HKSAR v. Lin Chi Man and Another

CACC 159/2017

[2024] HKCA 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 159 OF 2017

(ON APPEAL FROM HCCC NO 376 OF 2016)

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J U D G M E N T

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

1.The appellant (D1 at trial) and the applicant (D2 at trial) faced a joint 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). The particulars of the offence were that they, between 12 and 27 November 2013 inclusive, conspired together with Cheung Chi-yuen (“Cheung”) to unlawfully traffic in a dangerous drug, namely 11,910 grammes of a solid containing 10,250 grammes of cocaine.

2.Eleven days before the trial, D1 gave notice of his intention to plead guilty to the offence alleged against him. Accordingly, on 4 May 2017, scheduled as the first day of the trial, D1 duly pleaded guilty to the count on the indictment. However, D2 pleaded not guilty and stood trial alone before then Deputy Judge ST Poon (“the Judge”) and a jury. On 15 May 2017, D2 was unanimously convicted by the jury.

3.On 16 May 2017, D1 was sentenced to 22 years and 6 months’ imprisonment for the present offence, with 5 years and 6 months of an existing sentence for drug trafficking ordered to run consecutively to the 22 years and 6 months’ imprisonment, resulting in a combined sentence of 28 years’ imprisonment. D2 was sentenced to 30 years’ imprisonment.

4.On 8 June 2017, D1 filed a Notice of Application for Leave to Appeal against his sentence. On 20 October 2020, the Single Judge[1] granted leave to appeal against sentence on the basis that it was reasonably arguable that D1 was entitled to a full one third discount in respect of his guilty plea.

5.On 29 May 2017, D2 filed a Notice of Application for Leave to Appeal against his conviction. On 23 October 2020, the Single Judge refused leave to appeal against conviction. On 3 November 2020, D2 filed a Notice of Renewal of Application after Refusal by the Single Judge to renew his application.

6.D1 and D2 were originally listed to be heard at a single appeal before this Court; D1, as an appellant to whom leave had been given to pursue his appeal against sentence, and D2, as an applicant renewing his application for leave to appeal against conviction. However, on 9 July 2021, an application was made on behalf of D2 by Mr Philip Ross, on the instructions of the Bar Free Legal Service Scheme, for an adjournment of the appeal so that he might argue the application for leave on the basis of one particular ground of appeal. Having heard the application, we granted the adjournment. At the adjourned date on 7 December 2022, the hearing was further adjourned because a member of the Court had to undergo home quarantine due to the prevailing restrictions arising from the Covid pandemic. After consultation with counsel’s diaries, the hearing was fixed for 22 November 2023. Having heard submissions from the parties, we reserved judgment.

The background of the case

7.It was admitted by D1 in pleading guilty, and by D2 at his trial, that on 27 November 2013, Cheung had been intercepted when he arrived at Hong Kong International Airport from Abu Dhabi in the United Arab Emirates. Upon a search of his luggage, the drugs in question were found in his suitcase. The estimated street value of the drugs was HK$16,912,000 as at November 2013. Cheung was duly arrested and subsequently charged with an offence of trafficking in a dangerous drug. In due course, he pleaded guilty to the charge and was sentenced to 20 years’ imprisonment. Cheung gave information to the police implicating D1 and D2 in respect of the offence with which he had been charged and pleaded guilty. This led to the arrest of D1 on 7 September 2015 and D2 on 16 September 2015 for the offence of conspiracy to traffic in a dangerous drug. In separate identification parades on 5 October 2015, Cheung positively identified both D1 and D2.

D1’s appeal against sentence

The admitted facts

8.The summary of facts outlined to the Judge and admitted on behalf of D1 was consistent with Cheung’s account of the conspiracy to traffic in a dangerous drug between Cheung, D1 and D2 as contained in Cheung’s statements to the police following his sentence.

9.In April 2013, Cheung had been approached by a woman and asked to bring something back to Hong Kong from Brazil for a reward of at least HK$40,000. The exact figure was not stated. Cheung subsequently accepted the offer in August 2013. On 17 November 2013, Cheung met with D2 and received a suitcase and a Nokia mobile telephone from him. On 19 November 2013, Cheung further received from D2 a printout of an electronic air ticket to Abu Dhabi and cash of US$1,300. Cheung then flew to Abu Dhabi later on the same day and maintained telephone contact with D2 whilst he was in Abu Dhabi.

10.On 15 November 2017, D1 flew from Hong Kong to Brazil via Abu Dhabi. On 23 November 2017, D1 left Brazil with a suitcase containing the dangerous drugs particularised in the charge against him and flew back to Abu Dhabi.

11.On 24 November 2013, Cheung met with D1 in Abu Dhabi. They swapped their respective suitcases, with Cheung receiving the one brought by D1 from Brazil containing the dangerous drugs. Cheung and D1 became friendly with each other in Abu Dhabi. Eventually, D1 left Abu Dhabi for Hong Kong on 26 November 2013, while Cheung returned to Hong Kong on 27 November 2013.

The mitigation

12.In mitigation, the Judge was informed that D1 suffered from diabetes, which required him to inject himself four times a day. As far as his role in the conspiracy was concerned, it was said to have been similar to Cheung’s role as a courier. The Judge was urged to adopt an enhanced starting point similar to that accorded to Cheung.

13.At the Listing Hearing on 28 September 2016, which took place 26 days after the delivery of this Court’s judgment in HKSAR v Ngo Van Nam[2], the trial was fixed from 4 to 17 May 2017. D1 did not indicate his plea at the Listing Hearing instead, he gave notice of his intention to plead guilty by letter of 21 April 2017, 14 days before the trial was due to take place. D1’s counsel at trial accepted that the new approach to sentencing discounts set out in Ngo Van Nam should be applied to D1,[3] and that, in consequence, he should receive a discount of between 20% and 25% for what was considered a late guilty plea.[4]

14.At the time of his sentencing, D1 had six previous convictions. Although five were unrelated to dangerous drugs and dealt with in the Magistrates’ Court, the last one was a conviction in the High Court in December 2015 for trafficking in a dangerous drug, for which he was sentenced to 16 years’ imprisonment.[5] D1 committed that offence in December 2014, after the date of the offence in the present case. At the time of sentencing for the present offence, he was serving the other sentence. D1’s counsel urged the Judge to order one third of the then serving sentence to run consecutively to the sentence in the present case.

The reasons for sentence

15.The Judge found that the role played by D1 in the conspiracy was similar to that played by Cheung.[6] In view of the quantity of cocaine involved, he adopted 28 years’ imprisonment as the starting point for sentence, which he then enhanced by 2 years for the international element involved in bringing such a large consignment of drugs across the border into Hong Kong. Since he considered that the new guidelines in Ngo Van Nam governed the present case, a view shared by D1’s counsel, he gave D1 a reduced discount of 25% for his guilty plea and sentenced him to 22 years and 6 months’ imprisonment.[7]

16.Because the present case was unrelated to the offence for which D1 had already been serving a sentence of 16 years’ imprisonment, the Judge considered that an appropriate overall sentence for the two offences should be 28 years’ imprisonment. In achieving that totality, the Judge ordered that 5 years and 6 months of the sentence he was serving should run consecutively to the 22 years and 6 months’ imprisonment in the present case, with the remainder running concurrently.[8]

The leave application

17.At the hearing of D1’s application for leave to appeal against sentence, the Single Judge granted leave on the basis that it was reasonably arguable that D1 was entitled to a full one third discount, since the reduced discounts under Ngo Van Nam (and, therefore, the heavier penalties) would not have been part of the sentencing policy of the courts at the time when the criminal offence was committed by D1.[9]

D1’s appeal against sentence

18.Mr Victor Lee, for D1, premised his argument that the revised sentencing practice enunciated in Ngo Van Nam should not be applicable to D1 and, accordingly, D1 should be given a full one third sentencing discount on two bases. First, the circumstances of D1’s guilty plea fell outside the applicability of the revised practice as defined by the Court of Appeal in the judgment of Ngo Van Nam (the interpretation point). Secondly, the application of the revised practice on D1 infringed his right enshrined by Article 12(1) of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBOR”) (“BOR 12(1)”) (the BOR 12(1) point).

