HKSAR v. Wong Wing Kin

CACC 72/2023

[2026] HKCA 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 72 OF 2023

(ON APPEAL FROM HCCC NO 286 OF 2020)

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J U D G M E N T

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1.The applicant pleaded not guilty to a single count of trafficking in a dangerous drug, namely 60.85 kilogrammes of a solid containing 51.17 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Following a trial in the High Court before Deputy Judge Eric Kwok, SC (“the judge”) and a jury, he was convicted on 21 March 2023. Subsequently, on 23 March 2023, the applicant was sentenced to 34 years’ imprisonment.

2.By way of a Form XI notice filed on 13 April 2023, the applicant sought leave to appeal against his conviction only. At the hearing of the application, I reserved my decision. This is my judgment.

The prosecution case

3.In late March 2019, PW1 was asked by the applicant, a close friend and work colleague whom PW1 had known for 20 years, to lend him his Identity Card. The applicant wished to make a photocopy of PW1’s Identity Card in order to rent an apartment. PW1 acceded to this request. However, the applicant did not tell PW1 the reason for renting the apartment, nor did PW1 ask[1].

4.About a month later, the applicant asked PW1 to help him move something. At about 3 am on 25 April 2019, they went by separate vehicle to Block K, Sunshine City, Ma On Shan, New Territories (“the Ma On Shan Flat”). Upon entering the building, the applicant and PW1 spent around 8 to 13 minutes in the building trying to locate a particular flat. Assisted by a photograph in the applicant’s telephone, they searched for the flat separately on different floors, during which time PW1 asked the applicant to come over on two or three occasions after PW1 thought he had found the address. Having searched 10 floors, on each of which were situated 8 to 10 flats, they eventually located the Ma On Shan Flat[2].

5.They entered the Ma On Shan Flat using the applicant’s keys. Inside a room, PW1 saw transparent Ziploc-style bags containing white powder on the floor and asked the applicant what it was. The applicant answered “Coke”, whereupon the applicant offered PW1 money to help him put the Ziploc bags into large nylon bags[3] and take them away. PW1 considered the matter briefly and agreed[4].

6.Using a trolley, which was already inside the Ma On Shan Flat, the two men carried two large nylon bags of drugs to the applicant’s private car[5]. The applicant was observed by CCTV pushing the trolley, while PW1 opened the door[6]. After the drugs were loaded onto the applicant’s private car, the applicant asked PW1 to swap vehicles without telling him why. With the applicant driving PW1’s vehicle and PW1 driving the applicant’s private car, they drove to Discovery Park, Tsuen Wan in the New Territories[7]. CCTV captured the applicant in PW1’s vehicle entering the car park of Discovery Park first, followed by PW1 in the applicant’s private car[8].

7.The applicant gave PW1 the keys to Flat B, 15^th Floor, Block 8, Discovery Park (“Flat B”) and asked PW1 to bring the two nylon bags of dangerous drugs to Flat B by himself. Having done so using the trolley[9], PW1 returned to Discovery Park car park, where he saw the applicant again. PW1 returned to his vehicle, the door of which was unlocked, and found his car keys in the ignition. At this juncture, the applicant’s private car approached and a person, known as “Ah Fung”, walked over to PW1, who gave him the keys to Flat B. This was the first time PW1 had seen Ah Fung on 25 April 2019. The applicant and PW1 then left Discovery Park by their own vehicles[10].

8.On 26 April 2019 at about 7 to 8 pm, PW1 was asked by the applicant to go to the Ma On Shan Flat again. They set off from Sheung Shui, where the applicant again swapped vehicles with PW1 and gave PW1 the keys for the Ma On Shan Flat and a mobile telephone. Acting on the applicant’s instruction, PW1 went alone to the Ma On Shan Flat to fetch a sealing machine, some Ziploc bags and gloves while the applicant waited in PW1’s vehicle. PW1 was then asked to return to the applicant’s private car and follow PW1’s vehicle driven by the applicant. They again drove each other’s vehicles to Discovery Park[11].

