HKSAR v. Lau Ka Yan

CACC 64/2023

[2026] HKCA 820

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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REASONS FOR JUDGMENT

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

1.The appellant 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, 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). She pleaded not guilty to Count 1 and proceeded to trial, while she pleaded guilty to Count 2 and was accordingly convicted of that offence.

2.On 23 February 2023, following a trial before Deputy High Court Judge Eric Kwok SC (the Judge) and a jury, the appellant was convicted of Count 1.[1]  On 23 March 2023, she was sentenced by the Judge to 21 years and 6 months’ imprisonment on Count 1, and 4 years’ imprisonment on Count 2, which were ordered to run wholly concurrently, resulting in an overall term of 21 years and 6 months’ imprisonment.

3.The appellant applied for leave to appeal against conviction and sentence in respect of Count 1.  She later notified the Court that she had abandoned her appeal against sentence but had not filed the appropriate notice.  She confirmed before the Single Judge during her leave application on 14 March 2025 that she did not wish to proceed with her sentence appeal, which was therefore dismissed.  Although she subsequently informed the Court that she wished to revive that application[2], she failed to comply with the Court’s directions or to file an affirmation demonstrating that her act of abandonment did not reflect her true intention.  No further action was taken in respect of that matter.  However, the Single Judge granted the appellant leave to appeal her conviction in respect of Count 1.

4.At the conclusion of the appeal hearing, we dismissed the appeal against conviction.  We indicated we would hand down our reasons in writing in due course, which we now do.

The prosecution case

5.On 4 January 2020, Customs officers intercepted an inbound parcel from Germany, which was addressed to Lee Wang with the telephone number of 66722359[3] and the address of Flat 6A.  The appellant and Mr Lee Wang (PW7) were colleagues[4].  The parcel was declared to contain candies and biscuits, but concealed inside were the dangerous drugs in question, with an estimated street value ranging between HK$433,925.05 and HK$567,010.31. 

6.On 6 January 2020, Customs officers conducted a controlled delivery of the parcel.  Customs Officer 18339 (PW2), posing as a postal officer, went to Flat 6A with the parcel, but no one answered the door. He therefore left a notification card with the chop of the Chai Wan Post Office in the mailbox of Flat 6A.

7.On 8 January 2020, various calls were made from the appellant’s telephone number (60449292) to the general enquiry hotline of Hongkong Post Office (29212222) at 12:42 pm, 2:41 pm, 2:53 pm and 3:03 pm[5]. In the meantime, PW2 had taken the parcel to the Chai Wan Post Office, but no one came to collect it during office hours that day.  At 4:01 pm, PW2 called 60449292 using the telephone number of the Chai Wan Post Office (25564411)[6]. A woman answered his call and asked to make an online re-delivery request for the parcel.  PW2 stated that he would get back to her, but was unable to contact her on that number[7]. At 4:45 pm, the postal superintendent of the Chai Wan Post Office (PW4) received a call from 60449292.  The caller, a woman, enquired about a parcel[8], and PW4 explained to her how an online re-delivery request could be made[9].

8.On 9 January 2020, two calls were made from 60449292 to 25564411 at 9:31 am and 9:34 am[10], and the same woman spoke to PW4, saying that she had tried but was unable to make an online re-delivery request[11]. At 10:02 am, PW2, who had taken the parcel to the Chai Wan Post Office, telephoned 60449292 again[12]. He spoke to a woman whose voice he recognized as the same as before, who confirmed that she wanted to have the parcel delivered to her at Flat 6A that afternoon[13]. Customs Officer 06113 (PW3) used the telephone number 67705214 and made a total of five calls to 60449292.  According to his evidence, the first two calls, made at 1:59 pm and 2:00 pm, were not answered, while the last three calls made at 2:06 pm, 2:39 pm and 4:03 pm, were answered[14]. In particular:

(a)     During the 2:06 pm call, the woman who answered it was told there was a parcel for Lee Wang and was asked whether she was in Glory Industrial Building.  The woman answered that Lee Wang was not there and would not come back until after 4:00 pm.

