HKSAR v. Lau Ka Yan

CACC 64/2023 [2025] HKCA 280

On appeal from [2023] HKCFI 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 64 OF 2023

(ON APPEAL FROM HCCC NO 2 OF 2021)

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J U D G M E N T

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1.The applicant was charged with one count of attempting to traffic in a dangerous drug, namely 4 kilogrammes of a solid containing 3.3 kilogrammes of 3, 4-methylenedioxymethamphetamine (MDMA, which is also known as Ecstasy)  at Flat A, 6^th Floor, Glory Industrial Building, No 22 Lee Chung Street, Chai Wan (Flat 6A)  on 9 January 2020 (Count 1); and one count of trafficking in a dangerous drug, namely 31.8 grammes of a solid containing 26.5 grammes of MDMA at Flat G, 3^rd Floor, Kam Wa Building, Nos 2-10 Kam Wa Street, Shau Kei Wan on 9 January 2020 (Count 2).

2.At her arraignment, the applicant pleaded guilty to Count 2, and not guilty to Count 1.  She stood trial before Deputy High Court Judge Eric Kwok, SC (the Judge)  and a jury in respect of Count 1, for which she was found guilty by the jury on 23 February 2023.[1]  The Judge sentenced the applicant to a total term of 21 years and 6 months’ imprisonment for the two counts. 

3.The applicant applied for leave to appeal against conviction and sentence in respect of Count 1.  She subsequently notified the court that she abandoned her appeal against sentence but has not filed the appropriate notice.  She confirmed before me that she did not wish to proceed with her leave application and her appeal against sentence is dismissed.

The brief facts

4.It was not in dispute at trial that on 4 January 2020, a parcel with contents declared to be candies and biscuits (the parcel)  arrived in Hong Kong from Germany by airmail.  The parcel was examined and found to contain the quantity of MDMA as particularised in Count 1.  The consignee of the parcel was Lee Wang and the address was Flat 6A of Glory Industrial Building in Chai Wan. 

5.A controlled delivery was conducted by Customs officers on 6 January 2020, but no one answered the door of Flat 6A.  A mail collection notification card with the chop of Chai Wan Post Office and other details, including the parcel serial number, the consignee, etc., was put into the mailbox of Flat 6A on the ground floor of the building.[2]  On 8 and 9 January 2020, there were telephone conversations between a caller or callers and the Hong Kong Post, during which the caller made inquiries about the parcel.[3]  Another controlled delivery was conducted on 9 January 2020.  This time the applicant came to the door of Flat 6A and signed the acknowledgement of receipt of the parcel.[4]

6.The prosecution case was that the applicant attempted to possess the dangerous drugs in the parcel for the purpose of trafficking when she went to handle or receive the parcel physically.[5]  The prosecution alleged that the applicant had not only signed the acknowledgement receipt of the parcel, but also was the person who made enquiries about the parcel over the telephone.

7.The defence case was that the evidence fell short of proving that the applicant attempted to unlawfully traffic in the dangerous drugs in the parcel in that she was only receiving the parcel on behalf of her colleague, Lee Wang.  Furthermore, there was no evidence that the applicant was the person on the telephone calls on 8 and 9 January 2020.[6]

8.The applicant did not give evidence, nor call any witnesses on her behalf.

The prosecution evidence at trial

9.The prosecution evidence can be briefly summarised as follows.

10.PW1 (Customs Officer 12145)  testified that he was attached to the postal clearance division stationed at the airport.  On 4 January 2020, he examined the parcel and discovered two layers of candies or biscuits. When he removed the first layer, he found 15 boxes of which 14 appeared to be suspicious.  He opened one of the suspicious boxes and found a tinfoil bag containing another tinfoil bag.  Inside the inner tinfoil bag was a plastic bag containing a brown crystalline solid.   He conducted a test on the substance which yielded a positive reaction to MDMA.[7]

