HKSAR v. Abbas Waseem and Another

CACC 197/2021 [2024] HKCA 535

On appeal from [2021] HKCFI 3324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 197 OF 2021

(ON APPEAL FROM HCCC NO 415 OF 2019)

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REASONS FOR JUDGMENT

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

1.The 1^st appellant (D2 at trial), 2^nd appellant (D3 at trial) and Dar Asim Tahir (D1 at trial) originally faced an indictment that charged D1 with trafficking in a dangerous drug, namely 989 grammes of crystalline solid containing 921 grammes of methamphetamine hydrochloride (ice) (Count 1) and trafficking in a dangerous drug, namely 4,525 grammes crystalline solid containing 3,910 grammes of ice (Count 2). D1 was further charged together with D2 and D3 with jointly trafficking in dangerous drugs, namely 7,587 grammes of a mixture containing 4,625 grammes of heroin hydrochloride and 884.6 grammes of monoacetylmorphine hydrochloride, 3,363 grammes of a solid containing 2,600 grammes of cocaine and 4,544.3 grammes of a powder containing 3,792.9 grammes of ketamine (Count 3); and jointly manufacturing a dangerous drug, namely cocaine (Count 4).

2.At the commencement of the trial, D1 pleaded guilty to all four counts, whilst D2 and D3 pleaded not guilty to Counts 3 and 4.

3.The trial against D2 and D3 proceeded before D’Almada Remedios J (the judge) and a jury on an amended indictment in which they were charged with conspiracy together with D1 between April 2018 and 3 October 2018 to traffic in dangerous drugs, namely ice, cocaine, ketamine and heroin (Count 1); in the alternative, together with D1, on or about 4 October 2018, with jointly trafficking in dangerous drugs, namely the drugs as particularised in the previous Count 3 (Count 2); and conspiracy together with D1, between April 2018 and 3 October 2018, to manufacture a dangerous drug, namely cocaine as particularised in the previous Count 4 (Count 3); in the alternative, together with D1, on or about 4 October 2018, with jointly manufacturing a dangerous drug, namely cocaine (Count 4).

4.D1 gave evidence for the prosecution at the trial of D2 and D3, after which D2 was convicted of Counts 1 and 3 (by a majority verdict of 5 to 2), while D3 was acquitted of Counts 1(by a unanimous verdict), 3 and 4 (both by a majority verdict of 6 to 1) but convicted of Count 2 (by a unanimous verdict).

5.The judge sentenced D1 to a total term of 17 years and 8 months’ imprisonment; D2 to a total term of 32 years’ imprisonment; and D3 to a total term of 28 years’ imprisonment.

6.On 23 September 2021, D2 filed an application for leave to appeal against conviction in which he advanced four grounds of appeal that he supplemented with another four grounds in his subsequent written submissions. On 9 September 2021, D3 filed an application for leave to appeal against conviction and sentence. On 20 April 2022, Mr Richard Donald, Ms Nisha Mohamed (who presented the oral submissions for the appellant) and Ms Jacqueline Chan, under the Bar Free Legal Service Scheme on behalf of D3, filed four perfected grounds of appeal against conviction.

7.On 13 June 2023, after a hearing, the Single Judge granted the appellants leave to appeal on the following basis.[1]

8.In respect of D2, leave was granted to appeal against conviction on the sole ground of whether the judge was obliged to give a specific direction to the jury about D1’s evidence implicating D2 in previous drug trafficking activities unrelated to the allegations as contained in the counts on the indictment.

9.In respect of D3, leave was granted to appeal against conviction as follows: whether the judge erred in failing to direct the jury in accordance with the principles in HKSAR v Li Jin [2] that “something more than knowledge and acquiescence” was required to establish the exercise of control when alleging joint possession of drugs by a couple for the purpose of trafficking in them, and that the “ability to control” should be distinguished from the “actual exercise of control” (Ground 1); and whether the judge’s directions on custody, exercise and control may have misled the jury to establish D3’s custody and control, and knowledge of the drugs, simply on the basis that D3 was sharing a room with D2 (Ground 2). D3 was also granted leave to appeal against sentence.

10.At the conclusion of the hearing of this appeal, we dismissed D2’s and D3’s appeal against conviction and allowed D3’s appeal against sentence. We indicated that we would hand down the reasons for our decisions in due course, which we now do.