9.PW1 drove into the car park alone, while the applicant was outside the car park in PW1’s vehicle. The applicant instructed PW1 to drop off the sealing machine and empty Ziploc bags in Flat B as well as retrieve one Ziploc bag of dangerous drugs from a nylon bag. After putting a Ziploc bag of drugs into a heavy rucksack he had brought with him, PW1 left Flat B and was immediately arrested by the police. Among other things[12], the rucksack, cash in the amounts of HK$26,547.5 and RMB 453, five keys to Flat B and five keys for the Ma On Shan Flat were found on PW1. Besides the Ziploc bag of dangerous drugs, the rucksack also contained the sealing machine and some empty Ziploc bags, which PW1 had forgotten to drop off at Flat B as instructed[13]. Inside Flat B, the police found an electronic scale and 38 Ziploc bags of suspected cocaine in the two nylon bags. Including the one being carried by PW1, the 39 Ziploc bags seized held a total of 60.85 kilogrammes of a solid containing 51.17 kilogrammes of cocaine, the street value of which was HK$66,774,390[14].

10.Meanwhile, the applicant, who had parked PW1’s vehicle in the Discovery Park car park, was intercepted and arrested by DPC 9604 (PW3)[15]. Upon searching the applicant and PW1’s van, PW3 found, inter alia, (i) a Samsung mobile telephone in the applicant’s hand (P126); (ii) a Samsung mobile telephone with rose patterned case in the applicant’s shorts pocket (P128)[16]; (iii) 12 telephones in PW1’s van; (iv) car keys for PW1’s vehicle and a Range Rover; (v) cash of HK$2,096.8 and RMB 2,032; and (vi) two Octopus cards. Without examining the telephones, PW3 put the two found on the applicant, namely P126 and P128, in an unsealed evidence bag and the 12 telephones found in PW1’s vehicle in another unsealed evidence bag. He left notes on these bags differentiating the origins of the seized telephones and passed them to policewoman WDPC 4153 (PW4), who guarded the applicant after his arrest[17].

11.PW4 interviewed the applicant the following day, 27 April 2019. Before the interview, which was video recorded, the telephones seized from the applicant and PW1’s van were rearranged. Since two of the telephones found in PW1’s vehicle belonged to PW1, PW3 gave them to officer DPC4522 (PW2), who had arrested PW1. Inadvertently, PW4 mixed up the two telephones found on the applicant (including P128) together with the remaining ten telephones found in PW1’s vehicle for ease of storage. At the time, PW4 thought the telephones were not “major exhibits” in the case and it was unimportant to differentiate whether they were found on the applicant or in PW1’s vehicle. She had forgotten where the notes left by PW3 were or whether she had thrown them away. During the video recorded interview, PW4 did not differentiate the 12 telephones when questioning the applicant about them[18].

12.P128, one of the two telephones found on the applicant when he was arrested, contained WhatsApp messages between the applicant[19] and an estate agent Ms Liu Haixin (PW6)[20]. In April 2019, PW6 had helped a customer rent Flat B. She said she had met the customer twice in person and it was the same person who signed the tenancy agreement for Flat B as tenant. PW6 did not check this person’s identity when the agreement was signed as she had already been given a supposed copy of the tenant’s Identity Card. In her testimony, PW6 said the man who signed the tenancy agreement was not the same one shown on the Identity Card copy. She did not find this unusual and agreed that she had not mentioned this matter in her witness statement[21].

13.The prosecution case was that the applicant used PW1’s Identity Card copy to rent Flat B and conveyed the 39 Ziploc bags of cocaine from the Ma On Shan Flat to Flat B on 25 April 2019. On 26 April 2019, it was also the applicant who instructed PW1 to fetch one bag of cocaine from Flat B. During the operations on 25 and 26 April 2019, the applicant, who remained in the vicinity, used and supervised PW1 to move the dangerous drug while he kept a suitable distance[22].

