HKSAR v. Hui Ka Lok, Sam

CACC 269/2021 [2023] HKCA 1358

On appeal from [2021] HKCFI 3684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 269 OF 2021

(ON APPEAL FROM HCCC NO 148 OF 2020)

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J U D G M E N T

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1.On 15 November 2021, the applicant following a trial before Campbell-Moffat J (the judge) and a jury was found guilty of one count of conspiracy to traffic in a dangerous drug[1]. On 17 November 2021, he was sentenced to a term of imprisonment of 37 years and 3 months[2].

The leave applications

2.On 30 November 2021, the applicant filed a notice of application for leave to appeal against his conviction and sentence.

3.In his leave application against conviction, the applicant is privately represented by Mr Joe Chan, having had legal aid refused. Mr Chan advances seven grounds of appeal against conviction as contained in the Amended Perfected Grounds of Appeal dated 26 July 2023.

4.In his leave application against sentence, the applicant is represented by Mr. Hanif Mohamad Mughal, who has been assigned by the Legal Aid Department. Mr Mughal advances three grounds of appeal against sentence as contained in the Perfected Grounds of Appeal dated 30 June 2022.

The prosecution case

5.The count on the indictment alleged that, between 4 April 2018 and 27 August 2018, the applicant had conspired with Hu Mingjie (DW1), Ochoa Villegas Luis Carlos (PW12), John Andres Gomez Henad (also known as Mono), Li Ka Kuen, and other persons unknown to unlawfully traffic in a dangerous drug, namely 22.680 kilogrammes of a solid containing 18.692 kilogrammes of cocaine. The street value of the drugs at the time of the offence was $28,314,355.65 Hong Kong currency.

6.The drugs were in a shipping container which had been shipped to Hong Kong from Colombia. On 22 August 2018, the drugs were discovered by officers of the Customs and Excise Department when the container was inspected by them in Hong Kong. A controlled delivery was carried out, and the applicant and two others were arrested at the warehouse where the container had been stored.

7.It was the prosecution case that the applicant played a significant role in the conspiratorial enterprise to traffic in the drugs. It was alleged that he arranged the importation, collection, storage and delivery of the drugs.

8.The shipment of the container to Hong Kong was arranged in May 2018 and loaded in Colombia in July 2018. On the shipping documents, the consignee was ECO Advance HK Ltd (Eco Advance). The applicant was recorded as the manager of the company. When he was arrested he had all the importation documents in his possession. He was also the one who gave instructions to Janci Ng and others concerning the container, its receipt in the port of Kwai Chung, its collection by the transportation company and delivery to the warehouse.

9.Before the arrival of the container, one of the conspirators, PW12, and his wife came to Hong Kong on 18 August 2018. The applicant met them and looked after them while they were in Hong Kong, including arranging their accommodation. PW12 had come to Hong Kong to help another conspirator, Mono, who was his wife’s nephew, to cut open the door frames of the container to retrieve the drugs.

10.In the meantime, the applicant had looked for a warehouse to store the container. He contacted Tsoi Chun Pui (PW1), a real estate agent, who arranged for him together with PW12, to inspect suitable premises. After negotiating with PW1, he agreed to rent a warehouse of several thousand square feet in Yuen Long. He made a cash payment and kept the key to the premises. However, the lease was signed by a former colleague of the applicant, Yip Wai Lun (PW2). The applicant and PW12 also went to buy high-quality cutting tools, such as grinders, drills and a ladder. The equipment that was purchased was paid for by the applicant.

11.The container arrived in Hong Kong on 22 August 2018, but its release was delayed. The cocaine found inside the container was seized by the Customs officers, who replaced it with dummy drugs. A camera was also installed inside the container. The applicant was eventually notified that the container was ready for release. On 27 August 2018, pursuant to the applicant’s instructions, the container was delivered to the warehouse. On that day, the applicant collected PW12, who had returned from mainland China. They went to the warehouse together with DW1. While PW12, DW1 and others were attempting to remove the drugs from the door frames, the Customs officers arrived and arrested them. The applicant was arrested in a car park in the vicinity. After he was cautioned, the applicant admitted to driving two people to the warehouse for a reward of $5,000.