(b)     During the 2:39 pm call, when PW3 said he had a parcel for Lee Wang and asked if Miss Lee was in the building, the woman with the same voice answered the call.  She claimed to be Miss Lee and said she would return to the building after 4:00 pm.

(c)     During the 4:03 pm call, a woman, who claimed to be Miss Lee, answered the call and said she was not in the building and would not return later that day.  She also stated that it was not particularly necessary for her to receive the parcel.[15]

9.At 4:25 pm, PW3, together with PW2, proceeded with the controlled delivery of the parcel to Flat 6A and pressed the doorbell[16]. One of the persons who worked there opened the door and called out the appellant, who would normally handle postal parcels[17]. When PW3 asked if anyone by the name of Lee Wang was there, the appellant replied that he was a colleague in the company but was not there.  She then said, “We have only Miss Lau here and that’s me”, and indicated that she would sign to acknowledge receipt for the postal packet for Lee Wang.  After she signed the acknowledgement receipt of the parcel, PW3 revealed his identity[18].

The prosecution evidence

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

11.Customs Officer 12145 (PW1) 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.[19]

12.PW2 testified that he received the parcel and 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 assistance of postal staff.  He then left the post office and made a controlled delivery to Flat 6A.  However, no one answered the door, and he therefore placed the notification card, containing all the relevant details, in the mailbox of Flat 6A on the ground floor.[20]

13.On the afternoon of 8 January 2020, PW2 took the parcel to the 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 made 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 it.[21]

14.On 9 January 2020, PW2 undertook 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 to her at Flat 6A in the afternoon, and she replied, “All right”.  PW2 confirmed that it was the same voice in these telephone conversations.[22]

15.At 4:25 pm on 9 January 2020, PW2, together with PW3, went to Glory Industrial Building to deliver the parcel by way of a controlled delivery to Flat 6A.  PW3 pressed the doorbell, and someone opened the door.  PW3 entered the premises and saw the appellant and Mr Ng Hoi-muk (PW9).  The appellant signed the acknowledgement receipt after some discussion between her and PW3.  She was arrested and cautioned after she showed her Hong Kong Identity Card to PW3.  The appellant was then asked to go back to her office, where she was shown the contents of the parcel.[23] 

16.PW3 testified that he used telephone number 67705214 to call the telephone number shown on the parcel.  He told the man who answered 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 that the delivery be made to his colleague at the reception, as he was driving.[24]

17.PW3 made two calls to 60449292 at 1:59 pm and 2:00 pm, but no one answered.  At 2:06 pm, he tried again, and this time a woman answered.  He told her 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 that 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.[25]

18.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 that it was not particularly necessary for her to receive the parcel.[26]

19.PW4 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.  Between 9:15 and 9:30 am on 9 January 2020, the same female customer called again.  She said she had tried unsuccessfully to request a re-delivery, and asked what she should do. The customer provided PW4 with the parcel serial number.  PW4 input the serial number into the computer system, which generated the message that another delivery could not be made.  PW4 then answered the customer that she would consult the computer department and reply to her.  After 9:30 am, the customer called again, and a similar conversation took place.  The customer left her telephone number and PW4 noted down that number, and the parcel serial number, which were passed on to Customs and Excise.[27]

20.Customs Officer 1138 (PW5) was also involved in the controlled delivery on 9 January 2020.  He testified that he intercepted a man named Lee Wang, whom he later arrested and cautioned.[28]

21.PW7 testified that he was an employee, namely the sales manager, of Hunter Material Limited, which operated 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 appellant.[29]

22.Mr Choi King-hon (PW8) and PW9 both worked at Flat 6A.  While PW8 was the appellant’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 appellant, as she would normally handle postal parcels.[30]

23.The prosecution adduced a computer certificate for the subscriber details, call records, payment history and disconnection history of the telephone number 60449292 (Exhibit P38), and a computer certificate for the subscriber details and call records of the telephone number of Hongkong Post, 25564411 (Exhibit P39).  The call records for 60449292 showed that calls were made from that number to the general enquiry hotline 29212222 at 12:43 pm, 2:41 pm, 2:53 pm and 3:03 pm on 8 January 2020.  At 4:01 pm, the Chai Wan Post Office number, 25564411, made a call to 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.[31]