The interpretation point

19.Mr Lee submitted that the Court of Appeal in Ngo Van Nam had defined the application of the new sentencing policy as follows:

“236. The revised practice of affording discounts of sentence for pleas of guilty is to be applied only to those who, in future, reach the stages in criminal proceedings identified in this judgment at which revised discounts of sentence for pleas of guilty are identified. So, for example, the revised practice applies to a defendant currently in the magistracy who, in the future, is committed to the Court of First Instance for trial. On the other hand, for example, a defendant in respect of whom trial dates have been fixed in the Court of First Instance who pleads guilty on the first day of his trial is to benefit from the existing practice of affording a discount of one-third from that taken as a starting point for sentence.”

20.The Court in Ngo Van Nam stated that the revised practice was to be applied only to those cases that reached the stages in the criminal proceedings of the particular court identified in the judgment. For cases in the Court of First Instance, the Court stated:

“211. We are satisfied that in cases committed for trial or sentence the stage at which a discount of a full one-third is to be afforded to the defendant is at the stage of committal described earlier. Usually, but subject to the overriding discretion of the judge in sentence, the opportunity to secure a one-third discount from the starting point for sentence occurs when the defendant is given the opportunity to plead guilty in the Magistracy, pleads guilty and is committed for sentence to the Court of First Instance. …”

21.Since D1 had already pleaded not guilty in the Magistracy before the judgment in Ngo Van Nam was handed down, Mr Lee argued that D1 was not under the revised practice. He said D1, at the material time, expected that he would still be entitled to a one third discount on the first day of the trial if he changed his plea as provided by the old practice.

22.As the judgment in Ngo Van Nam was handed down before D1’s trial dates were fixed, Mr Lee referred to the next stages identified in the judgment. The second stage was explained by the Court as follows:

“212. We are satisfied that, if the defendant indicates to the Court or the prosecution that he wishes to plead guilty after he has been committed to the Court of First Instance for trial, but up to and until dates of fixed for his trial by the Listing Judge, the appropriate discount for sentence from the starting point for sentence, subject to the overriding discretion of the judge in sentence, is 25%.”

23.As pointed out by Mr Lee, D1 did not indicate his change of plea before the fixing of his trial dates, and it was necessary to consider the third stage as stated by the Court:

“214. Next, we are satisfied that, subject to the overriding discretion of the judge in sentencing, the range of discount to be afforded to a defendant who indicates to the Court or the prosecution that he intends to plead guilty after trial dates have been fixed but before the first day of trial, lies between the 25% discount to be afforded to the defendant who indicates that he wishes to plead guilty up to and until dates are fixed for his trial by the Listing Judge and the 20% discount to be afforded to the defendant for a plea of guilty on the first day of trial. In determining the appropriate discount to be afforded to the defendant in those circumstances, the judge will have regard to the time at which the indication was given and to all the other relevant circumstances.”

24.As noted by Mr Lee, D1 indicated his plea about 14 days before the fixed date of trial. He noted that according to the revised practice for the third stage the range of discount was 25% to 20%, subject to the overriding discretion of the sentencing judge. However, he argued that the practice would only apply to a defendant who has lost the one third discount in the Magistracy. Otherwise, it would contradict the circumstance stated in the third sentence of paragraph 236, namely, “a defendant in respect of whom trial dates have been fixed in the Court of First Instance who pleads guilty on the first day of his trial is to benefit from the existing practice of affording a discount of one third from that taken as a starting point for the sentence.” He submitted that it is possible that such a defendant may indicate a guilty plea before his trial.

25.Mr Lee contended that the Judge had misunderstood the applicability of Ngo Van Nam when sentencing D1. He submitted that as the first stage did not apply to D1 then the revision of the discount for the third stage also did not apply. In the alternative, he argued that even if the revised practice was applicable to D1, the Judge should have exercised his overriding discretion and given the one third discount to D1 in order to avoid unfairness.

26.Mr Lee further argued that D1, in receiving less than the one third discount for a guilty plea, was subject to a “heavier penalty” that is prohibited in BOR 12(1), which reads:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” (Emphasis added)

27.Mr Lee relied in particular on the words of the second sentence that state that a “heavier penalty” should not be imposed than the one that was applicable at the time when the criminal offence was committed. He argued that the reference to a “heavier penalty” included sentencing policy or practice. He added that when D1 committed the offence, he had the expectation to benefit from the existing sentencing policy and practice. He said that one of the aims of the second sentence in BOR 12(1) was to avoid the imposition of a heavier penalty on an offender by reason of a change in the court’s sentencing policy or procedure. He referred to Wong Chi Fung where the Court of Final Appeal had laid emphasis on the importance of legal certainty in the application of the criminal law:[10]

“As a reflection of the principle of legal certainty, it is settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence.”

28.Mr Lee submitted that the Court in Wong Chi Fung made it clear that the prevailing sentencing practice at the time of the commission of the offence should apply to the offender to protect him against retroactive criminal penalties. He also referred to the subsequent Court of Final Appeal decision in Secretary for Justice v Leung Hiu Yeung & Ors[11], which elaborated Wong Chi Fung, but he argued it was distinguishable, given the comparatively drastic nature of the change in sentencing policy in the present case.

29.Accordingly, Mr Lee contended that this principle ought to have resulted in D1 receiving a full one third discount for his plea.

The respondent’s submission

The interpretation point

30.Ms Mickey Fung, for the respondent, noted that the decision of Ngo Van Nam was handed down on 2 September 2016. This was after the appellant committed the offence in November 2013, his arrest for the offence on 7 September 2015, and he was committed to the Court of First Instance for trial on 19 August 2016. However, the Listing Hearing for the present case was held on 28 September 2016,[12] some 26 days after the decision in Ngo Van Nam was handed down. It was Ms Fung’s position that the reduced discounts in Ngo Van Nam apply to any indication of plea after the milestone of the Listing Hearing since it was held after 2 September 2016.

