Case Detail

CACC 94/2022 [2025] HKCA 520

On appeal from [2022] HKCFI 2283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 94 OF 2022

(ON APPEAL FROM HCCC NO 133 OF 2020)

________________________

	HKSAR	Respondent
	v
	Enriquez Anna Mae Justimbaste	Appellant

________________________

Before:

Hon Macrae Acting CJHC, Zervos and M Poon JJA in Court

Date of Hearing:	8 May 2025
Date of Judgment:	8 May 2025
Date of Reasons for Judgment:	30 May 2025

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REASONS FOR JUDGMENT

________________________

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

1. The appellant (D3 at trial) was jointly charged with Lam Tsz Kin, Kent (D1 at trial) and Torres Gonzalez Marco Valerio (D2 at trial) with one count of conspiracy to manufacture a dangerous drug, namely methamphetamine hydrochloride, commonly known as Ice.[1]

2. On 6 June 2022, following a trial before Toh J (the Judge) and a jury, the jury convicted all defendants of conspiracy. While D1 and D2 were convicted by a unanimous verdict of the jury, the appellant was convicted by a 5:2 majority verdict. On 24 June 2022, the Judge sentenced D1 to 29 years’ imprisonment, and D2 and the appellant to 28 years’ imprisonment each.

3. On 30 June 2022, the appellant filed an application for leave to appeal against conviction only. She also applied for legal aid, which was granted to her on 20 September 2022. At the leave hearing on 4 June 2024, she was represented by Mr Hanif Mughal and Ms Teresa Yu. The appellant was granted leave to appeal against her conviction on Grounds 1, 2 and 4 of the original perfected grounds of appeal (which are now Grounds 1, 2, and 3 in this appeal). She was also granted leave to appeal against sentence out of time and an appeal aid certificate for that purpose.[2]

4. At the conclusion of the hearing, we allowed the appellant’s appeal against conviction, quashed the conviction, and set aside the sentence. We considered that it was not in the interests of justice to order a retrial. We said that we would hand down our reasons for judgment in due course, this we now do.

The prosecution case

5. The prosecution alleged that D1, D2, and the appellant conspired in Hong Kong, on or between 5 and 6 March 2019, to manufacture Ice.[3]

6. To prove the substantive offence of manufacturing a dangerous drug, the prosecution must establish that: the accused manufactured a substance; the substance was a dangerous drug; the accused knew it was a dangerous drug; and the accused lacked legal authorisation to manufacture it. For the purpose of this offence, manufacturing a dangerous drug means any act connected with making, adulterating, purifying, mixing, separating or otherwise treating a dangerous drug.[4]

7. D1 was a Hong Kong resident, who travelled frequently between Hong Kong and mainland China. D2 was a national from Mexico, and the appellant was a national from the Philippines, who variously arrived in Hong Kong from overseas before the alleged offence. The following chronology of events provides an outline of the involvement of the defendants and others in the alleged manufacturing operation:

(1)  On 11 February 2019, D1 left Hong Kong for mainland China and returned on 22 February 2019.[5]
(2)  On 21 February 2019, D2 entered Hong Kong, having arrived on an overseas flight.[6]
(3)  On 24 February 2019, D1 left Hong Kong for mainland China and returned at 2:02 pm on 5 March 2019.[7]
(4)  At 11:16 am on 3 March 2019, D2 checked into the iClub Ma Tau Wai Hotel, 8 Ha Heung Road, Kowloon City, Kowloon (iClub Hotel), having booked for 25-27 February, 3-5 March and 5-7 March 2019.[8]
(5)  At 2:28 am on 5 March 2019, D1’s daughter brought a parcel into the lift of Block B, I-Feng Mansions, 237 To Kwa Wan Road, Kowloon City, Kowloon (I-Feng Mansions).[9]
(6)  At around 10:00 am on 5 March 2019, the appellant entered Hong Kong, having arrived on a flight from the Philippines.[10]
(7)  At 12:37 pm on 5 March 2019, the appellant checked into the iClub Hotel, having booked for 5-6 March and 6-7 March 2019.[11]
(8)  At around 2:00 pm on 5 March 2019, D1 returned to Hong Kong from mainland China and checked into the iClub Hotel, having booked for 5-6 March 2019 and 6-9 March 2019.[12] Both D1 and the appellant testified that they met at the hotel lobby that afternoon and briefly went to the appellant’s room to have a chat.[13]
(9)  At around 7:30 pm on 5 March 2019, D1’s daughter and D2 appeared at the Whampoa branch of AEON in the evening. It was the prosecution case that D2 was there to buy pots.[14]
(10)  At 12:12 pm on 6 March 2019, D1 and D2 were at IKEA in Kowloon Bay.[15] It was the prosecution case that they were there to buy the tools for the manufacturing of dangerous drugs.[16]
(11)  At 1:12 pm on 6 March 2019, D1 and D2 arrived at the lift lobby of I-Feng Mansions.[17]
(12)  At 1:45 pm on 6 March 2019, D1 and his mother-in-law arrived at the lift lobby of I-Feng Mansions.[18]
(13)  At 2:03 pm on 6 March 2019, D1 and the appellant arrived at the lift lobby of I-Feng Mansions.[19]
(14)  At 4:20 pm on 6 March 2019, D1 and his mother-in-law were intercepted by police officers in To Kwa Wan Road, Kowloon City, Kowloon. D1 was carrying eleven mobile telephones, two bunches of keys and a key card of the iClub Hotel.[20]
(15)  At around 4:43 pm on 6 March 2019, the police officers, using the keys seized from D1, entered Room B 810 in Block B of I-Feng Mansions (the flat), which was rented by D1’s wife. D2 and the appellant were found on a sofa in the living room of the flat.

8. One of the officers, DPC 6123 (PW3), said that when he entered the flat, he could smell acid.[21] Another officer, DPC 4980 (PW4), found red bags and a bag with white powder inside on the coffee table in front of the sofa, but they did not contain a dangerous drug. He saw D2 stretch out his legs under the coffee table[22], where he found a pot with brown liquid crystalline solid containing Ice[23]. In the kitchen of the flat, there was an induction cooker that was heating, and six bottles were found in the sink.

9. The forensic scientist, Leung Shui Mei (PW7), explained that the liquid solution in the pot on the induction cooker was being heated, and the evaporation process, which separated Ice from the solution, was ongoing.[24] The six bottles, thermometers and metal spoon all had Ice on them. PW7 was of the opinion that the manufacturing of Ice could have taken place at the scene.[25]

10. The police seized inside the flat 4.71 kilogrammes of Ice with a street value of HK$2,672,846.[26]

The defence case

11. Most of the prosecution evidence was not in dispute at trial, and the three defendants each testified in their defence.

12. D1’s case was one of duress. He said he was threatened by his brother in the Philippines, Lam Ka Chun, to let D2 cook the drugs at the flat. He said that his brother told him that his Mexican friend, D2, was coming to Hong Kong to buy miscellaneous items and asked him to book a hotel and pick up D2 at the airport. D1 was in mainland China, so he asked his daughter to pick up D2 at the airport on 21 February 2019. At around 7:00 pm on 4 March 2019, his brother on WeChat instructed him to collect a parcel for D2 because the delivery service could not contact D2. D1 was still in mainland China, so he asked his daughter to collect it.[27] At about 10:00 am on 5 March 2019, his brother called and told him that D2 wanted to use his flat to cook drugs. He was threatened by his brother that harm would come to him and his family if he refused.[28] He then met D2 in the hotel room on the same day. D2 asked D1 if he knew of any pots for sale, and he told his daughter to take D2 to AEON because he was not feeling well.[29] On the next day, he went with D2 to IKEA to buy pots for the manufacturing of Ice.[30] D1 explained that the appellant was a friend of his brother, who came to Hong Kong to buy cosmetics and gold ornaments.[31] She arrived on the day before, and he took the appellant to a gold shop. At the time, his brother called and told him that D2 had almost finished, and asked him to go to the flat to help him take things away. He brought the appellant with him to the flat because he was very scared and “her presence would give me courage”.[32] He told the appellant that D2 also wanted to go shopping and suggested that she wait for D2. He then left to have lunch and do some Bitcoin trading. At around 4:00 pm, his brother called, saying that D2 would finish soon and would pack up in 20 minutes. He was at the hotel, and upon leaving, he was arrested.[33]

