HKSAR v. Omogo Stephen Okuta

CACC 66/2019

[2021] HKCA 392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2019

(ON APPEAL FROM HCCC NO 323 OF 2015)

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Before:  Hon Macrae VP and Zervos JA in Court

Date of Hearing:  24 March 2021

Date of Judgment:  24 March 2021

Date of Reasons for Judgment: 9 April 2021

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R E A S O N S  F O R  J U D G M E N T

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

Introduction

1.On 8 October 2015,following his plea of guilty to a single count of trafficking in a dangerous drug, namely 1.12 kilogrammes of a solid containing 626 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the appellant was sentenced by Deputy High Court Judge Beeson (the judge) to 14 years’ imprisonment. 

2.On 28 February 2019, the appellant applied for leave to appeal his sentence out of time.  This application was out of time by 3 years and 3 months.

3.On 4 June 2020, after several hearings, a Single Judge[1] granted the appellant an extension of time and leave to appeal against sentence on the sole ground that the appellant was deprived of a sentencing discount based on his pre-sentence assistance to the authorities.  The appellant was also granted an appeal aid certificate.

4.At the hearing of this appeal, we dismissed the appeal and indicated that we would hand down our reasons for doing so in due course.  These are our reasons.

The facts

5.The summary of facts on which the appellant pleaded guilty revealed that on 18 February 2015, the appellant, a 52-year-old Kenyan man, arrived at Hong Kong International Airport on a flight from Addis Ababa, Ethiopia, with a return flight scheduled on 2 March 2015.  He was intercepted for customs clearance, and an X-ray examination confirmed the presence of foreign objects in his body cavity.  He stated under caution that he had swallowed “72 pills”, and he would be paid US$3,000 after he discharged them from his body.  He was transferred to hospital where he discharged 71 pellets containing the cocaine as particularised in the count.  When he was subsequently interviewed under caution, he refused to answer questions.

6.The estimated value of the cocaine at the time of its seizure was about HK$1,107,680. 

7.It was stated in the summary of facts that the appellant admitted and accepted that he was trafficking in the seized cocaine.[2]

The mitigation

8.In mitigation, the appellant’s background and family circumstances were disclosed to the judge.  Defence counsel explained that the appellant had faced financial difficulties in supporting his family, caring for his wife and a son and paying for his mother’s medical expenses.  It was because of his financial hardship that he agreed to be a drug courier. 

9.Defence counsel submitted that the appellant had a clear record and that he had confessed to the offence at an early stage.  He further submitted that the appellant had provided information in a non-prejudicial statement (NPS) dated 29 September 2015 to Customs. 

10.In his submissions to the judge, defence counsel described the information the appellant provided as “not very helpful” and “sketchy at best”.[3] He made the point that people like the appellant would not know very much because of their status within the drug trafficking syndicate and that the authorities could not “make much out of this”.

The reasons for sentence

11.The judge accepted that the appellant’s guilty plea was timely, and based on the narcotic content of the cocaine, she adopted a starting point of 20 years’ imprisonment,[4] which she enhanced by 12 months for the international element.[5] After giving a full one third discount for the appellant’s plea, she sentenced him to 14 years’ imprisonment.

12.As for the information the appellant provided to the authorities in his NPS, the judge observed that:

“He has also attempted to give some assistance to the authorities by making a non-prejudicial statement, telling what he knows about the people who recruited him. Sadly, the information of the non-prejudicial statement is too vague to be of any real assistance to the authorities. It probably just confirms what they already know.”.[6]

13.Accordingly, the judge gave no further discount to the appellant for the purported assistance he had rendered to the authorities.

The appellant’s submission

14.Mr Duncan Percy, for the appellant at this appeal, complained that the appellant was deprived of a sentencing discount based on his pre-sentence assistance to the authorities, as the information he provided in his NPS was not properly investigated prior to the sentencing hearing, nor were the legal representatives properly informed as to its utility as intelligence to law enforcement, causing the judge to err in her assessment of the appellant’s assistance.

15.Mr Percy submitted[7] that the appellant’s information provided in his NPS, “did identify and describe a named Tanzanian female who had visited Hong Kong in June and July 2015, and stayed in Chungking Mansions”[8] and “the nickname and description of a Nigerian man who was involved in the drug trade as having worked and lived in Mirrador Mansions.”  For ease of reference, the Tanzanian female will be referred to as “X” and the Nigerian man as “Y”.