24.In her cautioned interview, the appellant admitted that she had been using the telephone number 60449292 since March or April 2019[32].  She stated that it was Mr Lee Wang who had given her the telephone card, and that she paid the monthly charges for that number.  She further stated that Mr Lee Wang was one of the bosses in her office and described him as “really busy”[33].  She denied making calls toHongkong Post using 60449292 to obtain information or records relating to the parcel[34]. She claimed that she had let her friend use that number on 6 and 7 January 2020 after 6:00 pm.  The records showed that the service for the telephone number had been suspended on 8 January 2020 due to non-payment of charges, but was re-activated that night.[35]  She was not asked, and did not say, whether she made any telephone calls to PW4 or answered any calls from PW2 or PW3 on 9 January 2020.  She also denied knowing why the parcel was sent to her office[36], or having ordered it[37], or having any knowledge of its contents[38].

25.The prosecution did not make a closing speech to the jury.  As for Count 1, it was alleged that the appellant was the person who made enquiries about the parcel before she signed the acknowledgement receipt for it, although she had not physically handled it[39]. The prosecution sought to draw an inference that she was a knowing party who attempted to receive the parcel containing dangerous drugs.  As for Count 2, it arose from the search of the appellant’s residence after her receipt of the parcel and had nothing to do with the parcel itself.

The defence case

26.The appellant elected not to testify at trial.  Her position was that, as her job duties required her to do, she was only receiving the parcel on behalf of her colleague, and that this fell short of attempting to traffic in the dangerous drugs inside the parcel.  There was no evidence that she was the person on the telephone when those enquiries and discussions were made on 8 and 9 January 2020.[40]

27.Defence counsel (not Mr Percy) made a closing speech to the jury.  He contended that there was insufficient evidence from the prosecution to show that the appellant was the person who made or answered the calls on 60449292 on 8 and 9 January 2020.  He explained to the jury:[41]

“Now, we know that the prosecution has, quite rightly, called evidence relating to phone calls which were made on the phone from the phone of which the defendant agrees, and told the police, it was her number. Now, what I would say to you, members of the jury, when you consider those phone calls, as you must, there is no evidence before this court as to who made the calls on her phone number, no evidence at all as to who made the calls. There is no evidence as to where those calls were made from, none at all.

So the prosecution would probably urge you to say, ‘Well, draw an inference, draw an inference. Well, it’s her -- you know, it’s her phone number, she must have made the phone calls.’ Well, members of the jury, I suggest that is just pushing things a bit far, if you’re being asked to draw an inference that she made the phone call. You may be suspicious - perfectly reasonable. You may be suspecting that she made the phone call. But, as I said, there’s no evidence that she did.

But, even if you were suspicious, that is not good enough, because you cannot decide a case, a criminal case, a serious criminal case, on the basis of suspicion.  Your duty is to find facts and to decide beyond a reasonable doubt whether the offence is made out.  But if you think, ‘Well, in relation to these phone calls, well, maybe, maybe she did.  Well, she could have.  Well, it’s quite possible’, not good enough, that is not enough, because that means that you are unsure.  That means that it hasn’t been proved beyond a reasonable doubt that she made those calls.”

28.In submitting to the jury that the evidence of telephone calls was “thin”, defence counsel relied on the appellant’s assertions in her record of interview and said that her telephone number 60449292 may have been used by her friend. The appellant said that she let her friend use her number on 6 and 7 January 2020, after 6:00 pm only, which, on her account, predated both the calls in question and the suspension of service on 8 January 2020 from morning to night. However, this was contrary to Exhibit P38, which showed that the number was disconnected on 7 January 2020 and reconnected on 8 January 2020[42], with no fewer than 15 call records between 10:36 am and 8:47 pm[43]. The relevant submissions were reproduced as follows:[44]

“So she was asked about the telephone numbers and she said – ‘Have you ever called Hong Kong Post from the phone number 6044?’ - you know the number I’m talking about. And she said, ‘No.’ ‘Have you let anyone use the phone number 6044 recently in the last few days?’ ‘Yes. I let my friend use the number on Monday and Tuesday, 6 and 7 January. Wednesday the 8^th, I found that service for the number had been suspended.’