13. D2 claimed he was framed by D1. D2 came to Hong Kong to collect a debt owed by D1 to a customer of D2. However, D1 set up D2 by luring him to AEON and IKEA and promising D2 payment while D2 waited at the flat. D2 said he did not know that drug manufacturing was taking place at the flat. He did see the pot boiling in the kitchen, and he took a video of it to send to D1 and his wife. D2 said he did not know the appellant, and they chatted socially while waiting and sitting on the sofa.[34]

14. The appellant testified that she came to Hong Kong for shopping. In the Philippines, her work involved cooking and delivering lunchboxes. D1’s brother was the husband of her friend, Angelica.[35] She planned to shop with Angelica in Hong Kong for school supplies, sales stuff, and birthday gifts. Shortly before their trip, D1’s brother called her, saying that Angelica could not come and D1 would accompany her to go shopping.[36] When she arrived in Hong Kong on 5 March 2019, there was no one to pick her up at the airport. She contacted D1’s brother, who told her to take a bus. While on the bus, D1 telephoned her with the hotel details. After checking into the iClub Hotel, she met D1 while going downstairs for a cigarette. They went to her room. D1 stayed there very briefly and told her that he could not take her shopping that day because of bad weather.[37] On the next day, she called D1 at around 12:45 pm and asked him to take her shopping. D1 took her to a jewellery shop nearby, but she did not purchase anything because the items were too expensive. At the shop, D1 suggested going to the flat as he needed to make some important telephone calls. When they entered the flat, there was an acidic smell. D1 asked her to sit on the sofa with D2, and she chatted with him.[38] She stayed there for about two and a half hours. She did not notice if there were items on the table, and did not know if Ice was being cooked in the flat[39] or whether D2 had got up from the sofa. She explained that she was mainly occupied with her mobile telephone as her son had not been picked up from school in the Philippines.[40]

The appeal against conviction

15. The grounds of appeal against conviction advanced on behalf of the appellant were as follows.[41] The Judge erred in not directing the jury properly, as the presence of the appellant at the flat, in the circumstances, was insufficient to infer that her presence was part and parcel of a conspiracy to manufacture dangerous drugs (Ground 1). The Judge erred in not directing or guiding the jury properly that mere presence of the appellant in the flat would not be enough to support the prosecution case against her and that the prosecution had to show that she joined or was part of an agreement to manufacture dangerous drugs (Ground 2). In the absence of any direct evidence showing an agreement to manufacture dangerous drugs, or any role or knowledge in respect of the manufacture of dangerous drugs on the part of the appellant, the circumstantial evidence was insufficient to draw any irresistible inference of such an agreement, role or knowledge, causing a lurking doubt as to the safety of her conviction, rendering it unsafe and unsatisfactory in all the circumstances (Ground 3).

16. The complaint encapsulated by these grounds is that the evidence against the appellant was weak and limited to her presence in the flat and that the Judge should have given the jury a direction that the mere presence of the appellant was insufficient to prove that she was a party to a conspiracy with D1 and D2 to manufacture Ice.

17. Mr Mughal submitted the following points to demonstrate the weak state of the prosecution evidence against the appellant. There was no evidence that she knew D1 or D2 before, or that she had knowledge of drug manufacturing.[42] Unlike the cases against D1 and D2, there was no proof that she assisted in any way in the preparation or manufacturing of Ice. The role of the appellant in the conspiracy was unknown and unestablished, and most of the incriminating evidence was against D1 and D2. The highest the prosecution could put its case against the appellant was that she was in the flat “to observe” the cooking of Ice.[43] There was no forensic or biochemical evidence in the flat linking her to the manufacturing of Ice.[44] She had provided an exculpatory explanation for her presence at the flat, which had not been contradicted by the evidence of D1 or D2, who both said they did not know her.[45] She entered Hong Kong on 5 March 2019 and was brought to the flat the next day, whereas the alleged conspiracy only lasted from 5-6 March 2019.[46]

18. Although the Judge took the jury through the elements of proving conspiracy and gave the direction on drawing of inferences, Mr Mughal contended that she did not properly address the state of the evidence and the relevant considerations regarding the circumstantial case against the appellant.[47] He criticised the Judge’s failure to give the jury a direction or guidance on the law of mere presence. He argued that the appellant’s mere presence at the flat, without any evidence on what she did or said there, was not a sufficient basis for convicting her for participation in a crime: HKSAR v Nanik[48]; HKSAR v Wong Chun Yau[49]. The failure of the Judge to direct the jury that mere presence was not enough to prove criminal liability, meant that the jury might well have been left with the wrong impression that criminal liability can be founded on mere presence and therefore proceeded to engage in an impermissible process of reasoning.[50]

19. Ms Kasmine Hui, for the respondent, submitted that there was ample circumstantial evidence in the case for the jury to draw the only reasonable inference of guilt against the appellant. She mentioned the points raised by the prosecution against the appellant that concerned her association with D1 and presence in the flat for two and a half hours, adding that the timing of the events was also telling.[51] She noted that the Judge’s directions on the elements of the offence and inferential reasoning ensured that the jury would not have convicted the appellant merely because she was present at the flat.[52]

20. Ms Hui referred to HKSAR v Kwun Sum Yeung[53] where the Court of Appeal upheld a conviction for trafficking in dangerous drugs in similar circumstances to the present case. The applicant in that case had been present inside a hotel room for a lengthy period, where there were drugs and related paraphernalia.

21. As for any text messages between D1 or D2 and the appellant, it appears there were none. Ms Hui informed us of one message from D2 to D1 on 2 March 2019, which was apparently retrieved from the unused material. In that message, D2 asked D1, “You have already the people who will learn”, and D1 responded, “Yes, it is already”. There is no direct reference to the appellant, but it seems this may have been the basis of the prosecution case against the appellant, namely that she was brought in “to observe”.[54]

Discussion

22. Regarding “mere presence”, the concept is best understood by analogy to possession in drug trafficking cases. The relevant specimen direction suggests that, when explaining the element of possession, the jury should be directed that a person’s mere presence in the vicinity of an object is not in itself possession of it.[55] This applies even if the person knows the object is there and does nothing more. It is necessary to show that the person has actual physical custody of the object or it is otherwise within his or her control, and he or she knows it is there and intends to exercise custody or control over it. As held by this Court, knowledge of the existence and whereabouts of drugs does not in itself put a person in possession of them, even though it may be suspicious. Knowledge, although an element of possession, is not to be equated with possession: R v Chan Chor Yam[56]; HKSAR v Ko Wai Shing[57].

23. We have not examined the concept of “mere presence” in respect of substantive offences where a person’s presence may be an element of the offence, or in cases of secondary liability where a person’s presence may go to the question of aiding and abetting a crime based on assistance or encouragement. However, in general terms, mere presence at the scene of a crime, or mere knowledge that a crime is being committed, without any evidence of the person doing or saying anything, is not sufficient to establish that he or she committed the substantive crime. To be convicted, the defendant must have the requisite mental element and must have performed the physical act of the offence. The defendant must be a participant in the crime, although his or her presence may be considered along with other evidence in the case.

24. When it is alleged that a defendant is party to a conspiratorial enterprise to manufacture dangerous drugs, usually, mere presence in the vicinity of the manufacturing operation is not, in itself, without more, sufficient evidence to draw an irresistible inference of guilt. It must be established to the requisite standard that the defendant was a party to an agreement with another or others to manufacture dangerous drugs and, at the time of agreeing to do this, he or she intended that the manufacturing should be carried out.

