HKSAR v. Lee Ernest

CACC 1 /2018

[2020] HKCA 506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 1 OF 2018

(ON APPEAL FROM HCCC NO 305 OF 2016)

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J U D G M E N T

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Introduction and history of this application

1.The applicant (A1) was jointly indicted with A2^[1], A3 and A4 on a sole count of trafficking in a dangerous drug, namely 1.87 kilogrammes of a crystalline solid containing 1.47 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 12 December 2017, following a trial before Deputy Judge McMahon (“the judge”) and by the verdict of the jury, A1 and A2 were both convicted^[2], whilst A4 was acquitted^[3], of the count.  As regards A3, the judge had ruled at the close of the prosecution case^[4] that he had no case to answer, after which he was formally acquitted and discharged.

2.By a Notice of application for leave to appeal (Form XI), filed on 2 January 2018, the applicant applied for leave to appeal against his conviction only.  His application did not come before me until now for reasons which I should briefly explain. 

3.On 7 August 2018, the applicant applied for legal aid, which application needed time for processing (it turned out to be unsuccessful), as a result of which the mention hearing returnable before the Chief Judge of the High Court, initially fixed on 5 September 2018, was vacated and adjourned to 23 January 2019^[5]. After the leave hearing was fixed for 4 July 2019, but some 10 days before such hearing, the applicant filed with the Court an affirmation attaching thereto a bundle of documents^[6], amongst which was a set of Amended Grounds of Appeal Against Conviction, prepared by a fellow prisoner, whom I can identify and the applicant confirms before me today, is George Jutting, to replace all previous homemade grounds of appeal^[7] attached to the applicant’s Form XI.  The applicant also asked for an adjournment of the hearing so that he could engage legal representatives to argue his amended grounds of appeal.  On 26 June 2019, the Court vacated the hearing and subsequently adjourned it to 10 March 2020.  Regrettably, due to the court’s General Adjourned Period^[8], the hearing could not take place on 10 March 2020 and was accordingly adjourned until today.

4.His request for legal assistance from the Clinical Education Unit of the Faculty of Law of Hong Kong University and his re-application for legal aid having been refused on 21 January 2019 and 4 March 2020 respectively, the applicant acts in person in relation to this application, arguing before me a number of grounds of appeal against conviction (which I shall set out below). 

The background of the offence

5.Although the present application concerns A1 alone, it is relevant to set out briefly the prosecution case against all four accused. It was alleged that^[9], on the morning of 3 February 2016, a team of Customs officers carried out a surveillance operation at the departure area of the Hong Kong International Airport and observed, chronologically, at 7:45 am, A2 pulling a silver-coloured suitcase (“the suitcase”) and meeting up with A3.  At 7:50 am, A1 appeared and joined both A2 and A3; A2 then passed the suitcase to A1 and the three of them proceeded to the airline’s self-check-in counter.  A1 alone pulled the suitcase aside and, having briefly checked its contents, gave it to A2 to look after.  From time to time, A1 talked on his mobile telephone and subsequently hurried to the drop-off area to meet A4 who did not arrive until 8:10 am^[10]. The two of them proceeded to join A2 and A3, whereupon A2 passed the suitcase to A4.  A4 carried the suitcase and queued at the check-in counter (an air ticket had been booked by Lam Chun To (“Lam Chun To”)^[11] to enable A4 to depart from Hong Kong for Tokyo^[12] on the 9:55 am flight), whilst A1, A2 and A3 remained in the vicinity with him.  Eventually, at 8:20 am, the four of them were intercepted by different Customs officers.

6.It was not disputed at trial that inside the suitcase were found five empty iPhone paper boxes and associated wrappings and, in a concealed compartment further inside the suitcase, Ice the subject matter of the count on the Indictment^[13], the estimated retail value of which was $566,000^[14]. 

7.Under caution, both A1 and A4 said that they thought the suitcase contained iPhones or iPhone parts only^[15] (A1 also claimed that the suitcase belonged to two other persons who had asked A4 to take it to Japan^[16]); A2 denied any dealings with A1 or the suitcase^[17]; and A3 claimed he had “No knowledge, never touched it, never felt it, 100 per cent certain”^[18].

