HKSAR v. Fadonougbo Frejus Lezin
Read the full judgment text of CACC 121/2022 on BabelCite. This Court of Appeal judgment was delivered on 20 May 2025.
1. With leave of the Court [1] , the appellant, a Beninese national, appeals against his conviction for trafficking in a dangerous drug, namely 988 grammes of a powder containing 806 grammes of cocaine. He first stood trial before Deputy High Court Judge Woodcock (as Woodcock J then was, “the Judge”) and a jury, which she discharged on 10 June 2022. A second trial followed on 13 July 2022 before the Judge and a new jury, which found him guilty of the trafficking offence. He was sentenced to 22
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CACC 121/2022 [2025] HKCA 524 On appeal from [2022] HKCFI 2587 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 121 OF 2022 (ON APPEAL FROM HCCC NO 74 OF 2021) ________________________ BETWEEN
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________________________ REASONS FOR JUDGMENT ________________________ Hon Zervos JA (giving the Reasons for Judgment of the Court): 1.With leave of the Court[1], the appellant, a Beninese national, appeals against his conviction for trafficking in a dangerous drug, namely 988 grammes of a powder containing 806 grammes of cocaine. He first stood trial before Deputy High Court Judge Woodcock (as Woodcock J then was, “the Judge”) and a jury, which she discharged on 10 June 2022. A second trial followed on 13 July 2022 before the Judge and a new jury, which found him guilty of the trafficking offence. He was sentenced to 22 years and 3 months’ imprisonment. 2.During the hearing, we granted the appellant leave to appeal against his sentence out of time. We dismissed his appeal against conviction but granted his appeal against sentence, which we substituted with a sentence of 19 years and 3 months’ imprisonment. We said we would hand down our judgment in due course, which we now do. The brief facts 3.On 1 February 2020, the appellant arrived in Hong Kong on a flight from Johannesburg, South Africa. Customs officers intercepted and searched him, noticing that his shoes were unusually heavy. Upon examination of the shoes, they found a white powder inside the soles, which tested positive for cocaine. When confronted about the discovery, he initially denied knowledge of the white powder. However, in a subsequent video recorded interview, he admitted that he knowingly brought the drugs into Hong Kong. He said a man called “Yudi” gave him the shoes, which he knew contained drugs. The plan was that after he arrived in Hong Kong and checked into a hotel, which had been booked for him, someone would meet him to collect the drugs. He was to be paid US$5,000 as a reward. 4.At trial, the appellant testified in his defence, claiming he did not know there were drugs in the shoes. He stated that he was not wearing the shoes when the Customs officers intercepted him, as they were in his suitcase. He claimed that a client had asked him to bring the shoes to Hong Kong and give them to a person who would introduce him to potential business opportunities. He also claimed that the admissions he made in the interview were not true, but were obtained by being deceived and mistreated by the Customs officers. The appeal against conviction 5.On 3 July 2024, Mr David Boyton, counsel for the appellant, filed a notice of Perfected Grounds of Appeal outlining a single ground of appeal:
The procedural history 6.The appellant argued that the Judge erred in “cancelling” his first trial and ordering a second trial. The appellant was first tried before the Judge and a jury from 20 May to 10 June 2022, when the Judge discharged the jury. He contended that the Judge had unfairly terminated his first trial. 7.During the first trial, the jury initially consisted of seven jurors. However, on 8 June 2022, one juror was discharged for non-compliance with the public health restrictions then in effect, and the trial continued with six jurors. The Judge commenced summing up to the jury in the afternoon on 8 June 2022, and continued until 9:35 am on 9 June 2022.[3] At around 11:40 am, the jury retired to consider their verdict. They had lunch and deliberated until 8:08 pm, when the Judge instructed the jury to retire for the night. The next morning, at around 9:30 am on 10 June 2022, the jury submitted to the court Question MFI-11, which read as follows: [4]
8.At 9:39 am, the Judge, in the absence of the jury, discussed the question with counsel[5], with the following initial remarks from prosecuting counsel: [6]
9.After further discussion, the jury returned at 9:56 am and the Judge gave the following answers to the jury’s questions and instructed them to continue with their deliberations.[7]