25. We cannot agree that the case of Kwun Sum Yeung is comparable to the present case. In Kwun Sum Yeung, the applicant had been charged jointly with two others for the substantive offence of trafficking in a dangerous drug at a hotel room. The activities of the three defendants and several hotel rooms were under police surveillance. The applicant entered Room 137 in the morning and was there alone. He left and went to another room where the other defendants were located. He returned to the room and stayed there for a lengthy period into the afternoon. He was intercepted by the police after he left the room. He had the key card for the room in his possession, which showed that he could enter and leave the room freely. The police found in the room a large quantity of dangerous drugs and paraphernalia for packing dangerous drugs, which were openly displayed. He argued in his defence that he was babysitting the son of one of the defendants, but this claim was rejected by the trial judge. The Court of Appeal noted that the applicant did not give evidence, and there was no other accepted evidence to undermine, rebut, or explain the prosecution’s evidence. Moreover, without an explanation from the applicant, such as his possession of the key card to the room, which showed his intention to return to the room, this strengthened the inference adverse to him.[58]

26. The facts and circumstances in the present case were markedly different from those in Kwun Sum Yeung. D1’s wife had rented the flat. It was a small flat, and the photographs revealed that it was cluttered and untidy. There was a sofa facing a television with a coffee table in front of it. The appellant entered the flat sometime after 2:00 pm on 6 March 2019. When the police raided the flat at about 4:43 pm that day, they found the appellant sitting on the sofa. She had been in the flat for about two and a half hours. She had arrived from the Philippines the day before the raid. The police could smell the scent of acid as they entered the flat and discovered that in the kitchen, the making of Ice was taking place. There were some bags on the coffee table, but they did not contain Ice. There was also a pot under the coffee table that D2 tried to kick away, which contained Ice. The presence of Ice in the pot was not apparent because there were a number of other discarded items inside.

27. D1 was arrested by the police on the street before they entered the flat. He possessed the keys to the flat, which the police used to gain entry. D1 testified that he knew drugs were being manufactured in the flat because his brother, who was in the Philippines, had insisted that he make the flat available to D2 to manufacture the drugs. He said he did this under duress because his brother threatened him that if he did not do so, something might happen to him and his family. He claimed he had no alternative but to agree, and so he went with D2 to IKEA because D2 wanted to buy pots for manufacturing the Ice. Afterwards, he went to the flat with D2 because D2 wanted to look at the parcel which had been delivered.

28. D2 testified that he came to Hong Kong to collect a debt from D1 that had been assigned to him by someone else. He did not know that the manufacturing of drugs was taking place inside the flat. He said he had been set up by D1, who had lured him to AEON and IKEA. He said he paid for the items at IKEA because D1 knew that CCTV cameras were present in the store. He claimed he was only in the flat because D1 promised him that the money he was to receive would be paid, and therefore, he decided to wait there. He knew pots were boiling in the kitchen and took a video of them. He said he wanted to send it to D1 and his wife, but decided not to, and stored it in the Trash section on his mobile telephone.

29. It is significant that the objective evidence of the CCTV footage and records did not involve the appellant buying utensils, collecting the parcel, or arranging the flat to manufacture the drugs.

30. The appellant’s case was that she came to Hong Kong for shopping. She was to accompany her friend, Angelica, who was married to D1’s brother, but Angelica withdrew from the trip at the last minute. She said that D1 arranged for her accommodation at the hotel and that she did not know that the manufacturing of drugs was taking place inside the flat. She had been taken there by D1, who was going to take her shopping. He was busy, and she waited there for him to return. While she was in the flat, she was occupied with her mobile telephone and chatting to D2.

31. There was a strong case against D1 and D2, who were involved in the preparation and manufacturing of the Ice in the flat. D1 admitted his involvement, but claimed he did so under duress. D1 and D2 were observed together purchasing equipment for the manufacturing of the Ice, and entering and leaving the flat at relevant times. By contrast, the appellant had just arrived in Hong Kong, and the extent of the evidence against her was that she was present in the flat when the police raided it. The difference in the evidence between D1 and D2 on the one hand, and the appellant on the other, was not highlighted by the Judge in her summing-up to the jury. There was a critical question as to whether the primary facts relevant to the appellant were sufficient to draw the only reasonable inference that she was a party to the conspiratorial enterprise with D1 and D2 of manufacturing Ice in the flat. The prosecution presented its case against the defendants by emphasising that there was a joint enterprise between them, and the evidence against each of them implicated them all. This was reflected in the Judge’s summing-up to the jury when she addressed the prosecution case and the evidence against the defendants, including the appellant. She said:[59]

“Now, prosecution may prove the agreement in a number of ways. One, as I said, is by asking you to make an inference of its existence from the evidence tendered before you in this courtroom. In this case, the prosecution has brought before you the CCTV in that the prosecution says it shows the 2^nd defendant going to AEON to buy pots. Then it also shows the 1^st and 2^nd defendant going to IKEA to buy the tools for the manufacturing of the dangerous drugs. Therefore, in deciding whether there was a criminal conspiracy in this case, and whether each defendant was a party to it, look at all the evidence during the relevant period, including the behaviour of that particular defendant and the other alleged conspirators. If having done that, you are sure there was a conspiracy and that a defendant was party to it, you must find him guilty. If you are not sure, you find him not guilty.
Now, when a criminal conspiracy is formed, as I have said, one or more conspirators may be more deeply involved and has a greater knowledge of the overall plan. A conspiracy may also join a conspiracy that has been formed and drop out before it is carried out. Provided you are sure that a particular defendant did at some stage agree with the others that the crime in question would be committed and at the time intended that it should be carried out and it does not matter precisely where his or her involvement appears on the scale of seriousness or precisely when he or she became involved.
So you have the 3^rd defendant coming to Hong Kong that she was brought to the flat on 6 March. She had not been involved in going to AEON or IKEA, however, the prosecution alleges that she was part of the conspiracy and that she willingly and, in fact, went to the flat and was in the flat for two and a half hours. So the prosecution alleges that she is part of the conspiracy and when the drug manufacturing was going on. So each defendant is alleged to have played a different part. As far as the 1^st defendant is concerned, the prosecution says well, it was his flat, he let the manufacturing going on in there. And not only did he allow the flat to be used, he actually prepared for the manufacturing by going with the 2^nd defendant to buy the pots in IKEA and also arrange for his daughter to take the 2^nd defendant to AEON.
So the prosecution says that well, the only reasonable inference to draw from all that was that he was part of the conspiracy to manufacture and the prosecution says the 2^nd defendant came here not to collect a debt, but came here to manufacture dangerous drugs in the flat of the 1^st defendant. That is why he actually went to AEON and the CCTV in AEON shows that he was not just standing around, he was actually communicating with the sales staff at the place where they sell pots and pans. You can see him indicating with his hands a particular dimension that he showed to the sales staff. So the prosecution says that taking into account all the evidence the only reasonable inference to draw was that he was part of the conspiracy to manufacture.
So this is what is alleged against each of the defendants. The 1^st defendant says he was threatened by his brother in the Philippines to lend his flat to the 2^nd defendant under duress. If you find that all the elements of conspiracy to manufacture have been proved against the 1^st defendant and that he is guilty of the conspiracy to manufacture dangerous drugs, then you have to consider the issue of duress because the 1^st defendant said yes, he lent the flat and he knew manufacturing was going on, but he was threatened by his brother in so many words that harm would come to him and his family if he did not comply. Now, duress of this kind may be a defence to a criminal charge. It is for the prosecution to prove that the duress does not apply here. It is not for the defence to prove that it does.”

32. This passage underscores the lack of evidence linking the appellant to a conspiracy with D1 and D2 to manufacture Ice in the flat.

