HKSAR v. Nkruma Marina

CACC 14/2022, [2024] HKCA 470

On Appeal From [2022] HKCFI 671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 14 OF 2022

(ON APPEAL FROM HCCC NO 374 OF 2019)

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J U D G M E N T

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1.This matter originally involved three defendants. When the trial initially opened, the applicant, who was D2, was jointly indicted, together with a named 3^rd defendant, on one count of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134, and sections 159A and 159C of the Crimes Ordinance, Cap 200 (Count 2); while Shao Nannan (“D1”) was solely indicted on one count of trafficking in a dangerous drug (Count 1). All three accused pleaded not guilty and were tried before Andrew Chan J (“the judge”) and a jury between 16 February and 2 March 2021. At the close of the prosecution case, the judge ruled that there was no case to answer in respect of the joint count involving 3^rd defendant, who was duly acquitted on the judge’s direction. The judge then discharged the jury on 2 March 2021, and D1 and the applicant were re-tried on a fresh indictment, dated 15 March 2021. Count 1 remained the same as against D1, but Count 2 was amended to remove the name of the 3^rd defendant as a conspirator and instead alleged that the applicant had conspired together with others unknown.

2.The re-trial was duly held between 18 November and 6 December 2021 before the same judge and a new jury. At the conclusion of the trial, D1 was unanimously acquitted on Count 1, while the applicant was found guilty by a majority verdict on Count 2 of conspiracy to traffic in a dangerous drug. On 10 January 2022, the applicant was sentenced to 26 years’ imprisonment.

3.The applicant now applies for leave to appeal against both her conviction and sentence.

The prosecution case

4.At about 1 pm on 28 September 2018, a cross-border private vehicle arrived for clearance at the Lok Ma Chau Control Point. Apart from the driver, D1 was the only passenger on board. When the vehicle was searched, a suitcase was found, of which D1 admitted ownership. Upon X-ray examination of the suitcase, dangerous drugs were suspected to have been concealed inside. Exhibit P27 recorded the questions asked by Customs officers and the answers given by D1 under caution[1]. D1 told Customs officers upon arrest that the suitcase contained a transformer, which had been entrusted to him by his client. He claimed to have received no reward and that he was willing to participate in a controlled delivery operation[2].

5.A controlled delivery operation was thereafter mounted, in which a dummy suitcase containing sandbags was substituted[3]. The same vehicle left Lok Ma Chau at 1:37 pm, heading for the Golden Mile Holiday Inn Hotel in Tsim Sha Tsui, Kowloon (“the Holiday Inn Hotel”). At 2:15 pm on the same day, the Vehicle arrived in Tsim Sha Tsui. During the journey, WeChat messages were exchanged between D1 and someone known as “Dave”, who had apparently entrusted D1 with delivery of the suitcase[4].

6.Upon arriving in Tsim Sha Tsui, D1 was instructed to go to a nearby burger restaurant instead of the hotel. He stayed there for about an hour. At 4:03 pm, D1 left the restaurant and went to the hotel, where he waited for about 15 minutes before coming out again[5]. At 4:30 pm, D1 boarded a Customs vehicle. As a result of the messages exchanged between Dave and D1, Room 934 of the Holiday Inn Hotel was booked for D1[6].

7.In due course, the applicant entered D1’s room. D1 pointed at the dummy suitcase and asked the applicant, “It’s you?”  The applicant replied in Putonghua, “我的我的”, meaning “Mine, mine”[7]. The applicant and D1 then walked out the room with the suitcase and proceeded to the lift lobby. They later entered Room 1833, where the applicant was staying, and she was arrested[8].