So, whatever you make of that, whatever you make of her explanation for the use of the phone, it’s quite clear that she’s not the only one who used it, that other people had. There it is. That’s something for you to consider. But, as I have said to you, and I don’t want to repeat myself, the evidence from the phone calls is very thin. The evidence from the phone calls hangs by a thread and even if, members of the jury, you were to find that she did make the calls, and she denies making them, but if you were to find that she did make the calls, that falls, I suggest, well short, well short, of proof beyond reasonable doubt that she was attempting to traffic in dangerous drugs.

Let me repeat that.  That’s important.  Even if you were to find as a fact that she had made those calls, it falls well short of the sort of proof that is required in this case, the sort of proof that is required to find her guilty of attempting to traffic in those dangerous drugs.  That’s why I say, the evidence of the phone calls is thin.  It hangs by a thread and it doesn’t really take you very far at all.”

The summing-up

29.At the commencement of the summing-up, the Judge briefly summarised the case for the prosecution and for the defence:[45]

“The prosecution alleges that the defendant attempted to unlawfully traffic the dangerous drugs in the parcel, though she had not physically handled the parcel. And not only she had signed the acknowledgement receipt, but also made enquiries and/or talked about the parcel over the phone. On the other hand, the defence says that the evidence falls short of proving the defendant attempted to unlawfully traffic the dangerous drugs in the parcel in that she was only receiving the parcel on behalf of her colleague, Lee Wang. And furthermore, defence says there is no evidence that she was the one on the phone when those enquiries and /or discussions were made on the 8^th and 9^th.”

30.It was noteworthy that the defence case was that the evidence failed to prove that the appellant made the telephone enquiries or that she attempted to traffic in the dangerous drugs.  The Judge then went on to crystallise the issues for the jury’s consideration as follows:[46]

“So the issues in this case are whether she had made any those enquiries and/or discussions on the 8^th and 9^th or not. And if she had made any of them, was she attempting to traffic the drugs in the parcel? That is what this case is all about.”

31.When directing the jury on the burden and standard of proof, the Judge explained that it was for the prosecution to prove its case and that, if they were not sure, their verdict should be not guilty:[47]

“In this case, the prosecution must prove that the defendant is guilty; she does not have to prove her innocence. In a criminal trial, the burden of proving the defendant’s guilt is on the prosecution. How does the prosecution succeed in proving the defendant’s guilt? 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.”

32.In relation to the appellant’s account in the record of interview, the Judge, having reminded the jury that in a mixed statement “there is less weight to be attached to her excuses or explanations for they were not made on oath”[48], drew their attention to her assertion that the service of 60449292 was suspended on 8 January 2020, and said:[49]

“If you look at the computer certificate of Hutchison, which is Exhibit P38, which is at tab 7. In that computer certificate, in the attachment HUT-02, in that attachment you will find at the bottom right corner the ‘dis-/reconnection’ history. Do you see that? You will see there have been four occasions of this dis- and reconnection. In particular, the second entry there, it was disconnected on 7 January 2020 at 11 pm - 23(2300?) hours, but it was reconnected at 9.47 in the morning on 8 January 2020. So her answer in 21 in the record of interview is being contradicted by this computer certificate.

From the computer certificate you may feel that the defendant has told a lie in P32. Whether the defendant did in fact tell a deliberate lie is a matter for you to decide; bearing in mind she was asked on the 9th about this at about 5.30 in the evening and she talks about a matter the day before, the 8^th. If what she said was untrue by mistake or out of forgetfulness or confusion, that is not a deliberate lie and you must ignore it.  But whether it is a deliberate lie or not is a matter for you to decide as I say, bearing in mind when she was asked about it and the matter she was asked about is a matter the day before.  Is the untruthfulness a result of mistake, forgetfulness or confusion, a matter for you.”