The admitted facts

11.It was not in dispute that at about 10:55 pm on 3 October 2018, police officers on duty in the district of Yuen Long intercepted D1, who was riding a bicycle towards them. Following a body search, they found on D1 a set of 3 house keys, a small amount of money and an iPhone, and verified with him that he was a Form 8 recognizance holder. Over the bicycle’s handlebars was a plastic bag containing suspected dangerous drugs, which was subsequently confirmed to be 921 grammes of ice narcotic (Count 1). D1 remained silent on arrest and caution and was taken to Yuen Long Police Station, where he confirmed under caution that the keys found on him were to his home, a village house in Wang Chau Fuk Hing Tsuen. He also voluntarily told the police officers that there were more drugs at his home.

12.Shortly after midnight, the police officers took D1 back to his home and gained entry to the ground floor of the two-storey village house with the keys found on D1. The village house consisted of a ground floor where D1’s bedroom was located, as well as a bathroom and a kitchen shared with the upstairs tenants, who were D2 and D3. After a search of D1’s bedroom, the police officers found 8 plastic bags containing suspected dangerous drugs, which were subsequently confirmed to be a total of 3,910 grammes of ice narcotic (Count 2). Inside the kitchen, the police officers found electronic scales, electric blenders, two metal pots, and ladles with traces of cocaine on them. There were also baking soda and cocaine in two packets and a number of transparent resealable bags. At trial, D1 claimed that the tools found in the kitchen were used by him, D2 and D3 to manufacture cocaine.

13.The police officers entered the bedroom on the first floor, where they saw D2 and D3 on the bed. They found inside the bedroom various plastic bags containing suspected dangerous drugs, which were subsequently confirmed to be a total of 4,625 grammes of heroin narcotic, 884.6 grammes of ice narcotic, 2,600 grammes of cocaine narcotic, 3,792 grammes of ketamine narcotic (Count 3), and 4.6 kilogrammes of a white substance (Count 4), which at trial was said to be a mixture for manufacturing cocaine.

The prosecution case

14.As for the conspiracy offences under Counts 1 and 3, the prosecution relied on D1’s evidence.[3] He testified that he had known D2 since they were 12 years old, as they lived in the same village in Pakistan. They met again in Hong Kong in 2016 when they were both making non-refoulement claims. D1 had been purchasing drugs from D2, up until April 2018, when D2 offered D1 free accommodation and cocaine and a weekly payment of $5,000 for D1 to deliver drugs for D2. D2 and D3 were a couple who had been living at the house before D1 moved in during April 2018. D2 would give D1 the drugs to be delivered to customers, and D3 would do the same when D2 was not present; sometimes, she would weigh the drugs. D2 and D3 would manufacture cocaine in the kitchen, and sometimes D1 would assist when they needed help. The drugs found in the plastic bag on the bicycle handlebars and in D1’s bedroom were given to him by D2 for delivery to customers.

15.It was the prosecution case that D2 imported drugs from Pakistan to Hong Kong, hidden in parcels of clothing or chocolate, which would be posted to Filipino domestic helpers who knew D3. D1 and D3 would then go to collect the parcels, bring them back to the house, and keep them in the first floor bedroom where D2 and D3 lived. D1 would then distribute the drugs in accordance with D2’s instructions.[4] D2 and D3 would do the cooking or converting the cocaine into “crack”[5] and seek D1’s help if they were busy.[6] The DNA of D2 and D3 was found near the seal of a plastic bag containing 518 grammes of heroin narcotic found in the first floor bedroom.[7]

The defence case

16.The defence case was that the drugs in the house belonged to D1, whereas D2 and D3 had nothing to do with them. D2 claimed he moved into the house after D1 had rented it. D3 claimed she had no knowledge of drugs in the house or her bedroom, and even if she did, she did not possess the drugs and had no authority to exercise control over them.[8]