8.Upon arrest, the applicant was questioned as to what was inside the suitcase. She responded, “No”. She was further asked who had instructed her to pick up the suitcase, to which she replied “Kampala”. The applicant then confirmed that she was willing to take part in a controlled delivery operation and to communicate with Kampala[9]. The applicant’s WhatsApp messages were examined by a Customs officer, who was PW4 at trial. It was found that two persons, one “Fat Guy” and Kampala, had exchanged messages with the applicant. Among the messages were the words “Waka” and “No wahala”, which PW4 explained meant “Arrived” and “No problem” respectively[10].

9.At about 2 am on 29 September 2018, a Nigerian male[11] knocked on the door of Room 1833. He was admitted to the room by the applicant. When the man came into contact with the suitcase, he was arrested by Customs officers[12]. This man, who was the 3^rd defendant at the first trial, told another Customs officer that someone called Kampala had instructed him to come to the hotel. Kampala was his friend and would call him later.

10.The transformer found inside the suitcase contained within it 5.68 kilogrammes of cocaine[13], which was valued at HK$8,062,640[14].

The defence case

11.The applicant elected to give evidence at trial. Essentially, she denied knowledge of the cocaine concealed inside the suitcase and said that she did not know either D1 or the 3^rd defendant.

12.The applicant was 43 years of age at the time of the offence and claimed to run a clothing store in Russia with goods sourced from China. She had arrived in Hong Kong on 10 September 2018 and had been to Guangzhou on the Mainland buying clothes for her shop. Between that time and 26 September 2018, she had travelled between Hong Kong, Foshan, Guangzhou and Beijing on the mainland for that purpose[15].

13.On 26 September 2018, she returned to Hong Kong at about 6 pm. She stayed in a small hotel in Tsim Sha Tsui for two nights, paying no more than $400 per night. However, because the hotel was full, she was unable to extend her stay and, accordingly, had to check out on 28 September 2018[16].

14.Between 26 and 28 September 2018, the applicant went to Yuen Long in the New Territories to meet the only friend she had in Hong Kong, called Fat Guy (or “CK”). After checking out of her hotel at about noon on 28 September, the applicant took a train to Yuen Long, taking with her all her belongings. She maintained that she and Fat Guy had agreed to meet at 3 pm that day[17].

15.On the train, the applicant noticed that the Holiday Inn Hotel was offering a large discount to its members. Since she was a member of the hotel group, and the room rate was only HK$1,250 per night for members, she decided to book a room[18].

16.Upon arriving in Yuen Long, the applicant went to a bar with Fat Guy. At about 10 pm, since she was intending to return to Tsim Sha Tsui, Fat Guy gave her a card with the address of the Holiday Inn Hotel written in Chinese for the taxi driver[19].

17.The applicant arrived at the Holiday Inn Hotel, at about midnight, and checked into her room. When she was about to take a shower, she communicated with Fat Guy, during which he asked her if she was in the hotel and could help his friend Kampala pick something up in Tsim Sha Tsui, since Kampala’s wife was in hospital[20]. The applicant said she had seen Kampala three or four times before[21].

18.The applicant initially said she could not do so because she was tired and wanted to sleep. However, when Fay Guy said it was urgent, she agreed and asked for his telephone number. He said there was no telephone number, but instead sent her a photograph. It was at that stage that the applicant discovered that he happened to be staying in the same hotel because she saw the hotel room number, Room 934[22]. Accordingly, the applicant went to Room 934 and knocked on the door. Eventually, the door was opened a little by D1, who said something in Chinese, which the applicant did not understand. The applicant then took out her mobile telephone and showed D1 the photograph. D1 then opened the door and pointed at the suitcase, which was near a table[23].

19.Since the suitcase was too heavy and big for the applicant to carry, she called Fat Guy to ask for help, but Fat Guy asked her to find some help herself. D1 then took the suitcase and indicated that they should leave the room[24]. They took the lift to the applicant’s room, which they entered, D1 placing the suitcase by the window. The applicant offered D1 a beer but D1 indicated that he wanted to leave[25]. As D1 was leaving, Customs officers came in and arrested the applicant. She immediately told Customs officers that the suitcase was not hers and that she had been asked by a friend to collect it; and that she knew nothing about its contents[26].

