HKSAR v. LAU FUN

CACC 226/2022

[2026] HKCA 402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 226 OF 2022

(ON APPEAL FROM HCCC NO 132 OF 2021)

________________________

________________________

_______________________________________

REASONS FOR JUDGMENT

_______________________________________

Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The appellant pleaded not guilty to a single count of attempting to traffic in a dangerous drug, namely 21.94 kilogrammes of a solid containing 18.73 kilogrammes of ketamine narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and section 159G of the Crimes Ordinance, Cap 200. Following a trial in the High Court before then Deputy Judge Woodcock (“the judge”) and a jury, he was, on 29 November 2022, convicted of the offence and subsequently sentenced to 25 years’ imprisonment.

2.  In due course, he appealed against his conviction. On 8 March 2024, the Single Judge granted the appellant leave to appeal against conviction on the issues of: (i) whether evidence of certain WhatsApp messages was admissible; and, if it was, (ii) whether the judge should have limited the way the jury should regard such evidence so that they did not use it in an impermissible way, for example, as evidence of propensity[1].

3.  Meanwhile, an appeal aid certificate was also granted to the appellant to be advised on whether to appeal against sentence, given that it was not clear how the judge arrived at the sentence of 25 years’ imprisonment. By way of a Form XI notice filed on 15 March 2024, the appellant sought leave to appeal against his sentence out of time. On 3 March 2026, having heard counsel, we dismissed the appeal against conviction and said we would hand down the reasons for our decision in due course. Meanwhile, we adjourned the matter of sentence to a date to be fixed in due course. These are the reasons for our decision.

The prosecution case

4.  On 27 November 2019, the appellant arrived as a passenger in a light goods vehicle at the Howard Factory Building, at 66 Tsun Yip Street, Kwun Tong in Kowloon, in order to collect a consignment of 28 boxes, which had been shipped from France to Hong Kong by air. After signing a receipt for the goods, the appellant was immediately arrested by Customs officers, who had mounted a controlled delivery operation at the premises, having earlier discovered the ketamine in question secreted in three of the 28 boxes.

5.  After his arrest and under caution, the appellant told Customs officers that he believed the goods were ornaments. He did not know to whom the goods belonged, nor did he know where he was supposed to take them. On being asked the identity of the person who had instructed him to collect the goods, the appellant said he did not know the person, whom he had only met through online gaming. Furthermore, he had no way to contact the person concerned, since there was no caller display on his telephone. However, when asked whether he would unlock his two mobile telephones for the officers to check the person’s identity, the appellant declined to do so. When he was subsequently shown the crystalline solid contained in the boxes, he claimed that he did not know what the substance was.

6.  Eventually, Customs officers used special equipment to gain access to the contents of the appellant’s mobile telephones, among which was a thread of WhatsApp text and voice messages between the appellant and a person identified as “chitat” (“Chitat”) over several days between 21 November 2019 and 27 November 2019 inclusive[2]. Chitat appeared to be the person who had asked the appellant to collect the consignment. Chitat had used two telephone numbers in the exchanges, both of which would have been known to the appellant.

7.  Although the messages passing between the appellant and Chitat made no specific reference to dangerous drugs, they had, according to the prosecution, used various slang terms or jargon in their exchanges to refer to dangerous drugs. PW6, a senior police inspector, gave evidence as an expert witness on the use of such slang or jargon, the gist of which was as follows[3]:

(i)  People involved in the dangerous drugs trade would often use a secret coded language in their communications, without directly referring to dangerous drugs;

(ii)  If the exchanges were read as a whole, they would reveal that the appellant realised that he and Chitat were talking about dangerous drugs;

(iii)  On 21 November 2019, the appellant and Chitat talked about “wearing clothes”, which was slang for the packaging of dangerous drugs; Chitat asked the appellant whether he could help with packaging some drugs. However, the appellant responded that he could not do it at home. There were ensuing discussions about the price of “wearing clothes”, ranging from “800” to “1200” per piece, which was a reference to the price of the drugs per ounce. The appellant then suggested that the packaging should be done in a hotel;

(iv)  On 26 November 2019, and in the early hours of 27 November 2019, Chitat told the appellant that someone would call him on 27 November to “take the stuff”. In the next message, at 00:35 hours on 27 November, Chitat said “that means Yum Cha”. PW6 explained that “Yum Cha” in the context of dangerous drugs meant a drugs transaction; in other words, when one person handed over drugs to another;

(v)  The terms “wearing clothes” and “Yum Cha”, in the exchanges between Chitat and the appellant, would not have made any sense, unless they were understood in the context of a discussion about dangerous drugs.