33. The Judge, in her directions to the jury, went on to discuss the defence cases of D1 and D2 and summarised the evidence of each defendant, but did not identify the primary facts on which the prosecution submitted they could draw an irresistible inference of guilt against the appellant. The prosecution case against her was not strong and mainly concerned her association with D1 and her presence in the flat for two and a half hours. This was apparent from prosecuting counsel’s closing address to the jury. He identified the following pieces of evidence against the appellant: (1) The appellant knew D1’s brother in the Philippines. (2) D1 arranged for the appellant to stay at the same hotel where D1 and D2 also stayed. (3) D1 took the appellant to the flat knowing that drugs were to be manufactured there. (4) The appellant stayed in the flat for two and a half hours. These were the primary facts he identified, on which he invited the jury to draw an irresistible inference of guilt against the appellant. He challenged the appellant’s account that she did not notice anything in the flat and was occupied on her telephone, and questioned why she would be present in the flat if she was an innocent person.[60]

34. Ms Hui acknowledged that the Judge did not identify in her summing-up the primary facts from which the jury could draw an irresistible inference of guilt against the appellant. However, she argued that, nonetheless, they were apparent, albeit scattered, throughout the summing-up.[61] In our judgment, this was a case where the Judge should have ensured that the jury correctly assessed the circumstantial case and properly reasoned the inference of guilt to be drawn against the appellant.

35. The appellant was represented by the late Mr Sean Kelly, an experienced and able criminal advocate. His closing address to the jury was forensically analytical and compelling.[62] He pointed out to the jury D1’s defence was that he was forced by his brother to assist D2 in manufacturing the drugs, while D2’s defence was that he came to Hong Kong to collect a debt and was set up by D1. He noted that despite the fact that they were pointing the finger at each other, neither of them pointed the finger at the appellant. Both testified that the appellant was not involved in the manufacturing operation. He explained to the jury that the evidence against the appellant was limited to essentially four factual matters. The first was that she had been booked into the same hotel as D1 and D2. The second was that D1 visited her briefly in her room on 5 March 2019. He pointed out that she had explained in her evidence that the visit was only a matter of minutes and that D1 told her he was busy and they would go shopping the next day. He noted that this had not been challenged by the prosecution. He observed that, if there was a conspiracy as alleged, D1 would have wanted to talk with D2 and the appellant together. The third matter was that the appellant was found sitting inside the room when the flat was raided by the police on 6 March 2019. The fourth and final matter was that D1 had the telephone numbers of D2 and the appellant on the same mobile telephone. As he pointed out, D1 had eleven telephones in his possession when he was arrested, and how he stored other people’s telephone numbers was his doing.

36. In his review of the evidence, Mr Kelly revealed the apparent weakness of the prosecution case against the appellant. He referred to the involvement of D1’s daughter, noting that she picked up D2 when he arrived in Hong Kong and accompanied him to buy the necessary utensils for manufacturing the drugs. He noted that the appellant was not involved and had not met D2. He emphasised that if the appellant was party to a conspiracy with D1 and D2, she would have met up with them to carry out their conspiratorial enterprise. He pointed out that there was no evidence of any prior association or connection by the appellant with D1 and D2, other than her own testimony as to how she came into contact with D1. In response to prosecuting counsel’s submission, he rightly observed that the appellant’s experience as a domestic cook was hardly relevant in the manufacturing of methamphetamine hydrochloride, and if she was responsible for cooking the drugs, she would have been involved in the purchase of the utensils and in the process taking place in the flat. The evidence was that she was sitting on the sofa when the police raided the flat, and there was no other evidence linking her to the cooking process in the kitchen, or to the other substances and the drugs. She testified that she was occupied with her mobile telephone while in the flat because of a problem back home in the Philippines.

37. Mr Kelly submitted that the appellant’s mere presence at a crime scene was not enough to convict her of conspiracy to manufacture Ice. He gave examples where a person being present at a crime scene was not in itself a crime. He even suggested to the jury that this would be a matter on which the Judge would give them directions on the law. As already noted, the Judge did not address the jury on this very important issue, given the circumstances of the case against the appellant. He fairly noted that whilst her presence was suspicious, it had never been put to her that she knew what was going on in the flat or was familiar with the process of cooking Ice.[63]

38. In our view, there was a very real possibility that the jury may have reasoned that the evidence against the appellant was no more than her being present in the flat, and therefore there was a significant risk that they may have engaged in the impermissible reasoning process of convicting her of conspiring to manufacture Ice on this basis. The ancillary matters of the appellant’s association with D1 and staying at the same hotel as D1 and D2 were not directed to the manufacturing operation and could hardly be described as implicating her in a conspiracy with D1 and D2, particularly when taken into account with her lack of interaction between D1 and D2; lack of involvement in the purchase of utensils and equipment for the manufacturing; and lack of any skill or knowledge in the cooking of Ice. While the evidence strongly implicated D1 and D2 in the manufacturing operation in the flat, the prosecution case against the appellant seems to have been that she was present “to observe”. This was an acceptance by the prosecution that the case against the appellant was limited.[64] To observe a criminal act taking place, without more, can hardly be said to be evidence of an agreement with others to carry out the crime.

39. The primary position of the prosecution in its case against the appellant was that she was present in the flat when the police raided it. Mr Mughal, for the appellant, argues that the appellant’s mere presence in the flat in the circumstances of this case was insufficient to give rise to her complicity in the manufacture of dangerous drugs that was taking place in the flat or to draw the only reasonable inference that the appellant was part of the conspiracy with D1 and D2 to manufacture dangerous drugs. Given the state of the evidence and the prosecution case against the appellant that she was in the flat “to observe”, the Judge should have directed the jury that mere presence without more was not sufficient to draw an adverse inference against the appellant and find her guilty of being a party to a conspiracy with D1 and D2 to manufacture dangerous drugs.

40. On the prosecution case, there was compelling evidence against D1 and D2 in the preparation and manufacturing of the Ice in the flat. They were actively involved in the purchasing of utensils and equipment for the manufacturing of the Ice and, on diverse occasions, were present in the flat. This was not the case with the appellant. She arrived in Hong Kong the day before and was taken to the flat by D1 on 6 March 2019. It appears, by that stage, the cooking of the Ice was underway, which had been arranged by D1 and D2. The prosecution did not attribute to the appellant a role in the conspiratorial enterprise of manufacturing dangerous drugs, except to suggest that she was there “to observe” the cooking of Ice. There was a paucity of evidence implicating the appellant in a conspiratorial enterprise with D1 and D2. This was reflected in the Judge’s summing-up to the jury, which mainly highlighted the compelling evidence against D1 and D2 in preparing and manufacturing the Ice in the flat, but did not distinguish the evidence against the appellant. The jury were asked to infer from the evidence that the appellant was a party to the conspiratorial enterprise of manufacturing Ice in the flat, but no primary facts were identified from which the only reasonable inference could be drawn against the appellant. This was a serious flaw in the prosecution case and revealed that the case against the appellant was mainly based on the incriminating evidence against D1 and D2. Consequently, if the evidence showed no more than the appellant’s mere presence at the flat, there was a significant issue for the jury to consider, with appropriate directions from the Judge.

41. We agree with Mr Mughal’s submission that the presence of the appellant in the flat did not support the prosecution case that she was part of a conspiratorial agreement with D1 and D2. Whilst her presence in the flat was highly suspicious, the evidence fell far short of establishing that she was party to a conspiratorial agreement with D1 and D2. There was no evidence to show that she played a role in the cooking or manufacturing of the drugs in the flat. The prosecution case was that she was there “to observe”, which suggests that she was not there to be part of the conspiratorial enterprise carried out by D1 and D2 to manufacture Ice. There was a lack of evidence implicating the appellant in the conspiracy and this was reflected by the prosecution submitting a case against the appellant that she was there “to observe”.

42. The direction to the jury that they could infer that the appellant was party to a conspiracy with D1 and D2 from the circumstantial facts was based on an unclear and limited evidential foundation. There was no identification of the primary facts against the appellant because the case against her was weak, and essentially based on the evidence against D1 and D2 and her presence in the flat. In these circumstances, there was an apparent risk that the jury may have engaged in the impermissible reasoning process of deciding the appellant’s guilt based solely on her mere presence without more in the flat at the material time. Accordingly, we are of the view that the Judge should have explained to the jury that the appellant’s mere presence at the flat was not a sufficient basis to draw an irresistible inference that she conspired with D1 and D2 to manufacture Ice. Even if the primary facts had been identified as suggested by the prosecution, we do not consider this to be a very strong case, nor one where an irresistible inference of guilt could be drawn.