The prosecution case against the applicant

8.The prosecution alleged that the applicant (indeed, each of the four accused) was party to the joint enterprise to export the Ice from Hong Kong^[19] and had frequent communications with other criminals by calls and WhatsApp (including both text and voice) messages between 22 January and 3 February 2016^[20].  Such communications also involved Lam Chun To and “Ah Hau”, whom the prosecution alleged were “very vague, shadowy figures”^[21] and the masterminds of the scheme^[22] because they were the ones who actually gave “instructions or directions” to the participants in the joint enterprise^[23]. 

9.More specifically, the prosecution alleged that the applicant had recruited A4, a person with whom he had apparently had an ongoing business relationship.  He then acted as an intermediary and channelled to A4 information from Ah Hau, who had frequent contact with the applicant and A2 on and before 3 February 2016.  Viewed in the light of the above, the applicant might be described by the prosecution as a middle man of the scheme^[24].

10.At the close of the prosecution case, the judge ruled that A3 had no case to answer, the reasons for which he delivered subsequently at a later date^[25]. On the other hand, the judge ruled that each of A1, A2 and A4 had a case to answer, notwithstanding the submission, advanced on behalf of A1, that on the basis of the prosecution evidence, the applicant had not had enough time to check thoroughly the contents of the suitcase, so as to enable him to discover the illicit items in the concealed compartment.  It was submitted that he might have been lulled into believing that the suitcase contained iPhone or iPhone parts only.

11.Before leaving the prosecution case, I should mention, in view of the grounds of appeal raised, three impugned aspects of the two speeches of counsel for the prosecution.  The first related to prosecuting counsel’s reference to the applicant being the organiser and coordinator of other co‑accused at some stage of the offence.  The second related to the suggestion that the applicant might have been driven by money concerns to commit the offence.  The third was a refutation of the applicant’s claim that he was unable to discover the Ice from the suitcase; rather, the prosecution said that he knew it was there so he did not need to check.

12.The first impugned area stemmed from the prosecution opening speech, which was as follows^[26]:

“The prosecution say that D1 was answerable to his own big boss and he was the recruiter, the prosecution say, of the 4^th defendant as a courier. Look at the WhatsApp messages. The prosecution say D1 was the organiser and coordinator of D2 and D3 and D4 to ensure their timely arrival with the suitcase at the airport on the material day, 3 February of last year, so that that suitcase could be transferred to D4 who was destined to fly out to Japan…”

13.The second impugned area emerged from the following passages of the prosecution closing speech (whilst the applicant is perhaps more critical of the second passage)^[27]:

“Now, the prosecution are not saying that because someone is in poor financial health or that even if they are in dire financial need, that necessarily makes them criminals; the prosecution is not saying that. But as a motive, it’s a very strong, powerful motive. If you are short of money, if you need to feed a family, if you are eating into your savings as D1 was. When he was a businessman from early 2015 onwards, he had reduced his savings down to about HK$10,000. He was the breadwinner; of course, huge responsibilities, no one doubts that for a minute. But it is very -- these people are very vulnerable. They get themselves into a position where they must, in fact, for easy, quick money, take a risk that you and I maybe wouldn’t dream of doing. But there is this background, and look at their financial circumstances carefully.

Remaining on this topic with D1, he needed to earn up -- just over $25,000 per month to pay his daily living expenses, his rent of 15,000 a month. He’s on -- a lot of pressure on him to find work as a sole businessman, self‑employed. The temptation must have been very great, I would submit, to fall for this type of enterprise. The prosecution say it’s inherently improbable, most unlikely, that a man who is self‑employed, has to earn money on a day‑to‑day basis, would provide all these services that you’ve heard about, working till midnight and 1 o’clock in the morning contacting people. For what? For nothing. Nothing. What’s wrong with an introduction fee, members of the jury? “There you are, you are in a strong position to demand an introduction fee, I’ll find you that career. Mr Lam, if your friend, Hau Chai, wants a career, I’ve got the man for you but it’s going to cost you.” Don’t you think, members of the jury, that that would have crossed the 1st defendant’s mind? He denies it. It’s a matter for you; is it believable or not?”