8.  In his closing address, prosecuting counsel made the following points to the jury:

(i)  The appellant never asked Chitat what he had meant by “wearing clothes” or “Yum Cha”, when the use of such terms as they are ordinarily understood in conversation would not have made any sense[4];

(ii)  More importantly, Chitat instructed the appellant not to tell “Ah Wing”[5], who had driven the appellant to the premises to collect the consignment on 27 November. When instructed not to tell anyone else what he had been asked to do, the appellant replied “I know”[6], rather than questioning Chitat as to why there should be such secrecy when collecting an apparently innocuous consignment of ornaments[7].

9.  Amongst other evidence, which is not the focus of this appeal, prosecuting counsel used the WhatsApp messages to show that the appellant must have known he was collecting dangerous drugs, and not mere ornaments.

10.  It is to be noted that in his cautioned statement, which was not challenged at trial, the appellant stated that he was driven by his friend Ah Wing to the factory premises to collect the consignment of 28 boxes[8]. In the messages passing between the appellant and Chitat on 26 November 2019, there are references to Ah Wing not being able to “get up” the following day, which prompted Chitat to tell the appellant to settle matters with Ah Wing first, since “you already settled (it) yesterday”[9], which was presumably 25 November 2019. He further told the appellant to call him (Chitat) the following day before collecting the goods[10]. Chitat also instructed the appellant that after loading the consignment of goods into Ah Wing’s vehicle, he should then “make an appointment with the other guy for handing over the stuff to him” and to decide where to make the handover[11]. Ah Wing’s name was, in fact, first mentioned in a message from the appellant to Chitat on 24 November 2019[12].

The defence case

11.  The appellant did not give evidence but called his father as a defence witness (“DW1”). The defence was a denial of knowledge of the presence of dangerous drugs in the consignment.

12.  DW1 testified that he operated a goods delivery business and would pay the appellant $15,000 a month for helping him with his business. As far as DW1 knew, the appellant had not been involved with dangerous drugs before[13].

13.  Defence counsel at trial referred to the following facts, from which the jury could draw an innocent inference in the appellant’s favour:

(i)  The appellant had a clear record;

(ii)  There was no direct evidence of knowledge that the boxes contained dangerous drugs, which knowledge the appellant had specifically denied under caution[14];

(iii)  Chitat would not have mentioned dangerous drugs because it would have been too risky for him to do so. The appellant, who was young and of good character, might have reported the matter to the police or told Ah Wing what was going on;

(iv)  Although neither the expertise of PW6 nor his interpretation of the messages was challenged, it was put to the witness by defence counsel that his reading of the messages was not their only interpretation. Moreover, all the slang phrases used had been initiated by Chitat. There was no evidence connecting the appellant with the drugs underworld, as a result of which he might have understood the messages. The appellant could well have taken the terms, “wearing clothes”, “one piece” and “Yum Cha” at their face value, in which case he would not have asked Chitat what the phrases meant[15].

The summing-up

14.  The judge instructed the jury, on several occasions throughout her summing-up, as to the burden and standard of proof and the real issue in the trial[16]. She took the jury through the evidence[17], saying in respect of PW6[18]:

“PW6’s opinion is that the messages were evidence that the defendant was involved in drug packing and well aware of the drug slang used for both packaging or disguising drugs, as well as delivering drugs.

…

So members of the jury, you have to decide whether you accept PW6’s evidence and his opinions of the conversation between the defendant and Chitat. You have to decide whether you accept his evidence that the defendant was knowingly participating in conversations using drug slang and jargon and understanding that they were talking about drugs. The prosecution are suggesting that if you accept his opinion then you should have no difficulty in finding the defendant had the knowledge that he was asked to, ‘Take the stuff, that means Yum Cha,’ he knew he was involved in a drug delivery transaction.”

The judge reminded the jury, on more than one occasion, of the purpose of the WhatsApp messages, namely as evidence of the appellant’s knowledge of what the boxes contained[19].

15.  At the end of her recapitulation of the evidence, the judge directed the jury as follows[20]:

“It is not part of the prosecution’s case that the defendant was a triad or part of the dangerous drug community because the only issue relevant here which you are to resolve is whether the defendant had knowledge of the drugs in the boxes that he was trying to collect that day, 27 November.