31.Ms Fung set out the stages of the proceedings when a guilty plea is tendered or indicated and the corresponding scale of sentencing discount under the revised practice enunciated in Ngo Van Nam in the table below:

Stage of proceedings	Discount (subject to overriding discretion of the judge)
Where a defendant pleads guilty in the Magistracy and is committed to the Court of First Instance for sentence[13].	One third
Where a defendant indicates that he wishes to plead guilty after he has been committed to the Court of First Instance for trial, but up to and until dates are fixed for his trial by the Listing judge[14].	25%
Where a defendant indicates that he intends to plead guilty after trial dates have been fixed but before the first day of trial[15].	25% to 20%
Where a defendant pleads guilty on the first day of trial[16].	20%
Where a defendant pleads guilty after arraignment and during the trial[17]	Usually less than 20%

32.Ms Fung emphasised that the key to whether Ngo Van Nam applied to D1 was whether D1, “in future, reach the stages in criminal proceedings identified in this judgment at which revised discounts of sentence for pleas of guilty are identified”.[18] It was submitted that if D1 had indicated his intention to plead guilty between 2 September 2016 and 28 September 2016, he would still have been entitled to a one third discount since he had not yet reached any of the new milestone stages, as identified in Ngo Van Nam, at which a revised discount is identified. However, D1 had reached the new milestone stage where a revised discount was identified on 28 September 2016, namely the date of the Listing Hearing. Since D1 had only indicated his intention to plead guilty by letter of 21 April 2017, and duly pleaded guilty on 4 May 2017 on the first day of trial, his case fell into the 25% to 20% category as stipulated in paragraph 214 of Ngo Van Nam.

33.Ms Fung pointed out that the Judge had given D1 a 25% discount, which was the maximum discount within the range; moreover, D1’s counsel at trial had accepted that the new sentencing discounts in Ngo Van Nam applied to D1. She also relied on the decision of this Court in HKSAR v Tsang Wai‑hung[19], which rejected a similar argument advanced by Mr Lee as to the meaning of paragraph 236 in Ngo Van Nam.

The BOR 12(1) point

34.Ms Fung argued that the issue in the BOR12(1) point was whether a “heavier penalty” had been imposed in this case as a result of Ngo Van Nam sentencing discount for guilty pleas. It gave rise to two further considerations, namely, (1) what does “penalty” in BOR 12(1) mean; and (2) whether a reduced discount on the same starting point results in a “heavier penalty”.

35.Ms Fung submitted that the word “penalty” is used but not defined in HKBOR. Section 3 of the Interpretation and General Clauses Ordinance (Cap 1), where the word “offence” is defined, uses the word “penalty” but does not define it. Likewise, section 2 of the Criminal Procedure Ordinance (Cap 221) does not define “penalty”. She submitted that in sections 101F-101J of the Criminal Procedure Ordinance, the word “penalty” is used in the sense that it refers to the maximum punishment provided for in the offence-creating provisions. Referring further to sections 38D, 38F, 39 and 56A(5) of the Dangerous Drugs Ordinance (Cap 134), she argued that the word “penalty” in Hong Kong legislation has the meaning of “maximum statutory punishment”. Therefore, a discount in the sentence given to a defendant who pleads guilty is not a penalty, and a reduced discount from the same starting point does not amount to a “heavier penalty”.

36.As pointed out by Ms Fung, D1 had pleaded guilty to conspiracy to traffic in a dangerous drug and was subject to the maximum penalty for trafficking in a dangerous drug of a fine of $5,000,000 and life imprisonment. She submitted that as there had been no change in the maximum sentence between 2013 and 16 May 2017, which was the date of sentence, no heavier penalty had been imposed on D1.

37.It was Ms Fung’s submission that the sentencing discount for a guilty plea is not a penalty, it is a discount or reduction of the sentence given to a defendant who pleads guilty because the guilty plea is a mitigating factor. She pointed out that a defendant who does not plead guilty is sentenced according to the relevant guidelines or tariffs, in that a starting point is adopted (with enhancement where applicable) without discount. She submitted that a defendant who pleads not guilty is not receiving “any increased or heavier sentence”, rather, if the defendant pleads guilty he will receive a discount. She argued that a reduced discount for a guilty plea was not the same as a “heavier penalty” being imposed, and that no “heavier penalty” than the one that was applicable at the time when the criminal offence was committed had been imposed in the present case.

38.Ms Fung further observed that judgments providing a new sentencing guideline usually set out a commencement date, stating that the new guideline only applies to cases in which the offence is committed after the date of the announcement of the new guideline: for example, HKSAR v Abdallah[20]; HKSAR v Tam Yi Chun[21]; Secretary for Justice v Wong Chi Fung[22]. However, the judgment of Ngo Van Nam provides a revised practice in respect of sentencing discounts for guilty pleas according to a sliding scale that can be applied to offences committed before the judgment was given. As stated in Ngo Van Nam, the revised practice was to be applied to those who, “in future, reach the stages in criminal proceedings identified in this judgment”.[23]

39.Ms Fung argued that such a difference in approach was justified because even though the offence had been committed, the decision to plead guilty was still within the defendant’s control and he could receive the full one third discount if he decides to plead guilty in accordance with the requirements in Ngo Van Nam.

40.Ms Fung referred to the position of the English courts in respect of the change in sentence guidelines. It was submitted that the practice in the English courts was different from Hong Kong, in that the sentencing guidelines (whether tariffs or discounts) apply to offences committed before the announcement of the relevant guideline so long as the date of sentence is after the commencement date, which is usually stated in the announcement of the guideline. Citing the English cases of R v Bowker[24], R v Bao[25], R v Boakye[26] and R v Mark Anthony Ahearne[27], Ms Fung submitted that the English courts considered that a judge’s obligation to have regard to relevant sentencing guidelines if they apply at the date of sentence, even if they had not applied at the time of the commission of the offence or the defendant pleaded guilty. The English courts held this approach did not infringe Article 7(1) of the European Convention on Human Rights (ECHR 7(1))[28], because the new sentencing guideline is applied after its announcement, and therefore it is prospective, not retrospective. ECHR 7(1) is the same as BOR 12(1), except that the last part about benefitting from a subsequent lighter penalty is not present.

41.Ms Fung submitted that, in the circumstances, BOR 12(1) had not been contravened by applying a reduced discount in respect of D1’s guilty plea.

Discussion

The BOR 12(1) point

42.We will address the BOR 12(1) point first. The Court of Final Appeal, in Section D.3 of Wong Chi Fung, set out the following principles:

“77. As a reflection of the principle of legal certainty, it is settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence: see HKSAR v Tsoi Shu [2005] 1 HKC 51 at [39], citing R v Chan Ka Wai (CACC 530/1988, [1989] HKEC 366) at [6]-[7].

78. The principle that an offender is to be sentenced on the existing or prevailing guideline or tariff of sentence existing at the time of the commission of the offence reflects the protection against retroactive criminal penalties conferred by art.12(1) of the Hong Kong Bill of Rights[29] which relevantly provides:

… Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”

43.However, as pointed out by the Court of Final Appeal in Secretary for Justice v Leung Hiu Yeung[30], they further stated in Wong Chi Fung:

“126. In accordance with the principles discussed in Section D.3 above, it would not, however, have been appropriate to apply the Court of Appeal’s guidance to the appellants here. The increase in sentences intimated by the Court of Appeal represented a sentence significantly more severe than the range established by the courts’ existing sentencing practice and so, to avoid retrospectively imposing a more severe sentence based on a new sentencing guideline, the new level of sentence should not have been applied to them.”

44.Mr Lee, in his submission, only quoted paragraph 77 of Wong Chi Fung and stated that the reference to the “practice prevailing” was to “sentencing policy or practice”. He sought to distinguish the Court of Final Appeal’s comments in Leung Hiu Yeung, in which the Court emphasised that the principles in Wong Chi Fung concerned avoiding the retrospective imposition of a more severe sentence based on a “new sentencing guideline”. The Court in Wong Chi Fung directed its remarks to a “penalty” in BOR 12(1) that was an existing or prevailing guideline or tariff of the sentence at the time of the commission of the offence and held that the aim of BOR 12 (1) was to avoid the retrospective imposition of a more severe sentence based on a new sentencing guideline or tariff.