14.PW1 pleaded guilty to the same offence the applicant faced and subsequently gave evidence against the applicant. During his testimony, PW1 needed to correct himself on multiple occasions after being shown various CCTV images. For example:

(i)  At about 00:25 hours on 25 April 2019, PW1 was seen going up in the lift of the Ma On Shan building[23] on his own with a hand cart[24]. The footage showed PW1 pressing two floor buttons and exiting the lift at the first of the two floors pressed. PW1 said that he could not remember this earlier incident until being shown the CCTV footage. On that occasion, he had gone up to look for the Ma On Shan Flat but could not locate it. He was told by the applicant the approximate floor but, in giving evidence, he said he had forgotten why he pressed the other floor. He denied that he had done so to avoid being traced. When PW1 returned to the Ma On Shan Flat on 26 April 2019, he was able to press the correct floor button because the defendant had told him the right floor[25];

(ii)  PW1 initially said that, on 25 April 2019 at Discovery Park, the applicant took him up to Flat B first without the drugs after they had arrived from Ma On Shan. This happened 15 minutes before he brought the drugs to Flat B on his own. He said that in one of the still CCTV images[26], the applicant was giving him the keys for Flat B. However, having seen other CCTV footage, he said he had misremembered and now recalled that, firstly, before the applicant instructed PW1 to bring the drugs to Flat B himself, the applicant had only shown PW1 the way to the podium and not Flat B; and, secondly, in the still image, the applicant was not giving PW1 the keys to Flat B, but receiving his own keys from PW1. He could not remember where the applicant had given him the keys for Flat B[27].

The defence case

15.The applicant elected to give evidence but did not call any other evidence. His defence was a denial of knowledge of the presence of the dangerous drugs. Although he admitted involvement in moving the Ziploc bags, some of which bore traces of his and PW1’s DNA[28], the applicant had no idea that they contained dangerous drugs and was told by PW1 that they were fillers.

16.In essence, the applicant’s case was that he was tricked by PW1. On 25 April 2019, PW1, who was a close friend and colleague who wanted to test drive the applicant’s private car with a view to buying it, suggested to meet near Sunshine City, Ma On Shan at about midnight. The applicant arrived at about 00:45 hours with a colleague Ah Fung, who knew PW1 and had a test drive of the private car before PW1. PW1, who drove his van to Sunshine City, gave the applicant the access card and keys for the Ma On Shan Flat because the applicant needed to use the toilet urgently. The applicant was seen in CCTV footage going up alone in a lift at around 00:53 hours. Having stayed in the Ma On Shan Flat for around 10 minutes and noticing nothing abnormal, the applicant went back to PW1 for the test drive and returned the Ma On Shan Flat’s access card and keys. After the test drive session, PW1 told the applicant that he wanted to extend the test drive. It happened that he needed to move something from Ma On Shan to Discovery Park. PW1 asked the applicant to join him[29].

17.The applicant and PW1 went up to the Ma On Shan Flat at around 03:00 hours on 25 April 2019. There was no episode of searching 10 floors or so to locate the flat. Since he was eating a snack, PW1 asked the applicant to press the floor button in the lift. At that time, the applicant had forgotten which floor he went to earlier, and so pressed the wrong floor. When the lift stopped, PW1 told the applicant that it was not the right floor. However, instead of using the lift again, PW1 suggested walking downstairs since it was quicker. Having walked down 10 odd floors, they arrived at the Ma On Shan Flat and PW1 opened the door. After using the toilet in the Ma On Shan Flat again, the applicant saw PW1 in a room tidying Ziploc bags that contained white powder. PW1 told applicant that they were fillers. The applicant had never seen dangerous drugs or used fillers before. Consequently, he believed PW1 and agreed to help PW1 put the Ziploc bags into two big bags. In doing so, he did not notice an electronic scale in one of the big bags[30].

18.The applicant pushed the trolley carrying the two big bags to the car park. The two big bags were loaded onto the applicant’s private car, which was then driven by PW1 to Discovery Park while the applicant followed in PW1’s van. After arriving at the car park of Discovery Park, PW1 pushed away the trolley with the two big bags and gave the applicant back his car keys. With PW1 away, the applicant intended to leave, only to discover that he had forgotten to return the keys for PW1’s van. He waited for PW1’s return, during which he got some food from a 7-Eleven store. When PW1 returned, he asked Ah Fung to pass the van’s keys to PW1.