16.Mr Percy referred to the case of HKSAR v Otiende John Ochieng,[9] in which a 40% discount was given to the defendant for his plea and his assistance to the authorities, which was supported by Father John Wotherspoon.  He noted that the judge in that case awarded the discount to reflect the defendant’s co-operation with the authorities by providing valuable assistance even though she found that the authorities had failed to act upon it.

17.Mr Percy submitted that the appellant had provided almost the same information as that identified in Father Wotherspoon’s letter in Otiende, that he had actively participated in Father Wotherspoon’s anti-drug campaign, and that he should have been given a similar 40% discount.[10]

18.In addition to the appellant’s NPS, Mr Percy also relied on Father Wotherspoon’s letter dated 23 May 2019 to the judge and his statement taken by Customs dated 13 December 2019 and 14 February 2020.[11] He referred to Father Wotherspoon’s disappointment that the appellant had not received the additional discount from his sentence as did John Otiende for almost exactly the same information.

19.In the course of his oral submissions, Mr Percy accepted that the nature and timing of the information provided by John Otiende was different to that provided by the appellant whose information was very general and supplied at a much later stage to the authorities.  He confirmed that there was no connection between the appellant and “X” and that the information provided by the appellant was at best confirmatory of information that had been provided by others.  He accepted that more information had been provided by John Otiende and in different circumstances, which clearly distinguished that case from the appellant’s case.  He submitted that he was therefore seeking only a “slight increase” of the percentage discount to the appellant’s sentence.

The respondent’s submission

20.Ms Hermina Ng, for the respondent, argued that the assistance rendered by the appellant was limited to his NPS, which by itself was “not of practical use,” and that, only after it was supplemented by the statement of Father Wotherspoon, did it lead to being of possible “future use”.  She submitted that the appellant should not be entitled to any discount, but if he were to be given a discount, it should be very small and not amount to 40% (including the one third discount for a timely guilty plea).

21.Ms Ng referred to the statement prepared by Customs Inspector Kwan Chun Yin (CI Kwan),[12] which provided a summary of the information contained in the NPS and the supplemental statement of Father Wotherspoon together with an assessment by Customs of the value of the information.  She noted that CI Kwan confirmed that “X” and “Y” mentioned by the appellant were not known to the Customs before he gave his NPS.[13]

Further information provided by Father Wotherspoon

22.The statement taken from Father Wotherspoon provided further information about “X” and “Y” as well as four other persons.  Father Wotherspoon simply stated that he shared the information about “X” and “Y” which the appellant provided to him with a former member of an anti-drugs unit in Tanzania, who informed him that the information helped him in making further arrests of drug dealers.

23.Attached to the statement were information sheets about the six persons that Father Wotherspoon identified as being involved in drug trafficking, two of whom were “X” (whom the appellant identified by her first name and surname), and “Y” (whom the appellant identified by a nickname).  The information the appellant provided about “Y” in his NPS was very scant and it was even acknowledged by Father Wotherspoon that the arrest of “Y” was “not helped” by the information from the appellant.  The information the appellant provided about “X” was also very scant and whilst Father Wotherspoon attributed to the appellant certain information about “X”, it is clearly sourced from John Otiende, who had previously informed the authorities through Father Wotherspoon that “X” visited arrested drug couriers at Lai Chi Kok Reception Centre and this led to her being correctly identified by her full name, passport number and nationality.  Father Wotherspoon also attached photographs of “X” which he stated he had obtained from the Internet or John Otiende’s family.  One of the photographs of “X” from John Otiende’s family, Father Wotherspoon stated had been verified by the appellant.  However, the appellant in his NPS said of “X” that “I have not met her before” and “I also think she is about 34 or 40 years old.”

24.It should also be noted that the Court was informed that nothing of significance had been revealed by the information contained in Father Wotherspoon’s statement,[14] and despite inquiries by Customs with the Tanzanian authorities about the matters mentioned by Father Wotherspoon, no response had been received by them.[15]

Further investigation

25.As a result of the information that had been so far obtained, further investigation was conducted by Customs, and it was confirmed that “X” had been to Hong Kong and visited 6 prison inmates between April 2013 and March 2015, and that she departed Hong Kong on 26 March 2015.  It was also confirmed that “Y” was serving a long term of imprisonment in Hong Kong as a result of having been convicted of a drug offence in Macau (but not as a result of information provided by the appellant). 

26.In general, the information was assessed to be of practical “future use”, as it was believed that “X” was related to drug trafficking activities in Hong Kong given her record of visiting prison inmates, and Customs had now put “X” on the “Watchlist” and her immigration status was being monitored. 