43. For the reasons stated, we concluded that the conviction should be quashed and the sentence set aside. After hearing submissions on retrial, we determined that, in the interests of justice, such an order should not be made given the circumstances of this case.

(Andrew Macrae)	(Kevin Zervos)	(Maggie Poon)
Acting Chief Judge of the High Court	Justice of Appeal	Justice of Appeal

Ms Kasmine Hui, SPP, of Department of Justice, for the respondent

Mr Hanif Mohamed Mughal and Ms Teresa Yu, instructed by Wong and Co, assigned by the Director of Legal Aid, for the appellant

[1] Contrary to ss.6(1)(a) and (2) and 39 of the Dangerous Drugs Ordinance (Cap 134) and ss.159A and 159C of the Crimes Ordinance (Cap 200).

[2] HKSAR v Lam Tsz-Kin Kent and Another[2024] HKCA 192 (Unrep., CACC 94/2022, 4 June 2024, per Zervos JA).

[3] Appeal Bundle (AB), 1.

[4] Sections 2 and 6 of the Dangerous Drugs Ordinance.

[5] Admitted Facts, at [2]: AB, 13-14.

[6] Admitted Facts, at [4]: AB, 15.

[7] Admitted Facts, at [2(xiii) and (xiv)]: AB, 14.

[8] Admitted Facts, at [21(i)] and [23(ii)]: AB, 20.

[9] Admitted Facts, at [15(i)]: AB, 18.

[10] Admitted Facts, at [6]: AB, 15.

[11] Admitted Facts, at [21(ii)] and [23(iii)]: AB, 20 and 21.

[12] Admitted Facts, at [2(xiv)] and [23]: AB, 14 and 20.

[13] AB, 51N-U and 63B-I.

[14] Admitted Facts, at [19]: AB, 19; AB, 34J-K.

[15] Admitted Facts, at [18].

[16] AB, 34J-L.

[17] Admitted Facts, at [15(ii)]: AB, 19.

[18] Admitted Facts, at [15(iii)]: AB, 19.

[19] Admitted Facts, at [15(iv)]: AB, 19.

[20] AB, 43E-J.

[21] AB, 44N-P.

[22] AB, 45E-G.

[23] Admitted Facts, at [10(xii)]: AB, 17; and AB, 43M-P.

[24] AB, 46D-l.

[25] Admitted Facts, at [3] and [4]: AB, 14 and 15.

[26] Admitted Facts, at [10] and [11]: AB, 15-17.

[27] AB, 47N-U and 48E-J.

[28] AB, 23P-U, 35Q-S, 36A-B, 47A-55E.

[29] AB, 49I-M.

[30] AB, 24A-B and 50D-F.

[31] AB, 51M-U.

[32] AB, 52E.

[33] AB, 52A-N.

[34] AB, 55E-58J.

[35] AB, 62D-G.

[36] AB, 62I-M.

[37] AB, 61T-63J.

[38] AB, 63K-R.

[39] AB, 64B-D.

[40] AB, 64H-J.

[41] Amended Perfected Grounds of Appeal.

[42] Appellant’s Written Submission, at [46(b)] and [46(c)].

[43] Appellant’s Written Submission, at [41]-[44], [46(d)] and [46(e)].

[44] Appellant’s Written Submission, at [46(g)] and [46(i)].

[45] Appellant’s Written Submission, at [45], [46(f)], [46(h)] and [46(j)]

[46] Appellant’s Written Submission, at [46(a)].

[47] Appellant’s Written Submission, at [47]-[50], [52]-[53], [57]-[58] and [60]-[61].

[48] HKSAR v Nanik (Unrep., CACC 114/2016, 10 August 2018).

[49] HKSAR v Wong Chun Yau (Unrep., CACC 118/2019, 25 March 2021).

[50] Appellant’s Written Submission, at [40], [55] and [56].

[51] Respondent’s Written Submission, at [20]-[22].

[52] Respondent’s Written Submission, at [30]-[32].

[53] HKSAR v Kwun Sum Yeung [2022] 2 HKLRD 1090.

[54] AB, 64J-K.

[55] Specimen Directions in Jury Trials, 2013, Specimen Direction 61: Dangerous Drugs.

[56] R v Chan Chor Yam (Unrep., CACC 225/1986, 13 August 1986).

[57] HKSAR v Ko Wai Shing [2021] 5 HKLRD 724, at [38] and [39].

[58] Kwun Sum Yeung, at [37].

[59] AB, 34H-36D.

[60] AB, 118N-120S and 123A-125K.

[61] Respondent’s Written Submission, at [20]-[22].

[62] AB, 126C-133A.

[63] AB, 131C-M.

[64] AB, 64J-K.

CACC 94/2022

[2024] HKCA 192

On appeal from [2022] HKCFI 2283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 94 OF 2022

(ON APPEAL FROM HCCC NO 133 OF 2020)

_______________

	HKSAR	Respondent
	v
	Lam Tsz-kin, Kent (林子健) (D1)	1st Applicant
	Enriquez Anna Mae Justimbaste (D3)	2nd Applicant

_______________

Before:

Hon Zervos JA in Court

Date of Hearing:	4 June 2024
Date of Judgment:	4 June 2024

________________

J U D G M E N T

________________

1. The 1^st applicant (who was D1 at trial) and the 2^nd applicant (who was D3 at trial) together with Torres Gonzalez Marco Valerio (who was D2 at trial) were jointly charged with one count of conspiracy to manufacture a dangerous drug, contrary to ss. 6(1)(a) and (2) and 39 of the Dangerous Drugs Ordinance (Cap 134) and ss. 159A and 159C of the Crimes Ordinance (Cap 200). It was alleged that between 5 and 6 March 2019 they had conspired to manufacture methamphetamine hydrochloride (commonly known as Ice). On 6 June 2022, following a trial before Toh J (the Judge) and a jury, they were convicted of the count they faced. D1 and D2 were convicted by a unanimous verdict of the jury, while D3 was convicted by a majority verdict of 5 to 2. D1 was sentenced to 29 years’ imprisonment and D2 and D3 were each sentenced to 28 years’ imprisonment.

2. Following their convictions, the three defendants filed a notice of application for leave to appeal against conviction. D1 filed his application on 7 July 2022, which was slightly out of time. He also applied for legal aid but it was refused on 7 September 2022. He appears in person for his leave application. D2 filed his application on 20 July 2022, which was also out of time but he subsequently abandoned his application on 23 August 2022, which was marked dismissed. D3 filed her application on 30 June 2022. She also applied for legal aid, which was granted to her on 20 September 2022. D3 is represented by Mr Hanif Mughal and Ms Teresa Yu.