33.The Judge also told the jury how the prosecution case could be established by circumstantial evidence and that they could only convict if they could come to the “sure conclusion”[50] that it was the appellant who committed the offence and they were “sure of her guilt”[51].

34.The Judge provided the jury a handout of “Route to verdict”, which read as follows:[52]

“1. Was it the D who had called the Post Office hotline and/or the Chai Wan Post Office and/or spoke to Ms Wu (PW4) and/or spoke to CO 06113 (PW3)?

If you are not sure that any one of these calls were made or answered by D, the verdict is not guilty.

If you are sure that one or more of these calls were made or answered by D, go to question 2.

2. Did the D know there was DD in the parcel?

If you are not sure she knew, the verdict is not guilty.

If you are sure she knew, go to question 3.

3. Did the D attempt to take possession of DD for the purpose of unlawful trafficking?

If you are not sure she attempted to do so, the verdict is not guilty.

If you are sure she attempted to do so, the verdict is guilty.”

35.The contents of the handout were read to the jury as part of the summing-up[53].

The grounds of appeal

36.The original grounds of appeal were in these terms:

“(Ground 2) In the summing-up the learned trial judge dealt with the defence case or the case put forward by the defence during the trial, but he failed to give a Liberato direction.

(Ground 3) During his summing-up the learned trial judge placed a ‘hand-out’ before the jury with the title ‘Route to Verdict’ (MFI-2).  He failed to ensure that when explaining its contents, in particular paragraph 2 relating to the defendant’s state of mind as to the contents of the parcel, that apart from the possibility of not being sure, which would result in a not guilty verdict, the jury should also have been reminded that if they believed the defence case being put forward was true or may be true, then their verdict would also be one of not guilty.”

37.At the leave hearing, Mr Percy, for the appellant, re‑formulated his complaint under Grounds 2 and 3, on which leave was granted, as follows:

“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 the 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.’”

The appellant’s submissions

38.Mr Percy submitted that being “not sure” of the prosecution case was not necessarily the same as accepting that the defence case “may be true”. He argued that the exculpatory answers in the appellant’s record of interview were in conflict with the prosecution evidence, such that the standard directions as to the burden and standard of proof did not suffice and it was necessary for the Judge to “go further” and give the jury a direction in line with Note 2 of the old Specimen Direction 2.1.

The respondent’s submissions

39.Mr Hui, for the respondent, submitted that, while the appellant’s denials of knowledge and of use of her telephone number may be regarded as going to whether the elements of the offence could be proved beyond reasonable doubt, the present case did not turn on any conflict of evidence between the prosecution and the defence versions, which would otherwise necessitate a Liberato direction.  As we understood his argument, he pointed out that PW2, PW3 and PW4 did not say in evidence that the woman over the telephone was the appellant, although the prosecution case, as set out in Question 1 of the “Route to Verdict”, invited the jury to infer that it was her.  It was a matter for the jury to decide, on the evidence, whether they could properly infer, to the requisite standard, that it was the appellant who made the telephone calls and arranged to receive the parcel.

40.As to the omission of the phrase “is true or may be true” from the “Route to Verdict” handout, Mr Hui referred to HKSAR v Chan Tam Fu[54] and HKSAR v Or Chung Yeung[55], and submitted that this omission did not render the conviction unsafe.  He contended that the Judge had aptly explained the law on burden of proof to the jury in his summing-up.  The jury were properly told that if they could not be sure of any of the questions posed in the handout, they should acquit the appellant.

Discussion

41.The appellant argued 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 2.1 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.”[56]

42.The respondent argued that the specimen directions are guidelines for judges, and that they are therefore not required to be followed strictly.  The real question was whether the jury were correctly directed on the onus and standard of proof and whether a Liberato direction, as properly understood, was required in the present case. 

