HKSAR v. RIZANIA NOVIYANTI

CACC 315/2018

[2021] HKCA 1070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 315 OF 2018

(ON APPEAL FROM HCCC NO 454 OF 2017)

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J U D G M E N T

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1.  The applicant applies for leave to appeal against her conviction after trial on 12 October 2018 of a single count of trafficking in 1,990 grammes of a solid containing 1,617 grammes of cocaine. She originally applied for leave to appeal against her sentence of 23 years and 5 months’ imprisonment but it was dismissed on 15 April 2020 after she formally abandoned her application.

2.  The applicant has been previously refused legal aid but is now represented by Mr Phillip Ross, of counsel, on a pro bono basis.  He has filed three perfected grounds of appeal which replace the previous home-made grounds of appeal filed by the applicant.

3.  The brief facts are as follows.  At around 8 pm on 15 May 2017, two plainclothes female Customs officers, Ho Man Sze (PW1) and Yan Tsz Ning (PW2), were on duty in the vicinity of Nathan Road near Saigon Street in Kowloon.  PW1 saw the applicant carrying a plastic bag containing two paper boxes, who was behaving suspiciously.  The two officers followed the applicant and eventually intercepted her.  PW1 took hold of the plastic bag and saw that the boxes, a milk carton and a Cornflakes box inside the bag were already opened.  Inside the milk carton was a single ziplock bag and inside the cornflakes box were three ziplock bags containing the drugs in question.  PW1 arrested and cautioned the applicant who denied any knowledge of the contents inside the ziplock bags.  Another customs officer, Chau Cheuk Hang (PW3), attended the scene and was assigned as the exhibits officer.

4.  The applicant stated that a Filipina gave her the plastic bag in Hung Hom and asked her to deliver it to a man who had given her $200 earlier.  She said she had no means of contacting this man and was waiting for a phone call.  She was asked when would she receive the phone call and she said that she did not know but thought that the person would not look for her anymore.  This statement was post-recorded in PW1’s notebook.

5.  In a subsequent video recorded interview the applicant, an Indonesian national, stated that she first came to Hong Kong to work as a domestic helper in 2009 but ceased working in 2013.  She stated that she lived in rental accommodation in Tsim Sha Tsui and the rental of $4500 was paid by her lover who lived in the United States.  She stated that they had been together for about 3 years and that her lover remitted $10,000 per month to her.  She explained that she was given the plastic bag by a lady in Hung Hom and did not know what was inside.  She said she only saw biscuits.  The lady had called her and asked to meet her as she wanted to give some food to her lover.  The lady’s lover, an African man known as Edwin, whom she met only twice before, contacted her at around 7 pm and asked her to meet him at K11 to give her taxi money to meet the lady.  She explained that Edwin could not take the food himself as he was busy at work and he would wait for her to deliver the food to him at Jordan.

6.  The defence case was that the applicant had no knowledge of the contents inside the plastic bag and that she was set up.  It was argued that the first officer who approached her was PW3 and that the other two officers were deployed in the case because the applicant was a known target.  It was also argued that the two boxes inside the plastic bag were not opened at the time the applicant was arrested, otherwise PW1 would not have recorded in her notebook that she had “opened the two boxes”.  It was further noted that no question had been asked of the applicant in her video recorded interview about the boxes having been already opened.  There was an issue as to the weight of the contents of the plastic bag and it was the defence case that there was no reason for the applicant to doubt that the contents inside the boxes were anything other than milk and cereal.

7.  The applicant gave evidence in her defence.  She stated that through a friend, she was contacted by Edwin because she was looking for part-time work.  They met at McDonald’s on 13 May 2017 to discuss part-time house cleaning work for him.  She said that a Filipina, who claimed to be Edwin’s girlfriend, telephoned her at 5:30 pm on 15 May 2017 to arrange to meet her in Hung Hom.  Edwin then called her at around 5:45 pm and they met at K11 at 6 pm.  He told her to pick up the food from his girlfriend in Hung Hom because he was busy.  He gave her $200 to take a taxi to Hung Hom because she did not know how to get there.  She arrived at 7:30 pm where Edwin’s girlfriend gave her a plastic bag, which she saw contained biscuits, milk and food.  She said that the carton boxes were not open and that she thought she was picking up milk and cereal.  After she picked up the food, Edwin called her and asked her to go to Exit B at the Jordan MTR.  She said that on her way there she was approached by a male customs officer.  The two female officers arrived later.  PW1 took the plastic bag but she did not see what they did with it, although she saw PW1 open the two boxes inside the bag with a knife, who then showed her the contents inside the boxes.  When asked, the applicant said she did not know what was inside the bag and started to cry.  She was taken back to her residence for a search and while there she saw on the officer’s phone a photo of herself in Hung Hom carrying the plastic bag.