11.PW2 (Customs Officer 18339)  testified that he received the parcel with its contents on 6 January 2020.  After he examined the parcel, he restored its contents and took it to the Central Post Office in Central.  An acknowledgement receipt and the notification card for the parcel were prepared with the postal staff’s assistance. He then left the post office and made a controlled delivery to Flat 6A.  However, no one answered the door and he put the notification card with all those details in the mailbox of Flat 6A on the ground floor.[8]

12.On the afternoon of 8 January 2020, PW2 took the parcel to Chai Wan Post Office and conducted another controlled delivery.  He used the telephone number of Chai Wan Post Office, 25564411, and called 60449292, a telephone number that had been given to him by his supervisor.  He had a conversation with a woman.  She asked if the parcel could be re-delivered, and whether the request could be done online.  He said he would get back to her.  He made a return call but could not get through.  At 4:50 pm, as no one came to collect the parcel, he left the Chai Wan Post Office with the parcel.[9]

13.On 9 January 2020, PW2 conducted another controlled delivery of the parcel from the Chai Wan Post Office.  He telephoned 60449292 and spoke to a woman.  He asked her if she wanted the parcel delivered in the afternoon and she replied “All right”.  PW2 confirmed that it was the same voice in these telephone conversations.[10]

14.At 4:25 pm on 9 January 2020, PW2 together with his colleague, Customs Officer 06113 (PW3), went to Glory Industrial Building to deliver the parcel.  The applicant answered the door and she signed the acknowledgement receipt after some discussion between her and PW3.  She was cautioned after she showed her Hong Kong Identity Card to PW3.  The applicant was then asked to go back to her office where she was shown the contents of the parcel.[11]

15.PW3 testified that the telephone number 67705214 was the number on the parcel.  He told the man who answered the call that there was a parcel for Lee Wang and asked if Lee Wang was in Glory Industrial Building.  The man replied that he was not in Glory Industrial Building and would not return that day.  The man asked the delivery to be made to his colleague at the reception as he was driving.[12]

16.PW3 made two calls to 60449292 at 1:59 pm and 2:00 pm, but no one answered the calls.  At 2:06 pm, he tried again, and a woman answered the call this time.  He told the woman that there was a parcel for Lee Wang.  He asked if Miss Lee was there and whether she was in Glory Industrial Building.  The woman answered that Miss Lee was not there and would not be back until after 4:00 pm.  At 2:39 pm, PW3 called the number and said that he had a parcel for Lee Wang.  He asked if Miss Lee was in the same industrial building.  This time, the woman answered that she was Miss Lee, but she was not in Glory Industrial Building.  The woman said she would return to the building after 4:00 pm.  PW3 confirmed that the other party in these two calls had the same voice.[13]

17.At 4:03 pm, PW3 made another call to the telephone number, and this time the other party said she was Miss Lee. However, she was not in Glory Industrial Building and would not return that day. She also said it was not particularly necessary for her to receive the parcel.[14]

18.At 4:25 pm, PW3, together with PW2, proceeded to Flat 6A to make the controlled delivery.  PW3 pressed the doorbell and someone came to open the door.  PW3 entered the premises and saw the applicant and Mr Ng Hoi-muk.  The applicant signed the acknowledgement of receipt for the parcel.[15]

19.PW4 (the postal superintendent of Chai Wan Post Office)  testified that on 8 January 2020 she received a call from a female customer who made an enquiry about a parcel and she told her how to request a re-delivery online.  At between 9:15 and 9:30 am on 9 January 2020, the female customer called again.  She said she had tried unsuccessfully to request for a re-delivery, and asked what she should do.  The female customer provided PW4 with the parcel serial number.  PW4 inputted the serial number into the computer system, which generated the message that another delivery could not be made.  PW4 then answered the female customer that she would consult the computer department and reply to her.  After 9:30 am, the female customer called again and a similar conversation took place.  The female customer left her telephone number and PW4 noted the telephone number and the parcel serial number down which was passed on to Customs and Excise.[16]

20.PW5 was another Customs officer and was also involved in the controlled delivery on 9 January 2020.  He testified that he intercepted a person by the name of Lee Wang.  He later arrested and cautioned Lee Wang.[17]