The summing-up

17.The judge identified the issues in dispute for each count, including D1’s credibility and reliability in respect of Counts 1 and 3; whether D2 and D3 were in possession of the drugs in respect of Count 2; and whether D2 and D3 took part in manufacturing the cocaine in respect of Count 4.[9] As for Count 2, she directed the jury that they had to decide, firstly, whether D2 and D3 had custody and control or the intention or authority to exercise custody and control over the drugs in their bedroom, if so, the jury had to consider whether the prosecution had proved that D2 and D3 had knowledge of the drugs.[10] She addressed the element of possession and gave various examples of what constituted possession.[11] She also addressed the element of knowledge allied to the issue of the circumstantial evidence and the drawing of inferences.[12]

18.Moreover, the judge directed the jury to consider each count separately and the case against and for each defendant separately on each count, emphasising that the evidence concerning each count and each defendant was different.[13]

D2’s appeal against conviction

19.At the leave hearing, D2, who appeared in person, advanced eight grounds of appeal, of which only one was given leave to appeal by the Single Judge, who also granted D2 an appeal aid certificate.

20.At the appeal hearing, D2 was represented by Mr Chan Siu Ming. He submitted that D2’s conviction was unsafe and unsatisfactory because the judge was obliged to give a specific direction to the jury about D1’s evidence implicating D2 in previous drug trafficking activities that were unrelated to the allegations contained in the counts on the indictment. He also complained that in respect of this evidence, the judge told the jury that D2 had been selling drugs to D1 since 2006, when D1 testified it was in 2016. We did not consider there was any substance in this latter point. It was D1’s evidence that he had previously known D2 in Pakistan and renewed his relationship with him in 2016 when they were both in Hong Kong. The jury would have realised that the judge’s reference to 2006 was a mistake and that it should have been 2016.[14] In any event, the judge, at the close of the summing-up, repeated D1’s evidence and correctly mentioned that D1 and D2 met up again in Hong Kong in 2016 when D1 purchased drugs from D2.[15]

21.Mr Chan argued that the reference to the previous drug dealings between D1 and D2 was not charged and was highly prejudicial. He added that even if this evidence was to show a connection between D1 and D2, the judge should have warned the jury how they should deal with it. He submitted that the judge should have instructed the jury that they had to be satisfied, to the requisite standard, that the drug dealings between D1 and D2 took place, and it was for this reason that D1 and D2 were connected; and that they should not rely on this fact to find that D2 was more likely to commit the alleged drug offences, nor that he had a propensity to commit them.

22.Mr Chan referred to HKSAR v Kwok Hing Tony [16] and related cases[17] regarding the admission of evidence of “uncharged acts”. The Court of Appeal in Kwok Hing Tony affirmed that a court may admit evidence of “uncharged acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events, but noted that a court should be alert to two points when directing a jury on such evidence: (a) the standard of proof; and (b) the use to which such evidence may be put. The Court added that in respect of (b) a judge must specifically remind the jury that they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence. The reason for this instruction was the potential for prejudicial misuse of evidence of other uncharged acts, but this would depend upon the particular circumstances of the case whether the failure to give such an instruction may have had an adverse effect on the fair trial of an accused. This was explained by the Court of Appeal in Ali Nazakat [18] on its review of the statements of principle in Kwok Hing Tony as follows:

“63. We can see from these statements of principle that the admissibility of ‘uncharged acts’ depends on the individual circumstances of each case. A court may admit such evidence if its refusal to do so would result in the jury having ‘an incomplete or incomprehensible account of events’. However, consideration would also be given to whether the prejudicial effect of the ‘uncharged acts’ would outweigh its probative value. It follows, that the nature and proximity of the ‘uncharged acts’ relative to the charged acts would be a highly relevant consideration. Where the ‘uncharged acts’ and the charged acts are the same or similar, there is a danger that a jury may be inveigled into impermissible reasoning as to the defendant’s propensity to commit the charged acts.”

23.Ms Audrey Parwani, for the respondent, submitted that not every uncharged act requires a direction, as suggested by Mr Chan. She pointed out that the Court in HKSAR v Ali Nazakat [19] had clarified the rationale of the principle in Kwok Hing Tony that it was to prevent unfairness to a defendant because if he could not distinguish acts with which he was charged from those with which he was not, he would not be able to present a defence to the charged acts.

24.We would emphasise that in determining whether a non-direction on uncharged acts amounts to a material irregularity, as explained in HKSAR v Lam Hing Chit [20], needs to be judged in the context of the overall circumstances of the case and the likely effect, assessed realistically, of the act on the jury’s reasoning in reaching their verdict.

