HKSAR v. Lo Pui Yi Cat

CACC 78/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 78 OF 2016

(ON APPEAL FROM DCCC 894 OF 2015)

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REASONS FOR JUDGMENT

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1.The applicant was charged with her husband with unlawful trafficking in dangerous drugs on 15 June 2015, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the same ordinance. On 9 March 2016, after trial before District Judge Sham (“the judge”) the husband was convicted of both these offences and the applicant of only the unlawful trafficking offence. On the same day the applicant was sentenced to 4 years 6 months’ imprisonment.[1] Both the applicant and her husband were represented by the same counsel and solicitors at trial.

2.The applicant filed a Notice of Application for Leave to Appeal (Form XI) against her conviction and sentence but subsequently abandoned her application for leave to appeal her sentence which was thereupon marked dismissed.

3.At the hearing of the application for leave to appeal against conviction I granted the applicant leave and also granted her bail pending appeal.  These are my reasons for so doing.    

The prosecution case 

4.The prosecution case was a simple one.  The applicant and her husband were found in a hotel room when police raided it.  The husband was not wearing any garment on the upper part of his body.  An Ice bottle was found on the bedside table together with two re-sealable plastic bags of Ice and one tinfoil of Ice and one re-sealable plastic bag of cocaine.  In a false ceiling above the bed of the room the police found a black plastic bag containing a further 43 packets of cocaine packed in similar re-sealable plastic bags and in similar quantities to the cocaine packet on the bedside table.  This allowed of an inference that the cocaine on the bedside table came from the cocaine stash in the false ceiling.

5.Four days after his arrest and whilst in CSD custody the applicant’s husband tested positive for amphetamine allowing of an inference that he was an Ice abuser and that the Ice bottle and the Ice on the bedside table were for his use.

6.From the bare-chested appearance of the husband, the presence of food boxes in the room and the fact that the rubbish bin was full the judge inferred that the applicant and her husband were the tenants of the room and had been in occupation of it for more than a short period of time.

7.The applicant was in possession of $48,526.90 in cash and most of the currency was in $500 and $100 notes. 

8.No admissions were made by either the applicant or her husband.  Surprisingly, no evidence was adduced by the prosecution from the staff of the hotel as to when and by whom the hotel room was rented.

The defence case

9.No evidence was called in the defence case. 

The judge’s Reasons for Verdict

10.The judge recognized that the prosecution case was entirely circumstantial but found the primary facts sufficient to draw a number of inferences which led him to draw the ultimate inference of guilt.  As his Reasons for Verdict are not the subject of any ground of appeal it is not necessary to say anything further about them. 

The Perfected Grounds of Appeal

11.There are only two grounds of appeal and, as amended, they allege that the applicant received an unfair trial through the incompetence of her legal representatives, being her counsel, solicitor and legal clerk.  The particulars of incompetence can be briefly summarized as:

(1)  as against all:

(a) not recognizing that there existed an actual or potential conflict of interest in representing both the applicant and her husband;

(b) not taking sufficient instructions on the key issues of:

(i) how the applicant came to be in the hotel room; and   

(ii) the source of the $48,526.90 that was in the applicant’s possession;

(2)  as against the counsel only:

(a) proceeding to trial without full instructions; and

(b) not providing the applicant with proper legal advice on whether she should testify in her own defence;

(3)  as against the solicitor only:

(a) not properly supervising the legal clerk; and

(4)  as against the clerk only:

(a) not communicating to his solicitor and counsel the instruction of the applicant’s husband that he was willing to plead guilty to the charges in return for the applicant not being prosecuted.

Discussion

12.Affirmations were filed by the applicant and her husband and, in response to a direction by the court, affirmations were provided by each of the three members of the legal team.

13.After a careful consideration of all the material and after hearing from counsel I was persuaded that the applicant’s grounds of appeal were reasonably arguable.  I granted her leave to appeal in respect of both grounds of appeal and leave to amend both grounds in order to avoid overlap between the grounds and to ensure that the broadly drafted second ground of appeal contained particulars of the specific matters of which the applicant complained.  Directions were given on the filing of Amended Perfected Grounds of Appeal by the applicant and written submissions by both parties.

14.Having granted the applicant leave to appeal the applicant then applied for bail pending appeal.  The application was made on both the time ground and the merits ground.  The applicant’s appeal will not be able to be listed for hearing before January 2018 by which time she will have served a substantial part of her sentence as she is due to be released from prison some time in January 2019.

15.I was persuaded that the applicant had met the threshold for granting her bail on the time ground.  Bail was granted on a number of conditions which were explained to the applicant.

Miss Chan Sze Yan Ag SPP, of the Department of Justice, for the respondent

Ms Sezen Chong, instructed by Wat & Co, assigned by DLA, for the applicant

[1] The husband was sentenced to a total sentence of 4 years 7 months’ imprisonment.