HKSAR v. BRUCIS KRISTAPS

CACC 373/2016

[2018] HKCA 81

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 373 OF 2016

(ON APPEAL FROM HCCC NO 372 OF 2016)

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REASONS FOR JUDGMENT

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

1.  The applicant faced an Indictment containing a single count of trafficking in 2,461 grammes of a solid containing 1,960 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the offence. On 28November 2016, following a trial before Campbell‑Moffat J (“the judge”) and a jury, the applicant was convicted and sentenced to 25 years and 11 months’ imprisonment.

2.  The applicant appealed against both conviction and sentence, legal aid having been granted only in respect of conviction.  On 6 February 2018, we refused leave to appeal against conviction and dismissed the appeal, saying that we would give our reasons in due course.  These are our reasons.

Appeal against conviction

The prosecution case

3.  The applicant was intercepted by Customs officers for a search on 7 February 2016 upon his arrival at the airport on a flight from Dubai.  He was requested to enter the customs examination hall in order to have his luggage scanned.  Upon an X‑ray scan and further search of the luggage, a plastic bag containing two boxes bearing the brand name “Oreo”, and two boxes bearing the brand name “Toffifee”, were found in his possession containing pellets of suspected dangerous drug, later confirmed to be 2,461 grammes of a solid containing 1,960 grammes of cocaine narcotic with an estimated street value of HK$2,640,653.  The applicant was duly arrested and cautioned.

4.  The prosecution invited the jury to draw the inference, as the only reasonable inference to draw, that the applicant must have known there were dangerous drugs in the four boxes when he brought them concealed as biscuits and confectionery into Hong Kong.  It was contended that by the enormous value of the dangerous drugs entrusted to the applicant, the unduly heavy weight of the purported biscuits and confectionery, the fact that the boxes and packets were unsealed, the obvious risk that the applicant would have very quickly discovered that he had not bought biscuits and confectionary had he tried to consume any of his purchases, the various telephone messages and incoming calls showing the tracking of the applicant’s progress, the unusual journey of the applicant from Latvia to Brussels to Amsterdam, back to Brussels, to Dubai and to Hong Kong, and the insufficiency of the applicant’s funds to maintain his stay in Hong Kong, the irresistible conclusion was that the applicant was fully aware that he was bringing dangerous drugs into Hong Kong, for which he was to be rewarded as a courier.

The defence case

5.  The applicant elected to give evidence.  He testified that he was 23 years of age and was born in a rural community in Latvia.  He left school at the age of 16 and, for a short time, undertook manual labour before embarking on construction work at the age of 19.

6.  He claimed that he had no knowledge of the dangerous drugs concealed in the four boxes in his possession, which he had bought from an unknown black male in Dubai airport during a stop-over en route between Brussels and Hong Kong.  He testified that he left Latvia on 5 February 2016 and had flown to Brussels.  There he took a taxi to Amsterdam and met up by arrangement with a Latvian friend in a hotel in the capital.  The friend helped him to arrange for his air ticket to, and hotel in, Hong Kong.  Early in the morning of 6 February 2016, the applicant took a taxi back to Brussels and from there flew to Dubai, where he transited to a flight to Hong Kong.

7.  Whilst transiting in Dubai airport, the applicant went to a McDonald’s outlet and, whilst he was eating, a black male whom he had not met before approached him and offered him some cookies at a small discount.  He testified that he was only shown one box of “Oreo” cookies. He noticed there were different coloured boxes inside a white plastic bag but he did not check what he was buying; he merely wanted to have something sweet to eat on the flight, since he thought the meal portions on board an aeroplane would be too small.  The applicant accepted, however, that he did not eat any of the cookies during the flight because he watched a film and fell asleep.

8.  It may be noted that it was an Admitted Fact that “the process of examination for fingerprints was never completed and hence there is no evidence of fingerprints (including those of the defendant) from the said exhibits”[1].

9.  In his evidence, the applicant said he did not know why the hotel booking for his stay in Hong Kong was for a day longer than the return air ticket to Brussels.  He was actually not certain of the duration of his stay, although it was open for him to stay for two weeks.  However, on being challenged that he would not have had enough money to pay for the hotel even for one week, he explained that he would have just wandered around the streets or found somewhere cheaper to stay if he had decided to stay longer.

Reasons for sentence

10.  The judge considered that the appropriate starting point for the quantity of cocaine involved should be 23 years and 11 months’ imprisonment under the guidelines in HKSAR v Abdallah[2].  The initial starting point was further enhanced by 2 years’ imprisonment given the quantity of cocaine that had been brought across the border into Hong Kong, thus resulting in a sentence of 25 years and 11 months’ imprisonment.

