 and that was because he wanted to cut himself off and not be tracked. … If the defendant really was the one who recruited PW1 and 4, then the critical time for him to do something useful to protect himself would be immediately after 23 October because that is the most dangerous time. … Them saying it’s Dick Wu and the police coming to arrest you. What could Dick Wu have done after they were arrested to protect himself? Nothing.
Because he -- they knew his phone number which was registered in his father’s name giving the address Tuen Mun. … To find Dick Wu was not difficult. So whether he liked it or not, at some point the police would have found him. But we talking about these numbers changed quite a while after the immediate danger area -- period.
So my submission is it is his personal choice, people do change numbers. There are many reasons people change phone numbers. … So just because he changed numbers or that he was using an unregistered SIM number, in my respectful submission, it’s neither here nor there, bearing in mind we are trying to find out what happened in October 2013, whether it was the defendant who had recruited PW1 and PW4. If in 2016, he changes a phone number, how does it matter? …”^{^[27]}

46. The issue was then crystallised by the judge when she addressed the jury:

“… You do not know who is on the end of the ‘6805’. The defendant says it is not him. What Mr Chan is saying is nevertheless you can infer it is him because -- and then lots of other reasons that he gives. Do you see how that happens?”^{^[28]}

47. In view of the way the matter was dealt with, we do not see any irregularity in adducing this piece of evidence before the jury. Nor could it be suggested that the judge had handled the matter inappropriately resulting in unfairness to the appellant.

48. The second post-offence matter relates to the appellant asking PW3 to mail for him a letter to PW4. According to PW3, he remembered that the letter had these words, “the matter was not meant to be like that”, and also words to the effect that the appellant would treat PW4 as a younger brother and would give money to PW4 to learn how to perform tattoos. In this connection, prosecuting counsel addressed the jury as follows:

“Members of the jury, do you believe the defendant wrote a letter out of his good intention to help Fat Chai and Yeung Chung? Or he wrote the letter because he felt bad about having recruited Yeung Chung for trafficking in dangerous drugs and about Yeung Chung’s imprisonment? If he is simply making a kind offer to help Fat Chai and Yeung Chung after their release from prison, why did he have to go through all the troubles, all the troubles to avoid using his own address as return address?”^{^[29]}

49. As for the defence, counsel said to the jury:

“… PW3 said he read the letter. So I think we can take it that nobody would be stupid enough to write anything stupid in a letter which somebody will read.
…
But whatever he was talking about, in my respectful submission, it does not assist the issue of this case. And he had said more than once that he couldn’t remember much. …”^{^[30]}

50. In her summing-up, after indicating that the evidence concerning PW3’s posting of the letter would seem a bit unclear, the judge said:

“Obviously, Mr Chan wants to rely on it. For ‘he is just feeling guilty about this’ and this is why he is doing it, he is saying ‘I’m terribly sorry you got caught’. Basically, that is what Mr Chan is trying to hint at. Whereas the defendant was quite clear in saying, ‘No, that’s not it. I just felt sorry for them and because I felt sorry for them, I wanted to do something about it and that’s why I offered to do the things I did.’”^{^[31]}

51. If PW3’s evidence was accepted, the utterances might be viewed as the appellant admitting his role in bringing about the state of affairs which led to the witnesses’ imprisonment and was conduct which was “capable of constituting evidence of his guilt”^{^[32]}. Therefore, it would appear that prosecuting counsel was quite entitled to so address the jury.

52. In respect of Mr Wong’s complaint that the judge did not specifically deal with the matter, we would make two observations.

53. Firstly, the present case was one centred on the two accomplice witnesses and the prosecution case stood or fell on their credibility. To this end, the judge had, at an early stage of the summing-up, reminded the jury that:

“Because the witnesses, PW1 and PW4, were unequivocal in their identification of who it was that recruited them, obviously there is an issue about whether they were clear and unequivocal about the rest of their evidence, but in terms of identification, they did not waiver. Then their truthfulness, their creditworthiness, their credibility, whatever word you want, is obviously central to the prosecution’s case.”^{^[33]}

54. Hence, the jury could have been left in no doubt that their major, if not the only, consideration would be the credibility of the accomplice witnesses, and not any other matters. When viewed in the round, PW3’s evidence was just a small and peripheral part of the prosecution case. Further, no objection was taken by the defence to the admissibility of PW3’s evidence.