20.Upon further enquiry, the applicant agreed to cooperate and take part in a controlled delivery operation herself. Her mobile telephone was returned to her and she was instructed to tell Fat Guy that there was a problem and she wanted the details of Kampala. Fat Guy then sent her Kampala’s telephone number and all the messages that Kampala had sent to him. The applicant then had exchanges with Kampala, who told the applicant that his friend, Frank, would come to collect the suitcase in 10 minutes[27].

21.At about 2 am, the applicant received a call from the reception asking her if she was expecting a visitor, and thereafter an African male knocked on the door. Having opened the door, the applicant pointed at the suitcase. The African male picked up the suitcase and was duly arrested as he left the room. This African male was originally the 3^rd accused[28].

Reasons for sentence

22.Given the quantity of narcotic concerned, the judge adopted a starting point of 26½ years’ imprisonment[29]. Since the applicant had not been charged with the same count as D1, the judge considered that the international element did not apply in her case[30].

23.For the applicant’s assistance in the controlled delivery operation, the judge gave a discount of 4 months’ imprisonment, explaining[31]:

“D2 after her arrest, participated in one controlled delivery operation. As a result of her cooperation, another Nigerian male was apprehended. Although this Nigerian male was found not guilty after the first trial, that, in my view, should not disentitle D2 from a discount for providing assistance to law enforcement agency.

Having said that, her assistance, however in my view, did not yield any significant or fruitful result for the prosecution or for the law enforcement agency. For that she will be given a discount of 4 months.”

24.Given the applicant’s participation in Father Wotherspoon’s drugs campaign, the judge gave the applicant a further discount of 2 months[32]. The resulting sentence was 26 years’ imprisonment[33].

Grounds of appeal against conviction and sentence

25.Five grounds of appeal against conviction have been advanced by Mr McCoy on the applicant’s behalf, which may be summarised as follows:

(1)  Given prosecuting counsel’s remarks in his closing speech that the applicant had lied, the judge erred in not giving the jury a lies direction;

(2)  Some of prosecuting counsel’s comments in his closing speech were made without any evidential foundation, thereby depriving the applicant of a fair trial;

(3)  There was insufficient circumstantial evidence for an irresistible inference of knowledge on the part of the applicant to be drawn;

(4)  The judge’s reference to the size of the applicant’s luggage as “big” was not supported by the evidence; and

(5)  The judge erred in allowing PW4 to testify as to the meaning of the “pidgin English” used by the applicant.

26.Only one ground of appeal against sentence has been advanced on the applicant’s behalf, namely, that insufficient discount was given for the applicant’s cooperation with the authorities in the controlled delivery operation which led to the arrest of the 3^rd accused.

The respective arguments of the parties

Ground 1 (lies direction)

27.It is complained under this ground that comments by prosecuting counsel in his closing speech alleged that the applicant had made up a story, or told lies[34] as to the following matters:

(1)  The name of the budget hotel in which the applicant claimed to have stayed at between 26 and 28 September 2018[35];

(2)  The booking of the room at the Holiday Inn Hotel could not have been made at 3 pm on 28 September, otherwise she could have conveniently left her luggage in Tsim Sha Tsui without having to take it with her all the way to Yuen Long and then back again[36];

(3)  Her assertion of having difficulty in getting a taxi from Yuen Long to Tim Sha Tsui[37]; and

(4)  Her explanation as to why Fat Guy could not accompany her to Tsim Sha Tsui[38], and why Kampala could not collect the item because of his sick wife[39].

28.It was submitted that prosecution counsel was in effect asking the jury to find parts of the applicant’s testimony to be lies and, having so found, to use those lies as supportive of the prosecution case. The lies alleged by the prosecution counsel were said to be directly relevant to the applicant’s evidence as to (a) why she was in the Holiday Inn Hotel at the material time, and (b) why she went to collect the suitcase. These were matters central to the core issue of whether she had the requisite knowledge of the dangerous drugs, which was the very issue for the jury.