Grounds of appeal against conviction

11.  Mr Haynes, counsel for the applicant at this appeal and at the trial below, has put forward four grounds of appeal.  First, it is said that the judge’s attitude towards the defence case was unjustifiably hostile in respect of significant and relevant aspects of the defence case; in particular, her dismissal as speculative of the suggestion in the closing address of defence counsel that the applicant may have been “set up” to make the trip to Hong Kong by his Latvian friend (Ground 1).  Secondly, it is alleged that the judge prevented defence counsel from fully demonstrating the potential unreliability of a prosecution witness, PW4, during cross-examination as to whether the applicant was intercepted within or without the “green channel” (Ground 2).  Thirdly, it is complained that the judge permitted and encouraged the use of inadmissible evidence as to the weight of the boxes with their intended contents, printed on the packaging; accordingly, the point that they were twice as heavy as they should have been derived from hearsay evidence, and was invalid and prejudicial (Ground 3).  Finally, it is submitted that there was no evidence to challenge the applicant’s account or to prove that he must have known that the boxes contained dangerous drugs (Ground 4).

Discussion

12.  This is the Court of Appeal not the court of trial.  Many of the points advanced by Mr Haynes before us at the appeal under Grounds 2, 3 and 4 of his Grounds of appeal were, with respect, manifestly “jury points”, which counsel was entitled to raise, and did raise, before the jury for their consideration.

13.  Whether one Customs officer’s evidence rather than another was to be believed, or whether some aspect of the applicant’s account stood un‑contradicted by the senior Customs officer (Ground 2) were matters counsel could have made, and did make, before the jury.  Ultimately, however, it was of little moment where the applicant was stopped: the ultimate issue was, wherever he was stopped, whether the applicant knew he was bringing dangerous drugs into Hong Kong rather than biscuits and confectionery.  The fact that the judge did not rehearse in detail for the jury the alleged conflict of evidence on such a peripheral matter did not render the summing‑up defective.  The jury would have been well aware of the issue, such as it was, as between one prosecution witness, whom Mr Haynes described in his closing address as “that nice old Customs officer who stopped him and was honest enough to tell us that he stopped him outside the green zone”[3], and the younger Customs officer, PW4, whom Mr Haynes branded as “the arrogant young Customs officer”[4] or “Mr Arrogance”[5], who had said “Oh, no, it was in the green zone”[6].

14.  Nor do we accept that the judge exhibited hostility to counsel, or stymied his cross-examination of PW4 or compromised the proper presentation of the applicant’s case.  She correctly told counsel not to put to the witness what another witness had said in evidence, an instruction Mr Haynes did not appear to grasp or agree with[7].  She also properly told counsel to be polite to the witness rather than facetious and rude, when the witness had merely asked Mr Haynes to repeat his somewhat obscure, conditional question[8] but which Mr Haynes had been reluctant to do on the basis that he believed the witness understood the question and was merely buying time.  The judge was entirely proper in making these interventions and there is no merit whatsoever in these complaints.  Nor, for the sake of completeness, do we accept that the judge exhibited “subtle bias” (as it was termed) towards the defence at any stage of the proceedings.

15.  As for the point about the significant weight of the goods found in the applicant’s possession (Ground 3), it was an obvious point to be made in cross-examination by the prosecution, although its significance should not be overstated, that the bag of what the applicant claimed to have believed were biscuits purchased in Dubai should have weighed more than 3 kilogrammes.  It was a simple point about the difference in the weight which the applicant might have expected of 4 packets of biscuits and confectionery and the actual weight of what he claimed to have purchased inside Dubai airport to consume on the flight at a discount of 2 euros.  The jury were entitled to use their common sense and the point did not derive its validity from any weight which might have been printed on the packets themselves: the printed weights on the boxes may have been hearsay (although Mr Haynes never mounted any objection to this matter at trial) if they were being relied on as the truth of what they stated, but they were not hearsay as to the weight the applicant might reasonably have believed them to be on receiving the boxes and examining their packaging.

16.  In any event, the judge did not mention the apparent weight written on the boxes in her summing‑up.  It was nevertheless a point for the jury to consider whether the applicant would have been alerted to the fact that he was purchasing an extremely heavy consignment of biscuits for the journey, although the point was not perhaps of huge significance in the overall scheme of the evidence.

17.  We were initially concerned about the directions of the judge that the jury must disregard as speculative the suggestion that the applicant may have been “set up” by his Latvian friend (Ground 1).  If it was the applicant’s case that he had or may have been set up by his Latvian friend who engineered a trip to Hong Kong by the applicant, then it is arguable that to dismiss such a notion on the grounds that it was speculative would run the risk of undermining the essence of his defence.  It is necessary, however, in examining this complaint to look at the full direction in the context of the evidence.  The judge’s directions were as follows[9]:

“It is also important to assess counsels’ remarks in closing their case to you. Their comments should be based upon the evidence and not upon any speculation and guesswork, and that is quite different actually.