27.Ms Ng contended that the information provided by the appellant in his NPS could not be of practical use without Father Wotherspoon’s further information in his statement.  She argued that although Father Wotherspoon specified that some information came from the appellant, it was clear that the appellant never provided the information himself, rather the information and material came from other sources, primarily John Otiende.   

Discussion

28.We begin our discussion in this appeal by stressing the importance of the guidance we have given in HKSAR v Yeung Hoi Ting,[16] as to the approach and principles relevant to a dispute about the assistance that a defendant has rendered to the authorities. 

29.The provision of information to a sentencing court by a relevant law enforcement authority about the assistance the offender has rendered to it is done at the offender’s request and on his behalf.  The offender who submits such information as part of his mitigation is therefore bound by it.  As a matter of course, a sentencing court will not normally be the forum for any dispute about the extent of the assistance supplied to the law enforcement authority or of its assessment of the value of such assistance.[17]  Although it will be open to a sentencing court to address any issue of bad faith on the part of the law enforcement authority, or to come to a different view of the assistance by the authority if the evidence so suggests, it must be emphasised that this will only take place in exceptional circumstances.[18]

30.However, it must also be emphasised that law enforcement agencies have a legal and public duty to ensure that crime is fully and properly investigated, and where an offender has rendered assistance to the authorities this should be handled with scrupulous care and attention as required by the procedural and operational demands of the relevant law enforcement agency.  It is in this regard that law enforcement agencies and the prosecuting authority have a very important role to play in the sentencing process of an offender who has rendered assistance to the authorities, which should always be carried out in strict adherence to the relevant principles and procedure as laid out in Yeung Hoi Ting.[19] 

31.It is unfortunately the case that the rendering of assistance by a defendant in order to receive a discount to his sentence can be open to abuse.[20] There have been cases where a defendant provides the authorities with information that is either commonly known in the drug trade or regurgitated from other sources.  Such information is invariably of little or no practical use because of its nature and reliability and the timing of when it was provided.  As will become apparent in this judgment, the present case is such an instance.

32.The essence of the appellant’s complaint about his sentence is that the information he provided to the authorities had not been properly investigated in order to determine its true value.  It is argued that as a consequence, the judge erred in concluding that the information was of no practical value and that it was already known to the relevant authorities. This resulted in the judge failing to award the appellant any sentencing discount to reflect “the valuable assistance” he had provided to the authorities prior to sentencing.[21]

33.The information the appellant provided was contained in his NPS dated 29 September 2015.  He mentioned “X” and “Y”, whom he said were involved in the drug trade. The reference to “Y”, by his nickname, and the suggestion that he was involved in the drug trade, has been the subject of numerous cases before this Court, mostly set out in a letter from Father Wotherspoon, on the issue of assistance to the authorities.  However as already noted, “Y” was some time ago convicted and imprisoned for his involvement in drug activities in Macau.

34.The first person he mentioned was “X”, whom he named.  He stated that she was a citizen of Tanzania and that she recruited drug traffickers in Tanzania and Kenya.  He stated that she mainly recruited women who would swallow cocaine for transportation.  He added that she would sometimes accompany traffickers to Hong Kong and would take them to Chungking Mansions.  He mentioned he had not met “X” before and did not know her passport number, telephone number or email address.  He also gave some very general particulars about her age and whereabouts, mentioning the city where she normally lived, and that she had travelled to Hong Kong in June and July 2013, which proved to be inaccurate.  He said that she had a clothing business in Tanzania and would buy clothes in Hong Kong. 

35.The second person he mentioned was “Y”, whom he had never met and only knew by a nickname.  He did not know any other personal details about him, and had no means of contacting him.  He provided the name of a building in Hong Kong where he said “Y” lived.  He said that “Y” would send people to Chungking Mansions to collect drugs for him.  As we have already noted, “Y” was someone who had been regularly mentioned in other cases as being involved in the drug trade in Hong Kong.

36.As a result of the course taken at the leave application, the appellant was interviewed again by Customs on 28 May 2020, as to whether he could provide any more information, but he said he had nothing further to add.

37.It is important to look at the history of the appellant’s case and as it relates to John Otiende’s case.

38.On 18 February 2015, the appellant arrived in Hong Kong on Flight ET608 from Ethiopia.  It was discovered that he had in his body cavity 71 pellets containing a total of 626 grammes of cocaine narcotic.  When he was asked what was in his body he said that he had swallowed 72 pills and that he would be paid US$3,000 after he discharged them.  On the next day, 19 February 2015, he participated in a video record of interview but refused to answer questions. Whilst the appellant admitted he trafficked in the drugs after it had been discovered he had foreign objects in his body cavity, he offered no further assistance to the authorities.