21.PW7 (Mr Lee Wang)  testified that he was an employee or sales manager of Hunter Material Limited operating at Flat 6A.  Although the parcel was addressed to him, he denied knowledge of it.  He had not ordered anything from Germany and the mobile telephone number stated on the parcel did not belong to him, nor was he familiar with it.  He said that the only female working at Flat 6A was the applicant.[18]

22.PW8 (Mr Choi King-hon)  and PW9 (Mr Ng Hoi-muk)  were both working at Flat 6A.  While PW8 was the applicant’s employer, PW9 had his own company.  Both of them testified that they knew nothing about the parcel. PW9 said that when he opened the door, he called out the applicant because she would handle postal parcels.[19]

23.The prosecution admitted a computer certificate for the subscriber check, call record, payment and disconnection history of the telephone number 60449292 (Exhibit P38)  and a computer certificate for the subscriber check and call record of the telephone number of the Hong Kong Post 25564411 (Exhibit P39).  The call records of the telephone number 60449292 showed that calls were made from the number to the general enquiry hotline 29212222 at 12:43 pm, 2:41 pm, 2:53 pm on 8 January 2020.  At 4:01 pm, the telephone number of Chai Wan Post Office 25564411 made a call to the telephone number 60449292.  At 4:45 pm, a call was made from 60449292 to 25564411.  At 9:31 am and 9:34 am on 9 January 2020, two calls were made from 60449292 to 25564411.  At 10:02 am, a call was made from 25564411 to 60449292.  At 2:49 pm and 4:04 pm, the telephone number used by PW3, 67705214 made two calls to 60449292.[20]

24.In her cautioned interview, the applicant admitted that she had been using the telephone number 60449292 since March or April 2019.  She said that it was Mr Lee who gave her the telephone card and that she paid the monthly charges for the telephone number.  She denied making calls to the Hong Kong Post with the telephone number 60449292 and claimed that she had let her friend use the relevant telephone number on 6 and 7 January 2020.  It was noted that the service of the telephone number had been suspended on 8 January 2020 due to non-payment of charges but was re-activated that night.[21]

Appeal against conviction

25.In his submissions, Mr Duncan Percy, for the applicant, advanced the following four grounds of appeal.

Ground 1:  In the summing-up, the Judge failed to direct the jury that the defence counsel’s use of phrase in his final submission of “proof beyond reasonable doubt” was the same as “being sure of someone’s guilt”.

Ground 2:  In the summing-up, while the Judge had dealt with the defence case or the case put forward by the defence, he failed to give a Liberato direction.

Ground 3:  During the summing-up, the Judge placed a “handout” before the jury titled “Route to Verdict” (MFI-2).  However, when explaining the contents, the Judge failed to remind the jury that if they believed that the defence case put forward was true or may be true, their verdict would be not guilty.

Ground 4:  In the circumstances of the case, given the cumulative effect of the various failures of direction in the summing-up, the conviction was unsafe and unsatisfactory.

Ground 1

26.It is complained that the Judge did not strictly follow Note 1 of Specimen Direction 2 of the Specimen Directions in Jury Trials, 2013, by reciting, “The prosecution must make you sure of guilt, which is the same as proving the case beyond reasonable doubt.” 

27.Admittedly, the Judge did not refer to the term “beyond reasonable doubt” but he did follow the specimen direction and in explaining the standard of proof and how the prosecution succeed in proving a defendant’s guilt, he said:

“The answer is by making you sure of it. Nothing less than that will do. If, after considering all the evidence, you are sure that the defendant is guilty, you must return a verdict of guilty. If you are not sure, your verdict must be not guilty.”[22]

28.He consistently referred to the correct wording of the standard of proof as approved by the specimen direction, namely “sure (of guilt)”.[23] Note 1 to the specimen direction states:

“Normally, when directing a jury on the standard of proof is not necessary to use the phrase “beyond reasonable doubt”. But when it has been used in the trial, e.g. by counsel in the speeches, it is necessary to give the following direction: “the prosecution must make you sure of guilt, which is the same as proving the case beyond reasonable doubt”.