55. Secondly, while Mr Wong contended that something similar to a lies direction should have been given in respect of the post-offence matters, we doubt what use it would serve as the jury was aware that the appellant had jumped bail and that he had a previous conviction for possession of a dangerous drug. In this context, the giving of a further specific direction about making use of the post-offence conduct to support the prosecution case might actually work to the disadvantage of the appellant.

56. Therefore, while it is true that the judge did not specifically deal with the matter, we do not consider that any unfairness had resulted given the relative insignificance of PW3’s evidence and that the arguments for both sides had been brought home to the jury by counsel and the judge.

57. For the reasons set out above, we dismissed the appellant’s appeal against conviction.

Appeal against sentence

58. The respondent accepted that the judge had deployed the incorrect guidelines. The ones in force at the time were those in Ching Kwok Hung[34], wherein it was said that for trafficking in over 600 grammes of Ice, an appropriate starting point, after trial, should be 18 years and upwards but the court has to bear in mind the danger of causing injustice if a strict mathematical approach is adopted.

59. In HKSAR v Stojanovic Milka[35]which involved 1,484 grammes of Ice carried from Malaysia to Hong Kong by the applicant who was stopped at the customs arrival hall, the court was presented with a plethora of cases in respect of the sentences passed where the quantities were large. When giving the judgment of the court, Stock VP, as he then was, said:

“14. For reasons which we have provided, we would not go so far as to say that in this category of offence a court is unconcerned with sentences in other cases but, as we have earlier intimated, the exercise in comparison cannot sensibly be taken to the degree of fine tuning to which the submissions in these cases are tending.
15. That said, we are of the opinion that the 24-year point reached by the judge in this case before reduction for mitigation was too high and sits uncomfortably with the range of sentences imposed for this quantity and for facts akin to these facts. In our judgment, the appropriate starting point before taking into account aggravating features was one of 20 years’ imprisonment; and that the international element warranted an additional two years, which takes one to 22 years’ imprisonment before mitigation. The mitigation was constituted in this case solely by the plea of guilty, which should take the sentence down to one of 14 years 8 months’ imprisonment.”[36]

60. The present case involved 1,558 grammes of Ice. The appellant’s role, as accepted by Mr Wong, was not a mere courier but the “manager or organiser”. The fact that the appellant played a more culpable part in the drug trade is, as considered in HKSAR v Herry Jane Yusuph[37], a relevant factor in determining the starting point from the applicable brand.

61. Making reference to the then applicable sentencing guidelines in Ching Kwok Hung[38] and having approached the sentence in this case afresh, we take the view that with regard to the quantity of Ice involved and the appellant’s role and culpability, the appropriate starting point should be 22 years. Since the appellant recruited PW1 and PW4 to join a tour to bring the drugs abroad, there should be an enhancement of 2 years for this international element[39].

62. As a result, the appellant’s appeal against sentence was allowed and we substituted the original term of 28 years with one of 24 years.

(Andrew Macrae)	(Kevin Zervos)	(Anthea Pang)
Vice President	Justice of Appeal	Justice of Appeal

Ms Audrey Parwani, SPP, of the Department of Justice, for the Respondent

Mr Wong Hay-yiu, instructed by M/s Cheung & Liu, Solicitors, assigned by the Director of Legal Aid, for the Appellant

[1] Involving 1558.36 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

[2] Zervos JA, [2021] HKCA 1644.

[3] With an estimated retail value of HK$1,078,705.

[4] [2009] 2 HKLRD 437.

[5] Supra.

[6] [1991] 2 HKLR 125.

[7] Appeal Bundle (“AB”) p 34B-F.

[8] AB p 34G-L.

[9] AB p 49B-C.

[10] AB p 82D-I.

[11]HKSAR v Lam Chiu-mo, [2019] HKCA 911, at para 35 per Macrae VP; and HKSAR v Low Ling-lee, [2022] HKCA 309, at para 110 per Zervos JA.

[12] AB pp 346L-347A.

[13] AB p 337D-J.

[14] AB p 75B-H.