14.The third impugned area emerged from prosecuting counsel’s closing speech^[28]:

“We know that these are empty, there were five empty iPhone boxes. You think that didn’t come to the attention of D1? “Hey, the boss told me last night that there was five new iPhone boxes all with cellophane wrapping and I wasn’t to touch those and there would be the 10 dissembled iPhones in a different wrapper.” He had the opportunity, and the prosecution say, he must have felt the weight of any one of those iPhone boxes and said, “What is going on here? This doesn’t feel heavy enough to contain a new iPhone in it. Let me try the other ones. Oh, they are all empty. I don’t want to know.””

The defence case

15.A total of five defence witnesses were called at trial.  The applicant (DW1) elected to testify himself and called two witnesses (DW2 and DW3) to testify as to his good character.  The applicant said that he had worked in the media for 20 years until 2015, since when he had begun trading in the food and beverage business, his earnings from which ranged between $20,000 and $40,000 per month.  On 13 December 2015, Lam[29], who was similarly in the food and beverage business, rang the applicant and they met each other for business.  Since then, they had kept in contact with each other.  On 18 January 2016, Lam told the applicant that a friend of his might be interested in acquiring food from the applicant and that the said friend also traded in mobile telephones and wanted someone to deliver mobile telephone parts to his customers in Australia.  Whilst declining to make the delivery himself, the applicant eventually arranged another person to do so.  That person was A4.^[30]

16.It transpired that Lam’s friend was Ah Hau^[31], and the destination of delivery changed from Australia to Japan^[32].  Ah Hau subsequently sent Lam Chun To to meet the applicant and A4 on 25 January 2016^[33] and air tickets were bought for A4 to facilitate the export of the purported mobile telephone parts.

17.The applicant said, on 3 February, A2 rang him, claiming to be the younger brother of Ah Hau and asking to meet him at the airport^[34]. A2 then came together with A3 and the suitcase.  After opening the suitcase which was not locked, the applicant saw iPhone boxes inside but he did not open the boxes because Ah Hau had instructed him not to do so^[35].  Accordingly, the essence of the applicant’s defence was that he genuinely believed he was involved in a trade in iPhones and iPhone parts only^[36]. 

18.For the sake of completeness, it is also worth mentioning the last two defence witnesses, A2 (DW4)^[37] and A4 (DW5). Whilst, for present purposes, it is unnecessary to set out their evidence in any great detail, it is relevant to point out that it was alleged by the prosecution that A2 had lied in his evidence which consequently called for some specific directions from the judge (which are set out in [22] infra).

The judge’s summing-up

19.Having noted that some uncharged persons were alleged to be involved in the offence, the judge directed the jury in these terms^[38]:

“Now, you have heard in evidence that persons other than the defendants were involved in these events. You have heard the names of Lam Chung-to, Ah Hau, and the person, Mr Lam, mentioned in the course of evidence. You may wonder why some others of those persons are not also on trial before you. Let me tell you this. In our criminal system, there are many reasons why not all persons who may be suspected of involvement in an offence are tried together. Some of those reasons are legal, some are practical. There is no point in you worrying about that and you should not speculate about those reasons. Your duty in this trial is to consider your verdicts in respect of the 1^st defendant, the 2^nd defendant and the 4^th defendant only.”

20.In his summing-up, the judge also directed the jury on how they should approach the evidence of the applicant given the acquittal of A3.  The judge said^[39]:

“As you are aware, the 3^rd defendant is no longer part of this trial. As I have already told you, there are legal reasons why that is so and I do not think it would be of any help to you to explain what those reasons are. Indeed, it would only distract you. Your duty now is to consider the evidence so far as the 1^st, 2^nd and 4^th defendants are concerned. Obviously, as I have said, that evidence is on occasion, still evidence which mentions or refers to the 3^rd defendant. But do not be distracted by that into wondering why the 3^rd defendant is not on trial before you.