8.  Mr Ross advances three grounds of appeal on behalf of the applicant.

9.  The first ground complains that the judge failed to direct the jury that they may not experiment to decide whether the cocaine, contained in the milk carton and Cornflakes box, was too heavy to be mistaken for boxes filled with milk and cornflakes.

10.  Prosecuting counsel in her closing address to the jury noted that she had cross-examined the applicant as to whether she found the contents of the bag heavy or “more heavier” than usual for these items, to which the applicant responded that she did not think so.  She invited the jury to consider this point and even asked them to try and weigh the items for themselves.  She said:

“… I would ask you to consider, if you like, take the drug and then put it in the box or bag or whatever, try to weigh it yourself, whatever way you want to examine it, please do so if you feel necessary. But I would suggest that, in fact, it would be quite obvious to anyone that that is not just milk or its cornflakes.”[1]

11.  After the jury retired to consider its verdict, they requested to see a number of exhibits which included, the plastic bag (exhibit P1), the milk carton (exhibit P2) and the cornflakes box (exhibit P5).  It is not known for what purpose the jury requested to see these exhibits.[2]

12.  The judge in her summing-up to the jury noted that the prosecution were relying on circumstantial evidence to prove that the applicant knew there were drugs in the bag.  She noted that part of the circumstantial evidence relied upon by the prosecution was that a carton of milk and a box of cornflakes “should have weighed much less” than the total weight of the drugs of 1.99 kilogrammes.[3] The judge also summarised the prosecution case and that the prosecution were submitting that if they accepted the prosecution evidence they could draw an irresistible inference to find the applicant knew she was carrying drugs.  She added:

“She says you can take into account that the drugs weighed 1.99 kilogrammes, yet the defendant did not think the bag was heavy for its contents. She says it would be quite obvious to anyone that there was not just milk and cornflakes in the bag judging by its weight.”[4]

13.  Mr Ross argues that there was no evidential basis to suggest that the contents of the bag if it contained a litre carton of milk and a box of cornflakes with cereal would have weighed less or noticeably less than 1.99 kilogrammes.  It was therefore inappropriate to invite the jury in the circumstances to make such a comparison purely based on guesswork.  See R v Stewart and Stapleton (1989) 89 Cr app R 273, 277 and R v Kozul (1981) 147 CLR 221, 235.  He further argues that this was inviting the jury to carry out an out-of-court experiment which was not permissible.  See Hodge v Williams (1947) 47 SR(NSW) 489 and R v McCrea (1969) 8 CRNS 179.

14.  The milk carton was marked as containing 1 litre of milk.[5] According to the International System of Units, 1 litre of water weighs 1 kilogramme, but there are also other items that would have added to the overall weight of the contents of the bag.  It also raises the question as to whether the assertion that the plastic bag containing 1.99 kilogrammes of drugs would have been noticeably heavier than usual for the items in the plastic bag of a 1 litre carton of milk and a cornflakes box.

15.  I am satisfied that this ground is reasonably arguable.

16.  The second ground complains that the judge erred in directing the jury that the applicant being a target of the Customs officers was speculation.

17.  The applicant testified that during the search of her residence she saw a photo of herself in Hung Hom on the phone of one of the Customs officers.  PW1 in cross-examination denied that she had a photo of the applicant on her mobile phone.  Similarly, PW2 denied that she had found the applicant suspicious because she was a target.  In his closing address, defence counsel referred to the applicant being the subject of a tip-off as early as when she was in Hung Hom and that things had been hidden from the jury.