…

So members of the jury, to conclude, the defence case is that he did not know. The defendant’s case is he did not know the boxes he was attempting to collect contained drugs. If you believe this is true or may be it is true, then you should find him not guilty.” (Emphasis added)

Mitigation and sentence

16.  Since the appellant was convicted after trial, the focal point of mitigation was that the he had been a young man of previous good character and had acted merely as a courier[21]. This characterisation, the judge accepted[22]. Addressing the aggravating factor that the dangerous drugs had been imported into Hong Kong, counsel argued there was no evidence to show that the appellant knew this to be the case[23]. With this submission, the judge also agreed[24].

17.  Following the six-step approach to sentence set out in HKSAR v Herry Jane Yusuph[25], the judge considered the sentencing guideline for ketamine in Secretary for Justice v Hii Siew Cheng[26], namely that for over 1,000 grammes of ketamine, the starting point should be more than 14 years’ imprisonment. She noted, in HKSAR v Sin Chung Kin[27], the Court had said that for over 3 kilogrammes of ketamine, the starting point could exceed 20 years and would be a matter of discretion, although the increase in sentence at that level should not be proportional to the increase in quantity[28].

18.  Having heard defence counsel’s submission that the starting point should be about, but no more than, 25 years’ imprisonment[29], the judge adopted a starting point of 25 years in respect of the 18.73 kilogrammes of ketamine narcotic. With no apparent mitigating or aggravating factors present, the judge duly passed a sentence of 25 years’ imprisonment.

The grounds of appeal against conviction

19.  In granting leave to appeal against conviction, the Single Judge observed that:

“36. … As prosecuting counsel put it, the text exchanges and conversations, whilst not related to the collection on 27 November, were adduced simply because they revealed a picture of ‘…Chitat and the defendant being involved with drugs in some way’. If that is so, it sounds suspiciously like propensity evidence and the question then becomes one of the admissibility of the evidence, and for what purpose it was admitted.

…

38. … the applicant needs to consider and articulate more particularly what the complaint actually is. Is it one of inadmissibility (either intrinsic or on the basis that the evidence was more prejudicial than probative), or is it one of uncharged acts? …

39. In advancing the argument, however, the applicant will have to deal with the fact that the WhatsApp and voice messages were formally agreed by defence counsel at trial by way of Admitted Fact evidence. If the argument now is that the evidence of the messages on 21 and 24 November 2019 was inadmissible because it was more prejudicial than probative, Mr Mughal will have to explain why it was agreed to in the first place. There may, for all I know, have been a reason why defence counsel at trial wanted the evidence to be admitted. Given its admission and agreement, it may be that the only argument available to the applicant on appeal is that there should have been a direction from the judge warning the jury of the limited use of such prejudicial evidence, and how they must not use it.” (Underlining added)

20.  Mr Mughal, counsel for the appellant at this appeal, has effectively answered the underlined question above by submitting that it was a combination of both, with uncharged acts being the main argument. His submission may be summarised as follows:

(1)  The WhatsApp messages between the appellant and Chitat between 21 and 24 November[30] concerned the packaging of dangerous drugs, which activity was unconnected with the collection of this consignment of dangerous drugs on 27 November. Indeed, the judge had agreed with this proposition during submissions[31];

(2)  The messages concerning the packaging of dangerous drugs might have indicated at least a conspiracy to traffic in dangerous drugs, which would be an uncharged act; such offence would be independent of the one with which the appellant was indicted. However, the judge failed to direct or warn the jury how to treat or approach such evidence of uncharged acts, including the applicable standard of proof, thereby resulting in a material irregularity which impacted on the fairness of the trial; 

(3)  Additionally or in the alternative, even if they did not constitute evidence of uncharged acts, the WhatsApp messages evidence concerning the packaging of dangerous drugs were inadmissible, since they were tantamount to propensity evidence, which was subject to the exclusionary rule discussed by the Court of Final Appeal in HKSAR v Zabed Ali[32]. Prosecuting counsel, during exchanges with the judge (but in the absence of the jury), had submitted that the WhatsApp messages concerning packaging revealed that “the whole picture is one of … Chitat and the defendant being involved with drugs in some way”[33]; 

(4)  Accordingly, the prejudicial effect of these messages outweighed their probative value. Although the WhatsApp messages were formally agreed by way of admitted fact by defence counsel at trial, whose conduct Mr Mughal did not attempt to suggest was in any way incompetent, the judge nevertheless failed to give the jury any direction on such prejudicial evidence, or to ensure that the appellant would receive a fair trial.