10.Although prosecuting counsel expressed difficulty comprehending the jury’s question, their inquiry regarding the translation of the appellant’s interview was not unreasonable. The interview was conducted in French and Chinese, which was translated into English.[8] The jury raised this query when noticing a difference between the Chinese and English translations as audio recorded in the DVD and transcribed in the transcript. In any event, the Judge properly dealt with the question and gave an appropriate answer to the jury. 11.At 10:03 am, the jury returned to consider its verdict.[9] 12.At 12:25 pm, the jury submitted a note indicating that their initial vote was four to two (MFI-12).[10] Appropriately, the jury did not disclose which side was in the majority. 13.After the luncheon break, at 2:35 pm, the Judge, in the absence of the jury, informed counsel that she had received a note that the jury were split four to two and Question MFI-14 (which was received at 2:12 pm[11]), which read as follows: [12]
14.The question brought the following trenchant response from prosecuting counsel: [13]
15.The discussion continued regarding the topic and focus of the questions and how they should be answered. At 2:54 pm, the jury returned and the Judge gave the following answers to Question MFI-14:[14]
16.Immediately after the jury left the court room, the discussion focused on imposing a time limit for the jury. The Judge remarked that extending the deliberations into another night would be “probably too much time.”[15] Prosecuting counsel, indicated that, from his experience, he thought a time limit by 5:00 pm would be appropriate, although adding that an enquiry should be made of the jury whether it was likely that they would reach a verdict.[16] Defence counsel submitted to the Judge that, from his experience, it would be appropriate for her to ask the jury foreperson if they were given more time, would they reach a verdict within a reasonable period of time. The Judge said that was sensible, and if she did not hear anything from the jury by 5 o’clock, that was what she would do.[17] 17.The court was adjourned but resumed the hearing at 3:30 pm with the Judge expressing “grave concerns”. She referred to prosecuting counsel’s previous concerns regarding the jury’s “comprehension”, and said that having re-read question 1 in Question MFI-14, she was very worried about a miscarriage of justice either way.[18] Prosecuting counsel then argued that, notwithstanding the complications with the post-record and the procedure, some of the jurors did not seem to understand how much more valuable was the video recorded interview and, further they did not seem to understand the directions as to what amounted to guilt; although, it was accepted that this could not be known.[19] The Judge expressed concern that the jury did not appear to understand the burden and standard of proof, or the straightforward directions regarding the appellant’s knowledge of the drugs. She said that the reference to the “unlawful item” was very concerning.[20] 18.Defence counsel responded by noting that the Judge had already redirected the jury on the matter and the question of the signatures and how they were relevant. She could nevertheless stress with the jury that they were not relevant to the main issue, as to whether the appellant knowingly brought drugs into Hong Kong.[21] The discussion continued in minute detail about issues relating to the jury’s first question that were not apparent, leading into a critical appraisal of their other questions. It reached a crescendo with the view that the jury had not understood the evidence or the directions and were not focused on the main issue regarding the appellant’s knowledge. 19.The Judge then gave defence counsel time to explain the situation to the appellant, but after some further discussion, she was concerned that their questions had not grasped the main issue in the case, and she decided that it was in the interests of justice to discharge the jury. After a short adjournment, at 4:14 pm, the Judge said to counsel: [22]
20.The jury were brought into the court room at 4:16 pm, whereupon the Judge discharged them without further inquiry: [23]