The defence case

12.The applicant elected not to give evidence but called DW1, and two character witnesses. It was his case that he was not a party to the conspiracy and was innocently involved. He denied having made the statement to the Customs officers at the time of his arrest that he was driving people to the warehouse for a reward. DW1 testified that he had not met the applicant prior to 27 August 2018 and that the applicant was at the warehouse on the day in question to interpret for him.

13.The issues at trial mainly concerned: (1) whether there was an agreement as alleged by the prosecution; (2) whether the applicant was a party to the agreement; and (3) whether the applicant made any confession under caution.

The grounds of appeal against conviction

14.The grounds of appeal against conviction advanced by Mr Chan on behalf of the applicant are expressed by him as follows.

15.Ground 1: The judge erred in law when directing the jury regarding the elements of conspiracy. In particular, the judge failed to direct the jury correctly that they had to be sure that the applicant knew what he was agreeing to, namely whether he knew that the agreement, the subject of the offence, involved a dangerous drug, before they could convict the applicant.

16.Ground 2: The judge wrongly directed the jury in how to assess the credibility of PW12, namely that,

(1)  where there is evidence from other witnesses corroborating parts of PW12's evidence, which might indicate that PW12 was, in that respect, telling the truth, the judge had failed to direct the jury that they might accept the truthfulness of PW12's evidence in that respect if they were sure about the truthfulness of the corroborating evidence of those other witnesses; and

(2)  the judge failed to direct the jury that if they found part of PW12's evidence to be untrue, they had to consider the evidence of PW12 in that light before accepting other parts of his evidence, that is, whether the overall credibility of PW12 was undermined.

17.Ground 3: The judge failed to give sufficient and fair directions to the jury regarding how to assess the evidence of DW1, namely,

(1)  the judge failed to direct the jury that they could accept or reject part of the evidence of DW1, which was contrary to what she did regarding the evidence of the prosecution witnesses, particularly PW12;

(2)  further, the judge failed to direct the jury that even if they reject part of DW1's evidence, if they find that some of it was true or may be true, they should put aside the part they rejected and concentrate on the defence evidence that they found was true or may be true;

(3)  the judge failed to direct the jury that even if DW1 lied about one matter, it does not necessarily mean he could not be believed in other matters.

18.Ground 4: The judge erred in giving ambiguous and prejudicial directions to the jury regarding the arrangement under which the applicant rented the warehouse.

19.Ground 5: The judge failed to put to the jury the defence of mistaken belief, that is, the agreement concerned did not involve dangerous drugs, which was neither fanciful nor speculative based on the evidence, and which touched on the knowledge of the applicant as to the involvement of a dangerous drug in the agreement.

20.Ground 6: The judge failed to direct the jury on the emotive but irrelevant considerations or prejudicial publicity, especially as the applicant's case was reported by the media.

21.Ground 7: The judge failed to direct the jury on the co-conspirator’s rule both in respect of the oral testimony of a co-conspirator witness and the use of statements allegedly in furtherance of the conspiracy when the prosecution had placed clear and explicit reliance on them.

The submissions

Ground 1

22.Mr Chan complains that the judge failed to direct the jury that they had to be sure the applicant knew the conspiratorial agreement involved trafficking in dangerous drugs. He refers to HKSAR v Yung Lai Lai [3], in which the Court of Appeal was concerned with a conspiracy to sell infringing copies of copyright and the defence under the relevant statutory provision of lack of knowledge and a lack of reason to believe that the copies in question were infringing copies. This case has no application to the present case.

23.There is no substance to this ground of appeal. The judge gave an accurate and comprehensive set of directions on conspiracy to traffic in dangerous drugs. Her directions were in accordance with the specimen direction and cannot be faulted[4]. She repeatedly told the jury that they had to be sure that the applicant knew he was agreeing to traffic in dangerous drugs and that he intended to carry out the offence of trafficking in dangerous drugs. The jury would have been in no doubt that they had to be satisfied that the applicant knowingly agreed to be a party to a conspiratorial enterprise to traffic in dangerous drugs. The defence case was that the applicant did not have knowledge of the drugs in the container and the jury would have been in no doubt that the prosecution were alleging that the applicant knew of the drugs and was party to the conspiracy to traffic in them[5].

Ground 2

24.Mr Chan complains that the judge misdirected the jury on the assessment of PW12’s credibility. He refers to two matters in support of this ground.

25.The first matter concerns the failure of the judge to direct the jury that they had to be satisfied to the criminal standard of corroborating evidence from other witnesses before they could use it to assess or strengthen the testimony of PW12.