[15] AB pp 87A-88P.

[16] AB pp 335Q-336B.

[17] AB pp 26N-S, 27S-T, 34P-R, 37S, 38I-N.

[18] [2011] 3 HKLRD 55, para 14.

[19] AB pp 424G-425C.

[20] AB p 306O-T.

[21] AB p 107G-H.

[22] AB p 127B-M.

[23] [2018] 4 HKLRD 459.

[24] AB pp 107J-116S.

[25] Supra.

[26] AB pp 311M-312K.

[27] AB pp 366P-367H.

[28] AB p 56D-G.

[29] AB p 318C-F.

[30] AB pp 371K-372B.

[31] AB p 69Q-T.

[32]Wang Jinwei, supra, at para 48.

[33] AB p 45F-I.

[34] Supra.

[35] CACC 110/2010, unreported, 3 November 2010.

[36]Stojanovic Milka, supra, at paras 14 and 15.

[37] [2021] 1 HKLRD 290.

[38] Supra.

[39] See HKSAR v Abdallah, supra, para 43.

CACC 39/2020

[2021] HKCA 1644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 39 OF 2020

(ON APPEAL FROM HCCC NO 151 OF 2019)

________________________

	HKSAR	Respondent
	v
	WU CHI KI	Applicant

________________________

Before: Hon Zervos JA in Court

Dates of Hearing: 2 and 5 November 2021

Date of Judgment: 8 November 2021

________________

J U D G M E N T

________________

Introduction

1. The applicant was convicted after trial before Campbell-Moffat J (the judge) and a jury of trafficking in a dangerous drug and sentenced to 28 years’ imprisonment. He now seeks leave to appeal against his conviction and sentence, having been granted legal aid.

The case background

2. The particulars of the offence alleged the applicant, together with Cheng San Faat (PW1) and Tjeng Julianto (PW4), on 23 October 2013 trafficked in 1593.36 grammes of a crystalline solid containing 1558.36 grammes of methamphetamine hydrochloride (commonly known as Ice).

3. The prosecution case was that the applicant recruited PW1 and PW4 to smuggle the drugs into New Zealand. He instructed them to book a tour to New Zealand and arranged that they wear custom-made underwear, in which the drugs were secreted and concealed. PW1 and PW4 were arrested at the airport prior to their departure and each admitted under caution they were to smuggle the drugs found on their person to New Zealand. They each provided information to the police about the involvement of the applicant in the offence, but it was not until 3 July 2017 that the police located the applicant and arrested him for this offence. The case against the applicant mainly centred on the testimony of his two alleged accomplices, PW1 and PW4, who by then had pleaded guilty to the offence and were serving a term of imprisonment, and the telephone contact between the accomplices and the applicant at material times.

4. The applicant gave evidence and testified that although he knew PW1 and PW4, he had nothing to do with their offence. The applicant’s girlfriend also gave evidence on his behalf as an alibi witness. She testified she was with the applicant at the relevant times and therefore the applicant could not have been with PW1 and PW4 as alleged.

The appeal against conviction

5. As for the appeal against conviction, Mr HY Wong, counsel for the applicant, advances two grounds. Ground 1 complains that the judge’s summing-up was unfair and unbalanced in that (i) she made unnecessary and inappropriate personal comments about the applicant and his witness; (ii) she failed to accurately set out the applicant’s evidence and made inappropriate comments; (iii) she failed to appropriately address the absence of DNA and fingerprint evidence and incorrectly suggested it was an issue going to identification; and (iv) she descended into the arena by giving a second speech for the prosecution. Ground 2 complains there was a material irregularity in the course of the trial in that (i) the judge wrongly permitted testimony, over objection from the defence, about how PW1 felt after having pleaded guilty and imprisoned in respect of the offence of trafficking in the drugs; and (ii) the judge failed to direct the jury they should put aside any feelings of sympathy or emotional considerations they might have for PW1 in returning a true verdict.