21.The Judge informed the jury that they were being discharged due to the length of their deliberations. She then empanelled a new jury of seven jurors. After the trial, the new jury returned a unanimous verdict of guilty. 22.We note at this juncture that while the jury indicated that they were divided four to two, they had also submitted questions, which suggests they were still deliberating and that one, some or all of them wanted these questions addressed to aid their decision-making process. The jurisdictional issue 23.The first issue in this appeal is whether the Hong Kong Court of Appeal has jurisdiction to consider an appeal against conviction based on the discharge of a previous jury. This issue requires an examination of the legal framework of the appellate jurisdiction and the circumstances of the case. 24.It is questionable whether the decision to discharge a jury is susceptible to appeal in Hong Kong because of the limited jurisdiction of the Court of Appeal.[24] However, there is a right to review a trial judge’s discretion not to discharge a jury where it is shown that it may have a bearing on the conviction: R v Yeung Hing-yu [25]; HKSAR v Chow Wing Man [26]; HKSAR v Li Yanhong [27]. 25.The criminal jurisdiction of the Court of Appeal is provided by section 13 of the High Court Ordinance (Cap 4) (HCO), which reads:
26.Section 82 of the Criminal Procedure Ordinance (Cap 221) (“CPO”), provides that a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction, and sets out the basis for such an appeal. The section reads as follows:
27.In considering the terms and scope of the Court of Appeal’s criminal jurisdiction, it is appropriate to note the grounds for allowing an appeal under section 82, which are set out in section 83 of the CPO. The section reads:
28.The parties acknowledge a line of authority that a judicial decision to discharge the jury (as opposed to a decision not to discharge one, leading to a conviction) is generally not reviewable by an appellate court.[28] However, they argue that, depending on the circumstances, a judge’s discretionary discharge of a jury based on erroneous considerations, may form a ground of appeal under section 82(2)(b) of the CPO, or constitute a complaint of “material irregularity in the course of the trial” under section 83(1)(c) of the CPO. 29.The English Court of Appeal in R v Gorman [29], considered the following key questions (1) whether the Court had jurisdiction to review any alleged material irregularity in a trial by jury when after the irregularity is alleged to have taken place the jury is discharged; and (2) whether, once the judge had decided to discharge a jury, there was any way which that decision could be challenged in the Court of Appeal. The Court expressed substantial doubt whether it had jurisdiction to review a procedural irregularity occurring in a trial prior to the discharge of the first jury; however, they were prepared to assume such power for the purpose of the appeal before them. The Court held that the discretion of a trial judge to discharge a jury was not the subject of review by an appellate court; thus, the decision of the trial judge in that case was not reviewable by the Court of Appeal. In addressing these questions, the Court identified two problems:[30]
30.Regarding the first problem, the Court clarified that the jurisdiction of the court was statutory and arose only after a person was convicted of an offence. It noted that appellate jurisdiction could be exercised under the equivalent section of section 82(2) of the CPO. It observed that it was arguable that the statute only referred to one jury, because only one jury returns a verdict and that it could also be argued that the trial begins when the defendant is first arraigned, and only ends when the verdict is returned, whether by the first jury or by the second jury.[31] 31.Regarding the second problem, the Court noted that, based on the authorities, no appellate court had previously reviewed the decision to discharge a jury. The Court concluded that the decision in that case to discharge the first jury was not open to review by it.[32] 32.The rationale in Gorman is understandable because discharging a jury is a matter of judicial discretion, and the trial typically continues with the empanelment of a new jury. However, the terms of section 82(2) allow for a broad range of grounds to base an appeal against conviction. Questions of mixed fact and law require either certification from the trial court or leave of the Court of Appeal, but a pure question of law does not require leave. The grounds for allowing an appeal are also broad where the conviction is unsafe or unsatisfactory; or the judgment of the trial court was a wrong decision on a question of law; or there was a material irregularity in the course of the trial.[33] The essential question in allowing an appeal against conviction is whether there has been a miscarriage of justice, or more fundamentally, whether the accused has been denied a fair trial. 