26.This matter has no merit. The rule of corroboration in accomplice cases has been abrogated, and it is for the trial judge to assess whether there is a need to give a caution warning and, if so, in what terms: Wong Chi King v HKSAR [6]. The judge gave the standard directions in relation to the burden and standard of proof and the assessment of evidence. The judge carefully summarised the evidence of PW12, highlighting matters that had been raised about his testimony by the applicant and directing the jury to treat his evidence with caution as he had accepted he had an incentive to implicate the applicant in the hope of receiving a lesser sentence[7].

27.The second matter concerns PW12’s acknowledgement that he previously told lies to the Customs officers. It is contended that the judge failed to direct the jury to consider whether this undermined the general credibility of PW12. The judge had appropriately set out the relevant matters and issues pertaining to PW12’s evidence, particularly the points made at trial by the defence to undermine the credibility of PW12, such as his admission that he was a party to trafficking in dangerous drugs, his previous falsehoods to the authorities and other matters on which the defence counsel had cross-examined PW12. PW12 answered these matters in his evidence, and it was a matter for the jury to consider and evaluate his evidence as properly directed by the judge.

Ground 3

28.Mr Chan complains that the judge misdirected the jury on how to assess DW1’s evidence by (i) unfairly providing different directions as to the standards of assessing DW1 and PW12’s testimony, where PW12’s evidence could be accepted or rejected in part if they were sure of those parts, but DW1’s evidence had to be accepted or rejected in full; (ii) failing to direct the jury to ignore parts of rejected DW1’s evidence and only to consider what was found to be true or may true; and (iii) failing to direct the jury that even if DW1 lied about one matter, his general credibility had to be independently assessed.

29.Mr Chan contends that the misdirection may have led the jury to reject DW1’s evidence entirely due to the lie without assessing his overall credibility.

30.The judge correctly directed the jury in assessing the evidence of DW1. He had previous convictions and had admitted that he had lied to Customs officers when he was arrested. She instructed the jury that these matters only went to his credibility and should not affect their judgement as to the guilt or innocence of the applicant[8]. The judge’s comments that Mr Chan were unfair to the applicant was when the judge was reminding them that if they found the evidence of the defence witnesses to be true or may be true, they should acquit the applicant, but if they were to reject the evidence it still remained that the prosecution had to satisfy them to the requisite standard of the guilt of the applicant on the charge that he faced. There was nothing wrong with this direction. It was very proper and was reminding the jury of the burden of proof on the prosecution[9].

31.The judge had emphasised to the jury that if the applicant’s defence was or may be correct, he was entitled to be acquitted,[10] and even if the jury rejected DW1’s evidence, they had to refer back to the prosecution evidence and be sure the prosecution had discharged the burden of proof of making them sure of the applicant’s guilt .[11]

Ground 4

32.On this ground, Mr Chan complains about the judge’s comment regarding the arrangement of the warehouse by the applicant was prejudicial.

33.It was not in dispute that the applicant contacted a property agent and requested to rent a warehouse of several thousand square feet in Yuen Long to store “wooden baffles”, as described on the importation documents. The judge summarised this evidence and commented, “they look fairly specialised”. Mr Chan argues that this was a prejudicial comment by the judge as it was a reference to the arrangement of the warehouse. However, when the comment is considered in context, it was plainly a reference to the “wooden baffles”. The judge said[12]:

“… The defendant had told him that he needed a warehouse of several thousand square feet in the Yuen Long area. He told him where, again, this is a matter for you entirely, I am just commenting and it is not for me, but you have got baffles. They look fairly specialised. Why do you want them in the Yuen Long area? I do not know and it is speculation. Do not take that into account. In order to store some speakers but he needed it to be big enough to put the shipping container inside.” (Emphasis added)

34.This ground is based on a misinterpretation of the judge’s comments. But, even if it was accepted that the judge’s comment “look fairly specialised” was a reference to the arrangement of the warehouse, it did not amount to an inappropriate or prejudicial comment by the judge. As the judge had earlier instructed the jury, if she expressed a view about the evidence it was a matter for them whether they agreed or not[13].