29.It was argued that it was for the judge to assess the risk of the jury engaging in such an impermissible line of reasoning; a risk which is enhanced if prosecuting counsel accuses a defendant of lying and dissects in detail each piece of a defendant’s testimony which is said to be a lie.

30.In response, Mr Wong, for the respondent, contended that a lies direction was wholly unnecessary since the prosecution did not use the applicant’s lies to establish its case or to strengthen an inference of guilt; nor was it a case where there was any danger of the jury engaging in an impermissible line of reasoning. All prosecuting counsel was doing was attacking the applicant’s credibility.

31.Mr Wong contended that the present circumstances were unexceptional and fell within the bulk of cases referred to by the Court of Final Appeal in HKSAR v Yuen Kwai Choi[40], at [37]:

“In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. … In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.”

32.The respondent further relied on HKSAR v Lau Tak Mong[41], where even if prosecuting counsel did give greater prominence to collateral issues than their probative value justified in undermining a defendant’s credibility, that by itself would not necessitate a lies direction[42].

33.It was submitted that:

(1)  None of the comments in prosecuting counsel’s closing speech were proven lies, nor did prosecuting counsel ask the jury to draw any inference of guilt because of the applicant’s incredible assertions.

(2)  By suggesting at times that what the applicant had said were lies, prosecuting counsel was merely ridiculing certain aspects of her evidence, which he contended were implausible.

(3)  After impressing upon the jury that the applicant was not a credible witness, the jury were effectively being asked to focus instead on the prosecution evidence, in particular, the WhatsApp exchanges and the applicant’s interaction with D1 when deciding the ultimate issue of her knowledge[43].

(4)  Defence counsel did not raise any objection prior to the summing-up about prosecuting counsel’s closing speech but, instead, made clear that the jury could not find the applicant guilty because they did not believe her[44]. The judge made the same point in his summing-up[45].

(5)  No lies direction was warranted and no unfairness was caused to the applicant.

Ground 2 (the Browne v Dunn principle)

34.The applicant took issue with the allegations[46] made by prosecuting counsel in his closing speech, which concerned the following matters of evidence[47]:

(1)  The applicant’s inability to recall details of the budget hotel, despite having stayed there for two nights;

(2)  The need to take all her personal luggage from Tsim Sha Tsui to Yuen Long and back;

(3)  The making of an online reservation of a room at the Holiday Inn, whilst on her way to Yuen Long;

(4)  The circumstances under which Fat Guy sent her by WhatsApp a photograph;

(5)  Her late arrival at a more expensive hotel; and

(6)  Her explanations as to why Fat Guy did not accompany her to the hotel, and why the suitcase was not collected by Fat Guy or Kampala.

35.The applicant submits that the above matters were never put to the applicant by prosecuting counsel, who was thereby not entitled to raise such allegations for the first time in his closing speech.

36.In reply, the respondent submits that there was no breach of the principle in Browne v Dunn and no unfairness was caused to the applicant. Prosecuting counsel could not be criticised for commenting that “it is merely a makeup of the 2^nd defendant who make up the name of the hotel and she could not tell the address of the hotel… The real inference was that she was not in Tsim Sha Tsui. The first time she arrived at Tsim Sha Tsui… was at midnight on the 28^th”[48]. This was presumably to suggest that the only reason for her to check into the Holiday Inn was to collect the cocaine.

37.The respondent suggested that the applicant knew full well what the case against her was and had responded to the challenges accordingly. In any event, defence counsel had responded point by point to the prosecution’s comments; demonstrating his full awareness of the prosecution’s position in respect of the applicant’s case[49]. In the circumstances, there was no question of the applicant being deprived of an opportunity to deal with the implications in cross-examination, thereby causing her any prejudice.