And you will remember what I told you before the commencement of the defendant cases.  You should not in any way consider the acquittal of the 3^rd defendant as a matter which is adverse, that is which is against the case of any other defendant or favourable to the case of any other defendant.  The acquittal of the 3^rd defendant is a neutral matter regarding the 1^st, 2^nd and 4^th defendants.  Of course, the fact that the 3^rd defendant is no longer on trial does not mean, as I have already intimated, that you ignore evidence relating to him so far as you think that evidence is or may be relevant to the issues you consider in this trial concerning any one of the remaining three defendants.  All the evidence you have heard in this trial relating to the 3^rd defendant you can take into account in that regard.”

21.The judge further summarised the defence of A1 to the jury, namely that he was a person of good character and not in urgent need of money; and that he did not know there were dangerous drugs in the suitcase at all^[40]. The judge went on to summarise his evidence at considerable length, including his account of how he first met Lam, followed by Ah Hau, and Lam Chun To^[41].

22.Of prosecuting counsel’s suggestion that A2 had told lies when giving evidence, the judge directed the jury in the following terms^[42]:

“[A2] asserts that his statements and video interview were improperly obtained, as I have just told you. If you think his evidence in that regard may be true, then you must ignore both his post-recorded statement and his video-recorded interview. You must not rely upon them in any way. That will mean that you cannot take into account what [prosecuting counsel] has said are two fundamental lies told by the 2^nd defendant. And, as I say, they are both contained in the 2^nd defendant's video‑recorded interview.

The first lie is that the 2^nd defendant had said he had no dealings with the 1^st defendant. The second lie is that the 2^nd defendant said he had nothing to do with the small silver suitcase. The 2^nd defendant said both of those things in his video-recorded interview and you might think that his original post-recorded statement suggested or at least opened the door for those lies to be told in the video-recorded interview.

Now, [prosecuting counsel] says you can take into account that the defendant told those lies as support for the prosecution case. In that regard, I must give you this direction. You should consider two questions. Firstly, you must decide whether the 2^nd defendant did, in fact, lie. If you are not sure he did, then ignore this aspect of the evidence completely, but you will remember the 2^nd defendant in his evidence before you, effectively said that he did tell those lies to the customs officers in his post-recorded statement and in his video-recorded interview.

If you are sure the 2^nd defendant did lie, then ask yourself why he lied. A defendant may lie for many reasons and they may possibly be innocent reasons in the sense they don't give any indication of guilt. For example, a defendant might lie out of panic or confusion and you have heard at the time of these events, the 2^nd defendant was 21 years old. He had a clear record. He has been arrested in the departure hall of the Hong Kong Airport. Might that have caused him to panic or become confused and tell lies unnecessarily?

Another example I can give you as to an innocent reason, if I can put it that way, as to why a defendant might lie is perhaps he was attempting to create a better defence than one he already had. Another simple reason might be tiredness.  You will remember the 2^nd defendant had been carrying the small suitcase around and had rested every now and again.  Or it might have been a combination of all of those matters.  If you think that there may be some such innocent explanation for the 2^nd defendant's lies, then you should take no notice of them.  It is only if you are sure he did not lie for any such innocent purpose that his lies can be regarded by you as evidence which supports the prosecution's case.”

Grounds of appeal

23.As noted at [3] supra, the applicant does not intend to pursue the homemade grounds of appeal attached to his Form XI. By a letter received from him on 5 June 2020, the applicant further confirmed that he would rely on all the grounds of appeal attached to his two affirmations dated 21 June 2019 and 11 February 2020 respectively.

24.Attached to his affirmation dated 21 June 2019 was a set of 15-page “Amended Grounds of Appeal”, in which various complaints, categorized under five grounds of appeal, were made.  Instead of giving an exhaustive list of all those complaints, I will broadly summarise them as follows:

(a)     The judge failed to indicate to the jury that there was no evidence to support the prosecution’s allegation that the applicant was in need of money and might be given a fee for introducing A4 to Ah Hau (“the 1^st ground of appeal”).