19.On 26 April 2019, the applicant met PW1 in Fanling at around 20:00 hours and let PW1 take his private car. They arranged to meet at Discovery Park at around 22:00 hours for the applicant to collect payment as well as documents for registration. After the applicant arrived at Discovery Park, he was suddenly arrested by the police at the car park without seeing PW1 at all. As for Flat B, the applicant said it was PW1 who asked him to liaise with a property agent on behalf of PW1. P128, the telephone the applicant admitted using to exchange messages with the property agent, was previously given to him by PW1 and was returned to PW1 on 23 April 2019[31]. The defence insisted that P128 was found inside PW1’s van instead of on the applicant’s person[32].

20.The applicant’s counsel at trial invited the jury to consider these particular points in favour of the defence:

(i)  Before he was confronted with the CCTV footage, PW1 had maintained that the first time they went to the Ma On Shan Flat was at about 03:00 hours, having no recollection of the 00:25 hours incident at all, when he was seen going up the lift alone with a cart. He was seen acting suspiciously in the footage and his explanation for forgetting the 00:25 incident was not to be believed[33];

(ii)  PW1’s claim that the two of them used a photograph to search for the Ma On Shan Flat on 10 floors, which housed about 100 units, within 13 minutes was incredible and had also been omitted in his non-prejudicial statement[34];

(iii)  PW1 testified that he asked the applicant about the nature of contents of the Ziploc bags while in the Ma On Shan Flat. PW1’s non-prejudicial statement merely suggested that he was confirming with the applicant whether they were drugs[35]. Furthermore, it was unreasonable for PW1 to simply agree to help the applicant move the drugs after thinking briefly without any payment being determined[36];

(iv)  The applicant was seen in the CCTV footage pushing the trolley of drugs fearlessly at Sunshine City. He looked that way because he did not know about the drugs. If it was PW1 who was helping the applicant, why would PW1 not be the person pushing the trolley[37];

(v)  If the applicant was using PW1, he could have asked PW1 to load the drugs onto PW1’s own van to keep the applicant’s private car clean. PW1, on the other hand, had good reason to keep his van clean as it was registered with GoGoVan[38];

(vi)  The original evidence of PW1 describing the applicant taking him to Flat B was admitted to be wrong. After seeing the CCTV footage, PW1 said that the applicant did not go to Flat B at all. PW1 was also wrong in explaining who was giving what to whom in image 18. It was said that these were not the product of faulty memory but of making up a story[39];

(vii)  It was not believable that PW1 should say he forgot to drop off the sealing machine and empty Ziploc bags in Flat B on 26 April 2019. The rucksack he carried was hefty and, when putting in one bag of cocaine, he must have rearranged the rucksack before leaving Flat B. It was unlikely that he forgot to take out a heavy sealing machine and the empty Ziploc bags[40];

(viii)  The messages between the applicant and property agent PW6, as well as the telephone call records supported the defence case that the applicant was acting on behalf of PW1 when liaising with PW6[41]. PW6’s evidence was not reliable in that she could not remember many details and forgot to mention in her witness statement that the customer signing the agreement was a different person to the one shown on the copy of the Identity Card[42];

(ix)  It was argued that P128 was not found on the applicant but in PW1’s van. The evidence of PW3 and PW4 was contradictory. The explanation given by PW3 on why she mixed up the telephones was unreasonable[43];

(x)  PW1 pleaded guilty and offered to implicate the applicant as a tainted witness because this was in his best interest in terms of sentence reduction. PW1 was caught red-handed and he had no choice but to plead guilty[44].

The summing-up

21.The judge reminded the jury of the burden and standard of proof, and made clear that the applicant “does not have to prove his innocence”[45]. He explained to them how to function as a jury and assess the evidence, including how to draw inference and what was circumstantial evidence[46]. The judge gave the jury directions on law, including the elements of the offence[47]. He reminded the jury that PW1 testified against the applicant in the hope of getting a lesser sentence and, accordingly, his evidence should be approached with caution[48]. When summarising the respective cases of the parties and the issues at trial, the judge said this[49]:

“… In a nutshell, defence says the defendant was only in possession for a very, very limited time, ie, when he put them into the nylon bags and pushed them out of the flat and loaded onto the private car.