Ground 3 (circumstantial evidence and the irresistible inference of guilt)

38.Ground 3 complains that even if the jury did not accept the applicant’s evidence, there was insufficient evidence from the prosecution to draw an irresistible inference as to the applicant’s knowledge. The evidence did not reveal any knowledge on the applicant’s part of the contents of the suitcase. Nor did the WhatsApp conversations disclose what it was that Fat Guy or Kampala wanted her to collect. Indeed, the applicant displayed confusion and reluctance when Fat Guy and Kampala asked for her help in collecting the suitcase.

39.In reply, the respondent submitted that there were a number of primary facts, and hence sufficient evidence, in the prosecution case from which the jury were able to draw the inference of guilt against the applicant; for example:

(1)  The applicant was a seasoned traveller and had come in and out of Hong Kong several times in September 2018;

(2)  The very short time interval between her checking into Room 1833 at the Holiday Inn Hotel and her collection of the suitcase containing cocaine from D1 at Room 934 in the same hotel[50];

(3)  The applicant was found in possession of HK$3,391 and small amount of other currencies at the time of her arrest after paying HK$2,000 in cash to Holiday Inn Hotel[51];

(4)  The WhatsApp exchanges between the applicant and Fat Guy and Kampala at the relevant time (Exhibit P46), and in particular the instructions from Fat Guy as recorded in a WhatsApp audio message sent to the applicant after her arrival at the hotel[52];

(5)  The applicant’s utterance of “Mine, mine” to D1 when asked about the suitcase on entering D1’s hotel room[53]; and

(6)  The enormous quantity and value of the cocaine[54].

Ground 4 (the “big” suitcase)

40.In his summing-up, the judge remarked[55]:

“Dragging a big suitcase into an MTR station and on to an MTR train, simply to see a friend, could hardly be an ideal way of travelling. After all, she had seen her friends, Fat Guy, the day before on 27^th. So there was no hurry to meet Fat Guy. She could leave the suitcase in any hotel. And in any event, what was the hurry on the 28^th? There was no hurry because she met Fat Guy and they were playing pool and drinking and having an African meal; that is all.”

41.The applicant submits that the applicant never admitted that the suitcase she was carrying was large, nor was this ever put to her by prosecuting counsel. Under cross-examination, the applicant even testified that her suitcase was a “small aluminium suitcase in red colour”[56].

42.Mr McCoy relied on the principles stated in HKSAR v Hoang Gia Huan[57]:

“89. A direction to the jury must have a foundation either in law or on the evidence. …

90. It is axiomatic that one of the quintessential functions of the jury is to independently consider the evidence and attach relative weight to each piece of evidence. The judge may comment on the evidence but that comment must be based on the evidence and must not be expressed in a way that may cause the jury to think that it is a direction that they must follow. …”

43.In response, Mr Wong submitted that Mr McCoy has rather overplayed the effect of the word “big” in circumstances where the weight of the suitcase was a non-issue. The size of the applicant’s own luggage was never of any interest to the prosecution or defence and was immaterial. When the judge’s summing-up was read in its proper context, it is apparent that the judge was reminding the jury of prosecuting counsel’s comments in respect of the unreasonableness of the applicant’s claim to have taken her own luggage all the way from Tsim Sha Tsui to Yuen Long and back[58]. It was a matter of common sense for the jury that dragging a suitcase, irrespective of its size, in and out of MTR stations and along the street was not a very sensible idea.

Ground 5 (PW4’s evidence on “pidgin English”)

44.Ground 5 complains that the judge should not have allowed PW4 to give evidence on the pidgin English used by the applicant and Fat Guy in their WhatsApp communications, since PW4 possessed no expertise in providing such an opinion.