39.On 20 August 2015, the appellant wrote to Father Wotherspoon, saying that he thought they had met many times and asked for his help.

40.On 16 September 2015, the Legal Aid Department notified Customs that the appellant was prepared to assist the authorities by providing information to them.  This resulted in Customs officers obtaining the NPS from him dated 29 September 2015. 

41.On 8 October 2015, the appellant appeared before the judge for sentence.  Counsel representing the appellant, relied on the information contained in the NPS, but made the remarks that we have already mentioned in which he accepted it was not very helpful. 

42.The judge when sentencing the appellant observed that he had attempted to give some assistance to the authorities by making a NPS, “telling what he knows about people who recruited him” but the information was too vague to be of any real assistance to the authorities and probably confirmed what they already knew.

43.On 28 February 2019, the appellant filed a notice of application for leave to appeal against his sentence that was out of time by 3 years and 3 months. He complained that he did not get a discount for information that another defendant got for having provided “the same information”.  The other defendant was John Otiende, who had been sentenced on 27 January 2016. 

44.From the material that has been disclosed, it appears that on 7 November 2016, the appellant wrote to Father Wotherspoon and asked for his assistance to get a reduction to his sentence.  He said that he had heard Father Wotherspoon on the radio talking about “Y”, adding that it was he “who made me to be here right now”.  He also referred to the “Network Controller”, in reference to “X”, adding that she was from Tanzania. 

45.On 8 August 2017, the appellant wrote a letter to Father Wotherspoon, acknowledging that he had received his message from John (a reference to John Otiende). He then stated:

“The person who sent me to Hong Kong told me to meet the person you told John Otieno (sic) and whatever I had, he was the very person was to take from me, I hope you understand what am saying? So that person whom you told John Otieno (sic) I even mentioned him on my statement, and even on judgement day he was mentioned by my lawyer but nothing was done on my sentence so please if you have any assistance on my case please I will be very happy to have anything they offer for me.”

46.The appellant’s words “the person you told” were circled from which there was an arrow pointing to the nickname of “Y” that he had previously given in his NPS. 

47.On 17 October 2017, the appellant wrote a letter to Father Wotherspoon, in which he described how he got involved in smuggling the drugs into Hong Kong.  He explained that he had a financial problem and was contacted by “Y” from Hong Kong.  He said that arrangements were made for him to meet another man, whom he identified by a first name (referred to as “Z”), and that he was the owner of the drugs which he was to deliver to “Y” in Hong Kong.  He also mentioned that “Z” worked together with “X”.  He said that “X” had a problem over money with “Z” and that “X” gave their names to Customs and they were arrested.  He again asked for Father Wotherspoon’s assistance to receive “a small cut” to his sentence.

48.The leave application was heard by the Single Judge on 30 August 2019.  Prior to the hearing of the leave application, Father Wotherspoon had submitted a letter dated 23 May 2019 together with attachments.  He attached the letters that he received from the appellant that have already been mentioned (8 August 2015, 7 November 2016, 8 August 2017, and 17 October 2017), as well as email communications and photographs in respect of John Otiende’s case. 

49.On 9 September 2019, the appellant submitted a letter to the court explaining the delay in filing the leave application.

50.As already noted, the appellant sought to rely on the case involving John Otiende, who received an overall 40% discount to his sentence for his plea and the assistance he rendered to the authorities.  The appellant complained that he provided the same information to the authorities as did John Otiende and yet he received no discount. 

51.Before examining the case of John Otiende, it is relevant that he was on the same flight and arrested on the same day as the appellant.  This only emerged in the course of the hearing of the appeal upon enquiry from the Court. 

52.The circumstances of John Otiende’s case were vastly different from those of the appellant’s case.  It would appear that the appellant was regurgitating some of the information that John Otiende had provided to the authorities.  When John Otiende was arrested, he admitted that his visit to Hong Kong was to traffic in the drugs that he had smuggled and that an unknown person would contact him to make arrangements to collect the drugs.  He revealed the person who had contacted him initially in Africa.  This is how the judge explained it in her reasons for sentence on 27 January 2016. 

53.Father Wotherspoon submitted two letters dated 19 November and 22 December 2015 to the judge in John Otiende’s case, disclosing information that he had conveyed to the authorities on behalf of John Otiende. 