As to the other stages, occasions, he was not in possession as the dangerous drugs was not under his control nor stored at his direction. Defence says in that limited time of possession the defendant did not have knowledge that they were dangerous drugs as PW1 has misled him by telling him that it is thin fillings. Therefore, the issues in this case which you have to decide – which you have to decide is, first, during those two days, ie, from the 25^th to the 26^th, was the defendant ever in possession of dangerous drugs? Secondly, you have to decide in what circumstances on those occasions he came into possession of the dangerous drugs.

… Having decided on what occasions or at what stages in those two days he was in possession, the next question you have to ask yourself is: In those circumstances, on those occasions that he came into possession, did he know they were dangerous drugs? As to the purpose of possession, there is really cannot be disputed that it is for the purpose of trafficking given the huge quantity, and I suspect at that end of the day you may have no difficulty in making such a finding.”

22.Having summarised the evidence, the judge reiterated the trilogy of issues at trial[50]:

“Now, as I mentioned earlier, the first issue that you have to decide is within those two days in the count, namely, 25 and 26 April 2019, was the defendant ever in possession of the dangerous drug? And possession can be solely by him or a joint possession. You should next decide on how many occasions or at what stages within those two days he was in possession, either solely or jointly.

… Once you have decided that, you then have to decide: On those occasions or stages that you found him as a fact in possession, was he aware that they were dangerous drugs? Finally, on those occasions which you found him in possession and on those occasions you found him that he had knowledge that they were dangerous drugs was he possessing them for the purpose of unlawful trafficking?

As I told you, unlawful trafficking includes possession for the purpose to supply them to another. You may feel because of the large quantity, as I said, 60 kilogrammes of a solid substance, you may find it that it must be for the purpose of unlawful trafficking without difficulty, but I must stress it is your decision that counts.

…

On the other hand, the defence argue and says that there was only one occasion that the defendant was in possession, ie, when he packed them up in Ma On Shan and pushed them out of Block K, Sunshine City. Defence argue he was misled as to the nature of the dangerous drugs as he was told and believed they were thin fillings. As to the other occasions defence says that he was not in possession because the drugs were not under his control. In other words, defence says there was only one occasion or at one stage he was in joint possession with PW1, but on that occasion he had no knowledge that they were dangerous drugs because he was misled and he had never seen dangerous drugs before, nor had he used thin fillings before.

As to other times or stages or occasions on the 25^th and 26^th, he was not in possession. Not only he was not in physical custody of them when they were being conveyed or pushed, but also they were not under his control at all. He denied that he had ever given instruction to PW1 to retrieve one bag from the Flat B on the 26^th. So you have to take those arguments into consideration when you come to consider the questions that I have posed to you.” 

The grounds of appeal

23.Acting in person[51], the applicant has advanced three grounds of appeal against conviction in his homemade written submission dated 27 August 2025[52]:

Ground 1: “No direction on the issue of knowledge”: the judge in his summing-up did not tell the jury that the issue in this case was whether the applicant had knowledge of the dangerous drug. The judge wrongly placed the focus on the issue of “possession”. He did not point out to the jury that the applicant “had made no confession of having subjective knowledge of the dangerous drugs”. This failure has caused a real danger of the jury omitting to deal with the issue of knowledge before reaching their verdict[53].

Ground 2: “Inadequate direction”: the judge’s directions to the jury omitted to: (i) remind the jury that the applicant was presumed innocent, (ii) explain what was evidence and the nature of “admitted facts”, (iii) give proper directions on PW1’s criminal record, and (iv) give proper directions on the inconsistencies in the prosecution witnesses’ evidence[54].

Ground 3: “Unfair and imbalanced summing-up”: the judge failed fairly and accurately to point out the defence case, including evidence in favour of the defence and how the prosecution evidence was rebutted by the defence[55]. Further, the judge was biased when making comments on the defence arguments[56].