45.The prosecution had adduced Exhibit P46 as evidence of communications between the applicant and Fat Guy or Kampala.[59] The messages contained “Nigerian broken or pidgin English”, as the applicant described it during her evidence[60]. PW4 testified as to the meaning of the applicant’s WhatsApp messages as she understood them[61], from what she had learned from the applicant, rather than through any personal knowledge or expertise[62].

46.It was submitted that by admitting such evidence, the jury were being invited to conclude that the applicant was using code words or a secret language to communicate with Fat Guy and/or Kampala, and to use this conclusion to infer guilt.

47.In reply, Mr Wong countered that this ground was misconceived, since PW4 was not giving evidence as an expert with any knowledge of pidgin English: rather, she was a witness of fact, testifying as to what the applicant had told her as to the meaning of these phrases.

Appeal against sentence

48.Mr McCoy complained that insufficient discount was given for the applicant’s cooperation with the authorities in the controlled delivery operation, which had, after all, led to the arrest of the 3^rd accused.

49.Relying upon Z v HKSAR[63] at [13], counsel argued:

(1)  The applicant had given full and frank disclosure of all the information available to her. She allowed her messages with Kampala to be monitored by the Customs officers. The information she gave concerned a drug trafficking syndicate, which was new to the authorities.

(2)  The applicant’s assistance did lead to the apprehension of another person in the drug trafficking chain. Whether the person was convicted of any offence(s) was entirely out of her control.

(3)  There was nothing in the evidence to show that the delivery of the suitcase to some other person was meant to take place in the applicant’s Room 1833. The applicant’s full cooperation was a significant factor and explained why Kampala had to send someone to the Holiday Inn Hotel to collect the suitcase.

(4)  In view of these factors, the “usual” 40% discount (which applied to those pleading guilty) should have been given to the applicant.

50.In reply, Mr Wong submitted that it was apparent that the judge[64] was aware of the principles set out in the case of HKSAR v Nkwo Nnaemeka Darlington[65] and, indeed, was provided with relevant sentencing authorities[66]. In the Darlington case, it had been held, at [33]:

“…neither a straitjacket approach nor the application of a percentage discount range is desirable, because the factors to which a sentencing judge should have regard will necessarily vary according to the unique circumstances of different cases. Such factors would include: (i) the nature and effect of any voluntary participation; (ii) the outcome of the assistance: was it successful in bringing to justice persons who would not otherwise have been brought to justice; (iii) the degree or extent of assistance which had been provided; and (iv) the degree of risk to which the defendant had exposed himself or his family. It is a matter within the discretion of judges how these, and other possible, factors affect the discount to be accorded a defendant in a particular case.”

51.While the respondent acknowledged that the applicant remained cooperative throughout the controlled delivery operation, it was contended that she provided a low level of assistance by receiving WhatsApp messages and giving brief replies only. The duration of the controlled delivery operation was less than an hour. She was all along inside Room 1833 in the company of several Customs officers, whilst waiting for someone to arrive. Realistically, she was not exposed to any danger by participating in the controlled delivery operation.

52.The respondent submitted that the 4 months’ discount, representing a 1.26% reduction in sentence, was entirely within the discretion of the judge and there was no basis to disturb his discretion in this respect.

Consideration

(Conviction)

53.Grounds 4 and 5 can be simply dealt with. Ground 4 was a judicial comment about a woman (or it might have been anybody, for that matter) unnecessarily dragging luggage around the city on public transport. The point did not depend on the size or weight of the suitcase and was merely a way of making a common sense observation. If the judge had used more vernacular expressions, such as “lugging a great big suitcase”, or “dragging a whole load of luggage”, around on public transport, to make the point that the applicant apparently chose to take all her belongings from Tsim Sha Tsui to Yuen Long and back, nobody could conceivably have complained.

54.As for Ground 5, the point is misconceived. As PW4 explained, it was the applicant herself, who told her the meaning of these words. Moreover, nothing material turned on these translations.

55.With respect, these grounds are not even arguable, let alone reasonably arguable.