(b)     The judge failed to direct the jury that there was no sufficient evidence to support the prosecution’s allegation that the applicant was the organiser and coordinator of A2 and A3 (“the 2^nd ground of appeal”).

(c)     Absent any evidence on the weight of the iPhone boxes, the jury might not have properly appreciated the significance of the applicant’s defence to the effect that he thought he was delivering mobile telephones, and not dangerous drugs (“the 3^rd ground of appeal”).

(d)     Given the prosecution’s decision not to charge Lam Chun To, it was unfair to let the jury consider certain unproven facts which concerned him, but without calling him to give evidence at the applicant’s trial.  Also, whilst there were two uncharged persons whose surname was Lam, prosecuting counsel in his two speeches did not make it clear to which Lam he was referring (“the 4^th ground of appeal”).

(e)     The use of different colours in the mobile telephone forensic examination report might have given the jury the false impression that some of the telephone messages were more significant than others (“the 5^th ground of appeal”).

(To understand this complaint properly, I should add that there are, in two of the Jury Bundles, namely Tab 5 of “Jury Bundle (for D1)” and Tab 9 of “Jury Bundle (for D4)”, which I have personally inspected, a summary of WhatsApp messages extracted from A4’s mobile telephone running to some 15 pages, accompanied by English translations running to some 30 pages.  Some of the messages were specifically given a “#” marking in yellow colour, which expressly denoted messages required by counsel for A1; whilst some other messages were specifically given a “@” marking in blue colour, which expressly denoted messages required by counsel for A4.)

25.Attached to his affirmation dated 11 February 2020 was a document entitled “Perfected Grounds of Appeal” purportedly drafted by two counsel but was not signed by any of them.  In that document, two grounds of appeal were advanced which can be summarised as follows.

(a)     The judge failed to sufficiently direct the jury on how they should approach the applicant’s evidence in respect of A3, who was part of the factual matrix of the prosecution case, as a result of which, it was said that the applicant was deprived of a fair trial (“the 6^th ground of appeal”).

(b)     In the absence of any clear directions from the judge as to how the jury should deal with the lies told by A2 regarding his previous dealings with the applicant, there might be an adverse implication on the credibility of the applicant (“the 7^th ground of appeal”).

26.Before me this morning, the applicant has made a further criticism of the prosecution concerning the provision of CCTV evidence and why there were no still photographs of the inspection of the suitcase provided.  I spent a considerable time dealing with this matter.  Two things emerged.  First, the defence had been provided prior to trial with the CCTV evidence, such as it was.  However, there was no CCTV evidence sufficient to depict the inspection of the suitcase.  Secondly, whatever the applicant’s original instructions may have been, he was apparently persuaded by his counsel that he should accept the surveillance evidence that he did inspect the suitcase for, as his counsel put to the jury, “There’s no point in inspecting if the 1^st defendant knew it was dangerous drugs already”[43]; and, a little later, “…the inspection itself indicated he didn’t know”[44].

27.The judge himself repeated this point when he came to summarise A2’s case[45]:

“Mr Li (counsel for A2 at trial) points out that if the 2^nd defendant was acting as a simple courier, as he was alleged to be by the prosecution, then there was no reason for the 2^nd defendant to open the suitcase. Couriers simply do not do that.”

It should be noted that it was the evidence of both A1[46] and A2[47] that A1 did open the suitcase to have a look inside.  I do not see anything in this point and I do not propose to deal with it further.

Respondent’s submissions

28.Ms Christal Chan, for the respondent, submitted that (in the order of the grounds of appeal presented above)^[48]:

(a)     First, since there was evidence of the applicant’s financial position, the judge was entitled to invite the jury to consider his financial position when deciding his case.

(b)     Secondly, when the allegation of prosecuting counsel^[49] was understood in its proper context, he was referring to A1 as the organiser and coordinator of the timely arrival of the suitcase so that it could be passed on to A4. 

(c)     Thirdly, the iPhone boxes and wrappings were produced at trial and there was nothing to prevent the jury from inspecting the items if they wished to know the difference in weight.