18.  Mr Ross refers to the judge’s comments to the jury on this issue.  She said that it was important for them to assess counsel’s remarks in their closing addresses but that their comments should be based upon the evidence and not on speculation.  In reference to defence counsel’s remarks in his closing address about the applicant being a target, the judge said:

“It is speculation that the defendant was a target and his suggestion that the whole truth had been hidden from us is also speculation.”[6]

19.  Mr Ross points out there was evidence of targeting that was not based on speculation. This was in the form of the applicant’s evidence that she had seen a photo of her in Hung Hom on the phone of one of the Customs officers.  It was therefore wrong for the judge to say that it was speculation.  Furthermore, had the applicant been believed on the issue it could have very well affected the credibility of both PW1 and PW2.

20.  Ms Audrey Parwani, for the respondent, submits there was no failure on the part of the judge to direct the jury on the matters complained of when her remarks are properly considered in context.  She said:

“In closing, Mr McNamara has asked you to speculate that nothing was done to find Edwin. He said if there was something done then you would have heard about it. I will remind you of PW1’s evidence. She said that it was the duty of the officer in charge of the case, which would be her supervisor, to investigate the identity of Edwin …

You may recall that it was the exhibit officer who would have tried to retrieve WhatsApp messages between the defendant and Edwin … Her evidence was that she did not know if he did try to do this. So the suggestion by Mr McNamara that as far as we know nothing had been done to find Edwin and if there was we would have heard, is speculation. There is no evidence that nothing was done to find him. It is speculation that the defendant was a target and his suggestion that the whole truth has been hidden from us is also speculation.”[7] (Emphasis added)

21.  Ms Parwani also refers to the exchange between the judge and defence counsel, Mr John McNamara, on this issue where he agreed with the judge that his comments about the failure of the authorities to pursue Edwin and the applicant being a target were speculative. He also told the judge that he was happy for her to tell the jury that they were not to speculate on that.[8]

22.  The evidence of the applicant that was before the jury to consider was whether she saw on the mobile phone of one of the Customs officers a photograph of herself at Hung Hom, which had been denied by the Customs officers.  Mr McNamara, a very experienced criminal trial counsel, having an appreciation of the evidence, agreed with the judge for her to direct the jury that those matters were speculative.  Mr Ross contends that Mr McNamara was wrong to make this concession as there was evidence from the applicant, if accepted by the jury, that she was a target.  To a large extent this argument depends on whether a photo of the applicant on a Customs officer’s phone would be sufficient to extrapolate that she was a target.  I am not quite sure whether this is a point of some significance but that may be clearer after the matter is more fully examined on appeal.  I therefore find that this ground is reasonably arguable.

23.  The third ground complains that the judge failed to give a direction to the jury that they could only rely on the applicant crying on arrest if they were sure that the reason for her crying was not for an innocent reason but rather reflected a consciousness of guilt.

24.  Mr Ross submits that the applicant gave evidence that after the milk carton and cornflakes box were opened, she cried and the Customs officers saw this.  However, the Customs officers in their evidence denied that they saw the applicant crying.  He notes the prosecuting counsel mentioned the applicant’s evidence in her closing address to the jury, while defence counsel made no reference of it at all.  He also notes that the judge briefly mentioned it in her summing-up, when she was summarising the evidence of the applicant.

25.  There was a dispute as to whether the applicant was crying on her arrest.  Prosecuting counsel, when analysing the applicant’s evidence in her closing address to the jury, did mention to them to consider why would she be crying when questioned by the Customs officers.[9]  Defence counsel in his closing address to the jury made no reference or point about the applicant crying at the time of her arrest, and in such circumstances no special direction was required.  See Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149.  The judge in her summing up to the jury summarised the applicant’s evidence on this issue but otherwise made no other reference about it.  The judge correctly directed the jury in respect of circumstantial evidence and inferential reasoning.  There was no need to say anymore in the circumstances of this case. 

26.  I do not find that this was a significant matter and I am therefore of the view that it is not reasonably arguable.

27.  It follows from what I have said that I grant the applicant leave to appeal her conviction on the first and second grounds and an appeal aid certificate, in order to assist her in arguing her appeal before the Court of Appeal.

[1]  Appeal Bundle (AB), 164B-E.

[2]  AB, 282C-L.

[3]  AB, 11K-P.

[4]  AB, 12H-M.

[5]  AB, 272- 274, Photographs [2], [3], and [4].

[6]  AB, 14U-15A.

[7]  AB, 14L-15A.

[8]  AB, 283E-284C.

[9]  AB, 162K-163G.