25.In the circumstances of this case, D1 had pleaded guilty to jointly trafficking in a variety of drugs and manufacturing cocaine with D2 and D3, and gave evidence for the prosecution against them at their trial. D1’s evidence that he bought drugs from D2 since 2016 was introduced as part of the background of how D1 and D2 became acquainted when they were children in Pakistan, and how D2 came to offer D1 accommodation, drugs for his consumption and weekly fee of $5,000 to deliver drugs (which was relevant to the counts on the indictment).[21] D1’s evidence about his initial dealings with D2 was only briefly mentioned and would not have prejudiced D2 in presenting his defence for the considerably more serious charged acts of trafficking in a large quantity of dangerous drugs and manufacturing cocaine.

26.In our judgment, the judge was not obliged to give a specific direction to the jury about D1’s evidence regarding his initial dealings with D2 as it was not a material matter and paled into insignificance in the context of D1’s evidence against D2 regarding his involvement in trafficking and manufacturing drugs. The evidence of their initial dealings was relevant as part of the background and the relationship between D1 and D2, and had no adverse prejudicial effect because of the drug trafficking activities D1 alleged he and D2 committed as set out in the counts on the indictment. Moreover, the evidence, when considered in the context of D1’s evidence as a whole, would not have led the jury into impermissibly reasoning that because of it, they would have found that D2 committed or had a propensity to commit the drug offences alleged against him.

27.It was a matter for the jury whether they accepted D1’s evidence, having assessed his credibility. In our view, the summing-up as a whole was fair and balanced. The judge had repeatedly warned the jury to approach D1’s evidence with caution as he was hoping for a lesser sentence[22]; directed the jury that they may accept/reject all or accept/reject part of a witness’s evidence[23]; highlighted the inconsistencies in D1’s antecedent statement and non-prejudicial statements[24], and D1’s previous convictions, which went to his credibility[25]. We did not consider, in the circumstances, that the jury would engage in a line of impermissible reasoning when evaluating the evidence of the case against D2.

D3’s appeal against conviction

28.D3 was granted leave to appeal her conviction on two grounds, which we have addressed together. In Ground 1, it was averred that the judge erred in failing to direct the jury in accordance with HKSAR v Li Jin[26], that “something more than knowledge and acquiescence” was required to establish the exercise of control by a couple when alleging joint possession of drugs for the purpose of trafficking in them, and that the “ability to control” should be distinguished from the “actual exercise of control”. In Ground 2, it was complained that the judge’s directions on “custody, exercise and control” might have misdirected the jury to establish D3’s custody and control, and knowledge of the drugs, simply on the basis that D3 was sharing a room with D2.

29.Li Jin provided that in a case where joint possession of drugs is alleged against a couple residing together, knowledge of and acquiescence in the presence of drugs in the home is not enough to prove possession unless it can be shown that the acquiescing party had done something to advance or promote or encourage the other party’s possession.

30.In the present case, the jury were directed regarding Count 2 that the prosecution had to prove that D2 and D3 possessed the dangerous drugs, that they knew that what they possessed were dangerous drugs and that they possessed them for the purpose of trafficking.[27] Ms Mohamed contended that a Li Jin direction was necessary for a number of reasons[28]. Count 2 was proceeded on the basis of joint enterprise, and it was not disputed that D2 and D3 were an unmarried couple akin to the joint possession scenario in Li Jin. The verdict showed that the jury must have rejected D3’s defence of lack of knowledge, which made the distinction between the concepts of “ability to control” and “proof of exercising control” more important for the jury to consider D3’s alternative defence of lack of custody and control of the drugs, to avoid convicting D3 on the sole basis of knowledge. She further argued that the directions given on joint enterprise and mere presence[29] were not enough to remedy the situation. She contended that a Li Jin direction should have been given, and the jury should have also been directed that they must acquit D3 if they did not find that she did anything to advance, promote or encourage D2’s possession. Without such directions, she submitted, there was a risk that the conviction was based on the fact that D2 and D3 were occupiers of the room, and that D3 must have known about the drugs inside the first floor bedroom due to her sharing the room with D2, her relationship with D2 and her DNA being found on one of the packets containing drugs, and this would have rendered the conviction unsafe and unsatisfactory.[30]