56.Turning to Ground 1, it is not reasonably arguable that this was a case for a lies direction. The points prosecuting counsel was making in his closing speech all went to try and show that the applicant’s account was not credible; although, as the judge made clear, that was not the end of the matter, since the jury still had to be sure on the prosecution case that the applicant was guilty[67].

57.As for Ground 2, it is not necessary for counsel to join issue specifically with every piece of evidence they are challenging by way of an explicit formula such as “I put it to you that… ”. The Court in HKSAR v Leung Wai Kit[68] has recently characterised the matter of counsel’s duty as follows:

“There is no absolute rule as to how a witness’s evidence should be challenged if it is intended to contradict it. The method and manner of the challenge will depend on a variety of factors and circumstances, including the subject and significance of the contradictory evidence; the status and quality of the witness, such as a child or vulnerable witness, or an evasive or unresponsive witness; and the nature and issues of the case. In a typical case, the cross-examiner asks questions of the witness that are sufficient to put the witness on notice that he intends to impeach the witness’s evidence on a matter and to provide him an opportunity to explain his position. Depending upon the subject matter, it does not necessarily involve a direct confrontation with the witness by examining the matter in minute detail. The challenge may be apparent by how the case is being conducted, the general line of questioning or the cross-examination of another related witness. It may not be necessary to put questions in cross-examination if a witness has given evidence about a matter that is patently incredible or if it has been made plain in some other manner that the evidence of the witness is challenged: Wong Wah Yee v HKSAR.[69] Sometimes it will be sufficient for the ‘raised eyebrow’ approach to discharge the duty of counsel in this sense: Lo Chun Nam v HKSAR.”[70]

58.The breach of the Browne v Dunn principle is not reasonably arguable in the circumstances of this case.

59.In respect of Ground 3, it is also not reasonably arguable to say that the circumstantial evidence was not sufficient to draw an irresistible inference of guilt. The judge’s standard directions on the drawing of inferences cannot be impugned. The evidence was a matter for the jury, having received correct directions in law from the judge, as to whether they were prepared to find the applicant guilty to the required standard. According to the evidence, the applicant had laid claim to, and taken physical possession of, a suitcase containing over HK$8 million worth of cocaine, in circumstances which, at their best, were extremely dubious, she having arrived in Hong Kong a mere three days earlier. The jury did not believe her account and were satisfied that the irresistible inference, from all the circumstances and evidence, was that she was knowingly trafficking in the contents of the suitcase. That was the jury’s function: it is not the function of an appellate court where the correct legal directions for the assessment of evidence have been given by a trial judge. This ground is also not reasonably arguable.

60.Accordingly, for the above reasons, I refuse leave to appeal against conviction.

(Sentence)

61.I am satisfied, however, that it is reasonably arguable the applicant did not get sufficient consideration by way of discount of sentence for her assistance to the authorities during the controlled delivery operation. I have called for the judge’s reasons for ruling ‘no case to answer’ in respect of the 3^rd defendant. The judge does not give specific reasons for so ruling, other than to say that “after listening to legal arguments from parties”, he had “come to the conclusion as a matter of law that in respect of the 3^rd defendant, you should find him not guilty”. I shall order the respective submissions of counsel for the 3^rd defendant and prosecution at trial, together with the judge’s ruling, to be added to the appeal bundle.

Conclusion

62.For the reasons I have given, I refuse leave to the applicant to appeal against conviction, but grant her leave to appeal against sentence. Although I have refused leave to appeal against conviction, the applicant is reminded that she has the right to renew her application for leave to appeal to the full Court of Appeal, but at the same time she is also warned of the consequences of doing so, which may include a direction for the loss of any time the applicant has spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of her application in respect of conviction.

Mr Derek Wong SPP, of the Department of Justice, for the Respondent

Mr Kim Joseph McCoy, instructed by Boase Cohen & Collins, assigned by the Director of Legal Aid, for the Applicant