6. Mr Eric Cheung, of the Clinical Legal Education Office of the University of Hong Kong, for the applicant, filed a submission in respect of the applicant’s conviction with the Court that was received a day before the leave hearing on 2 November 2021. He filed the submission unaware the applicant had received legal aid. He advanced the following three grounds on behalf of the applicant. Ground 1 complained the judge failed to give a proper direction on two post-offence matters by the applicant, namely the subsequent change of the applicant’s mobile phone number to a new number sometime after the arrest of PW1 and PW4, and the applicant’s discussion with Cheng Wing Ming (PW3) about PW1 and PW4 and a letter he sent to PW4 through PW3. Ground 2 complained the judge gave a misdirection on motive to implicate the applicant. Ground 3 complained the judge’s summing-up was unfair and unbalanced.

7. The leave hearing was adjourned to allow Mr Wong to consider the grounds of appeal against conviction advanced by Mr Cheung and to file an Amended Perfected Grounds of Appeal if he was to adopt any of them. He adopted Grounds 1 and 2 submitted by Mr Cheung, which are now Grounds 3 and 4 respectively.

Ground 1

8. To illustrate his complaint in Ground 1 that the judge made inappropriate comments during her summing-up to the jury, Mr Wong refers to the following remarks:

“… It might be quite interesting to know how some people think they can get away with trafficking in dangerous drugs, but it most probably is not going to make any difference whatsoever really to your decision-making, which is, was it the defendant who recruited PW1 and PW4.”[1]

9. Mr Wong submits the judge’s remarks were inappropriate as they imply that people, like the applicant, think they can get away with drug trafficking. Although it could be interpreted, as suggested by Ms Audrey Parwani, for the respondent, as an innocuous remark that was not directed to the applicant; the issue is whether the judge’s remarks could be interpreted as suggested by Mr Wong.

10. Mr Wong further submits there were other comments by the judge that reflected either adversely on the applicant or favourably on the alleged accomplices.[2]

11. One of the passages in the judge’s summing-up that Mr Wong relies on, is where the judge commented on the prosecution point about the applicant having changed his phone number after PW1 and PW4 were arrested, and went on to say:

“He cannot give - if he is innocent of this, he cannot give evidence about dates and times if he is innocent, all right. If he is not innocent, he has chosen not to give evidence about dates and times, that is a matter for you. But I am reminding you that if he is actually innocent of this, he would go ‘Well, you can ask me as many questions as you like, I don’t know.’
And an awful lot of this is perhaps ‘I don’t recall correctly’. And in fact in chief every time he is asked a question about telephone times, he just says ‘I don’t recall’ as you will remember.”[3]

12. There is debate between the parties as to what the judge was trying to convey to the jury about what the applicant would say if he was innocent or not innocent. Mr Wong argues the judge’s comments were unfair in that she suggested to the jury that the applicant was not innocent because he chose not to give evidence about dates and times. He also adds the judge was instructing the jury to determine the applicant’s innocence or guilt on his evidence about the dates and times. Ms Parwani argues what the judge was saying was that if the applicant was innocent he would not recall dates and times, and the jury would not have decided the applicant’s innocence or guilt on this issue alone, given the judge’s other directions to the jury. However, in my view, this is a matter for argument.

13. Ms Parwani argues the judge’s summing-up was fair and balanced, and at best, many of the purported “adverse comments” by the judge were irrelevant and had no prejudicial effect on the applicant’s case. She points to remarks by the judge where she correctly told the jury they were the sole arbiter of facts and any views she expressed they were not required to adopt.[4]

14. The applicant testified he worked as a tattooist and had tattoos, which the defence relied on to challenge the evidence of PW1 and PW4. The judge commented that this was a red herring and was not relevant, given that the applicant and the accomplices knew each other. Ms Parwani submits the judge’s comments were appropriately qualified by her.[5]

15. In the course of her summing-up to the jury, the judge described PW1 and PW4 in the following terms: “I would like to call them “idiots” personally - these two very naive, stupid and greedy young men who were paying the price for that now.” Ms Parwani submits this repeated description of the two accomplices was not prejudicial to the applicant as she balanced her remarks by reminding the jury to carefully assess their evidence, and it was for them to decide whether their story was all made up and whether they were trying to put the blame on someone else.[6]

16. Ms Parwani also points to the judge’s directions on the applicant’s previous conviction, the applicant defaulting on his bail, and the possible rejection of his alibi by the jury. She submits they were correct and favourable to the applicant.