43.Referring to the fact that the appellant neither gave evidence nor called any witnesses[57], the respondent submitted that the defence case was merely that the prosecution’s evidence fell short of proving the offence against the appellant.[58]  Therefore, the present case did not involve a situation in which the appellant had provided an account of an incident or incidents contradictory to the prosecution’s evidence and the jury was not faced with a dilemma as to which side to believe.  It was submitted that the Judge did not err in not reciting a Liberato direction to the jury, as it was unnecessary and would have been confusing if given, in the circumstances of the present case.  We agree with the respondent’s submission.

44.In HKSAR v Kwan Tat Yee [59], 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 is on whether the prosecution has proved the elements of the offence beyond reasonable doubt.  Accordingly, a Liberato direction will only be required where there is a perceived risk that the jury may be left with the impression that the defence evidence will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the prosecution evidence suffices to establish guilt.[60]

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

46.The case of HKSAR v Kwan Tat Yee [61] went on appeal to the Court of Final Appeal, where it was held that the purpose of a Liberato direction is to convey to the jury that, where there is 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 find 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 confusion between the evaluation of evidence and the resolution of issues for decision.

47.The phrase “is true or may be true” has been mistakenly referred to as a Liberato direction, even though that phrase was used in the direction.  It raises a separate question, namely, whether the Judge had explained to the jury in clear and unambiguous terms the onus and standard of proof.  That is the key issue in this appeal.

48.Whilst the appellant did not give evidence or call any evidence on her behalf at trial, there was a mixed statement by her, in the form of a video recorded interview, which was before the jury.  In her mixed statement, she essentially denied that she made the telephone calls on her telephone and that she arranged the collection of the parcel, knowing that it contained a dangerous drug.

49.The Judge gave the jury a handout, setting out the questions they should answer in arriving at their verdicts.  He said:[62]

“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 attempted to do so, the verdict is not guilty.  If you are sure she attempted to do so, the verdict is guilty.” 

50.It was accepted by the parties that the Judge did not use the terminology that if the defence “is or may be true”, the appellant 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 by telling them that if they were “not sure” the verdict was not guilty.  In other words, the question is whether it was sufficient for the Judge, in directing the jury, to employ only the phrase “not sure” without using the phrase “may be true”.

51.It is important to understand the respective cases for the prosecution and the defence.  The prosecution’s case was that the appellant made telephone inquiries concerning the parcel on her telephone and arranged for its delivery to her.  During the telephone calls, she passed herself off as Miss Lee, the name on the parcel was Lee Wang, and she was in the process of receiving the parcel when she was arrested.

52.The defence case rested mainly on the contention that the prosecution had failed to prove that it was the appellant who made the telephone inquiries and that she knew there were dangerous drugs in the parcel.  Furthermore, her duties at Flat 6A included handling postal parcels.

53.In our view, the jury, as directed, would clearly have understood that if they were “not sure” the appellant made the calls or answered calls on her telephone, they should find her not guilty. Furthermore, as directed, even if they were sure of this matter, they were also to find her not guilty if they were “not sure” she knew there were dangerous drugs in the parcel.

54.As the appellant’s defence was that she did not make or participate in the calls and that the prosecution had not proved its case against her, there was no disadvantage to the appellant in the Judge not using the phrase “may be true” in this context.

Conclusion

55.We were not persuaded that a Liberato direction was required in the circumstances of this case, nor that there was a risk of the jury misunderstanding its task in light of the directions on the onus and standard of proof and on how to relate the evidence to the issues for decision by them.  Accordingly, we dismissed the appellant’s appeal against conviction.

The appellant’s sentence

56.We have already noted that the appellant initially applied for leave to appeal against her sentence, but that she abandoned her appeal at the leave hearing.  She had indicated that she wished to revive her application for leave to appeal against her sentence, but despite directions to file the necessary papers to treat her abandonment as a nullity, she has not done so.  We made enquiries of the appellant concerning her abandonment, and it was noted that it had been mentioned in the leave judgment.  It was apparent that she appreciated and understood the consequences of her decision to abandon her appeal against sentence.  We also note that this Court will be revising the sentencing guidelines for ketamine and ecstasy, and depending on its decision, it may be appropriate for the appellant’s case to be referred to the Chief Executive.