54.In his letter dated 22 December 2015, Father Wotherspoon set out in detail the information John Otiende had provided to the authorities together with email communications he had had with relevant law enforcement officers.  He said that on 13 March 2015, John Otiende contacted him and gave him “a great deal of information about the person who sent him from Africa to Hong Kong”.  He said that a person had followed John Otiende to Hong Kong and had recently visited him at Lai Chi Kok Reception Centre.  He said that he immediately passed on this information to the police with the hope that the authorities would arrest the person before she left Hong Kong and to stop her from arranging more drug mules to come to Hong Kong. 

55.Father Wotherspoon explained that the next day, 14 March 2015, he sent an email to “crimeinformation”, which he enclosed, setting out the details of the information provided by John Otiende.  The information included the first name of “Z”, who was referred to as the drug lord, and the first name of his associate, “X”, who recruited drug couriers, some of whom were in custody and that she had visited them in Lai Chi Kok.  It was mentioned that the authorities could obtain “X”’s full name and passport number from the prison authorities.  It was urged that the authorities act quickly before she left the jurisdiction.  Father Wotherspoon also enclosed Internet photographs of “X” as well as other details that had been provided by John Otiende in relation to the drug lord in Africa. 

56.On 19 March 2015, Father Wotherspoon sent another message to “crimeinformation”, in which he provided photographs of “Z” and “X”.  He confirmed that “X” was visiting inmates in Hong Kong prisons and he gave her name and passport number.  He also provided other information.  He noted that as a result of the information provided by John Otiende, the police had the name, passport number and photograph of “X”, who had recruited him, as well as many others to act as drug couriers to Hong Kong.  It was not until 22 April 2015, that Father Wotherspoon received a reply from the police which asked for a further update on the information he had provided.  He responded on 23 April 2015 that he had no further information.  On 29 May 2015, he received a message from the police that their investigation had been completed and that the evidence at the time was insufficient to arrest any person. 

57.Father Wotherspoon mentioned that having failed to get the police to use John Otiende’s information he met with Customs officers on 5 August 2015.  He said he gave them the names and numbers of inmates who were willing to give them information.  The three inmates included John Otiende, but the appellant was not one of them.  He followed this up with two emails to a Customs officer on 7 and 13 August 2015.

58.On 30 October 2015, Father Wotherspoon sent a message to the Organised Crime and Triad Bureau and had a meeting with officers from the Bureau on 4 November 2015.  He stated that he invited them to contact certain inmates, mentioning specifically John Otiende, but noted they had not been visited. There was further communication but the police informed Father Wotherspoon that because the inmates he mentioned, including John Otiende, were pending trial and involved in Custom cases they could not see them at that stage.

59.Father Wotherspoon also mentioned that, shortly before the date of the letter, 22 December 2015, he had spoken to John Otiende, who informed him that he had given information to Customs officers who interviewed him about “X” and how she had visited him at Lai Chi Kok.  He said that John Otiende told Customs officers that she had made many trips to Hong Kong as a drug trafficker and gave the name of her husband who lived at Chungking Mansions.  He noted that John Otiende’s information had not been used in Hong Kong but had been used in Tanzania by the authorities there.

60.It would appear that the detailed information that had been provided by John Otiende, has been transposed to be attributed to the appellant.  As we have already noted, the appellant did not meet “X” or “Z” and was clearly communicating with John Otiende about this case.

61.On 13 December 2019 and 14 February 2020, Father Wotherspoon gave a statement to Customs in which he provided information about six persons allegedly involved in the drug trade, including “X” together with photographs of her.  He stated he obtained the photographs from the Internet and the family of John Otiende and referred to the information provided by the appellant in his NPS to Customs.

62.A brief chronological review of these two cases reveals that John Otiende had provided detailed information about “X” soon after his arrest and at a time when the authorities could take action.  This is in contrast to the appellant’s information about “X”, which was very general and provided some 7 months after his arrest.  By then, “X” had left the jurisdiction.  Considerably more information about the woman had already been provided to the authorities by John Otiende. 