17. Whilst the judge may have given in certain instances correct and appropriate directions, the issue is whether her impugned remarks were incorrect or inappropriate to such an extent that they were unfairly prejudicial to the applicant.

18. A trial judge plays an important role in assisting a jury throughout the trial process and what he or she says to them in the summing-up is very often the last word they hear before they retire to consider their verdict. In Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52, the Court of Final Appeal stressed that a trial judge is under a duty to summarise the issues and the evidence relating to these issues clearly, accurately and fairly to the jury. While a trial judge is entitled to express to the jury his or her views on the evidence, he or she must tell the jury in clear and unambiguous terms that they are only the judge’s personal views, and that the jury must form their own views on the evidence and can ignore the judge’s views if they do not agree with them. However, a judge should be very careful in making comments on the evidence, particularly comments adverse to the accused.

19. I consider there is substance to Mr Wong’s submission in respect of the judge’s overall style and structure of her summing-up to the jury as well as various comments to them. I am satisfied Ground 1(i) and (iv) are reasonably arguable. However, in respect of Ground 1(ii), I am not satisfied that the judge failed to accurately set out the applicant’s evidence. She provided a fair account of the applicant’s evidence and the defence case presented on his behalf. Nor am I satisfied that the judge failed to appropriately address the absence of DNA and fingerprint evidence as complained under Ground 1(iii). No DNA or fingerprint evidence was obtained and in light of the facts and circumstances of the case there was no need for her to specifically address the absence of this evidence.

Ground 2

20. In respect of Ground 2, Mr Wong submits when PW1 gave evidence, the judge permitted him to detail how he felt after committing the offence, and how it had affected his life, with the likely consequence that it would invoke from the jury feelings of sympathy and emotive considerations for PW1. He contends the evidence was irrelevant and should not have been given.

21. Mr Wong further contends once the evidence was given the judge should have, at the very least, directed the jury not to be swayed by feelings of sympathy or emotive considerations for PW1’s personal circumstances in their deliberations.[7]

22. I am satisfied this ground is reasonably arguable.

Ground 3

23. Ground 3 concerns the lack of directions from the judge about the two post-offence matters. The judge did not give any specific directions to the jury on how such matters should be considered, but the question arises whether she had to do so, and therefore provide more than just a recitation of the evidence to the jury. The applicant contends the judge erred in allowing the prosecution to adduce this evidence without first establishing its relevance and admissibility: HKSAR v Wang Jinwei [2018] 4 HKLRD 459.

24. The first matter concerned the phone number, 67527922, an unregistered number, which was used by the applicant to contact PW1 and PW4. According to the call records, calls to PW1 and PW4’s phones were made at the time of relevant events in respect of their travel arrangements to New Zealand.[8] The applicant’s evidence was that he changed his number between mid-2013 and the beginning of 2014, because he preferred another number and had difficulties with the service. The prosecution questioned why he had done so, suggesting he wanted to distance himself from PW1 and PW4 because of his involvement in the offence.[9]

25. The other post-offence matter concerned the applicant’s encounter with PW3 and the mailing of a letter through PW3 to PW4. PW3 spoke to the applicant about PW1 and PW4, having a difficult time in prison, and the applicant submitting a letter to PW4 through PW3, purportedly out of concern for himself.[10] The prosecution were relying on this evidence to show the applicant’s concern about PW1 and PW4.

26. No objection was raised by defence counsel as to the admissibility of this evidence, nor to any lack of direction by the judge on post-offence conduct.[11]

27. It would appear the prosecution relied on the two post-offence matters to show a consciousness of guilt on the part of the applicant. Mr Wong relies on this Court’s remarks in Wong Jinwei that a defendant’s post-offence conduct might be evidence of his guilt and could even be regarded as part of the offence, if it was closely connected to it. However, a court should establish the basis for admitting such evidence and why it was relevant to the charge or related issues, and, if so, balance the probative value of such evidence with its prejudicial effect on the defendant.[12]

28. Ms Parwani submits the judge summed up on these factual matters, putting the arguments of both sides before the jury, and were appropriately covered by the general directions and guidance she gave the jury throughout her summing-up. Mr Wong disagrees with this submission and argues the defence case in respect of this evidence was not fully and accurately put to the jury.[13]

29. The issue arising from this ground is whether the prosecution had laid the necessary foundation to adduce the evidence and whether it was appropriately considered and dealt with by the judge, particularly when summing-up the two post-offence matters to the jury.