45.In general terms, a penalty is the punishment imposed upon a person for committing a criminal offence according to the maximum sentence fixed by statute or common law. The appellate courts provide guidelines or tariffs as to the levels of penalty for a particular offence, which are taken into account together with other relevant principles and factors when determining a sentence.

46.There is a distinction between a guideline or tariff for a particular offence that assists a sentencing court to determine the level of penalty and a discount for a mitigating factor that reduces the penalty. The discount for a guilty plea is given in recognition of the utilitarian value of the admission of guilt by the defendant. It is in the sentencing court’s overriding discretion whether to give such discount, which is dependent upon the defendant being in the court system and the stage in the court proceedings at which he has entered his guilty plea. Assuming an existing guideline or tariff has not been increased, if a defendant does not plead guilty, he will be sentenced according to that guideline or tariff (with any enhancements or reductions were applicable), without the discount he would have otherwise received if he had pleaded guilty. There is no “heavier penalty” as the guideline or tariff is current and has been increased. If the guideline or tariff has been increased, this would constitute a “heavier penalty”, and if this increased guideline or tariff did not exist at the time of the commission of the defendant’s offence, it would not apply. Once a defendant has been charged and in the court system, it is a matter of choice whether he pleads guilty or not, and if he does plead guilty, depending on what stage he enters the plea he will receive a discount to his sentence, subject to the overriding discretion of the court.

47.In our view, the reference to a “heavier penalty” in BOR 12(1) in respect of drug trafficking cases would include an increase to the sentencing guideline or tariff for the quantity of a dangerous drug involved and for aggravating factors, where one exists, such as an international element, after the commission of the offence under consideration. The discount for a mitigating factor that is conditional upon an event taking place, such as a guilty plea, when it has occurred is a relevant consideration for a sentencing court. If a defendant does not plead guilty, he has lost the opportunity to receive a discount to his sentence, and if found guilty for the offence he will be sentenced according to the sentencing guideline or tariff that existed at the time of the commission of the offence.

48.We note that the commission of the offence by D1 of conspiracy to traffic in 10,250 grammes of cocaine narcotic was between 12 and 27 November 2013. The sentencing guideline cases for cocaine are R v Lau Tak Ming and Ors[31] in 1990; Attorney General v Rojas[32]in 1994, and HKSAR v Abdallah Anwar Abbas[33] (for large quantities) in 2009, which were applicable at the time of the commission of D1’s offence. The guideline or tariff for an international element was also HKSAR v Abdallah Anwar Abbas, which had been elaborated upon but not increased in HKSAR v Chung Ping Kun[34]in 2014.

49.On 4 June 2016, D1 was in the court system, having been charged and brought before a Magistrate. He was committed to be tried in the Court of First Instance on 19 August 2016 and his trial was listed on 28 September 2016. He indicated his guilty plea of the offence on 21 April 2017, which he entered on the first day of trial on 4 May 2017. Accordingly, D1 had been sentenced according to the applicable guidelines and had not been subject to a “heavier penalty”.

50.We note that recently this Court has set out the steps or approach to be taken when sentencing drug trfficking cases as well as how aggravating factors should be considered, including an international element, in the trilogy of cases of HKSAR v Herry Jane Yusuph[35]; HKSAR v Lee Ming Ho[36]; and HKSAR v Raman Kapusamy[37].

The interpretation point

51.The Court of Appeal in Ngo Van Nam revised the sentencing practice for the range of discount for a guilty plea. The entering of a plea of guilty will afford the defendant a discount to his or her sentence depending on the stage of the criminal proceedings at which the plea is entered. The Court stated that the revised practice was subject to the overriding discretion of the sentencing court and was to be applied in the future (from the date of the decision on 2 September 2016) depending on the stages in the criminal proceedings identified in the judgment the defendant has entered his or her guilty plea.[38]

52.The first question that we have to address in this appeal is whether the revised practice applied to D1, and if not, should he have received the full one third discount for a guilty plea that was entered on or before the first day of trial, which was usually given prior to the revised practice. If the revised practice applied, the next question is whether D1 should nevertheless have received the full one third discount in the circumstances of his case.

53.Mr Lee has advanced a similar argument regarding the meaning and application of Ngo Van Nam, which was rejected by this Court in Tsang Wai Hung. The Court in Tsang Wai Hung held that the terms of paragraph 236 of Ngo Van Nam were very clear and meant to apply after 2 September 2016 to the stages of proceedings at various levels of courts identified in the revised practice.

54.As we understand Mr Lee’s submission, he argued that the third stage (after trial dates have been fixed but before the first day of trial) only applied to those defendants who had lost the one third discount in the Magistracy. Otherwise it would be “contradictory” to the example given in the third sentence in paragraph 236, namely “a defendant in respect of whom trial dates have been fixed in the Court of First Instance who pleads guilty on the first day of his trial is to benefit from the existing practice of affording a discount of one third from that taken as a starting point for sentence.” He argued in the present case that the revision of the discount at the third stage did not apply to D1 because the first stage did not apply.

55.It is quite clear from a reading of paragraph 236 that as of 2 September 2016 the revised practice is to be applied to a defendant who reaches the stages in criminal proceedings identified in the judgment at which revised discounts of sentence for pleas of guilty are set out as explained by the two examples. The underlying policy of the revised practice is that the timeliness of a plea of guilty is important and determines the amount of discount a defendant is to receive to his or her sentence. Each time a defendant reaches a stage in the criminal proceedings without having entered a plea of guilty he or she has lost the opportunity to receive the applicable percentage discount under the revised practice. The formula for a discount on a plea of guilty is based on the simple proposition that the later the guilty plea is entered, the lesser the discount the defendant is to receive for his or her sentence. Hence, the stage of the proceedings at which a defendant has pleaded guilty will determine the percentage discount he or she is to receive for his or her sentence.

56.For the purpose of this appeal, D1 has filed an affirmation in which he stated he could not recall whether he was informed of the change in the sentencing policy in Ngo Van Nam before the listing hearing. He had met with a Legal Aid officer on 8 September 2016, and from the meeting record, although in English, it records instructions from him, so it would appear the meeting was conducted in Chinese, and the information contained in the record was appropriately conveyed to him. There is an extensive note alongside the signing clause regarding the judgment of Ngo Van Nam, setting out the percentage discounts for a guilty plea after committal but before listing of 25% and after trial dates have been fixed but before the first day of trial of between 25% and 20%. Based on this record, we are satisfied that the terms of Ngo Van Nam were appropriately conveyed to and understood by D1.

57.As timing is an important criterion in determining an appropriate percentage reduction to a defendant’s sentence for a plea of guilty, it is appropriate to consider the relevant dates in this case. On 19 August 2016, D1 pleaded not guilty to the offence of conspiracy to traffic in a dangerous drug in the Magistracy and his case was committed to the High Court for trial. On 2 September 2016, the Court of Appeal handed down its judgment in Ngo Van Nam, setting out the revised sentencing practice for guilty pleas. On 8 September 2016, D1 was informed of the terms of Ngo Van Nam. On 28 September 2016, at the Listing Hearing of D1’s case, the trial dates were fixed from 4 to 17 May 2017. By letter dated 21 April 2017, D1 indicated he would plead guilty to the offence of conspiracy to traffic in a dangerous drug.