The prosecution case

3. At 4:20 pm on 6 March 2019, D1 and his mother-in-law were intercepted in To Kwa Wan Road, Kowloon City, Kowloon. D1 had eleven mobile telephones, two bunch of keys and a key card of the iclub Ma Tau Wai Hotel (the hotel), 8 Ha Heung Road, Ma Tau Wai, Kowloon City, Kowloon, with him.[1]

4. At about 4:43 pm on 6 March 2019, police officers entered Room B 810, Block B, I-Feng Mansions (I-Feng Mansions), To Kwa Wan Road, Kowloon City (the flat) which was rented by D1’s wife. The keys had been seized from D1. D2 and D3 were found on a sofa in the living room of the flat. DPC 4980 (PW4) found red bags and a bag with white powder inside on the coffee table in front of the sofa but they did not contain a dangerous drug. He saw D2 stretch out his legs under the coffee table[2], where he found a pot with brown liquid crystalline solid containing Ice.[3] One of the officers, DPC 6123 (PW3), said that when he entered the flat he smelt acid.[4]

5. In the kitchen, there was an induction cooker that was heating, and six bottles were found in the kitchen sink. The forensic scientist, Leung Shui Mei (PW7), believed that the liquid solution in the pot on the induction cooker was being heated and the evaporation process which separated Ice from the solution was ongoing.[5] The six bottles, thermometers and metal spoon all had Ice on them. PW7 expressed the view that the manufacturing of Ice could have taken place at the scene.[6]

6. The CCTV captured the following depictions:

(a) At 2:28 am on 5 March 2019, D1’s daughter brought a parcel into the lift of I-Feng Mansions;[7]
(b) At 7:30 pm on 5 March 2019, D2 and D1’s daughter were at the Whampoa branch of AEON.[8] D2 was there to buy pots[9];
(c) At 12:12 pm on 6 March 2019, D1 and D2 were at Kowloon Bay lKEA Megabox store.[10] They were there to buy the tools for the manufacturing of the dangerous drug[11];
(d) At 1:12 pm on 6 March 2019, D1 and D2 arrived at the lift lobby of I-Feng Mansions;[12]
(e) At 1:45 pm on 6 March 2019, D1 and his mother-in-law arrived at the lift lobby of I-Feng Mansions;[13]
(f) At 2:03 pm on 6 March 2019, D1 and D3 arrived at the lift lobby of I-Feng Mansions.[14]

7. D1 is a Hong Kong resident. He departed Hong Kong via the Lo Wu control point on 24 February 2019 and returned to Hong Kong at 14:02 hours on 5 March 2019.[15] D2 is a national of Mexico. He entered Hong Kong on 21 February 2019.[16] D3 is a national of the Philippines, who has a clear record in Hong Kong and the Philippines. She entered Hong Kong on 5 March 2019.[17]

8. D1 checked in at the hotel on 5 March 2019, having booked for 5-6 and 6-9 March 2019. D2 checked in at the hotel at 11:16 am on 3 March 2019, having booked for 25-27 February, 3-5 March and 5-7 March 2019. D3 checked in at 12:37 pm on 5 March 2019, having booked for 5-6 and 6-7 March 2019.[18]

The defence case

9. D1 gave evidence that his brother in the Philippines told him that his Mexican friend, D2, was coming to Hong Kong to buy miscellaneous items and asked him to book a hotel and pick up D2 at the airport. He was in the Mainland, so he asked his daughter to pick up D2 at the airport on 21 February 2019.

10. At around 7:00 pm on 4 March 2019, his brother on WeChat told him to collect a parcel for D2 because the delivery man could not reach D2. He was still in the Mainland, so he asked his daughter to collect it.[19]

11. At about 10:00 am on 5 March 2019, his brother called him and said that D2 wanted to borrow his home to cook dangerous drugs. He was threatened by his brother that harm would come to him and his family if he refused.[20] He then met D2 in the hotel room on the same day. D2 asked D1 if he knew of any glass pots for sale, and he told his daughter to take D2 to AEON because he was not feeling well.[21] On 6 March 2019, D2 asked him to go to IKEA together to buy pots for manufacturing of Ice.[22]

12. D3 was a friend of D1’s brother, who came to Hong Kong to buy cosmetics and gold ornaments.[23] On 6 March 2019, D1 took D3 to a gold shop. His brother called and told him that D2 had almost finished, and he had to go up to the flat to help move things away. He brought D3 to the flat with him because he was very scared and “her presence would give me courage”.[24] He told D3 that D2 also wanted to go shopping and suggested waiting for D2. He then left to have lunch and did some Bitcoin trading. At about 4:00 pm, his brother called, saying that D2 would finish soon and would pack up in 20 minutes. He left the hotel and was arrested.[25]

13. D3 gave evidence in her defence. She testified that her job in the Philippines was to cook lunchboxes and deliver them to·a call centre. D1’s brother was the husband of her friend, Angelica.[26] She planned to shop with Angelica in Hong Kong for school supplies, sales stuff, and birthday gifts. Shortly before their trip, D1’s brother called her, saying that Angelica could not come and D1 would accompany her to go shopping.[27] When she was on the bus, D1 sent her the hotel information and she took a taxi to the hotel. After checking in at the hotel, she went downstairs to have a smoke and met D1. D1 went to her room, told her that he could not take her shopping that day and left.[28] The next day, she called D1 at about 12:45 pm, asking if they could go shopping. D1 took her to a jewellery shop nearby. At the shop, D1 suggested they go to the flat as he needed to make some important telephone call.[29]

14. She saw D2 sitting on a sofa and smelled some scent.[30] She was on her mobile telephone because her driver could not pick up her son at school. She stayed in the flat for two and a half hours. She did not notice if the items were on the table, she did not know Ice was cooking in the flat,[31] and she did not know if D2 ever got up from the sofa because she was concentrating on her telephone[32].

Leave to appeal against conviction

15. In their leave applications, D1 advances one ground of appeal, while D3 advances four grounds of appeal.

D1’s appeal

16. D1 complains that the defence requested the Judge to place an alternative verdict under s.37 of the Dangerous Drugs Ordinance (Cap 134)[33] before the jury, but she refused. It is submitted this was contrary to HKSAR v Li Jin[34].

17. In Li Jin, the appellant admitted knowledge but denied possession of the dangerous drugs found in a bedroom wardrobe of her rented matrimonial home, arguing that the drugs belonged to her husband and that she had not done anything with the drugs. The Court of Appeal, citing the Court of Final Appeal judgment in HKSAR v Ho Hoi Shing[35], commented that in the circumstances of that case, an s.37 offence should have been left for the consideration of the jury as an alternative.

18. In a more recent case of HKSAR v Chau Yui Ming[36], the Court of Final Appeal held that where there was an obvious alternative verdict that was supported by the evidence, it would be incumbent on a judge to direct a jury as to the alternative options open to it. The Court noted that the way the defence case was run on the facts was relevant in determining whether there was sufficient evidence to support an obvious alternative verdict, and if a factual alternative did not arise in the way the defence case was run, this would in most cases be a decisive factor.

19. In the present case, evidence showed that not only did D1 allow the flat to be used, but he also arranged his daughter to collect the parcel containing a dangerous drug and take D2 to AEON to buy pots.[37] D1 also went to IKEA with D2 to buy pots for manufacturing of Ice[38]. It was D1’s evidence that when he sent his daughter to AEON with D2, and when he went to IKEA with D2 to buy pots, he knew that D2 was going to manufacture a dangerous drug.

20. D1’s involvement in the manufacturing of the Ice was extensive.[39] He claimed he was acting under duress. In his case, he was threatened to lend the flat to D2 to manufacture the Ice and had nothing to do with the conspiracy. The Judge rightly directed the jury that if they found what D1 said was true or might be true, they had to acquit D1.[40] If the jury were not sure that D1 was a party to the conspiracy, they must find him not guilty.[41]

21. It is submitted by the respondent that the circumstantial evidence and the defence case did not make a s.37 offence an obvious alternative, and the Judge was therefore not obliged to direct the jury on this offence. It would have confused the jury if they had been directed on the alternative verdict of s.37 because it was never the defence case that D1 did no more than willingly permitted D2 to manufacture the Ice in the flat.

22. I agree with the respondent’s submission. I do not find this ground of appeal to be reasonably arguable.

D3’s appeal

Grounds 1, 2 and 4

23. Grounds 1, 2 and 4 allege that the mere presence of D3 in the flat in the circumstances of this case was insufficient to draw an irresistible inference that D3 was a party to the conspiracy, in particular, no role was attributed to D3 in the conspiracy and there was no direct evidence on an agreement.