30. I am satisfied this ground is reasonably arguable.

Ground 4

31. Ground 4 concerns the judge’s comments on motive of the accomplices to implicate the applicant. It has two parts. The first part is the judge wrongly attributed PW4’s reason for giving evidence against the applicant to PW1.[14] This concerns the applicant telling PW1 and PW4 that the sentence they would receive if caught would be 2 to 3 years. Whether or not the applicant had told one or both of them the sentence would be short is not a matter of any great significance, in light of the other issues raised in respect of the two accomplice witnesses. As rightly pointed out by Ms Parwani, what really mattered was whether the judge gave proper directions to the jury to treat PW1 and PW4’s evidence with care as they both had a motive to lie, which the judge did in clear terms.

32. I am not satisfied this point is reasonably arguable.

33. The second part is the judge failed to direct the jury that the applicant was not required to prove any motive for PW1 and PW4 to lie. Mr Wong cites HKSAR v Wong Kwok Wang, Warren (2009) 12 HKCFAR 218, where such a direction was discussed but adding in most cases it would not be required, depending on the other directions given by the judge.[15] In the present case, the judge repeatedly reminded the jury on the issue of the credibility of PW1 and PW4, especially their motivation in giving evidence.[16]

34. I am not satisfied this point is reasonably arguable.

The appeal against sentence

35. As for the appeal against sentence, Mr Wong advances three grounds. Ground 1 complains that the judge erred in adopting a starting point of 23 years and 6 months’ imprisonment by reference to the sentencing guidelines adopted in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 which was after the date of the offence. Ground 2 complains the judge erred in enhancing the sentence by 2 years for the international element and a further 2 years and 6 months on account of the role played by the applicant and having put forward a positive case. Ground 3 complains the enhancement for the aggravating factors offended the totality principle.

36. Ms Parwani argues no prejudice resulted from the judge adopting a starting point of 23 years and 6 months’ imprisonment, although she did acknowledge it was on the high side. She submits that the enhancements of 2 years, and 2 years and 6 months were for the international element and the role played by the applicant respectively, and not for the applicant putting forward a positive case as suggested under this ground of appeal.

37. Ms Parwani argues the enhancements were justified. She submits an enhancement was warranted for the role played by the applicant, given the judge’s finding that he was the organizer of the entire arrangement to have PW1 and PW4 smuggle the drugs into New Zealand.

38. I am prepared to grant leave to appeal the sentence as to whether the total sentence was manifestly excessive.

Conclusion

39. It follows from what I have said that I grant the applicant leave to appeal against conviction on Grounds 1(i) and (iv), Ground 2 and Ground 3, and against sentence as to the totality of the sentence.

	(Kevin Zervos)
	Justice of Appeal

Ms Audrey Parwani, SPP, of the Department of Justice, for the respondent

Mr H Y Wong, instructed by Cheung & Liu, Solicitors, assigned by the Director of Legal Aid, for the applicant

[1] Appeal Bundle (AB), 34C-F.

[2] See AB, 34G-I, 49B-C, 78T-79B, and 82D-I.

[3] AB, 82E-K.

[4] AB, 26P-S, 34Q, 37S and 38J-L.

[5] AB, 34G-L and 34J-Q.

[6] AB, 49F and 45H-46Q.

[7] See Specimen Directions 4.1 and 4.2 of the Specimen Directions and Jury Trials, 2013.

[8] AB, 308R-S and 310F-H.

[9] AB, 311S, 312A and 312G-H.

[10] AB, 66N-69P.

[11] AB, 366R-T.

[12] At [47]-[51].

[13] See the judge’s summing-up at 81S to 82, and the prosecution closing address at 308D-312K, and the defence closing address at 366E-367K and 371C-373H.

[14] AB, 24C-F, 46P-47B and 87A-H.

[15] Ibid., at 235C-G.

[16] AB, 44R, 45H-46O, 49F and 88C-K.

HKSAR v. WU CHI KI

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