29.The defence counsel, when mentioning the phrase “beyond reasonable doubt” in his closing speech, had explained that the standard was such that they “must be sure” that the applicant committed the offence.[24]  The terms “beyond reasonable doubt” and “sure” were used interchangeably by defence counsel.  There was clearly no risk that the jury would have misunderstood the standard of proof on the prosecution and the Judge’s directions in the present case were correct and appropriate.

30.I do not find this ground of appeal to be reasonably arguable.

Grounds 2 and 3

31.Grounds 2 and 3 are interrelated and concern the alleged failure on the part of the Judge to give a Liberato direction in the summing-up as well as an explanation of the handout, namely “Route to Verdict”.  The applicant argues that the Judge should have told the jury words to the effect that “if the defence thus put forward is or may be true, then the defendant is entitled to be acquitted.”  These words have been taken from Note 2 of Specimen Direction 2 regarding the burden and standard of proof, which reads:

“2)  When in the body of the summing up the judge deals with the defence/defences which has/have been put forward in a case, whether put forward in cross-examination or in evidence by the defendant or by witnesses on his behalf, the jury should be reminded that it is not for the defendant to prove that defence (where that is so)  and there should be added to that reminder, in respect of each defence canvassed in the summing up, a statement that if the defence thus put forward is or may be correct, then the defendant is entitled to be acquitted:

…

In this regard see Sze Kwan Lung & others v HKSAR (2004)  7 HKCFAR 475 and Law Chung Ki v HKSAR (2005)  8 HKCFAR 701.  It is clear from these decisions that it is objectionable to direct a jury that it must act only upon evidence that it finds to be true.  That is because evidence favourable to the defence that may be true must also be acted upon, and that is a point that must always be made to a jury.  The message that has always to be imparted is that even if the jury does not positively believe the evidence for the defence, they cannot find an issue against the defendant contrary to that evidence if that evidence gives rise to a reasonable doubt about that issue: Liberato & others v R (1985)  159 CLR 507, 515, referred to in both Court of Final Appeal decisions.”

32.The respondent argues that the specimen directions are guidelines for judges and therefore, they are not bound to be followed strictly.  The real question is whether a Liberato direction was necessary in the present case. 

33.Referring to the fact that the applicant neither gave evidence nor called any witnesses[25], the respondent submits that the defence case was merely that the prosecution’s evidence fell short of proving the offence against the applicant.[26]  Therefore, the present case did not involve a situation where the applicant had provided an account of incident(s)  contradictory to the prosecution’s evidence and the jury was not faced with a dilemma of which side to believe.  It is submitted that the Judge did not err in not reciting a Liberato direction to the jury as it was unnecessary and confusing if provided, given the circumstances of the present case.

34.Neither party had put the recent relevant authorities that address the appropriateness and the terms of a Liberato direction before the court.  See HKSAR v Kwan Tat Yee [27] where this Court explained that the purpose of a Liberato direction was not to lay down a particular form of the general direction on the onus and standard of proof but rather to ensure that the clarity and effectiveness of the direction on these two fundamental requirements were not compromised by directions concerning the choice between conflicting prosecution and defence evidence.  The emphasis in a criminal trial was whether the prosecution proved the elements of the offence beyond a reasonable doubt.  Accordingly, a Liberato direction will only be required where there was a perceived risk the jury were left with the impression that the defence evidence gave rise to a reasonable doubt only if they believed it to be truthful or that the prosecution evidence was sufficient to establish guilt.

35.The Court also stated that where a jury were directed to consider whether the defence evidence might be true, this was merely another way to ask them to consider whether they had a reasonable doubt in respect of that evidence.  The critical issue is whether the judge’s directions have made it clear that the prosecution bore the onus of proof that the jury had to be satisfied beyond reasonable doubt of a defendant’s guilt. 