The respondent’s argument

21.  In response, Ms Parwani for the respondent submitted that there was no actual evidence of any uncharged act(s). The messages in relation to the packaging of drugs was non-specific as to time or place, nor was there any agreement on the appellant’s part to engage in such activity. Accordingly, the WhatsApp messages did not amount to evidence of any independent criminal offence at all. In such circumstances, it would have been confusing for the jury to receive a direction on uncharged acts.

22.  In any event, the probative value of such messages far outweighed any prejudicial effect they might have. The ultimate issue at trial was knowledge. Apart from the messages sent on 26 and 27 November, which plainly related to the arrangement for the collection of the consignment, the prosecution used the WhatsApp messages concerning slang or jargon in relation to dangerous drugs to prove that the appellant knew exactly what he was collecting. Although the appellant had asserted that he was receiving ornaments on 27 November, there was no mention at all of any ornaments in any of the WhatsApp messages. Moreover, the defence had not challenged the admissibility of the messages but instead used them to show that the appellant had no connection with the drugs underworld, since the messages could also be taken at face value. The jury were repeatedly told that the messages were only to be used to infer knowledge. Nowhere had the prosecution relied upon, even by implication, the appellant’s propensity to commit the offence of drug trafficking. Therefore, there was no risk of any impermissible reasoning by the jury.

Discussion

23.  As the argument developed before us, it was recognised by Mr Mughal that the WhatsApp exchanges between the appellant and Chitat concerning the packaging of dangerous drugs in the messages of 21 and 24 November were both relevant and admissible evidence that went, depending on their interpretation (which was a matter for the jury), to proof of the appellant’s knowledge of what he was receiving on 27 November. In fact, in our judgment, the evidence went further than that. The appellant had denied knowing what the substance inside the packages was when the crystalline solid was produced and shown to him by Customs officers at the scene. However, the evidence of the discussions about packaging rather undermined the notion that the appellant did not know the nature of the dangerous drug. Moreover, the fact that there were messages exchanged with Chitat going back to 21 November gave the lie to the appellant’s assertions under caution that he did not know who had asked or instructed him to collect the consignment, or that he was unable to contact him.

24.  Accordingly, for a variety of reasons, the evidence of the 21 and 24 November WhatsApp messages was highly relevant to the prosecution case and plainly admissible; even though the parties and the judge at trial had confined its relevance to knowledge of what it was the appellant had gone to collect on 27 November. The relevance and importance of the evidence further disposes of any argument that it was more prejudicial than probative.

25.  We also have to say, with respect, that the judge’s statement (with, it would seem, the concurrence of prosecuting counsel) that the WhatsApp messages about packaging dangerous drugs between 21 and 24 November were separate and “not related to the pick-up of the 27^th”[34] was a rather generous and unwarranted one, which was in conflict with the evidence and the reality of the circumstances[35]. It is readily apparent, when reading the WhatsApp messages as a whole, and in context and sequence, that the earlier references to packaging (or, rather, re-packaging) of dangerous drugs must have concerned this very consignment, which was to be picked up on 27 November, for the reasons which PW6 explained in his evidence. In this regard, PW6 was asked in examination-in-chief what was meant by “wearing clothes” and “packaging”, to which he answered[36]:

“Normally when the dangerous drugs were imported, it was in a bulk package, and for the dangerous drug to be sold on the street level, it had to be repackaging into smaller packages. So this is the packaging scenario, one of the packaging scenario that I am talking about. And second scenario is that, even in a bulk package, one would want to deliver to another person in a bulk package, but as the original packaging looks very obvious that it was a dangerous drug, so in here when packaging is involved, it means to put on and disguise or some kind of packaging so that when it is delivered outside, it would not be so obvious that it is dangerous drug.”

26.  That being so, this was not a case of uncharged acts or propensity evidence at all but one of relevant, probative evidence, which (again, depending on the jury’s interpretation of the WhatsApp messages) concerned the arrangements for picking up this consignment of dangerous drugs, and how and where to re-package the drugs. In the course of those exchanges, the appellant was obviously reluctant, or declined the offer, to re-package the dangerous drugs himself[37] and there was no other offence committed by him capable of constituting a separate charge. In our judgment, the discussions of 21 and 24 November were plainly concerned with the very consignment, which was to be picked up on 27 November.