24.In Ground 3 regarding the judge’s partiality, the applicant referred to the relevant principles stated in HKSAR v Zhu Jinni[57] and Lin Ping Keung v HKSAR[58], and complained specifically against the following passages of the judge’s summing-up:

“[PW1] said the defendant had told him the approximate floor, but he cannot recall the purpose of pressing another floor button. Again, you may feel odd that he cannot recall why he pressed another button. In any event, he denied the purpose of pressing another button so that he cannot be traced. Now, what you make of the denial is a matter for you, but you may wonder how can he achieve not being traced as the CCTV in the lift will show on which floor he left the lift.” (AB, p 30O-R)

…

“It was suggested to him that he gave keys and access card to the defendant – access card to the defendant so that he can go to his flat and use the toilet. It was further suggested that why the defendant was seen -- sorry. It was further suggested that why the defendant was seen going up alone in the lift at about 0053 hours. Now, you may wish to ask yourself: Why would the defendant allow PW1 going into his flat in Ma On Shan without his presence; in particular, if the defendant was not aware of the large quantity of drugs inside the flat?” (AB, p 31M-Q)

…

“He said he suffered from a faulty memory as well when he gave his non-prejudicial statement in February 2021. It was a matter for you whether you accept that is a faulty memory, after all, he was talking about an incident nearly two years ago in his NPS. You may also wish to take into consideration that if he got it wrong in February 2021, is it more likely than not that he would make the same mistake now in March 2023, another two years, especially, he said he had not seen the CCTV footages until he gave evidence in court.” (AB, p 30E-I)

…

“He denied he used another excuse concerning buying the defendant’s private car in order to use the defendant’s private car between 8 to 10 pm on the 26th. He denied he had asked the defendant to go to Discovery Park to collect payment and deal with the paperwork about registration. You may wonder why these cannot be done at 8 pm when they met, and the defendant allowed PW1 to have his private car. He denied he was avoiding using his van to transport items. You may wish to consider this time the items to be transferred from Ma On Shan to Tsuen Wan are innocuous items. They are not drugs. They are just sealer, Ziploc bags and gloves. They may be considered as just ordinary stuff, so why should he use this buying his car as an excuse to use the car for two hours to convey these innocuous items? It is a matter for you to think of.” (AB, p 33L-S)

The respondent’s reply

25.Ms Winnie Mok, for the respondent, submitted in respect of Ground 1 that the judge has clearly and properly directed the jury on the issue of knowledge. Apart from the passages quoted in [21] and [22] above, Ms Mok pointed out that: (a) the jury was reminded by the judge that they could only convict the applicant if they were sure that the applicant knew the content of the Ziploc bags were dangerous drugs (AB, pp 22S-23C); (b) the applicant’s defence argument and evidence were repeatedly highlighted by the judge (eg at AB, pp 24A-G & 39Q-40M). The complaint in this ground cannot, therefore, be substantiated[59].

26.In respect of Ground 2, Ms Mok submitted that the judge has properly directed the jury as to the burden and standard of proof (AB, pp 19Q-20A), adequately explained the meaning of direct and circumstantial evidence (AB, pp 20H-22E) and clearly warned the jury to approach PW1’s evidence with caution, bearing in mind that PW1 had strong incentive to testify against the applicant (AB, p 24M-U). Although the judge did not specifically touch on the nature of “Admitted Facts”, no prejudice to the applicant was caused since these facts were largely formal evidence, which was not disputed by the defence. She contended that the judge was right not to mention PW1’s previous conviction in his summing-up. As for the inconsistencies of the prosecution witnesses’ evidence, they had been fully detailed by defence counsel in her closing address to the jury. The judge was again correct in not commenting too much on the evidence lest he appeared to usurp the role and function of the jury[60].

27.Ms Mok disagreed that the summing-up was unfair or imbalanced. The judge not only warned the jury about the risk of PW1 falsely accusing the applicant (AB, pp 24N-25C), he also summarised the defence case in great detail and with due emphasis (AB, pp 39F-42I). Nothing in the summing-up showed that the judge presented the prosecution case in a more favourable manner than the defence. The jury had already been given a comprehensive closing speech by the defence counsel. It would only be inappropriate for the judge, who was neither the defence nor the jury, to sow every seed of doubt about the prosecution case in the defence’s favour. Ground 3 thus lacked merit[61].