(d)     Fourthly, it was unnecessary for the prosecution to prove its case against Lam Chun To since he was not made a defendant at trial.

(e)     Fifthly, Ms Chan drew my attention to the transcript of the prosecution opening speech^[50] and said that the jury had already been told that different colours were used for the telephone messages in the mobile telephone forensic examination report because respective counsel for A1 and A4 had expressly requested for it.

(f)     Sixthly, the judge’s directions quoted at [20] supra were sufficient for the purpose of dealing with the impact of A3’s acquittal on the applicant’s case.

(g)     Seventhly, the judge had followed Specimen Direction 42 in giving a lies direction in respect of A2. 

Ms Chan submitted that the applicant’s conviction was neither unsafe nor unsatisfactory and invited the Court to refuse leave to appeal.

Discussion

29.I can dispose of the 5^th ground of appeal very simply.  As the record of proceedings makes clear, the use of different colour codes came at the suggestion of defence counsel themselves in order to assist the jury.  There is absolutely nothing in this point.

30.As for the 3^rd ground of appeal, this is hardly a telling point and assumes a significant and obvious difference between an iPhone box and its wrappings which contains an iPhone and an iPhone box and its wrappings which does not contain an iPhone.  The jury were entitled to inspect the exhibits if they had wanted to, or if counsel had invited them to do so.  I am also not prepared to accept the argument that the jury who had the benefit of hearing the evidence of the applicant would find the references to Lam in the prosecution's speeches confusing when such speeches were understood in context.  In any event, the judge had alluded to the different roles played by the two Lams in his comprehensive summing-up.

31.The 4^th ground of appeal and the 6^th ground of appeal may be dealt with together since they engage the same argument, namely that the judge did not properly direct the jury in respect of persons who were not before the court (ie Lam Chun To), or no longer before the court (ie A3).  However, as I have quoted at [19] and [20] supra, the judge specifically directed the jury to focus their attention on the applicant, A2 and A4 only, as he was required to do.  I would also add that, despite the applicant’s grievances against the prosecution’s decision not to charge someone who might be equally complicit, that was a matter entirely for the prosecution, with which a criminal court cannot and should not interfere. 

32.The 1^st ground of appeal and the 2^nd ground of appeal can also be dealt with together.  As Ms Chan submits, there was evidence before the court of the applicant’s financial position.  In any event, the judge summarised the applicant’s defence and his evidence that he was not in urgent need of money[51].  As for the 2^nd ground of appeal, I also agree with Ms Chan that the judge, when read properly in context, was referring to the applicant’s role on the day in question in ensuring the timely arrival of the suitcase and its handlers at the airport.

33.Insofar as I understand the 7^th ground of appeal, the applicant appears to be saying that he, unlike A2, did not get the benefit of a lies direction and his credibility was thereby placed at a disadvantage.  This cannot follow logically because a lies direction is only given to a particular defendant in circumstances where there is a risk of the jury thinking that if that defendant has told a lie, he must be guilty.  That risk was evidently considered possible in the case of A2: it was not considered in the case of the applicant.  Moreover, the applicant’s counsel did not ask for a lies direction to be given in his case.  I do not see any disadvantage for the applicant.

34.I do not find any reasonable grounds of appeal in the applicant’s case and I accordingly refuse him leave to appeal against conviction.  However, I should advise him that he has the right to renew all or any of his grounds of appeal before the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court came to the view that there was no justification for the renewal of the application.

Ms Christal Chan ADPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] A2 initially sought leave to appeal against his conviction but filed a Notice of Abandonment of his appeal on 21 June 2019.

[2] A1, by a 5:2 majority verdict of the jury; and A2, a unanimous verdict.

[3] By a unanimous verdict of the jury.

[4] On 24 November 2017.

[5] Before Hon Pang JA.

[6] The documents included a written application to adjourn the hearing (1 page), the applicant’s affirmation dated 24 June 2019 (3 pages), a written application for transcripts (1 page), Amended Grounds of Appeal against Conviction dated 24 June 2019 (15 pages) and a list of 33 case authorities (2 pages).