24. Mr Mughal articulates the grounds of appeal as follows. Ground 1, the Judge erred in not directing the jury properly or at all that the presence of D3 at the flat, in the circumstances, was insufficient to infer that her presence was part and parcel of a conspiracy to manufacture dangerous drugs. Ground 2, the Judge erred in not directing or guiding the jury properly or at all that the mere presence of D3 in the flat would not be enough to support the prosecution case against her, and the prosecution had to show that she joined or was part of an agreement to manufacture dangerous drugs. Ground 4, in the absence of any direct evidence showing an agreement, role and knowledge of the dangerous drugs on the part of D3, the circumstantial evidence was insufficient to draw an irresistible inference of agreement to manufacture dangerous drugs, role and/or knowledge of dangerous drugs causing a lurking doubt as to the safety of her conviction rendering it unsafe and unsatisfactory in all the circumstances.

25. Defence counsel on behalf of D3 made a submission of no case to answer but it was rejected by the Judge. It is submitted by the respondent that the prosecution’s evidence was sufficient to lead to the only reasonable and irresistible inference that D3 was a party to the conspiracy.

26. It is argued that a conspiratorial agreement is usually established by inference from proven primary circumstances. The absence of direct evidence does not mean that a defendant had nothing to do with the incident: HKSAR v Kwun Sum Yeung[42]. As the Judge directed, if the jury were sure that there was a conspiracy and a particular defendant was a party to it, they must convict. It did not matter what role a particular person played if the jury found that he or she was part of the conspiracy.[43]

27. There was undisputed evidence showing that the flat was used to manufacture dangerous drugs. When the police raided the flat, the manufacturing was underway, and there was presence of the smell of acid. The Ice and tools for manufacturing a dangerous drug were placed openly in the kitchen. In the living room, on the coffee table in front of the sofa where D3 was found, were some red bags and a bag with white powder (which was not a dangerous drug). Under the coffee table was the pot with a brown liquid crystalline solid containing Ice. D3 had been in the flat for more than two and a half hours when the police arrived.

28. It is further pointed out by the respondent that D3 was a visitor to Hong Kong, and she did not live in the flat. D3 was taken to the flat by D1, who admitted he knew that drug manufacturing was taking place there.[44] The respondent asks the following rhetorical questions: Why would D3 be brought to a crime scene by D1? Why would D1 find it safe or proper to leave D3 there with D2? Why would D2 manufacture the drug in the plain sight of D3? Why would D3 put up with D2’s crime in silence and not take appropriate steps to remove herself from what was taking place? However, these questions do not address the state of the evidence against D3 that she was party to a conspiracy to manufacture the Ice. I will discuss the evidence against D3 in further detail later in the judgment.

29. D3 gave evidence that D1 asked her to wait in the flat and that they would later go shopping. She was on her telephone and did not notice those items on the table and she did not know if D2, who was found sitting next to her, had got up from the sofa.

30. The extent of the prosecution case against D3 was that she was present “to observe” the manufacturing of Ice.[45] It is noted by the respondent that the Judge repeatedly directed the jury that if they found what D3 said was true or might be true, she was entitled to be acquitted.[46] If they entirely rejected the account given by D3, the prosecution still had to prove the case beyond reasonable doubt.[47] It is also submitted that a special direction was not required in the circumstances of the case against D3: Nguyen Anh Nga v HKSAR[48].

Ground 3

31. Ground 3 alleges that the Judge contrasted D3’s evidence that she was on the bus from the airport when D1 contacted her while D1 stated that he ran into D3 accidentally in the hotel downstairs and that this was tantamount to discrediting D3.[49]

32. The Judge had directed the jury to use common sense and experience when considering each defendant’s evidence, e.g. did it make sense and whether there was other evidence that might help them to decide whether that part of his evidence could be accepted or not.[50] There is nothing improper about highlighting the discrepancies in the evidence of the defendants in the summing-up for the jury’s consideration.

33. It is argued by the respondent that the Judge also gave D3 a good character direction for both credibility and propensity.[51] The submission that the Judge’s remarks effectively suggested D3 had lied was without basis.

Discussion

34. I do not find Ground 3 to be reasonably arguable. It was open to the Judge to highlight the differences in evidence between D1 and D3, although I consider the subject was not a material matter. In the circumstances, the jury probably would have viewed it in the same light.

35. It is appropriate to briefly highlight the issues at trial and the state of the evidence as it relates to D3. D1’s wife had rented the flat. It was a small flat and the photographs revealed that it was cluttered and untidy. There was a sofa facing a TV with a coffee table in front of it. D3 entered the flat sometime after 2:00 pm on 6 March 2019 was found sitting on the sofa at the time of the police raid at about 4:43 pm that day. She had been in the flat for about two and a half hours. She had arrived from the Philippines the day before the raid. When the police entered the flat, there was the smell of acid and the making of Ice was taking place in the kitchen. There were some bags on the coffee table but they did not contain Ice, and a pot under the coffee table that D2 tried to kick away, which contained Ice. From the photograph of the pot, it was not apparent that it contained Ice as it consisted of a number of discarded items.

36. D1 had been arrested by the police on the street before they entered the flat. He had keys to the flat which the police used to gain entry to it. When they entered the flat, they saw D2 and D3 sitting on the sofa. D1 testified that he knew drugs were being manufactured in the flat because his brother, who was in the Philippines, had insisted that he lend the flat to D2 in order for him to manufacture the dangerous drugs. He said he did this under duress because his brother threatened him that if he did not do so, something may happen to him and his family. He said he had no alternative but to agree and went with D2 to IKEA because D2 wanted to buy pots for manufacturing the Ice. Afterwards, he went to the flat with D2 as D2 wanted to look at the parcel which had been delivered.

37. D2 testified that he came to Hong Kong to collect a debt from D1 that had been assigned to him by someone else. He did not know that the manufacturing of dangerous drugs was going on inside the flat. He said he had been set up by D1, who had lured him to AEON and IKEA. He said he paid for the items that IKEA because D1 knew that CCTV cameras were present in the store. He claimed he was only in the flat because D1 promised him that the money was coming and therefore he decided to wait there. He accepted that all the pots in the kitchen were boiling and took a video of it. He said he wanted to send it to D1 and to his wife. He claimed he did not send it so he put it into the trash on his mobile telephone.

38. As already stated D3’s case was that she came to Hong Kong for shopping. She was to accompany her friend, Angelica, who was married to D1’s brother, but she pulled out at the last minute. She said that D1 arranged for her accommodation at the hotel and that she did not know that manufacturing of dangerous drugs was taking place inside the flat. She had been taken there by D1, who was going to take her shopping. He was busy, and she waited for him to return to take her shopping. While she was in the flat, she was playing with her telephone and chatting to D2.

39. There is no doubt that there was compelling evidence implicating D1 and D2 in preparing and manufacturing the Ice in the flat. They were observed together purchasing equipment for the manufacturing of the Ice and entering and leaving the flat at relevant times. This was not the case with D3. She had just arrived in Hong Kong, and the extent of the evidence against her was that she was present in the flat when the police raided it. The difference in the evidence between D1 and D2 on the one hand and D3 on the other had not been highlighted by the Judge in her summing up to the jury. There was a serious question as to whether the primary facts relevant to D3 were sufficient to draw the only reasonable inference that she was a party to the conspiratorial enterprise of manufacturing Ice in the flat. The prosecution presented its case against the defendants by emphasising that there was a joint enterprise between them, and the evidence against each of them implicated them all. This was reflected in the Judge’s summing-up to the jury when she addressed the prosecution case and the evidence against the defendants, including D3.