27.  But even if the discussions of 21 and 24 November had been unrelated to the collection of the consignment, the whole focus of the judge’s directions on the WhatsApp messages was that they went only to the appellant’s knowledge of what he was collecting. The judge explained[38]:

“So how does the prosecution prove the defendant knew there were drugs in the boxes? The prosecution is relying on the evidence of the WhatsApp messages between the defendant on both of the defendant’s phones and someone called Chitat to prove that both the defendant and Chitat, both parties, were texting or leaving voice messages over several days from 21 to 27 November about packaging of drugs and drug transactions. That is what the prosecution is relying on.

The prosecution is relying, therefore, on the evidence of the expert witness, PW6, the inspector who has studied these messages, WhatsApps, and you will recall it was his opinion that they show the parties to the messages were fully conversant or fully aware of the drug slang or jargon or words that were used between them or used in the messages to show that they had knowledge of drugs and knowledge of the drugs inside the boxes to be collected on 27 November.”

28.  Later the judge said[39]:

“So members of the jury, you have to decide whether you accept PW6’s evidence and his opinions of the conversation between the defendant and Chitat. You have to decide whether you accept his evidence that the defendant was knowingly participating in conversations using drug slang and jargon and understanding that they were talking about drugs. The prosecution are suggesting that if you accept his opinion then you should have no difficulty in finding the defendant had the knowledge that when he was asked to, ‘Take the stuff, that means Yum Cha,’ he knew he was involved in a drug delivery transaction.”

29.  Finally, the judge made clear that the only issue was whether the appellant had knowledge of the contents of the consignment he was collecting[40]:

“It is not part of the prosecution’s case that the defendant was a triad or part of the dangerous drug community because the only issue relevant here which you are to resolve is whether the defendant had knowledge of the drugs in the boxes that he was trying to collect that day, 27 November. You may think that, therefore, his father’s evidence does not help resolve this issue because he had no evidence of the defendant’s actual knowledge relating to the contents of those boxes

So members of the jury, to conclude, the defence case is that he did not know. The defendant’s case is he did not know the boxes he was attempting to collect contained drugs. If you believe this is true or may be it is true, then you should find him not guilty

If you reject this defence, then the prosecution must prove to you on the evidence, which is the circumstantial evidence including the expert opinion of the slang used in the conversations. It must prove that he did know there were drugs in the boxes he was trying to collect.”

30.  We have already said that we do not accept there was disclosed in the WhatsApp messages any uncharged act or propensity evidence. What was said between the appellant and Chitat all related to the arrangements for collecting and dealing with the very consignment which was to be collected on 27 November. But, even if the messages of 21 and 24 November concerning packaging (or re-packaging) were accepted as unconnected with the actual consignment to be collected on 27 November, the judge had made it abundantly clear that their only relevance was the light they shed on the appellant’s knowledge of the contents of the consignment he received. There could be no unfairness to the appellant by such directions.

31.  For these reasons, the appeal against conviction was dismissed.

Appeal against sentence

32.  We have also been presented with an application for leave to appeal against sentence out of time, together with an affirmation from the appellant explaining the delay. The appellant was over 14 months out of time by the time he lodged his application for leave. However, notwithstanding this delay, the Single Judge considered that the sentence of 25 years’ imprisonment “may or may not be on the high side”[41]; furthermore, it was not made sufficiently clear how the figure of 25 years’ imprisonment had been arrived at. Accordingly, legal aid limited to advising the appellant whether he had reasonable grounds for appealing his sentence out of time was granted[42]. That has now been done and Mr Mughal has evidently so advised that there are such grounds. Ms Parwani, for her part, has also accepted that the appellant’s sentence “may be considered to be on the high side”[43], and takes no issue with the extension of time.

33.  Accordingly, we granted the appellant an extension of time to appeal against sentence and ordered that the appeal should be heard on a date to be fixed, in consultation with counsel’s diaries, but after the handing down of the decision in HKSAR v Choi Tsz Fung[44], in which the Court will be re-examining the guidelines relating to large quantities of ketamine.

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

Mr Hanif Mohamed Mughal and Ms Teresa JC Yu (on a pro-bono basis), instructed by Simon Si & Co, assigned by the Director of Legal Aid, for the Appellant