Consideration

28.This was a classic jury case of whether PW1 was to be believed beyond a reasonable doubt in view of the deficiencies in his account, and in the light of the applicant’s own evidence. It was for the jury not the Court of Appeal to make determinations of fact. I have set out the evidence and the arguments in some detail, as well as the relevant directions in the summing-up to demonstrate that the judge conducted a very fair and comprehensive summary of the case. I can see no errors of law. I agree with Ms Mok’s submissions. The evidence was overwhelming, once the jury decided that they believed PW1 for all the apparent weaknesses in his evidence.

29.There are two matters I would like to mention. Firstly, in the applicant’s written submissions, it is argued at [20(C)(v)] on page 13 that the prosecution and the defence both “agreed that [PW1] did not have any mobile telephone” when he was arrested on 26 April 2019. The complaint was that this contradicted PW1’s evidence of having received from the applicant a telephone earlier that day for communication, whereas the judge failed to point this out. It seems to me that this argument is based on speculation. Although the Admitted Facts did not state that PW1 had a telephone when he was arrested, the available material does not show that there was any evidence or agreement that PW1 did not have a telephone when he was arrested by PW2. Defence counsel’s closing address did not mention this nor did she use it to discredit PW1.

30.Secondly, the applicant complained that the judge was unfair when making adverse comments on the defence case in passages quoted in [24] above. However, on several other occasions, the judge’s comments were very much in favour of the defence:

“[PW1] was shown P159 again, that is the CCTV footage. He was shown CCTV footage on the 25^th at around midnight. He was seen going up in the lift on his own with a cart. He said he wouldn’t remember this earlier occasion till he was shown the captures. The captures at D1. He can’t quite recall how he looked for the flat on this first occasion. You may feel strange. How can he be completely blank on this? But he said he had pressed several floor buttons and it can be seen that he pressed two floor buttons and left the lift when the lift stopped at the pressed 1st floor button.

He said the defendant had told him the approximate floor, but he cannot recall the purpose of pressing another floor button. Again, you may feel odd that he cannot recall why he pressed another button. …” (AB, p 30I-P)

…

“He was cross-examined on the two versions that he had given about being taken up to the Flat B first by the defendant without drugs. You may feel odd that if he -- if it is just a faulty memory, how can PW1 give so much details of who opened the door, who locked the door and gave him keys after securing the door? As to the passing of keys to him, he also gave two versions, did he not? …” (AB, pp 31R-32A)

…

“PW1 said despite the instruction of conveying the sealer, the Ziplock bags and the gloves from Ma On Shan to Tsuen Wan, he forgot to leave them there in Flat B. He also said he forgot to do so despite the fact that the rucksack was heavy, and he had opened the rucksack and rearranged items in it when he got the bag of drugs – when he put the bag of drugs in it. You may think it is unlikely; a matter for you.

He agrees the rucksack in photo 30, P183, looked as bulky as D2, photo 3. He said the rucksack looks as bulky as this because the rucksack is made of leather and quite hard. It is a matter for you whether the screen captures, that is D2 and photo 30, showed the rucksack in similar bulky condition. You may also want to examine P19, the rucksack, yourself. The rucksack does have – you may see the rucksack has got wheels and hard board underneath. You might like to examine it to see what you make of PW1’s answer that it is hard and, therefore, it looks as bulky and whether it is empty or not empty” (AB, p 33B-K)

31.Having examined the papers carefully, I do not see any reasonable grounds of appeal against conviction and the application is refused. The applicant is nevertheless reminded that he has the right to renew his application for leave to appeal against conviction to the full Court of Appeal, but he is also warned that the Court has the power to order the loss of any time spent in custody pending the determination of the appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.

32.I should add this in relation to sentence. Although there is no appeal against sentence, the Court has, since sentence was passed on the applicant, issued revised guidelines[62] in relation to large or very large quantities of dangerous drugs, including cocaine; and, furthermore, held that the prevailing sentencing limit for the offence of trafficking in dangerous drugs is 35 years’ imprisonment[63]. It is a matter for him whether he wishes to mount any application out of time in relation to sentence, given that the sentence after trial for 30 kilogrammes of cocaine on a purely arithmetical basis would now be 30 years’ imprisonment. He received 34 years’ imprisonment after trial for trafficking in 51 kilogrammes of cocaine.

Ms Winnie Mok SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person