58.It follows from what we have said that the revised practice in Ngo Van Nam applied to a D1 when he entered his guilty plea. The stage at which he entered his plea of guilty, he fell within the range of discount from 25% to 20%. He was given by the Judge the maximum discount available at this stage of the proceedings of 25%.

A just and proportionate sentence

59.In sentencing D1, the Judge adopted the same starting point of 28 years’ imprisonment as he did for Cheung in respect of 10,250 grammes of cocaine narcotic, which he enhanced by 2 years for the international element to 30 years’ imprisonment. The Judge reduced the sentence by 25% for D1’s guilty plea to 22 years and 6 months’ imprisonment. We see no reason to disturb the Judge’s notional starting point of 30 years’ imprisonment as we are of the view it properly reflects D1’s role and culpability in an organised and extensive conspiratorial enterprise to traffic an exceedingly high quantity of cocaine narcotic, which is consistent with the guideline cases and the trilogy of sentencing cases that we have previously referred to.

60.There is the additional matter that D1, at the time of sentencing, was serving another sentence of 16 years’ imprisonment for an unrelated offence of trafficking in a dangerous drug in HCCC 337/2015. This offence took place on 8 December 2014 and involved him collecting a parcel containing 1.1 kilogrammes of cocaine narcotic, that had been sent from the United States of America. On 15 December 2015, he pleaded guilty to the trafficking offence and admitted that he knew the parcel contained dangerous drugs when he took delivery of it but did so for someone else for a reward of $5,000. The judge, in that case, adopted a starting point of 22 years’ imprisonment, which she enhanced by 2 years for the international element to 24 years’ imprisonment. This was reduced by one third for D1’s guilty plea to a sentence of 16 years’ imprisonment.

61.The Judge in the present case ordered that 5 years and 6 months’ imprisonment of the sentence in HCCC 337/2015 run consecutively to the sentence in the present case of 22 years and 6 months’ imprisonment, resulting in a total sentence for the two cases of 28 years’ imprisonment. Mr Lee argued that the combined sentence of 28 years represents a starting point of 42 years’ imprisonment (after a one third discount for a guilty plea), which is manifestly excessive in the circumstances. He submitted that D1’s participation in the two drug trafficking cases was comparatively low and that this should be reflected in an overall lower global starting point. We observe that the two cases have to be assessed separately for the purposes of sentencing and the resultant sentence in each case should have taken into account D1’s role and culpability. He further submitted that the consecutive element was too high when taking into account the overall starting point for both offences. As a general proposition, an offender who commits more crime will receive more punishment. However, this will be subject to relevant sentencing policies and principles, particularly the totality principle. As the two cases concern drug trafficking offences of cocaine narcotic, the sentences can be high where the quantity of drugs involved is substantial. Even though the two cases are separate and distinct, if they were sentenced together, a sentencing court would take into account the overall starting point, especially when it reaches an extremely high level. However, it is not that straightforward because a number of factors will need to be taken into account, such as, the nature of the two cases and any similarities between them, to what extent they can be treated together, how the sentence for the other offence was determined, and the length and time served of the sentence for the other offence.

62.When a defendant is already serving a term of imprisonment for an offence, the sentencing court in passing sentence on the defendant for another offence is in effect increasing the total period of imprisonment the defendant is to serve. Therefore, it is preferable that the sentencing court if it intends to impose an additional term of imprisonment to make it consecutive to the period of imprisonment to which the defendant is already subject.

63.The present offence was first in time. It was committed between 12 and 27 November 2013, while the other offence was committed on 18 December 2014, a little over a year later. D1 was sentenced to 16 years’ imprisonment after a one third discount for the other offence on 15 December 2015, while D1 was sentenced to 22 years and 6 months’ imprisonment after a 25% discount for the present offence on 16 May 2017. As already noted, the Judge ordered that 5 years and 6 months of the sentence of the other offence be served consecutively to the sentence of the present offence. The Judge should have made an consecutive order the other way around by determining an appropriate portion of the sentence to be passed on the present offence to run consecutively with the serving sentence.

64.When sentencing a defendant for multiple offences, whether they have occurred at the same time or different times, the totality principle plays an important role in achieving a just and proportionate sentence, avoiding one that is unfair and crushing to the defendant. The sentencing court should fix appropriate sentences for each offence, then consider the application of the totality principle, and whether the sentences should be structured to achieve a total effective sentence that is just and proportionate. The overall effective sentence should provide a suitable punishment for the criminality involved in its various manifestations, and this can be achieved by making the sentences concurrent or consecutive, depending on what is appropriate. This approach also applies when sentencing a defendant who is serving a sentence for another offence or offences.

65.It is necessary to repeat briefly the circumstances of each case. The first in time is the present offence, which involved D1 in November 2013, travelling to Brazil to collect a suitcase containing 10.25 kilogrammes of cocaine narcotic and taking it to Abu Dhabi to give to Cheung for him to take it to Hong Kong. The second offence involved D1 in December 2014, collecting a parcel containing 1.1 kilogrammes of cocaine narcotic that had been sent from overseas to Hong Kong. According to the sentencing guideline, the present case would have a notional starting point of 30 years and 3 months’ imprisonment (including the international element, and the other case would have a notional starting point of 24 years and 6 months’ imprisonment (including the international element). If the quantity of drugs were combined the notional starting point for 11.35 kilogrammes of cocaine narcotic would be 30 years and 8 months’ imprisonment (including the international element). We also note that D1 received a discount to his sentence of 25% in the present case and one third in the other case. There were no other mitigating factors warranting a reduction in sentence.

66.Applying the totality principle, we consider that D1 should serve a total of 26 years’ imprisonment for the two cases. This can be achieved by ordering that 10 years of the sentence of 22 years and 6 months’ imprisonment for the present case be made consecutive to the sentence of 16 years’ imprisonment in the other case. To this extent, we allow D1’s appeal against sentence.

D2’s renewal application against conviction

67.There is a protracted history to D2’s challenge of his conviction that is discussed in detail in the leave judgment.[39]  Inordinate delay has been occasioned in this case for an offence that took place nearly eleven years ago. D2 has submitted a series of letters over the years listing numerous grounds and sub-grounds of appeal, which have varied and changed during this period. The renewal application now rests on a single ground of appeal, which seeks to argue that the Judge failed to appropriately warn the jury not to use Cheung’s plea of guilty against D2. Mr Ross has raised an additional matter outside the terms of the renewed ground in his written submission regarding Cheung’s knowledge that he was smuggling dangerous drugs into Hong Kong.

The prosecution case

68.The prosecution case against D2 was primarily based on the evidence of Cheung that was supported by text messages from a Samsung mobile telephone (Exhibit P62) and photographs from a Nokia mobile telephone (Exhibit P28) that were seized from Cheung when he was the arrested.

69.We will need to repeat substantially the facts and circumstances as admitted by D1 when he pleaded guilty to the offence of conspiracy to traffic in a dangerous drug because he essentially agreed with the account given by Cheung.

