HKSAR v. ZOU HAI

CACC 52/2024

[2025] HKCA 297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 52 OF 2024

(ON APPEAL FROM HCCC NO 59 OF 2021)

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J U D G M E N T

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1.  On 26 February 2024, following a trial before Johnny Chan J (the Judge)  and a jury, the applicant was found guilty of one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, namely 2.99 kilogrammes of a solid containing 2.26 kilogrammes of cocaine. He was sentenced to 24 years 6 months’ imprisonment.

2.  On 7 March 2024, the applicant applied for leave to appeal against conviction on the sole ground that the Judge, on several occasions, interrupted the defence’s right of cross-examination of the prosecution witnesses.

3.  The applicant appears in person, having had legal aid refused on 17 October 2024 and 20 January 2025.  Despite being notified of the leave hearing and requested to file written submissions in support of his ground of appeal, he has failed to do so. 

The prosecution case

4.  This is a typical case of a drug courier smuggling drugs into Hong Kong in his luggage. 

5.  On 2 January 2020, the applicant arrived at Hong Kong International Airport on a flight from Guinea.  He was carrying a red suitcase.  He was intercepted by Customs officers and his immediate reaction was to let go of the suitcase and deny that it belonged to him.  He was uncooperative and attempted to disassociate himself from the suitcase.  An examination of the suitcase uncovered a hidden compartment, which contained the quantity of cocaine as particularised in the count.[1] 

6.  The applicant was arrested and cautioned.  He admitted that he had been requested to bring the suitcase from Guinea to Hong Kong for a reward of RMB 5,000.[2] He agreed to participate in a controlled delivery and contact two other persons involved, whom he only knew by the names of “Kelly” and “Mon” via WeChat.  However, the operation was called off after the applicant informed the Customs officers that no one was coming.[3]  The WeChat messages on the applicant’s mobile telephone with Kelly and Mon were produced as evidence at trial.[4] 

7.  In a subsequent cautioned video recorded interview [5] the applicant stated that he met Kelly online about 4 months before the incident, who asked him to bring a suitcase containing handicrafts from Guinea to Hong Kong for a reward of RMB 5000.  He agreed and went to Guinea.  He became suspicious that Kelly was involved in dangerous drugs and that he would be bringing contraband to Hong Kong.  He stated that he saw the suitcase for the first time at the airport in Guinea for his flight to Hong Kong.  He claimed the suitcase had already been wrapped, and the African men who gave him the suitcase would not let him examine it.  The suitcase was checked in and passed through the security checks.  He claimed his life was threatened by the African men while in Guinea.[6]  He stated that he planned to approach the local police in Hong Kong because he had been threatened and suspected that there could be something bad in the suitcase.  He stated that he did not approach anybody because the suitcase had not come out.  He stated that he was stopped by Customs officers before he received the suitcase and although he was about to speak, they told him not to say anything.

8.  Customs officers denied any allegation of inducement or improper conduct.[7]

The defence case

9.  The applicant testified that he had no knowledge of the dangerous drugs in the suitcase and that he was a victim who Kelly used as a drug mule.  He explained that in the WeChat communications with Kelly, he was shown a photograph of the things that he was to bring to Hong Kong.  Kelly said the items were samples that would sell in China.  Kelly proposed to pay him a reward of RMB 5,000 and cover his air travel and hotel expenses.  He said he was concerned about what items he was asked to bring to Hong Kong.  He claimed he emphasised that the items must not contain any contraband and that he should be allowed to inspect the items carefully to make sure that they did not include any contraband.[8]

10.  Contrary to what he stated in his interview [9], he testified that he checked the suitcase in Guinea but did not find the hidden compartment containing the dangerous drugs.[10] He explained that there was no chance for him to feel the weight of the suitcase before checking in, because it was closed and handled by the African men escorting him to and at the airport.  He said that when he arrived in Hong Kong, the suitcase was pushed to his side by a female staff member, and therefore, he did not remove it from the conveying belt.  He said he only needed to push the suitcase.[11] 

11.  The applicant said that before the Customs officers stopped him, he was not looking for a police officer to make a police report, as he stated in his interview.  He claimed that Customs Inspector Yau Kin-wai (PW8)  taught him to say this in his interview.[12] He also claimed that PW8 told him to say he had only seen the suitcase for the first time when he boarded the taxi on the day of his departure.[13] 

12.  The applicant claimed that he was subject to inducement by PW8 before he signed the written record of the Preliminary Enquiry and before and during the interview.[14] The admissions he made in the interview were false because they were made as a result of coaching by PW8.[15] 

Discussion

13.  The applicant’s complaint is that the Judge interrupted defence counsel’s cross-examination of the prosecution witnesses, but no particulars or supporting material have been provided to show, firstly that the Judge had interrupted defence counsel’s cross-examination, and secondly that such interruptions, if shown, were prejudicial to the applicant and resulted in unfairness in the conduct of the defence case.

14.  In oral submissions, he elaborated his complaint by alleging that the witness statements of PW7 and PW8 were not produced at trial, even though they referred to dealings with him, and moreover, did not involve him or bear his signature.  This was a reference to the witness statements of the two Customs officers, who testified at trial and were cross-examined by defence counsel.  The Judge’s interruption, which was the subject of his complaint, concerned the Judge telling defence counsel that he was challenging the authority of the Customs officers.  After the hearing, his counsel told him that what the Judge said was unfair.  He contended that PW8 gave a different account from what he stated in his written statement, but the Judge stopped defence counsel from asking PW8 questions.  An examination of the court’s log shows that during the applicant’s testimony, he made an allegation that PW8 had coached him, which the Judge noted that had not been put to PW8 when he gave his evidence.  Defence counsel made an application to recall PW8, which the Judge granted, and accordingly, PW8 was cross-examined by defence counsel in respect of this matter.  There is no substance whatsoever in the applicant’s complaint.  The Judge did not stop counsel from asking questions of PW8, but instead granted the application for PW8 to be recalled and further cross-examined by the applicant’s counsel.

15.  The applicant has additionally complained that the prosecution made use of what he said in his video recorded interview, but as pointed out to him, the video recorded interview had been ruled admissible, and prosecuting counsel properly addressed the contents of it as evidence before the jury.

16.  The Judge gave detailed and thorough directions to the jury, which covered all issues in a fair and balanced manner.  In his comprehensive summary of the evidence, he highlighted the defence case, noting the defence challenges to the prosecution evidence where relevant.  There appears to have been no issue taken by defence counsel about any questions asked by the judge of the witnesses or any restriction he may have placed on defence counsel’s questioning of the witnesses, if that had taken place.

17.  It is relevant to note that before the commencement of the trial, the Judge conducted a voir dire in respect of the admissibility of the applicant’s record of interview.  It lasted two days and five prosecution witnesses, all Customs officers, were called to give evidence on the issue. 

Conclusion

18.  There is no merit in this leave application, and accordingly, leave is refused. 

19.  The applicant is reminded that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also informed that the Court has the power to order loss of any time which he has served in custody pending his appeal if the Court were to come to the view that there was no justification for the renewal of the application.