31.Ms Parwani submitted that the judge did not err by not giving a Li Jin direction. She argued that the judge gave detailed directions, in line with the relevant specimen directions, as well as comprehensive guidance to the jury on how to approach the issue of possession. She contended that the present case was not like that in Li Jin where the spouse or partner knows of the drugs and the storage of them in the home, and therefore, in such circumstances, proof of control in a case of joint possession requires more than knowledge and acquiescence. She argued that D3’s case was that she had no knowledge of the drugs, and even if she did, she had no authority to deal with them, and thus was not in possession of the drugs.[31]

32.Ms Parwani further argued that the giving of a Li Jin direction would have been incorrect as the prosecution’s case against D2 and D3 did not rest on their mere presence in the room where the drugs were found. There was evidence from D1 as to their involvement, such as D3 handing drugs to D1 for his consumption and delivery, and D3 sometimes weighing the drugs. There was also other evidence, such as the seizure of $24,000 cash belonging to D3, D3’s DNA on a bag containing dangerous drugs, and D3’s admissions in her VRI that she and D2 had lived in the house before D1[32]; she knew of the existence of the bag inside the wardrobe a month before the present offence[33], and D1 would come to her room to ask for the packets when D2 was out; and she would telephone D2 and give the packet to D1, although she denied knowledge of the contents inside the bag[34].

33.Finally, Ms Parwani submitted that the evidence in relation to Counts 1 and 2 was not mutually exclusive; D3’s acquittal on Count 1 did not mean the jury had rejected D1’s evidence. D3’s conduct, if the jury accepted D1’s evidence, went beyond mere knowledge and acquiescence of the presence of the drugs. It was a matter for the jury whether they believed D3’s assertion that she had no knowledge that the bag inside the wardrobe contained dangerous drugs and in light of the evidence and the judge’s detailed directions, a Li Jin direction was not required.[35]

34.The judge pointedly focused the jury’s attention on the issue of whether D2 or D3 were in possession of the drugs particularised in Count 2 for the purpose of trafficking in them. Before addressing the issue of joint enterprise, the judge stressed with the jury that they needed to consider each count separately and the case against and for each defendant separately on each count, emphasising that the evidence concerning each count and each defendant was different.[36] She gave a full explanation of the concept of a joint enterprise together with an example.[37] She then addressed the elements of Count 2, for which D3 was found guilty by the jury. She emphasised that the prosecution had to prove that D2 or D3 possessed the dangerous drugs, that they knew that what they possessed were dangerous drugs and that they possessed the dangerous drugs for the purpose of trafficking.[38] She comprehensively addressed the element of “possession”, pointing out to the jury that a person’s “mere presence” in the vicinity of an object was not enough to find he or she was in possession of it and gave examples.[39] She said: [40]

“But a person’s mere presence in the vicinity of an object is not of itself possession of the object. If a person is invited for a dinner to friend’s house, he is not in possession of the objects in that home simply because he is there and knows that the objects are there. Objects are not in his custody as he has neither the intention nor the authority to exercise control over them.

…

Now a person’s mere presence, as I said earlier, in the vicinity of an object is not, of itself, possession of it. So if I invite you to my office, and you are sitting at my desk, in front of you is my pen, you know it is there, you are not in possession of this pen simply because you see it and you know it is there. This is because the pen is not in your physical custody and neither do you have the authority or intention to exercise control over this pen. If I say to you, however, members of the jury, ‘There’s my pen in front of you. Please go ahead and use it’, then when you pick it up, you will have possession, custody and control of my pen.”