70.Cheung testified that, in 2011, he had met a woman called “Kwai Che” inside an amusement game centre.[40] In April 2013, Kwai Che asked Cheung if he was prepared to travel to a foreign country and bring back goods for a reward of at least HK$40,000.[41] Cheung subsequently accepted the offer in August 2013.[42] One to two days later, a person called “Ah Kei”, who was identified by Cheung as D2, telephoned Cheung, requesting the particulars of his passport and Home Visit Permit.[43] D2 told Cheung to wait for further instructions about the trip. Cheung stored D2’s mobile telephone number under the name “Kei” in Exhibit P62.[44] Cheung then followed up with Kwai Che and D2 about the trip he was to make during August and September 2013. In September 2013, D2 telephoned Cheung, requesting again for the particulars of his passport.[45]

71.On 28 October 2013, Cheung sent the particulars of his travel documents again to D2,[46] who had requested them during another telephone call. At about 10 pm on 17 November 2013, inside Neway Karaoke in Mongkok,[47] D2 gave Cheung a suitcase and a Nokia telephone (Exhibit P28) and told him to take them with him when he went overseas. The Nokia telephone was to be used for communication purposes whilst he was overseas.[48] D2 instructed Cheung that he would be leaving one or two days later and that he would call him again to arrange another meeting. On 19 November 2014, Cheung had a further meeting with D2 as arranged, at which D2 gave him a print-out of an electronic air ticket to Abu Dhabi in the United Arab Emirates, the name and address of a hotel in Abu Dhabi and US$1,300 in cash for him to rent a room during his stay.[49] Cheung was told that the destination had been changed to the Middle East because of the lower risks involved and, accordingly, his reward was to be reduced to HK$25,000.[50] Later on the same day, Cheung flew to Abu Dhabi.

72.During his stay in Abu Dhabi, Cheung maintained contact with D2 through the Nokia telephone using D2’s two telephone numbers, one of which was the same telephone number that Cheung had communicated with D2 when he was in Hong Kong. On 24 November 2013, Cheung received a telephone call from D2, who said that he was to meet a person in the lobby of the hotel where he was staying and that the person would give him something.[51]

73.Cheung later met D1, and they swapped their respective suitcases, with Cheung receiving the suitcase containing the dangerous drugs (Exhibit P1).[52] On the same day, D2 sent Cheung a photograph of an electronic air ticket and informed him that he would be flying back to Hong Kong later that evening.[53] Cheung went to the airport, but due to a visa problem he did not board the flight and returned to the hotel according to D2’s instructions. D2 rescheduled Cheung’s return flight for 27 November 2013.[54] In the meantime, Cheung went out with D1 to have a drink in a nightclub, and D1 told him Ah Kei’s full name was that of D2.[55] D1 also told Cheung that D1 had previously taken several trips from Brazil to Hong Kong, and to avoid suspicion he chose to take “the stuff” from Brazil to Abu Dhabi and give them to another person to carry to Hong Kong.[56] As he had to extend his stay in Abu Dhabi, he requested that D2 remit more money to him for hotel accommodation and expenses. He then received US$1,000 from a Western Union office.[57] On 27 November 2013, Cheung flew back to Hong Kong with the suitcase containing dangerous drugs, and was arrested.

74.On 16 September 2015, D2 was arrested for conspiring to traffic in dangerous drugs with Leung Kwai Ho, D1 and Cheung. After he was cautioned, D2 said, “I do know the three of them, but I do not know they trafficked in (dangerous) drugs”.[58] In a subsequent video recorded interview under caution,[59] D2 said he had known D1 since childhood.[60] He had become acquainted with Leung Kwai-ho, whose nickname was Kwai Che[61], and Cheung[62] in a video game centre in To Kwa Wan. He had come to know Kwai Che in about July 2012,[63] and in August 2012, Kwai Che introduced Cheung to him.[64] On 17 November 2013, he assisted his friend, Eddie, in handing over a newly purchased suitcase[65] and a printout of an electronic air-ticket[66] to Cheung inside the Neway Karaoke in Mongkok. D2 further said that he had two mobile telephone numbers in use.[67] He said he did not have any recollection[68] of the telephone number that Cheung allegedly communicated with him in Hong Kong and Abu Dhabi. He denied meeting Cheung on 19 November 2013.

The defence case

75.D2 elected not to testify at trial or call any witness. He did not challenge the admissibility of his record of interview, which was adduced into evidence. He admitted most of the prosecution case, including D1’s itinerary to and from Brazil and Hong Kong via Abu Dhabi between 15 and 27 November 2013.

76.According to the questions put to the witnesses, D2’s case was that he had no knowledge of any trafficking activities involving Cheung and D1 and did not take part in arranging the return air ticket to Abu Dhabi. It was submitted that D2 should not be convicted on the testimony of Cheung, who was not a credible witness.

The summing-up

77.In explaining to the jury the offence of conspiracy to traffic in a dangerous drug, the Judge instructed them that they had to be sure of the following three elements, namely, (1) there had to be an agreement between two or more persons to traffic in a dangerous drug; (2) D2 agreed with Cheung or D1 or both of them that trafficking in a dangerous drug should be committed; and (3) D2 intended that they should carry it out.[69]

78.In respect of D1, who was jointly charged with D2 in the indictment, the Judge directed the jury not to concern themselves with or speculate about D1’s case.[70]

79.In respect of Cheung’s guilty plea to the charge of trafficking in a dangerous drug, the Judge directed the jury in the following terms:[71]

“In the present case, the prosecution case is that the defendant had agreed with Cheung Chi-yuen or Lin Chi-man or both of them, to import the suitcase of cocaine carried into Hong Kong by Cheung Chi-yuen. It is not in dispute that Cheung Chi-yuen had imported the relevant cocaine into Hong Kong on 27 November 2013 and he has committed the offence of trafficking in dangerous drugs. Cheung Chi-yuen has pleaded guilty to the offence.

As for constituted the offence of trafficking in a dangerous drug. It would sufficient for me to tell you for the present purpose that importing dangerous drugs into Hong Kong is in law constituting trafficking in dangerous drugs. And to commit the offence of trafficking in dangerous drugs, the person charged with the offence must have known what he was importing was a kind of dangerous drugs. Whether the trafficking had actually taken place is not an essential element of the conspiracy charge the defendant is now facing. What is important for you consider is whether the defendant has agreed with Cheung Chi-yuen or Lin Chi-man or both of them to traffic in dangerous drugs and whether the defendant has the intention at the time of his entering to the agreement to carry out the trafficking. Although whether the actual trafficking had taken place is relevant to whether the conspirators had the intention to carry out the trafficking.”

D2’s renewed ground of appeal

80.The crux of the complaint in the renewed ground of appeal is that the Judge failed to warn the jury that they could not use the guilty plea of Cheung to trafficking in a dangerous drug in support of a finding that D2 was involved in a conspiracy with Cheung to traffic those drugs.[72] It is additionally argued that Cheung may not have been a conspirator because he may not have known that he was carrying dangerous drugs, and therefore, without the requisite knowledge that he was trafficking in the dangerous drugs, D2 could not have been a party to any conspiracy with him to traffic in the dangerous drugs.

The failure to warn of Cheung’s guilty plea

81.It was D2’s defence that he did not know the suitcase contained dangerous drugs and that Cheung was not a credible witness who should not be relied upon to convict him. Mr Ross submitted that as Cheung’s guilty plea to trafficking in the same drugs that D2 was accused of conspiring to import, the Judge should have warned the jury that Cheung’s guilty plea could not be used against D2 in any way. He referred to R v Moore[73], in which it was held that one accused’s plea of guilty is not evidence against another accused. He submitted that a trial judge must make it clear to the jury that the fact that one of the accused pleaded guilty and had been convicted on that plea was not admissible against the other accused: R v Romeo[74].