Ground 5

35.Mr Chan complains that the judge failed to put to the jury the defence of mistaken belief, even though it had not been relied upon, as it was neither fanciful nor speculative. He contends that the defence relied on both the lack of knowledge and the possibility of a mistaken belief in defence counsel’s closing address by reference to the following: (i) DW1’s evidence that the applicant was never informed about the dangerous drugs in the container or involvement of dangerous drugs; (ii) the importation documents only mentioning “wooden baffles,” which offered no indication to the applicant of the involvement of drugs in the container; (iii) the text messages between PW12 and Mono referring to the applicant without independent evidence of the applicant’s awareness of these messages; and (iv) the applicant’s absence from the warehouse during the alleged drug extraction contradicted the prosecution’s case that the applicant was in charge.

36.Mr Chan submits that it is arguable that the applicant may have been mistaken about the nature of the conspiracy, potentially involving something other than dangerous drugs.

37.In response, the respondent argues that there is no duty to leave to the jury defence of mistaken belief which had not been put and was fanciful or speculative. It is submitted that the defence was not available on the evidence and was fanciful, as shown by the following: (i) the applicant had not testified, and there was no evidence that he did not know about drugs in the container; (ii) DW1 did not assert that the applicant lacked knowledge but only mentioned not informing him about the drugs; (iii) the CCTV footage showed the applicant’s conduct and behaviour; (iv) the applicant possessed all the importation documents; (v) the applicant orchestrated the container’s shipment, collection, and delivery; (vi) the applicant arranged the warehouse for the container; (vii) the applicant paid for tools to open the container; (viii) there was no explanation for importing “wooden baffles” from Colombia for a car grooming business, which the applicant was allegedly operating at the time.

38.In my view, this ground of appeal is based on semantics. The defence case was that the applicant lacked knowledge of the drugs and this was made abundantly clear by the defence and by the judge in her summing-up to the jury. The applicant’s case was that he believed he was importing “wooden baffles” and did not know that the container contained drugs. Defence counsel in his closing address to the jury submitted that the applicant did not know about the drugs in the container and that he was “a fall guy or a scapegoat or an innocent agent”[14].

39.This ground is not reasonably arguable.

Ground 6

40.Mr Chan complains that the judge had failed to direct the jury to ignore and disregard any publicised news or information that may be relevant to the case, whether factual or not, or any emotive or irrelevant consideration that may affect their verdict given the case was widely publicised by the media.

41.The respondent argues that there is no evidence that this case was widely publicised and that the judge, during the summing-up, had reminded the jury to deliver a true verdict according to the evidence adduced, which includes the witnesses’ testimony, documents, admitted facts, and to ignore anything other than the evidence adduced and that they must not speculate.

42.As rightly pointed out by the respondent, there was no apparent need to provide any additional direction to the jury concerning media attention about this case, and in any event, the judge stressed throughout her summing-up to the jury that they had to deliver a verdict based on the evidence presented to them. This ground of appeal is not reasonably arguable.

Ground 7

43.Mr Chan complains that the judge failed to direct the jury on the co-conspirator’s rule in respect of the oral testimony of a co-conspirator or statements allegedly made in furtherance of the conspiracy despite the prosecution explicit reliance on them in its closing speech. He argues that this omission left the jury without guidance on (i) when and how to use statements in furtherance of the conspiracy; (ii) the legal approach to consider such statements; (iii) the need for caution in respect of the WeChat messages in which the applicant was mentioned, where he is not present and could not respond by agreeing or disagreeing with what was said; and (iv) the need for caution that the applicant should not be convicted solely on these statements.

44.The respondent submits that the co-conspirator rule was never engaged, and the prosecution did not rely on it to implicate the applicant. The evidence of the applicant’s involvement was adduced through agreed evidence and the oral testimony of witnesses, and not pursuant to the co-conspirator’s rule. Moreover, the WeChat messages between Mono and PW12 were adduced as circumstantial evidence to establish a conspiracy,[15] not to implicate the applicant under the co-conspirator’s rule.[16]

45.The prosecution case against the applicant was primarily based on direct evidence of his involvement in the importation and collection of the container and the evidence of one of his co-conspirators (PW12) to show that he was a party to the conspiracy to traffic in the dangerous drugs. However, as pointed out by Mr Chan, prosecuting counsel in his closing address to the jury referred to the WhatsApp and WeChat messages of PW12 with Mono and the applicant, and invited the jury “to use them to decide whether there was a conspiracy, and if so, who was in it”. Prosecuting counsel went on to say that the approach they should take regarding the evidence of what one conspirator may do or say with that of another conspirator would be addressed by the judge in her directions to them[17]. Mr Chan also refers to other passages in the prosecuting counsel’s closing address but it is arguable that the evidence referred to rose from the oral testimony of PW12[18]. Mr Chan argues that the judge did not deal with this aspect of the evidence in her directions to the jury. He contends that either this evidence should have been adduced in conformity with the co-conspirator’s rule with appropriate directions from the judge, or through the route which permits the admission of “acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not lead to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement”[19].