57.There is also an additional matter regarding the appellant’s state of health.  Under Article 48(12) of the Basic Law, the Chief Executive has the power and function to commute the penalties of prisoners convicted of offences.  In cases where an accused who is imprisoned has developed a serious illness since the sentence was passed, the exercise of clemency is for the Executive and not the court: HKSAR v Law King Yip and Ors [63]. We have been informed that since September 2025, the appellant has been undergoing treatment for breast cancer, including curative-intent treatments involving neoadjuvant chemotherapy, which will be followed by breast surgery and adjuvant radiotherapy, together with adjuvant chemotherapy if required.  This is a further matter that could be appropriately referred to the Executive to consider whether to exercise clemency in the appellant’s favour: The Queen v Suen Shek and Ors [64].

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

Mr Duncan Percy and Mr Marco Poon, instructed by Morley Chow Seto, assigned by the Director of Legal Aid, for the appellant

[1] Appeal bundle (AB), 25.

[2] The appellant’s letter dated 25 October 2025.

[3] Exhibits P1 and P13.

[4] AB, 9J-M.

[5] AB, 58.

[6] AB, 64.

[7] AB, 15A-D.

[8] AB, 64.

[9] AB, 18D-G.

[10] AB, 58.

[11] AB, 18G-H.

[12] AB, 64.

[13] AB, 15F-K.

[14] AB, 16J-T.  According to the call records at AB, 58, there were only two such records (from 6770 5214 to 6044 9292) at 2:49 pm and 4:04 pm on that day.

[15] AB, 16K-U.

[16] AB, 16T-17A.

[17] AB, 19Q-R.

[18] AB, 40.

[19] AB, 13M-T.

[20] AB, 14E-Q.

[21] AB, 14R-15E.

[22] AB, 15F-J.

[23] AB, 15K-P.

[24] AB, 16E-J.

[25] AB, 16J-Q.

[26] AB, 16R-T.

[27] AB, 18E-M.

[28] AB, 18N-R.

[29] AB, 19B-I.

[30] AB, 19Q-R.

[31] AB, 12G-U.

[32] AB, 46 (Q&A 16).

[33] AB, 45 (Q&A 13).

[34] AB, 41 (Q&A 20).

[35] AB, 4M-5M. See also AB, 47 (Q&A 21).

[36] AB, 45 (Q&A 11).

[37] AB, 45 (Q&A 12).

[38] AB, 41.

[39] AB, 1T-2B.

[40] AB, 2B-E.

[41] Transcript of defence closing speech, 4P-5G.

[42] AB, 51.

[43] AB, 58.

[44] Transcript of defence closing speech, 8L-9B.

[45] AB, 1T-2E.

[46] AB, 2F-H.

[47] AB, 3J-O.

[48] AB, 5E-G.

[49] AB, 5N-6F.

[50] AB, 8G-H, K and S.

[51] AB, 9S-T.

[52] AB, 65.

[53] AB, 21H-P

[54] HKSAR v Chan Tam Fu [2016] 1 HKLRD 608.

[55] HKSAR v Or Chung Yeung [2004-2005] HKCLRT 108.

[56] In December 2025, the Specimen Directions 2013 version was replaced by the 2025 version, the topic of Burden and Standard of Proof was moved from 2.1 to 2.2 to 5-1 to 5-6 (without the former Note 2).

[57] AB, 4B-F. 

[58] AB, 2B-E and 20N-Q.  Transcript of defence closing speech, 3B-C, 4R-5C, 5L-P, 8P-9B and 9F-I. 

[59] HKSAR v Kwan Tat Yee [2023] 1 HKLRD 289 (CA).

[60] HKSAR v Kwan Tat Yee (CA), at [103]-[111]; De Silva v The Queen (2019) 375 ALR 1, at [9] and [10].

[61] HKSAR v Kwan Tat Yee (2024) 27 HKCFAR 6 (CFA).

[62] AB, 21H-P.

[63] HKSAR v LawKing Yip and Ors, unrep., CACC 369/2003, 1 December 2004.

[64] The Queen v Suen Shek and Ors [1988] 1 HKLR 524.