33.We accept Hong Kong appellate courts may possess jurisdiction to consider an appeal relating to the discharge of a previous jury if it is relevant to or affects the conviction under the applicable statutory provisions. However, exceptional circumstances would be required to demonstrate how an error in discharging a previous jury prejudiced the conviction in a subsequent fair trial of the defendant by a newly empanelled jury. It would have to be shown that an injustice might have resulted: R v Hambery [34]. This was highlighted by Keith J (as he then was) in Nattrass v Attorney General [35]. He referred to Gorman in considering whether an order to discharge the jury was analogous to an order to discharge the judge, and whether it was amenable to judicial review. He rightly observed that the rationale underlying the well-established judicial reluctance to review a decision to discharge a jury “can only be that such a review is an exercise in futility.” He explained that even if the judge should not have discharged the jury, there was not much that could be done about it sometime later when the decision was reviewed. 34.We will proceed on the basis that we have jurisdiction to address the complaints in the first trial. However, we find that the discharge of the first jury caused no unfairness to the appellant. Discharging a jury 35.The second issue in this appeal concerns whether the trial judge’s discretion to discharge a jury was exercised judicially in the circumstances of this case. 36.A body of case law addresses the discharge of a juror or jury, as well as the handling of questions from the jury after they have retired to consider their verdict.[36] Key principles apply from the moment a defendant is placed in the jury’s charge until they are asked to return a verdict. 37.Given the complexity of a criminal trial, it is not uncommon for something to occur where a trial judge is asked to exercise his or her discretion to discharge a juror or the whole jury. Although various circumstances may warrant exercising this discretion, it is usually done in the interests of justice or in accordance with a statutory or procedural requirement. 38.Under the Jury Ordinance (Cap 3) (JO), a court may discharge individual jurors where, in the interests of justice, it is expedient to do so or where it is in the interests of the juror: section 25(1). Similarly, a jury may be discharged if it becomes clear they cannot agree on a verdict: section 27.[37] These provisions reflect the common law power vested in a judge to discharge a jury or an individual juror. While discretionary, this power requires a high threshold for exercise given the strong public interest in completing jury trials: Najibi v R [38]. 39.The provision to discharge an individual juror is section 25(1) of the JO, which reads:
40.The provision to discharge the jury when they cannot agree upon a verdict is in section 27 of the JO, which reads:
41.The general rule is that the jury may be discharged in the interests of justice and when it is expedient to do so. The usual practice is to let a jury deliberate at an hour or on a day when they will have most of the court day to consider their verdict with appropriate breaks until around 8:00 pm. The jury may submit case related questions which the court will answer after discussion with counsel. 42.Neither counsel suggested that the Judge fell into any obvious error in discharging the jury. 43.Citing HKSAR v Chan Hon Wing [39], the appellant argued that there is a duty on the trial judge to exercise his or her discretion to discharge a juror (or the whole jury) only if a concern or “red flag” is raised as to the juror’s (or jury’s) competence or ability, such as the sufficiency of his or her knowledge of the language of the proceedings as required under section 4 of the JO. The appellant argued that the Judge should have determined whether the jury’s questions (in the third note) raised an obvious problem, or “red flag”. If so, the Judge should have exercised her discretion while considering factors such as the complexity of the case, the seriousness of the offence, the relevant stage of trial, the length of deliberations, and the views of the parties. The jury should have been discharged only if it was in the interests of justice and necessary to do so (if based on section 25(1)(a), not (b), of the JO). 44.The respondent submitted that the Judge was entitled to discharge the jury based on the long deliberation and the nature and content of the questions they asked, as those factors sufficiently demonstrated to her that the prospect of a valid verdict was unlikely. She contended that it was not obligatory for the Judge to make a formal enquiry of the views of the parties. 45.Trial by jury is an integral and indispensable part of the criminal justice system of Hong Kong. The inviolability of trial juries is an essential feature of the conduct of criminal trials for serious offences. To this end, trial juries must be free to deliberate without any pressure being brought to bear upon them and to take whatever time they need in reaching a verdict. As stated by Ribeiro PJ in HKSAR v Lee Ming Tee [40]:
46.The relevant principles relating to the integrity of the jury system have been discussed in a series of cases[41]. In Tam King Hon v HKSAR [42], Li CJ, with whom the other judges agreed, set out the principles regarding the decision making process of the jury:
47.Li CJ emphasized that appropriate directions on the jury’s decision-making process must clearly communicate three relevant principles.[43] He observed that if a jury later asked questions regarding directions given in the summing-up, it would be prudent for a judge to repeat or adhere closely to the original directions where possible.[44] He further noted that in Hong Kong, with a jury of seven, if a unanimous verdict cannot be reached after “reasonable consultation”, a majority verdict of six to one or five to two would be acceptable. However, a split of four to three either way would not constitute a valid verdict and would require the jury to be discharged.[45] He cited the remarks of Stock JA in HKSAR v Chan Ka Man[46] with approval, emphasising that while it is unnecessary to hide from the jury the fact that it is open to them to disagree, this does not preclude a judge from “encouraging, though not improperly pressurizing, a jury to arrive at a unanimous or majority verdict”.[47] Li CJ added that when a verdict of four to three arises, the judge may address the matter as considered appropriate under the circumstances.[48] 48.The case of Chan Hon Wing provides authoritative guidance on a trial judge’s duty to address issues involving the jury. Fok PJ, delivering a judgment with which the other judges agreed, considered a criminal trial involving concerns about the language proficiency of jurors and how such concerns should be addressed. Although his observations focused on language proficiency, they have broader general application. 49.Discussing section 25(1) of the JO, Fok PJ stated that the reference to “the interests of justice” in that section is “broad and flexible” and necessarily includes the judge’s power to discharge a juror if it becomes clear that their knowledge of the trial language is insufficient to understand the proceedings.[49] He clarified that the section’s permissive language grants discretionary power to discharge to the courts, which must be exercised lawfully.[50] He further explained section 25(1), which allows the court to discharge a juror shown to be unqualified or unable to fulfill their duty to deliver a true verdict based on the evidence, reflects common law principles. He cited with approval the following remarks of Lord Lane CJ in R v Ford [51]:
50.Fok PJ, emphasised that a trial judge’s obligations regarding a juror’s language proficiency are ongoing. The judge should exercise the discretion conferred by statute to discharge a juror if, in the circumstances, he or she is not satisfied that the juror has sufficient knowledge of the language to understand the proceedings. He explained that if a concern or “red flag” might be raised, the trial judge should consider exercising their discretion. Whilst this case was concerned with the language proficiency of members of the jury, Fok PJ explained that the trial judge’s role was in the nature of a reactive role to monitor the position in the case of any concern coming to light during the trial.[52] Where such a concern or red flag was raised, the trial judge should inquire as to the extent of the problem with the aim of furnishing the court with sufficient information to exercise its discretion to discharge a juror. Fok PJ stressed that the discretion was to be exercised with the overriding purpose of securing a fair trial for the defendant.[53] 51.A judge plays an important role in ensuring that a jury is given every reasonable opportunity to deliberate and reach a true verdict according to the evidence. No fixed temporal constraints govern jury deliberations. It depends very much on the jury and whether they have reached an impasse where progress to a lawful verdict is impossible. The duration of a jury’s deliberations has been examined by the Court of Appeal in HKSAR v Mak Wing Cheung and Another [54] and HKSAR v Chan Kui Yuen also known as Thomas Chan and Another [55]. 52.In Mak Wing Cheung, Stock JA highlighted the judicial responsibility to provide structured guidance to deliberating juries and that a judge should ensure that the jury have breaks at the appropriate intervals during their deliberations. He went on to say:
53.After citing with approval Stock JA’s remarks, Lunn JA in Chan Kui Yuen elaborated:[56]