82.In the present case, Mr Ross noted that the Judge did not direct the jury that Cheung’s guilty plea was not evidence against the applicant and had no bearing on his guilt. He referred to the Judge’s directions to the jury when he discussed the prosecution case. The Judge explained that the prosecution case was that D2 had agreed with Cheung or D1 or both of them to import the suitcase of cocaine carried into Hong Kong by Cheung. He noted that it was not in dispute that Cheung had imported the cocaine into Hong Kong and had committed the offence of trafficking in dangerous drugs, to which Cheung had pleaded guilty. The Judge further explained that for the substantive offence of trafficking in dangerous drugs by importing, the person charged must have known what he was importing was a kind of dangerous drug. He noted that whether the trafficking had actually taken place was not an essential element of the conspiracy charge that D2 faced. What was important for the jury to consider was whether D2 had agreed with Cheung or D1 or both of them to traffic in dangerous drugs and whether D2 had the intention at the time of his entering into the agreement to carry out the trafficking. The Judge added that whether the actual trafficking had taken place was relevant to whether the conspirators had the intention to carry out the trafficking.[75]

83.Mr Ross referred to aspects of Cheung’s evidence regarding his knowledge of the dangerous drugs in the suitcase he brought back to Hong Kong. His submission, however, lacked an appraisal of the overall facts and circumstances of the case from which could be drawn the irresistible inference that this group were involved in trafficking in a dangerous drug.

84.In cross-examination by D2’s counsel, Cheung stated that he was aware that the dangerous drugs were kept inside the suitcase but he did not know the quantity. He agreed that, in Abu Dhabi, he was aware he was carrying the suitcase containing the dangerous drugs back to Hong Kong.[76] Later in his evidence, he said that in Abu Dhabi he guessed the suitcase contained dangerous drugs because D1 “brought it from Brazil to Abu Dhabi and then would deliver it to another person so that that person could bring it to Hong Kong”.[77] Previously, in examination-in-chief, Cheung said that D1 told him he had taken several trips from Brazil to Hong Kong. To avoid suspicion, he took “the stuff” from Brazil to Abu Dhabi and gave it to another person to carry back to Hong Kong. D1 also told him how cheap the cocaine was in Brazil.[78] In re-examination, he said he guessed the suitcase contained smuggled goods or some dangerous drugs, although emphasising he had no idea about the quantity of the dangerous drugs. He was shocked when he found out the quantity was so large.[79]

85.This aspect of Cheung’s evidence was discussed by the parties with the Judge in the absence of the jury after they had finished their respective closing speeches and before the summing-up.[80] D2’s counsel confirmed with the Judge that there was no issue that Cheung knew there were dangerous drugs inside the suitcase.[81] She also acknowledged that there was ample evidence on which the jury could draw the inference that dangerous drugs were smuggled in the suitcase, but questioned whether it would be an irresistible inference.[82] Arising from this discussion, the Judge gave the following directions to the jury about this aspect of Cheung’s evidence:[83]

“Ms Lee mentioned to you the relevance of the conspirators’ knowledge about the drugs in her closing speech. What I should say is that the agreement the prosecution has to prove is an agreement to traffic in dangerous drugs. Nothing less than that is sufficient. It will not be sufficient if the agreement was merely to import some kind of illegal articles which are not drugs.

You may remember Cheung Chi-yuen said in his evidence that he guess what was contained in the suitcase was smuggled goods or drugs. But you may also remember he said in his evidence that he knew there was drug inside the suitcase but he did not know the quantity of it. In any event, Cheung Chi-yuen had pleaded guilty to offence of trafficking in dangerous drugs and an essential element of that offence was that he had the knowledge that what he was importing was dangerous drugs. By pleading guilty to that offence, Cheung Chi-yuen has admitted that he knew or believed that there was drug inside the suitcase.”

86.Mr Ross, in his written submission, had not included the first paragraph of this passage of the Judge’s summing-up, in which the Judge firmly directed the jury that they had to be satisfied that the agreement was to import “dangerous drugs”.

87.It is also noteworthy that before the Judge gave these directions he emphasised to the jury that there was no direct evidence in the case to prove that D2 had actually agreed with someone to conspire or that he had the necessary intention to traffic in the dangerous drugs. He added that the prosecution mainly relied on the evidence of Cheung to prove its case and was asking them to infer from all the circumstantial evidence that an agreement existed to traffic in the dangerous drugs and D2 was a party to it.[84]

88.Ms Fung, in response, noted that it was an admitted fact that Cheung had pleaded guilty to trafficking in the dangerous drugs found in the suitcase and that he had been sentenced to 20 years’ imprisonment. It was also an admitted fact that Cheung was appealing his sentence on the basis of the assistance and information that he had given against D1 and D2 and might get a sentence reduction for the assistance he had rendered to the police, including his evidence in court against the applicant. She pointed out that the evidence of Cheung’s conviction and sentence was relevant to his credibility and reliability, which the defence relied upon to argue that Cheung had his own interest to serve.

89.Ms Fung submitted that although the Judge had not directed the jury to use Cheung’s guilty plea as evidence of guilt against D2, such a warning was unnecessary. In the summing-up, the Judge rightly told the jury that by pleading guilty to the offence of trafficking in dangerous drugs, Cheung had admitted that he knew or believed that there were dangerous drugs in his suitcase. Such direction accurately described the effect of the evidence of Cheung’s guilty plea.

Discussion

90.D2 stood trial on a count which alleged that he and D1, between 12 and 27 November 2013, had conspired with Cheung to unlawfully traffic in a dangerous drug.[85]

91.As already noted, it was an admitted fact that when D2 was arrested for conspiracy with “Leung Kwai Ho”, “Lin Chi Man” (D1) and “Cheung Chi Yuen” to traffic in dangerous drugs, he said after being cautioned, “I do know the three of them, but I do not know that they trafficked in dangerous drugs.”[86] It was also an admitted fact that, on 27 November 2013, Cheung was arrested at Hong Kong International Airport and he subsequently pleaded guilty to trafficking in a quantity of cocaine found in his luggage. He had been sentenced to 20 years’ imprisonment, which he was appealing on the basis of the assistance and information he had given against D1 and D2.[87]

92.It is important to note that Cheung pleaded guilty to the substantive offence of trafficking in a dangerous drug in which he admitted his guilt of trafficking in the dangerous drugs contained in the suitcase. He did not plead guilty to a conspiracy charge.

93.It is also highly relevant that the prosecution at no time submitted to the jury that they could draw the inference that the applicant was guilty of conspiring with Cheung because Cheung had pleaded guilty to trafficking in the dangerous drugs in question. Nor was anything of this sort mentioned by the Judge in his summing-up.