35.The judge then addressed the issue of possession of the drugs by D2 and D3 as alleged in Count 2.[41] She referred to the evidence that D2 and D3 were found inside the first floor bedroom when the police arrived, and there were both men’s and women’s clothes inside the bedroom, both had keys to the upstairs bedroom, and D3 in her cautioned interview admitted she occupied the bedroom.[42] The judge explained that the prosecution case was that the drugs were kept in the bedroom of D2 and D3 in order for them to have custody and control and that D1 did not have keys to the upstairs bedroom where the drugs were stored. She noted that D1’s evidence was that before he delivered the drugs, he would go to the upstairs bedroom, where D2 or D3 would hand him the drugs, and that D3 would sometimes weigh the drugs.[43] She explained that it was the prosecution’s case that the drugs were kept in D2 and D3’s bedroom as they had custody and control over them and that either of them could take and remove the drugs. She said:[44]

“The prosecution say the drugs were kept in D2 and D3’s bedroom as they had custody and control over the drugs. Either D2 or D3 could take and remove the drugs. So members of the jury, even if you do not accept D1’s evidence, the prosecution say they have proved so that you are sure D2 and D3 had custody and control of the drugs and had the intention to exercise custody and control of the drugs as they were kept in the room they exclusively occupied.”

36.The judge also referred to the defence case that the drugs belonged to D1 and that D2 and D3 had nothing to do with them.[45] She specifically highlighted D3’s case that she did not have the authority to exercise control as permission was required from D2 before she handed over the drugs:[46]

“Now, Mr Donald, in his closing address has submitted to you that even if D3 knew of the drugs in the room, but as you know his case, it is that D3 did not know there were any drugs in the room, even if D3 knew there were drugs in that room, D3 did not have custody and control nor did she have the intention to exercise control of the drug. He relies on her video-recorded interview to say, each time D1 came up, this she was talking about the black bag. Each time D1 came up, to take the contents out, D3 had to ask D2 for his permission to give it to D3, she would hand the bag to D3 and D3 would then take the contents out, therefore, he says, D3 was not in possession of the drugs because she did not have the authority to exercise control.

Even if, members of the jury, you accept her evidence, that she needed permission from D2 to pass the drugs, that is assuming she knew, the drugs to D1, members of the jury, you will find that the time she picked up the drugs, she had physical possession of the drugs, she knew they were drugs, therefore, she had custody and control of the drugs at that time. It is no defence in law to say she did not have custody and control and that she was not in possession of the drugs. I gave you the example earlier, if I put this pen in front of you, and you are in my office, you do not have custody and control of the pen, but if I say, ‘Yes, here, you may pick up my pen and use it’, at the time you do, you have custody and control of the pen. So that is no defence to say that she did not have custody and control.”

37.The judge went on to direct the jury on the element of “knowledge”. She instructed the jury that if they did not accept D1’s evidence, which was direct evidence of D2 and D3’s knowledge of the drugs, they still had to consider the circumstantial evidence. She summarised the primary facts relied upon by the prosecution on which they were inviting the jury to draw an adverse inference against D2 and D3.[47]

38.We agreed with the respondent’s submission. We were satisfied that a Li Jin direction was not necessary in the circumstances of this case because the prosecution case against D3 was not one of mere presence in the room where the drugs were found but that she was knowingly and actively involved in the joint possession of the drugs for the purpose of trafficking in them, and based on the evidence it was open to the jury to convict her on Count 2.

D3’s appeal against sentence

39.As already noted, the jury, by its verdict, acquitted D3 of Counts 1, 3 and 4, but convicted her of Count 2. Count 2 involved D2 with D1 and D3 trafficking the drugs found in the bedroom on the first floor of the village house.

40.The single ground against D3’s sentence was that the judge erred in failing to consider a lower starting point in accordance with the sentencing guidelines as stated in HKSAR v Herry Jane Yusuph [48] because D3’s acquittal on Counts 1, 3 and 4 indicated that she played a minor role in the offence.

41.As Count 2 involved multiple drugs, the judge adopted a combined and conversion approach in sentencing D2. She converted all the drugs into cocaine or heroin, which amounted to 8,709 grammes, and applied the sentencing guidelines of Abdallah [49], to arrive at a starting point of 27 years and 6 months’ imprisonment [50]. The same starting point was adopted in sentencing D1 for trafficking the same drugs. The judge enhanced the sentence by 6 months for two aggravating factors, namely, D3 committed the current offence while overstaying in breach of her condition of stay and for the multiplicity of drugs involved. The judge found there were no mitigating factors and sentenced D3 to 28 years’ imprisonment.[51]

42.Ms Parwani submitted that the judge clearly approached the sentencing of D3 with the Herry Jane Yusuph principles in mind. Having converted all the drugs into heroin or cocaine, the judge referred to the guidelines in Abdallah in adopting the appropriate starting point (Step 1). Whilst the judge did not specifically identify the role played by D3 from the evidence (Steps 2 and 3), she submitted that the culpability of D1 and D3 were about the same in respect of Count 2. Hence, the judge did not err in treating them within the same band. The judge then identified the relevant aggravating factors (Step 4) and noted there were no mitigating factors (Step 5). Step 6 was unnecessary as D3 was only convicted of one count.