46.I note that there was no objection from defence counsel regarding the references to the text messages of PW12 with Mono and the applicant, which had been adduced into evidence as an admitted fact. Mr Chan contends that is not clear on what basis the references to the applicant in text messages, in which he was not a party, were adduced into evidence and relied upon by the prosecution. Consequently, Mr Chan argues that such evidence was not appropriately dealt with at trial or addressed in the judge’s summing up to the jury, and may have been used in an impermissible manner by the jury.

47.I find that this ground of appeal is reasonably arguable.

The sentence

48.At the time of sentence, the applicant, aged 35, had a clear record. He was a university graduate who worked as a salesperson, earning $16,000 per month at the time of offence[20].

49.In sentencing the applicant, the judge referred to the guidelines set out in HKSAR v Abdallah [21] that for the subject amount of cocaine, the starting point after trial for a courier or storekeeper or someone of a similar role, would be 31 years and 3 months' imprisonment. She followed the sentencing principles provided in HKSAR v Herry Jane Yusuph. She took into account the significant role "one of management but not top management", played by the applicant in the conspiratorial enterprise and enhanced the starting point by 4 years, to 35 years and 3 months’ imprisonment. She further enhanced the sentence by 2 years for the international element and arrived at a final sentence of 37 years and 3 months’ imprisonment [22].

The grounds of appeal against sentence

50.The grounds of appeal against sentence advanced by Mr Mughal are as follows.

51.Ground 1: The starting point adopted by the judge was on the high side.

52.Ground 2: The enhancement of 4 years’ imprisonment imposed for the applicant’s “role as one of management but not top management” was excessive.

53.Ground 3: The ultimate sentence imposed of 37 years and 3 months’ imprisonment was in all the circumstances manifestly excessive.

The submissions

Ground 1

54.The maximum penalty for the offence of trafficking in a dangerous drug is life imprisonment and a fine of $5 million. As this case illustrates, the sentencing tariffs for drug trafficking in very large quantities of heroin and cocaine may result in a term of imprisonment that is exceedingly high. The sentences in such cases are reaching levels that make it very difficult for a sentencing court to distinguish the nature of the role and degree of culpability of offenders in the penalty to be imposed[23]. It is appropriate to note that the Long-term Prison Sentences Review Ordinance, Cap 524, provides a prison sentence review and remission system and the establishment of the Long-term Prison Sentences Review Board to examine indeterminate or long-term sentences and to make appropriate recommendations to the executive. However, the courts have an important public duty and responsibility to ensure that the sentences imposed on offenders are both realistic and fair within the legal framework of the criminal justice system.

55.In HKSAR v Abdallah[24], the Court of Appeal extended the Lau Tak Ming[25] sentencing guidelines for large quantities of heroin and cocaine as follows:

(i)  600 to 1,200 grammes: 20 to 23 years' imprisonment;

(ii)  1,200 to 4,000 grammes: 23 to 26 years' imprisonment;

(iii)  4,000 to 15,000 grammes: 26 to 30 years' imprisonment;

(iv)  Over 15,000 grammes: at the sentencer' s discretion.

56.In Herry Jane Yusup[26], Macrae VP, set out the following six step approach for sentencing for trafficking of a dangerous drug:

(1)  identify the relevant guideline band applicable to the quantity of drugs concerned[27];

(2)  assess the role and culpability of the defendant based on the evidence before the court[28];

(3)  identify where in the relevant band the defendant came, and consider if it is necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the defendant[29];

(4)  consider any aggravating factors which may bear on the notional starting point[30];

(5)  consider any mitigating factors and the applicable reductions[31];

(6)  consider the totality principle and the overall sentence passed to ensure that it is a fair, just and balanced sentence in all circumstances of the offence and the offender[32].

57.The applicant complains that the judge’s starting point of 31 years and 3 months was made by taking a mathematical approach, which is on the high side because a mathematical approach and increase should not be adopted concerning quantities of drugs more than 15 kilogrammes. He submits that the starting point should have been at the court’s discretion.