[7] For the record, those grounds averred that, firstly, the acquittal of A3 unfairly prejudiced him in that the jury lacked the opportunity to see A3 giving evidence in court; secondly, there was no corroborating CCTV evidence from the prosecution; thirdly, some jurors dozed off during his trial, rendering his conviction unsafe; and fourthly, he was unfairly prosecuted and subsequently convicted of the count, whilst the real criminals (such as Lam Chun To), were not.

[8] As a result of the coronavirus pandemic.

[9] See AB, pp 223B-225H.

[10] Admitted Facts, para 3.

[11] AB, p 381M-N.  Reference to Lam Chun To was also made in the Admitted Facts at para 1, which states that “on 25 January 2016, Ms Yan Ching Yi, a staff member of Travel Tone Company Ltd, a travel agency situated at 1019 Hollywood Plaza, 610 Nathan Road in Mongkok, received [a] cash payment from a male named Lam Chun To and issued a travel package including flight tickets and a confirmed hotel booking for A4 to fly on flights DL274 and DL275 respectively, being a Delta Airline Economy return flight Hong Kong-Japan-Hong Kong.  Lam Chun To brought with him a passport in the name of A4 and left his own name as the contact person together with a contact telephone number 53053298 and an email address [email protected] for the purpose of registration”.  Lam Chun To was not a witness at trial. 

It should be noted that, at trial, the applicant referred to another male whose surname was also Lam (“Lam”), whose full name the applicant did not know and whom he had met only twice(AB, p 25D-E); the first time being on 13 December 2015 for purported business purposes (AB, p 56N-T).  For more about Lam, see “the defence case” infra at [15] et seq.

[12] Admitted Facts, paras 1-2.

[13] Admitted Facts, para 4(b)&(e).

[14] Admitted Facts, para 12.

[15] AB, p 11A-B.

[16] AB, p 228E-F, I-J.

[17] AB, p 12S-U.

[18] AB, p 243A-B.

[19] AB, p 261L-M.

[20] AB, p 231R-S.  The telephone records also involved contact references to Lam Chun To and Ah Hau.  Ah Hau’s telephone number ended with 171 (see AB, p 231P-Q and p 232F) as a result of which he was sometimes referred to at trial simply as “171”, the boss, Hau Chai or Kai Yin (AB, p 149T).

[21] AB, p 152D-E.

[22] Prosecution closing speech: AB, p 156I-J.

[23] Prosecution opening speech: AB, p 258G.

[24] AB, p 84C-G.

[25] AB, pp 381E-382G.

[26] AB, p 262D-G

[27] AB, p 154G-T.

[28] AB, p 162D-H.

[29] See footnote 11.

[30] AB, pp 56K-58F.

[31] AB, p 58G-H.

[32] AB, p 58M-N.

[33] AB, p 59F-H.

[34] AB, p 60B-C.

[35] AB, p 60L-N.

[36] AB, p 160Q-S.

[37] As a side note, there was a voir dire at the trial, which only concerned A2 but not the other co‑accused. 

[38] AB, pp 3S-4E.

[39] AB, pp 14R-15K.

[40] AB, p 26M-S.

[41] AB, pp 56K-59L.

[42] AB, pp 12N-13T.

[43] AB, p 181N-O.

[44] AB, p 182A.

[45] AB, p 32A-C.

[46] AB, p 11F-G.

[47] AB, p 42D-E.

[48] Respondent’s further written submissions dated 4 June 2020.

[49] AB, p 262D-G.

[50] AB, p 233K-O, which reads “…there is a blue and a yellow indicator. You have that, I think?  You’ve found that?  A yellow and blue indicator.  This denotes the contribution that the defence wish to have because the summary is provided as information the prosecution rely upon but we have agreed to the contribution from the defence and they have included, under these notations, messages required by the 1^st accused’s counsel and in the blue those messages required by the 4^th accused’s counsel.  So you have a more complete picture and no doubt they will develop their case, as the time goes on, using those blue or yellow indicators.”

[51] AB, p 26O-Q.