63.CI Kwan noted that “X” had visited six inmates in various prisons in Hong Kong between April 2013 and March 2015.  Three of those inmates had been discharged, while the other three including John Otiende, but not the appellant, were still in custody.  When inquiries were made of them by Customs officers they refused to assist.  He explained that “X” and “Y” were not known by Customs when the appellant provided the information in September 2015.  He confirmed that “Y” was serving a long term of imprisonment in Hong Kong in respect of a drug case that took place in Macau.  He also noted that the arrest of “Y” had nothing to do with the information the appellant had provided about him.  He confirmed that “X” had visited offenders of drug cases from 2013 to 2015.  He said with the information provided by the appellant and supplemented by Father Wotherspoon, “X” had been put on the Watchlist.  He concluded that based on the assessment he had set out, the information provided by the appellant “overall was of practical use”.  It is clear from an appraisal of CI Kwan’s assessment that this conclusion is based on the information provided by Father Wotherspoon, which mainly came from John Otiende and the photographs of “X”, which were derived from the Internet and the family of John Otiende. 

64.Ms Hermina Ng, for the respondent, submitted, correctly in our view, that the placing of “X” on the Watchlist was as a result of an investigation that was mostly, if not all, attributed to the information and statement given by Father Wotherspoon (as provided by John Otiende).  She further submitted that the appellant’s assistance on its own was not of practical use and he therefore should not be entitled to a further discount on sentence.  We agree.

65.When the full circumstances of the appellant’s purported assistance to the authorities is properly analysed, it was of little or no practical use.  The appellant provided information as to the identity of “X”, whom he claimed was involved in his recruitment to traffic in the drugs, some 7 months after he had been arrested and by that time the person whom he identified had left the jurisdiction.  Yet, he had remained silent under caution when interviewed after his arrest.  It was not first-hand information and seems to have been derived from other sources, particularly from John Otiende, who provided information to the authorities in respect of “X”, which was of greater detail and reliability.  Even if we had accepted on the most optimistic basis that the information was of some practical use, it would have only involved a very small adjustment that would have amounted to tinkering with the sentence imposed on the appellant.  See HKSAR v Lau Ka Shing [2020] 3 HKLRD 110, at [44].  However, the foregoing analysis of the history of the appellant’s case and the nature of the information and the timing of when it was provided suggests that this was simply a regurgitation of information from other sources.

66.Another aspect of this case is that Father Wotherspoon, no doubt with good intentions, is evidently acting as a conduit between prisoners and the authorities and providing information that he has collected from a number and variety of sources that is largely anecdotal.  In doing so, he may have inadvertently provided the means by which information is reproduced or embellished by defendants in an effort to receive a discount to their sentence.  It needs to be stressed that the provision of information in respect of criminal activities must be dealt with properly and very carefully, acknowledging the sensitive and dangerous nature of what is involved and the need for the information to be accurate and reliable. 

Conclusion

67.In light of the history of this case and the nature of the information, we found no basis to interfere with the sentence imposed on the appellant and we dismissed the appeal.

Ms Hermina Ng, SPP of the Department of Justice, for the respondent

Mr Duncan Percy, instructed by Tsang Chan & Woo Solicitors & Notaries, for the appellant

[1] McWalters JA heard the application on 30 August 2019 and directed that the respondent make inquiries into matters raised by the appellant.  Further hearings took place on 6 December 2019 and 4 June 2020.

[2] Appeal Bundle, 15-16.

[3] Appeal Bundle, 12F-M.

[4] Applying AG v Rojas [1994] 1 HKC 342; R v Lau Tak Ming; HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197.

[5] Applying Abdallah Anwar Abbas, ibid., and HKSAR v Chung Ping Kun, CACC 85/2014.

[6] Appeal Bundle, 6Q-S.

[7] Appellant’s Written Submissions dated 16 July 2020, at [9].

[8] Subsequent inquiries revealed that the woman had not visited Hong Kong in June and July 2015 and that she last left Hong Kong on 26 March 2015.

[9] HCCC 386/2015, the defendant was sentenced on 27 January 2016.

[10] Father Wotherspoon’s written statement dated 13 December 2019 and 14 February 2020.

[11] See Affirmation of Kwan Chun Yin, Annex I-III of Exhibit KCY-1.

[12] This was adduced as fresh evidence pursuant to section 83V of Criminal Procedure Ordinance, Cap 221.

[13] CI Kwan, at [17].

[14] Letters from the Department of Justice to the Court dated 14 May and 2 June 2020.

[15] CI Kwan, at [9]-[11].

[16] [2019] 3 HKLRD 516.

[17] Ibid., at [76].

[18] Ibid., at [100] (9).

[19] Ibid., at [83], [89]-[100].

[20] See HKSAR v Mohammed Saif, unrep., CACC 288/2018, 17 July 2020, at [37] and [38].

[21] See the Perfected Grounds of Appeal against Sentence dated 16 July 2020.