“Now, prosecution may prove the agreement in a number of ways. One, as I said, is by asking you to make an inference of its existence from the evidence tended before you in this courtroom. In this case, the prosecution has brought before you the CCTV in that the prosecution says it shows the 2^nd defendant going to AEON to buy pots. Then it also shows the 1^st and 2^nd defendant going to IKEA to buy the tools for the manufacturing of the dangerous drugs. Therefore, in deciding whether there was a criminal conspiracy in this case, and whether each defendant was a party to it, look at all the evidence during the relevant period, including the behaviour of that particular defendant and the other alleged conspirators. If having done that, you are sure there was a conspiracy and that a defendant was party to it, you must find him guilty. If you are not sure, you find him not guilty.
Now, when a criminal conspiracy is formed, as I have said, one or more conspirators may be more deeply involved and has a greater knowledge of the overall plan. A conspiracy may also join a conspiracy that has been formed and drop out before it is carried out. Provided you are sure that a particular defendant did at some stage agree with the others that the crime in question would be committed and at the time intended that it should be carried out and it does not matter precisely where his or her involvement appears on the scale of seriousness or precisely when he or she became involved.
So you have the 3^rd defendant coming to Hong Kong that she was brought to the flat on 6 March. She had not been involved in going to AEON or IKEA, however, the prosecution alleges that she was part of the conspiracy and that she willingly and, in fact, went to the flat and was in the flat for two and a half hours. So the prosecution alleges that she is part of the conspiracy and when the drug manufacturing was going on. So each defendant is alleged to have played a different part. As far as the 1^st defendant is concerned, the prosecution says well, it was his flat, he let the manufacturing going on in there. And not only did he allow the flat to be used, he actually prepared for the manufacturing by going with the 2^nd defendant to buy the pots in IKEA and also arrange for his daughter to take the 2^nd defendant to AEON.
So the prosecution says that well, the only reasonable inference to draw from all that was that he was part of the conspiracy to manufacture and the prosecution says the 2^nd defendant came here not to collect a debt, but came here to manufacture dangerous drugs in the flat of the 1^st defendant. That is why he actually went to AEON and the CCTV in AEON shows that he was not just standing around, he was actually communicating with the sales staff at the place where they sell pots and pans. You can see him indicating with his hands a particular dimension that he showed to the sales staff. So the prosecution says that taking into account all the evidence the only reasonable inference to draw was that he was part of the conspiracy to manufacture.
So this is what is alleged against each of the defendants. The 1^st defendant says he was threatened by his brother in the Philippines to lend his flat to the 2^nd defendant under duress. If you find that all the elements of conspiracy to manufacture have been proved against the 1^st defendant and that he is guilty of the conspiracy to manufacture dangerous drugs, then you have to consider the issue of duress because the 1^st defendant said yes, he lent the flat and he knew manufacturing was going on, that he was threatened by his brother in so many words that harm would come to him and his family if he did not comply. Now, duress of this kind may be a defence to a criminal charge. It is for the prosecution to prove that the duress does not apply here. It is not the defence to prove that it does.”[52].

40. The above passage begs the question what was the evidence against D3. What were the primary facts from which to draw the only reasonable inference that she was a party to the conspiratorial agreement to manufacture Ice in the flat. The Judge went on to discuss the defence cases of D1 and D2 and summarised the evidence of each defendant but did not identify the primary facts on which the prosecution submitted they could draw an inference of guilt against D3. The prosecution case mainly focused on the incriminating evidence against D1 and D2.

41. It is for the foregoing reasons that I find Ground 1, 2 and 4 to be reasonably arguable.

Conclusion

42. I do not find D1’s ground of appeal to be reasonably arguable. There was no basis for the Judge to put an alternative verdict for an offence under s. 37 when his defence was that he was manufacturing the Ice but under duress. The jury, by its verdict, clearly rejected D1’s defence.

43. D1 is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

44. I find D3’s Grounds 1, 2 and 4 to be reasonably arguable and grant her leave to appeal against conviction on those grounds. I do not find Ground 3 to be reasonably arguable, and leave is refused on that ground.

45. During submissions from the parties, the issue arose concerning D3’s sentence. She was sentenced to 28 years’ imprisonment and treated the same in terms of involvement in culpability as D1 and D2, notwithstanding that the Judge said in her sentencing remarks she did not know what role D3 played other than being present in the room at the time of the police raid. She imposed a similar sentence to that of D2 because she had no reason to find that her role was less than his.

46. D3 had not sought leave to appeal her sentence. However, I consider that in the interests of justice, leave should be granted to D3 to appeal against her sentence, notwithstanding the late stage in doing so and without an application having been made by her. D3 arrived in Hong Kong the day before she was found in the flat where Ice was being manufactured. She was sitting on the sofa, and the extent of the evidence against her was that she was present at the time the police raided the flat. The buying of equipment and paraphernalia for the manufacture of the Ice was done by D1 and D2. Both D1 and D2 gave evidence. D1 accepted that he was involved in manufacturing Ice but claimed he was acting under duress. D2, on the other hand, claimed he came to Hong Kong to collect a debt but had been set up by D1 to accompany him in buying the items for the manufacture of Ice. Both D1 and D2 testified that D3 was merely present at the relevant time and not involved in manufacturing the Ice. Once it is established that a defendant was party to a joint enterprise, a sentencing court would normally adopt a starting point that reflected the overall criminality involved. However, in exceptional circumstances, the lesser role or involvement of a conspirator may warrant that he or she be distinguished from major players in the conspiracy. With this in mind, not granting leave to D3, even at this very late stage, would be shutting out a substantial and plainly arguable ground of appeal against sentence. I grant D3 leave to appeal against sentence out of time and a Legal Aid Certificate to D3 to appeal her sentence.

47. Having refused D3 leave to appeal on Ground 3, I remind her of the right to renew her leave application but also informed her of the Court of Appeal’s power to order loss of time for renewal of an unmeritorious ground of appeal.

	(Kevin Zervos)
	Justice of Appeal

Ms Kasmine Hui, SPP, of Department of Justice, for the respondent

The 1^st applicant appeared in person

Mr Hanif Mohamed Mughal, instructed by Wong and Co, assigned by Director of Legal Aid, and Ms Teresa Yu (on a pro-bono basis), for the 2^nd applicant

[1] Appeal Bundle (AB), 43E-J.

[2] AB, 45E-G.

[3] AB, 43M-P and 17, at [10(xii)].

[4] AB, 44N-P.

[5] AB, 46D-l.

[6] AB, 14 and 15, at [3] and [4].

[7] AB, 18, at [15(i)].

[8] AB, 19, at [19].

[9] AB, 34J-K.

[10] AB, 19, at [18].

[11] AB, 34J-L.

[12] AB, 19, at [15(ii)].

[13] AB, 19, at [15(iii)].

[14] AB, 19, at [15(iv)].

[15] AB, 14, at [2 (xiii-xiv)].

[16] AB, 15, at [4].

[17] AB, 15, at [6].

[18] AB, 20-21, at [21] and [23].

[19] AB, 47N-U and 48E-J.

[20] AB, 23P-U, 35Q-S, 36A-B, 47A-55E.

[21] AB, 49I-M.

[22] AB, 24A-B and 50D-F.

[23] AB, 51M-U.

[24] AB, 52E.

[25] AB, 52A-N.

[26] AB, 62D-G.

[27] AB, 62I-M.

[28] AB, 63B-J.

[29] AB, 63K-R.

[30] AB, 63R-I.

[31] AB, 64B-D.

[32] AB, 64H-J.

[33] Section 37 provides that no person shall being the occupier of the premises permit such premises to be used as a divan for the unlawful manufacturing of a dangerous drug.

[34] HKSAR v Li Jin [2010] 4 HKLRD 614.

[35] HKSAR v Ho Hoi Shing (2008) 11 HKCFAR 354.

[36] HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368, at [31]-[36].

[37] AB, 35F-I, 37D-F and 49O-P.

[38] AB, 34J-K.

[39] AB, 35F-I.

[40] AB, 24E-F, 27O-Q, 36D-38F and 40I-J.

[41] AB, 34N-P.

[42] HKSAR v Kwun Sum Yeung [2022] 2 HKLRD 1090, at [29].

[43] AB, 29J-R and 34R-T.

[44] AB, 31L-M.

[45] AB, 64J-K.

[46] AB, 25A-F, 27M-Q and 40G-J.

[47] AB, 27Q-S, 40K-N.

[48] Nguyen Anh Nga v HKSAR [2017] 20 HKCFAR 149.

[49] AB, 62R-U, 63A-C.

[50] AB, 33E-H.

[51] AB, 42I-P.

[52] AB, 34H-36D.

HKSAR v. ENRIQUEZ ANNA MAE JUSTIMBASTE

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