54.Lunn JA was satisfied that the times at which the judge directed the jury to cease their deliberations on each of the days on which they deliberated were procedural matters of case management, which lay squarely within the judge’s judicial discretion. There were occasions when the jury deliberated some time past 8:00 pm, this clearly had no detrimental effect on the jury’s deliberations and was a matter for the judge to assess.[57] 55.Lunn JA referred to Tam King Hon where the Court of Final Appeal provided alternative directions to be given to the jury on majority verdicts as part of the summing-up.[58] On occasions after the delivery of the summing-up, judges are enjoined, “… to repeat or stay as close to the directions previously given where possible. If in response to such questions, a judge then uses different terms to convey the same meaning, depending on the circumstances, the risk of confusion or misunderstanding may arise.”[59] 56.In R v McKenna [60], the trial judge told the jury that if they did not reach a verdict in the next ten minutes, they would have to be kept all night. The jury returned with guilty verdicts, but the defendants’ convictions were quashed on appeal because of the judge’s interference. The Court of Appeal affirmed that verdicts must represent the jury’s unconstrained judgment, and if there was some pressure or threat so that the verdict was not free, it was not a true verdict, and there was, therefore, more than a mere irregularity.[61] The Court stated: [62]
57.In quashing the convictions, the Court reiterated that: [63]
58.The decision of whether a judge should make inquiries with the jury to establish the possibility of reaching a verdict will depend on the circumstances and the time spent in discussion. In R v Payne [64], citing Lord Lane CJ in R v Rose [65], the Court of Appeal stated:
59.Numerous variables inform the determination of whether the jury’s deliberations have become irreconcilably deadlocked. A jury should be able to take as long as it needs or feels that it needs to reach a verdict. Factors that may be relevant in determining whether to discharge a jury because of the time taken in their deliberations, include the nature and number of the charges, the number of defendants, the time already taken by the jury in its deliberations, the nature and frequency of the jury’s questions and other circumstances. There are many variables that operate in the dynamics of a jury’s deliberations, but whatever the case, a realistic and common sense assessment should be made with the clear objective of facilitating a true verdict from the jury for as long as the jury willingly requires. 60.The parties have not identified any significant consequence of the first jury’s discharge on the appellant’s subsequent conviction. Furthermore, the appellant does not argue that the discharge warrants setting aside the conviction or ordering a retrial. The respondent submits that the Judge’s decision to discharge the first jury did not amount to a material irregularity. Even if any irregularities occurred, they were effectively remedied by the second trial. 61.When considering the issues at trial, the jury’s impugned questions were not inexplicable or unreasonable. The defence case was that the appellant did not know there were drugs in the shoes, and it was not until the Customs officers discovered them that he learnt that there was white powder concealed inside. The Judge referred to the defence closing address in her summing-up:[66]
62.The first part of the question addressed the defence argument that the appellant may have brought something unlawful into Hong Kong without knowing what it was until the Customs officers discovered it. When the question was discussed between counsel and the Judge, defence counsel proposed that the Judge should direct the jury again on the essential elements of possession and knowledge, clarifying that bringing an unlawful item into Hong Kong is not the same as bringing dangerous drugs into Hong Kong. The Judge agreed, and defence counsel continued:[67]