36.This case went on appeal to the Court of Final Appeal in HKSAR v Kwan Tat Yee [28], where it was held that the purpose of a Liberato direction was conveyed to the jury that where there was conflicting evidence, such as a conflict between the evidence of a complainant and the evidence of an accused, or an account given in an interview with the police, a preference for some evidence over other evidence did not resolve the ultimate issue, which was whether the prosecution had proven the elements of the relevant offence beyond reasonable doubt.  The jury’s consideration of the strengths and weaknesses of conflicting evidence must not be confused with the determination of the ultimate issue.  It was held that telling a jury, pursuant to a Liberato direction, that they must acquit if they either believed certain evidence or considered that it may be true, or that they were not entitled to fine against the defendant in those circumstances, assumed that such evidence was exculpatory.  However, defence evidence which supported the defence case but was not conclusive did not fit into that category.  Such evidence would normally be covered by the directions to the jury relating the evidence to the issues in the case, including the ultimate issue, and the prosecution’s onus of proof.  A Liberato direction was a response to the problem where there was a risk of a confusion between the evaluation of evidence and the resolution of issues for decision.

37.As neither party was familiar with the recent pronouncements of law on this subject, I have not been properly addressed on this ground.  Whilst the applicant did not give evidence or call any evidence on her behalf at trial, there was a mixed statement from her in the form of a video recorded interview which was before the jury.  I will grant the applicant leave on this ground but she will need to show that there was conflicting evidence and an issue as explained by the Court of Final Appeal in Kwan Tat Yee.

38.The phrase “is true or may be true” is mistakenly referred to as a Liberato direction even though that phrase is used in the direction.  It is a separate question, which turns on whether the jury have had explained to them in clear and unambiguous terms the onus and standard of proof.

39.In the present case, the Judge gave the jury a handout, setting out the questions they should answer in arriving at their verdicts.  He said:[29]

“I suggest the first question you should ask yourself is this. Was it the defendant who had called the Post Office hotline, and/or the Chai Wan Post Office, and/or spoke to Madam Wu, PW4, and/or spoke to Customs officer 06113, PW3? If you are not sure that any of these calls were made or answered by the defendant, the verdict is not guilty.

If you are sure that one or more of these calls were made or answered by defendant, then you go on to consider question 2. Question 2 is did the defendant know there was dangerous drugs in the parcel? If you are sure she knew -- sorry, if you are not sure she knew, the verdict is not guilty.

If you are sure she knew, go to question 3.  Question 3 is did the defendant attempt to take possession of dangerous drugs for the purpose of unlawful trafficking?  If you are not sure she attempt to do so, the verdict is not guilty.  If you are sure she attempted to do so, the verdict is guilty.” 

40.It is accepted by the parties that the Judge did not use the terminology that if the defence “what is or may be true” the applicant was entitled to a verdict of not guilty.  The question is whether the jury were properly instructed when the Judge gave the standard direction on the burden and standard of proof, which has been referred to in the previous ground, and when he explained the handout that if they were “not sure” the verdict was not guilty.  In other words, was the phrase “not sure” another way of saying “may be true”.

41.Mr Percy, in oral submissions, has reformulated the complaint under these grounds of appeal in the following terms: “In the course of the summing-up, the Judge in dealing with the defence case failed to properly direct the jury in accordance with Note 2 of Specimen Direction 2.1, Burden and Standard of Proof, and failed to add the statement that, “if the defence thus put forward is or may be correct, then the defendant is entitled to be acquitted.”

42.I find Grounds 2 and 3 (as reformulated)  reasonably arguable, subject to the observations I made with respect to Ground 2.

Ground 4

43.This is a general ground with no specific complaints to show that they individually or collectively resulted in the applicant’s conviction being unsafe or unsatisfactory. 

44.This ground is not reasonably arguable. 

Conclusion

45.I do not consider Grounds 1 and 4 to be reasonably arguable and leave on those grounds is refused.  However, I am satisfied that Grounds 2 and 3 are reasonably arguable but in the reformulated terms as set out in my judgment.

Mr Joe Hui, SPP, of Department of Justice, for the respondent

Mr Duncan Percy, instructed by Morley, Chow, Seto, Solicitors, assigned by the Director for Legal Aid, for the applicant