94.There was no issue that Cheung had smuggled the dangerous drugs into Hong Kong. Hence, the question for the jury was whether D2 was a party to a conspiratorial enterprise to traffic in the dangerous drugs. The fact that Cheung had pleaded guilty to the substantive offence of trafficking in the dangerous drugs and sentenced to 20 years’ imprisonment was relied upon by the defence to discredit him, alleging he was giving evidence against D2 to receive a reduction to his sentence. There was no necessity for the Judge to give a direction in respect of Cheung’s guilty plea, he was a witness for the prosecution who admitted his guilt before the jury and testified as to his involvement in the case. As an accomplice witness, the judge reminded the jury that Cheung had his own interest to serve in giving evidence against D2 and that they should consider his evidence with “extra care”.[88]

95.Mr Ross made several critical observations about the Judge’s review of Cheung’s evidence, which are irrelevant to this ground of appeal. The Judge thoroughly summarised Cheung’s evidence, which he instructed the jury to carefully consider. As directed by the Judge, the key issue for the jury was whether D2 agreed with Cheung or D1 or both to traffic in the dangerous drugs and whether D2 had the intention when entering the agreement to carry out the trafficking of those dangerous drugs.[89]

Cheung’s lack of knowledge of the dangerous drugs

96.Mr Ross submitted that the common law rule against using a co-accused’s guilty plea also applies where the offence to which the accused pleaded guilty, and the offence to which the other accused pleaded not guilty, contain a common element. As we understand his argument, he contended that to prove D2 was guilty of the conspiracy to traffic, the jury had to be satisfied that he intended to traffic in dangerous drugs as would be required for the substantive offence of trafficking in dangerous drugs.

97.Mr Ross submitted that the Judge, in reminding the jury that Cheung had pleaded guilty to the offence of trafficking in the dangerous drugs and that by his guilty plea he admitted that he knew or believed there were the dangerous drugs inside the suitcase, had all but ruled out Cheung’s evidence that he had only guessed he was carrying the dangerous drugs in the suitcase. He submitted that the following consequences may have resulted from the Judge’s directions. The jury may have accepted that Cheung did know that he was carrying dangerous drugs in the suitcase. In the absence of a warning that Cheung’s guilty plea could not be used in any way against D2, the jury may have wrongly come to the view that Cheung’s guilt could support an argument that D2 must have also known the suitcase contained dangerous drugs, and implicitly that D2 had agreed with Cheung to traffic in dangerous drugs.

98.Mr Ross further argued that the Judge’s directions had “effectively shut off consideration” by the jury whether Cheung had merely guessed, but did not know, he was carrying a suitcase containing dangerous drugs. He submitted that it was a jury question whether Cheung pleaded guilty because he knew or guessed the suitcase contained dangerous drugs. He contended that if the jury had found that Cheung did not know the suitcase contained dangerous drugs, Cheung could not have been a co-conspirator. The jury would then have been limited to consider whether D2 conspired with D1 to traffic the dangerous drugs and whether D1 knew the suitcase contained dangerous drugs.

99.Mr Ross pointed out that there was no direct evidence that D1 knew the suitcase contained dangerous drugs. He mentioned that Cheung testified that D1 had told him that D1 had taken “the stuff” in a suitcase from Brazil to Abu Dhabi and handed it to Cheung but this was not direct evidence that D1 knew the suitcase contained dangerous drugs.[90] In his oral submissions, he complained that such evidence was hearsay and propensity evidence, which was inadmissible. No objection had been taken at trial in relation to this evidence, and it was not formulated as a ground of appeal before us.

100.In respect of D2’s argument that the jury would have to consider whether D2 conspired with D1 to traffic in dangerous drugs if the jury had found that Cheung only guessed there were dangerous drugs, Ms Fung submitted that there was sufficient circumstantial evidence to draw the only reasonable inference that D1 knew there were dangerous drugs in the suitcase and he had the intention to carry out the agreement to traffic in the dangerous drugs.

101.Ms Fung pointed out that the suggestion that D1 told Cheung about the former’s previous trips to Brazil was hearsay and that the jury were not warned against using propensity evidence were not advanced as a ground of appeal. She noted that Cheung’s testimony of D1 saying that he had previously travelled to Brazil was an out-of-court statement for non-hearsay purposes or under the co-conspirator’s rule. She further argued that the conversation was not propensity evidence to show D1’s guilt or to be used against D2 for this purpose. The travel movements of Cheung and D1 and the calls and text messages on Cheung’s mobile telephones with D1 and D2 were not in dispute and adduced in the admitted facts.[91]

Discussion

102.This argument regarding Cheung’s lack of knowledge of the dangerous drugs had been previously advanced and rejected in the leave judgment.[92]

103.Mr Ross argued that Cheung may not have been a co-conspirator because he did not know, or may not have known, that he was carrying dangerous drugs. He submitted that there was no direct or sufficient evidence that D1 knew the suitcase contained dangerous drugs. Hence, D2 could not have conspired with Cheung to traffic in the dangerous drugs if Cheung did not have knowledge of the dangerous drugs. This meant that D2 could only be convicted of the conspiracy to traffic in the dangerous drugs with D1. He submitted that the evidence of D1’s knowledge of the dangerous drugs came from Cheung’s evidence that D1 told him he had made several previous trips from Brazil to Hong Kong. He contended that had the jury found D1 was a co-conspirator on this evidence, they were wrong to do so because it was not proven he knew the suitcase contained dangerous drugs.

104.The obvious answer to this submission is that it does not address all the evidence, engaging in speculation and limited analysis. The evidence against the three of them, D1, D2 and Cheung, was overwhelming once the jury accepted Cheung’s evidence, which included the elaborate preparations and steps taken by D2 to send Cheung to collect the dangerous drugs from D1 in Adu Dhabi and bring them back to Hong Kong. There was a considerable body of evidence from which the jury could draw the irresistible inference that they knew they were transporting dangerous drugs and a party to a conspiratorial enterprise to traffic in them. As already noted, D2’s counsel at trial, having an appreciation of the whole of the evidence, confirmed that no issue was taken that Cheung knew there were dangerous drugs in the suitcase:[93]

“COURT: Now, so the first thing I want to know is whether there is an issue that Cheung knew there was drugs inside the suitcase. Is there any issue on this, in this trial?

Ms LEE: No. I don’t have any issue on it.”

D2’s counsel made the point that the jury had to be sure that D2 knew that dangerous drugs were involved. She accepted there was ample evidence before the jury on this issue, but it turned on whether they could draw an irresistible inference that dangerous drugs were involved.[94]

105.We reject Mr Ross’ contention that on the basis of the two arguments he advanced, the applicant lost two chances of an acquittal. The jury were clearly instructed that they had to be satisfied to the requisite standard that D2 agreed with Cheung or D1 or both to traffic in the dangerous drugs and that he intended that they should carry out the agreement to traffic in the dangerous drugs. That was reflected by the jury’s unanimous verdict of guilty.

Conclusion

106.For the foregoing reasons, we allow D1’s appeal against his sentence and substitute his combined sentence of 28 years’ imprisonment with 26 years’ imprisonment, by ordering that 10 years of the sentence of 22 years and 6 months’ imprisonment in the present case run consecutively to the sentence he is serving in HCCC 337/2015 of 16 years’ imprisonment. We refuse leave to D2 on his renewed grounds and dismiss his appeal against conviction.

Ms Mickey Fung SPP, of the Department of Justice, for the Respondent

Mr Victor Lee, instructed by Betty Chan & Co, assigned by the Director of Legal Aid, for the Appellant (D1)

Mr Phillip Ross and Mr Ian Chu (22 November 2023), assigned by the Bar Free Legal Service Scheme, of the Hong Kong Bar Association, for the Applicant (D2)