58.The applicant refers to various judgments by the Court of Appeal and the Court of First Instance that adopted the endorsed position stated in Abdallah. Additionally, the applicant contends that the starting point is too high compared to other sentences imposed in the referred cases, which involved even larger quantities of drugs[33].

59.The respondent submits that the judge followed the six step approach in Herry Jane Yusup when adopting the starting point. She identified the appropriate guideline band for the quantity of cocaine involved, which was at the judge’s discretion because the amount of cocaine exceeded 15 kilogrammes.

60.The respondent argues that the judge was entitled to make an arithmetic calculation of 31 years and 3 months as a reference since the notional starting point would ultimately be adjusted after taking into account the applicant’s role and culpability when assessing the circumstances of the commission of the offence.

Ground 2

61.The applicant complains that the sentencing judge’s enhancement of 4 years imprisonment for the applicant’s “role as one of management but not top management”[34] was manifestly excessive when compared with other cases, where the enchantment for the senior role played by the defendant in those cases was between 1 year to 2 years[35].

62.The applicant, therefore, submits that the applicant’s significant role should have been in the range between 1 year to 2 years.

63.The respondent submits that the judge’s enhancement of 4 years was justified since it was made in accordance with Step 2 in Herry Jane Yusup, assessing the role and culpability of the applicant based on the evidence before the court.

64.The respondent contends that the applicant’s role was significant and his involvement was extensive, including (i) using his company ECO Advance Hong Kong Ltd to facilitate the importation of the container of drugs; (ii) possessing all the importation documents; (iii) arranging the warehouse to store the container; (iv) is close relationship with his co-conspirator, Mono; (v) receiving and arranging accommodation for the other overseas conspirator, Ochoa; (vi) providing and paying for tools to open the container of drugs; (vii) arranging transportation to collect and delivery container to the warehouse; (viii) giving instructions to Ochoa and reassuring Mono and Ochoa; (ix) recruiting helpers.

65.The respondent submits that the applicant’s extensive role and involvement justified a 4 year enhancement.

Ground 3

66.The applicant complains that the enhancement of 6 years, 4 years for the applicant’s role and 2 years for the international element, resulted in the ultimate sentence of 37 years and 3 months, which in all the circumstances was manifestly excessive.

67.The applicant refers to Herry Jane Yusup in the application of the totality principle the statement of principle that a sentencing courts should ensure that the “aggregate of the enhancements does not result in an oppressive and overloaded sentence”.[36]

68.The respondent submits that the 2 years enhancement for the international element was appropriate for this aggravating factor and was in accordance with Step 4 in Herry Jane Yusup.

69.The respondent agrees that the judge did not adhere to Step 6. It would appear that she did not consider or apply the totality principle in respect of the enhancements. This ground is, therefore, reasonably arguable. Nevertheless, the respondent contends that the aggravation of the applicant’s role in the international element still warranted the level of enhancement imposed by the judge and the ultimate sentence of 37 years and 3 months’ imprisonment was not manifestly excessive.

70.I am satisfied that the grounds of appeal against sentence are reasonably arguable and leave is granted to the applicant to appeal his sentence. There is an issue concerning the appropriate starting point for cases of this type, involving very large quantities of a dangerous drug, and the level of enhancements that should be imposed for aggravating factors, when taking into account the totality of those enhancements and the high notional starting point.

Conclusion

71.In light of the foregoing reasons, the applicant’s leave application to appeal against conviction is refused in respect of Grounds 1 to 6 but granted in respect of Ground 7, and the applicant’s leave application to appeal against sentence is granted in respect of all grounds.

72.The applicant is informed that he has a right to renew his application for leave to appeal against conviction on the refused grounds to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time which he has served pending the hearing of his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Ms Denise Chan, SADPP, of Department of Justice, for the respondent

Mr Joe Chan, instructed by Wai & Co, Solicitors, and Mr Schweitzer Wong and Mr Oscar Tam, instructed by Wai & Co, Solicitors, on pro bono basis, for the applicant (for Conviction only)

Mr Hanif Mughal, instructed by Bobby Tse & Co, assigned by Director of Legal Aid, and Ms Teresa Yu, instructed by Bobby Tse & Co, on pro bono basis, for the applicant (for Sentence only)