63.The Judge comprehensively addressed the question, clearly providing an answer. Any difficulty or confusion the jury may have had regarding the matter was resolved through the Judge’s clarification. The jury’s question, which was reasonable under the circumstances, focused on one aspect of the case that, for some reason, occupied the mind of one or more jurors. However, this did not reflect a misunderstanding of the burden or standard of proof or the central issues at trial. To extrapolate a miscarriage of justice out of this question is difficult to accept. It needs to be remembered that jurors, not being lawyers, are there to represent the community in determining whether or not an accused is guilty of the offence alleged against him or her. It is also important to note that the vast majority of jurors do not have English as their first language. Consequently, when a trial is conducted in English, the questions from the jury may not always be expressed with exemplary grammar and syntax. A reasonable allowance should be made when questions in English are submitted to the court from the jury, whose first language is not English. 64.When the jury retires to consider its verdict, they deserve reasonable time and opportunity to return a lawful verdict. If, after a realistic and common sense assessment of the circumstances, it becomes clear that the jury cannot reach a lawful verdict, the court has the discretion to discharge them. Many factors may influence the time taken by the jury in its deliberations. There is no fixed time limit, and a jury should be allowed as much time as is reasonable in the circumstances. 65.Based on our reading of question 1, it focused on whether guilt could be established if the appellant knew he had brought an “unlawful item” into Hong Kong, or he had brought “an item” into Hong Kong without knowing it was unlawful until his arrest and caution. As noted earlier, the Judge addressed the question and emphasised to the jury that they must be sure that the appellant “knowingly” brought a dangerous drug into Hong Kong. While it may have been the query of one or more of the jurors, treating it as a fundamental misunderstanding of the evidence or the key issue at trial is an overreach. Juries are invited to ask questions during their deliberations so that the court can provide guidance and assistance to them, and a court needs to take appropriate steps and be assured before critically appraising a question to determine whether to discharge a jury because of it. 66.The jury system is sacrosanct, and arbitrary discharges of juries would severely undermine the community’s vital role in the criminal justice system. While we acknowledge that the Judge may have been influenced by prosecuting counsel’s critical remarks and her own concerns about the phrasing of question 1, in our view, these concerns did not justify the discharge of the jury. This decision also deprived the jury of the opportunity to further deliberate and potentially reach a verdict. We discourage the imposition of a time limit as suggested by prosecuting counsel. The proper approach is to make appropriate inquiries with the jury to see if any impasse between them may be resolved in a lawful verdict if more time is given to them. 67.There was no complaint about the appellant’s eventual trial, and whilst a different approach could have been taken in dealing with the jury’s question in the first trial, the appellant suffered no prejudice. There was no doubt that the prosecuting counsel should have been more temperate and considered in his remarks about the jury’s questions, which, on careful examination, were not unreasonable or inexplicable. Although the Judge could have given the jury more time to deliberate at the first trial, the appellant nevertheless received a fair trial, and there is no basis to interfere with the jury’s verdict in the second trial. 68.The appellant’s appeal against conviction is dismissed. The appeal against sentence 69.During the conviction appeal, the appellant applied for leave to appeal his sentence out of time, citing the new sentencing guidelines for trafficking in large quantities of drugs (heroin, cocaine and Ice) laid down in HKSAR v Huang Ruifang [68] on 5 March 2025. We granted the application, as we were seized of an appeal from the appellant’s case, and under the new sentencing guidelines, his sentence would be significantly reduced. 70.On 21 July 2022, the appellant was sentenced to 22 years and 3 months’ imprisonment. This was based on a starting point of 20 years and 3 months’ imprisonment under the old guidelines, with an enhancement of 2 years for the international element involved in bringing dangerous drugs across the border into Hong Kong.[69] 71.Applying the new guidelines, and taking into account the international dimension in this case, we considered that an overall sentence of 19 years and 3 months’ imprisonment was just and appropriate. We noted that there were no meaningful mitigating factors that warranted a reduction in the sentence. Conclusion 72.It follows from what we have said that we dismissed the appellant’s appeal against his conviction, and allowed his appeal against sentence, which we substituted with a sentence of 19 years and 3 months’ imprisonment.
Ms Samantha Chiu, SPP, of the Department of Justice, for the respondent Mr David Boyton, instructed by Charles Yeung Clement Lam Liu & Yip, assigned by the Director of Legal Aid, for the appellant [1] HKSAR v Fadonougbo Frejus Lezin [2023] HKCA 808,per Zervos JA. [2] The questions posed by the Single Judge were:
[3] Appeal Bundle (AB), 207, 218 and 219. [4] AB, 154. [5] AB, 154, 165-173F. [6] AB, 165C-T. [7] AB, 173Q-175H. [8] AB, 21B-D. [9] AB, 175I. [10] AB, 155-156. [11] AB, 157-158. [12] AB, 158. [13] AB, 176F-R. [14] AB, 183N-185F. [15] AB, 185H. [16] AB, 185I-186A. [17] AB, 186B-I. [18] AB, 186L-O. [19] AB, 186S-187I. [20] AB, 187Q-R. [21] AB, 188O-189A. [22] AB, 199D-L. [23] AB, 199M-200A. [24] Criminal Procedure, Trial on Indictment, Andrew Bruce, Volume 1, Chapter VI, [1355]-[1400], in particular Footnote 5. [25] R v Yeung Hing-yu, unrep., CACC 320/1991, 4 June 1992, 5. [26] HKSAR v Chow Wing Man, unrep., CACC 286/2005, 7 March 2006, at [30]-[35]. [27] HKSAR v Li Yanhong [2016] 1 HKLRD 924, at [16]. [28] See R v Gorman (1987) 85 Cr App R 121. [29] R v Gorman (1987) 85 Cr App R 121. [30] Gorman, 124. [31] Gorman, 124. [32] Gorman, 124 and 125. [33] See the discussion on the grounds to uphold an appeal against conviction in Criminal Appeals in Hong Kong, Christopher Corns, Chapter 7.4.4. [34] R v Hambery [1977] 3 All ER 561, 565f-g. [35] Nattrass v Attorney General [1996] 1 HKC 480, 490I. [36] See Criminal Procedure, Trial on Indictment, Andrew Bruce, Volume 1, Chapter VI, [1355]-[1400]; [1455]-[1500]; [1505]-[1550] and [1551]. [37] See also section 24 of the JO regarding majority verdicts. [38] Najibi v R (2016) 260 A Crim R 491, at [179], the Victorian Court of Appeal held that a jury could only be discharged where ‘a high degree of need’ was established. [39] HKSAR v Chan Hon Wing (2021) 24 HKCFAR 448. [40] HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133, 190G. [41] HKSAR v Kissel[2014] 1 HKLRD 460, 482, at [115], per Yeung VP. Montgomery v HM Advocate[2003] 1 AC 641, 674B–C, per Lord Hope. See also Rojas v Berllaque (Attorney General for Gibraltar intervening) [2004] 1 WLR 201, at [16] andR v Mirza [2004] 1 AC 1118, 1161F, at [112]. [42] Tam King Hon v HKSAR (2006) 9 HKCFAR 206. [43] Tam King Hon, at [28]. [44] Tam King Hon, at [30]. [45] Tang King Hon, at [31]. [46] HKSAR v Chan Ka Man [2005] 1 HKC 162. [47] Tang King Hon, at [33]. [48] Tang King Hon, at [34]. [49] The language qualification requirement for jury service is expressed in s.4(1)(c) of the JO as being that the person has a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the proceedings. Lack of language sufficiency as so stipulated in s.4(1)(c) of the JO is a good ground for discharging a person summoned as a juror. Section 4(2) of the JO provides: “In a trial before a jury, the court or a coroner may, on the court or the coroner’s own motion or on the application of the Registrar or of any interested party, discharge any person summoned to serve as a juror who is unable to satisfy the court or the coroner that the person’s knowledge of the language in which the proceedings are to be conducted is sufficient to enable the person to understand the proceedings.” [50] Chan Hon Wing, at [28]. [51] R v Ford [1989] QB 868, 871H. [52] Chan Hon Wing, at [36], [38] and [39]. [53] Chan Hon Wing, at [75]-[80] and [82]. [54] HKSAR v Mak Wing Cheung and Another, unrep., CACC 437/2003, 21 November 2006, per Stock JA (as he then was). In the case, the applicant was convicted of an offence of conspiracy to traffic in dangerous drugs by a majority verdict of the jury of 5:2 delivered at midnight, after the jury began to consider their verdict at 11:39 a.m. After consulting with counsel, the jury returned to the courtroom at 10:20 pm as directed by the judge. The judge then inquired whether there was “any possibility of their reaching agreements soon.” He clarified that by “soon”, he meant within “one hour, or even one and a half hours.” The jury responded that they had reached an agreement regarding one of the defendants and believed they could reach agreements regarding the other defendants within that time period. Then, the jury retired to continue their deliberation. [55] HKSAR v Chan Kui Yuen also known as Thomas Chan and Another, unrep., CACC 444/2014, 11 September 2015, per Lunn VP. [56] Chan Kui Yuen, at [82]. [57] Chan Kui Yuen, at [84]. [58] Chan Kui Yuen, at [100]-[101]. [59] Tam King Hon, at [30]. [60] R v McKenna [1960] 1 QB 411. [61] McKenna, 418. [62] McKenna, 422. [63] McKenna, 423. [64] R v Payne [2001] EWCA Crim 274, at [23]. [65] R v Rose [1982] 1 WLR 614, 620. [66] AB, 227M-U. [67] AB, 180R-181G. [68] HKSAR v Huang Ruifang (No.3) [2025] 2 HKLRD 138. [69] R v Lau Tak-ming and Others [1990] 2 HKLR 370; Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69; HKSAR v Abdallah [2009] 2 HKLRD 437. |
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