43.The sentencing authority of Herry Jane Yusuph [52] sets out a six-step process for determining the appropriate sentence in a case of trafficking in a dangerous drug. Step 2 is an assessment by the sentencing court of the role and culpability of the defendant based on the evidence before the court. Step 3 is to identify where in the relevant band of the guidelines the defendant comes, which in appropriate cases can go outside that band (whether above or below) given the particular circumstances of the commission of the offence and the role of the defendant.

44.The jury found D3 guilty of the alternative joint trafficking offence under Count 2, but acquitted her of being a party to the conspiratorial enterprise between D1 and D2 to traffic multiple drugs (Count 1) and the conspiratorial or joint enterprise between D1 and D2 to manufacture cocaine (Counts 3 and 4).

45.Before examining D3’s sentence, it is appropriate to note the basis of D2’s sentence. As reflected by the evidence and the convictions, D2 was the mastermind of the trafficking of multiple drugs and the manufacturing of crack cocaine.[53] He was a Form 8 recognizance holder with prior convictions for violence dating back to 2012. In sentencing D2, the judge arrived at a notional sentence of 29 years and 3 months’ imprisonment on Count 1 and 30 years’ imprisonment on Count 3. Applying the totality principle, the judge ordered the 2 years of the sentence on Count 1 to run consecutively to the sentence on Count 3, resulting in a total sentence of 32 years’ imprisonment.

46.In sentencing D3, the judge adopted a starting point of 27 years and 6 months’ imprisonment (which was the same starting point she adopted when she sentenced D1 on the equivalent count that he faced), which she enhanced by 6 months to 28 years’ imprisonment for having committed the offence during a period of overstaying in Hong Kong. D3 had been a domestic helper between 2003 and 2016 and overstayed from that date to the date of the offence on 4 October 2018. She had a clear criminal record.

47.Whilst the judge gave a very detailed and considered analysis of the relevant sentencing principles when determining the sentence against each defendant, it would appear that consideration was not given to D3’s actual role and culpability in respect of the offence for which she was convicted, given that she was acquitted of the other serious offences. Unfortunately, and incorrectly, it had been submitted on D3’s behalf that Herry Jane Yusuph offered little assistance to her situation, and nothing could be put forward by way of mitigation.[54] The drugs in Count 2 were found in the first floor bedroom that was occupied by D2 and D3. We would accept that given the principal role played by D2 and the relationship D3 had with D2, her role was limited and subordinate to D2, and possibly to D1. We, therefore, would have adopted a starting point of 25 years’ imprisonment, but given the length of sentence we would not have enhanced it further for the fact that D3 committed the offence during a period of overstaying. As already noted, D3 had been in Hong Kong since 2003 working as a domestic helper and had a clear criminal record.

48.We allowed D3’s appeal against sentence, set aside her sentence of 28 years’ imprisonment and substituted it with a sentence of 25 years’ imprisonment. We were informed by the respondent that D3 was subject to a sentence of 8 weeks’ imprisonment for overstaying,[55] and accordingly we made an order that the sentence in that case should run concurrently with the sentence in the present case.

Conclusion

49.For the foregoing reasons, we dismissed D2’s and D3’s appeal against conviction but allowed D3’s appeal against sentence by reducing her sentence from 28 years’ to 25 years’ imprisonment.

Ms Audrey Parwani, SPP, of the Department of Justice, for the respondent

Mr Chan Siu Ming, instructed by Tang, Wong & Cheung, assigned by Director of Legal Aid, for the 1^st appellant

Mr Richard Donald and Ms Nisha Mohamed, instructed by Chiu, Szeto & Cheng, assigned by Director of Legal Aid and Ms Jacqueline Ka Ki Chan, assigned by Bar Free Legal Service Scheme, Hong Kong Bar Association, for the 2^nd appellant