You are not permitted, as I have already told you, to speculate because you must decide this case upon the evidence before you and you certainly should not be asked to speculate about matters that should have been properly put to a witness so that the witness themselves can tell you about it and both counsel can then have an opportunity to address you upon it.

Now, there is an example of this. Mr Haynes suggested to you that the friend, we do not have his name, that you have heard about was involved in setting up the defendant. Now, the defendant did not suggest this in his evidence, it was Mr Haynes that suggested it in closing, so there is no evidence of this before you. Mr Haynes says to you, “Well, you know the friend was in control of the itinerary”, so that matter is a matter for you to decide. Was he in control of the itinerary? Is that how you are going to find?

But, for an example, you know there is evidence from the defendant that his friend helped him but there was also evidence that his friend was not interested in the trip and he did not ask him for help when he was searching for flights, but you also recollect that later he said he did have help searching for flights. Those are all issues, the contradiction or apparent contradiction in evidence are all issues for you to decide and once you have decided that, it is a matter for you to decide what role the friend played, but you cannot speculate beyond the evidence that you have.

And I will go to that evidence later when I will sum up what the defendant told you about the planning of his trip, but Mr Haynes suggested that the friend had, and he used the word “launched” the defendant into this trip with an ulterior motive. There is no such suggestion from the defendant. He did not tell you it was his friend’s idea. In fact, he told you that he did not know if his friend had ever been to Hong Kong, so that would be an example of speculation. There is no evidence on that point from which you can draw an inference that this was in fact the case that he had been launched upon this trip by the friend.

Mr Haynes suggested that the friend could easily have sent a photograph of the defendant to the black man in Dubai who could pick him out in McDonald’s restaurant. By passing himself off as an unlicensed hawker he can sell the innocent Mr Brucis some cookies. There is absolutely no evidence for any of that. No evidence of photograph-taking or photographs being sent or, indeed, of the black man saying he is an unlicensed hawker, so you need to be very careful about that.

Do not take in any way from the comment that I have just made in the example I have given you that I take any view at all about the defendant’s evidence. He was not required to give evidence and he nevertheless chose to do so and I ask you to treat his evidence in exactly the same way as you would treat the evidence of the other witnesses. I simply referred to that part of defence counsel’s closing speech because it is an example of where argument starts to move into speculation and you need to be careful about it.”

18.  Upon analysis of the evidence adduced at trial, it becomes clear that the applicant’s defence was that the original idea of going to Hong Kong was not that of his Latvian friend but his own.  He explained to Customs officers during his unchallenged interview that he himself had decided to visit Hong Kong[10] for a holiday[11], to sample the local food[12] and do some sight-seeing[13].  Nobody had paid him to make the trip or given him any money[14].  The friend had merely helped him book a hotel online[15].  In his evidence-in-chief, the applicant maintained that his friend had not been particularly interested in his trip to Hong Kong[16] and, in cross-examination, he explained that he had given the money to his friend to help him buy the ticket to Hong Kong[17], because he did not know how to book tickets online[18].  He repeated in cross-examination that it was he himself that had “want(ed) to go to Hong Kong and visit Hong Kong”[19], in order to sample its food and culture[20], that his purpose was “to relax, to go on holiday”[21], that he and his friend had “searched a lot of websites and … found this is the cheapest way … to get to Hong Kong”[22] and that his friend was “not really” interested in his trip to Hong Kong[23].  How long he intended to stay would depend on how much he liked Hong Kong[24].

19.  In relation to the text messages sent to him by his friend during the journey, the applicant stated that the purpose behind them was an innocuous one enquiring about the progress of his journey[25] and that the contact from his friend was motivated by his concern that the applicant might start drinking again[26].

20.  We do not think that on this evidence there was any hint of a suggestion by the applicant that his friend had set him up or controlled his itinerary with an ulterior motive, although the judge did say that it was a matter for the jury to determine the friend’s role on the basis of the actual evidence as they found it to be.  However, in our judgment, it would have been speculative on the basis of this material to find that the friend had set up, or “launched”[27], the applicant on a trip to Hong Kong, so that an unknown black male in Dubai could be wired a photograph of the applicant and the applicant successfully intercepted and prevailed upon to carry 2.461 kilogrammes of dangerous drugs disguised as cookies and confectionery.  If counsel had wished to advance such a theory before the jury, he should have at least laid some ground-work before them.  The judge was right to take issue with the speculative assertions in counsel’s closing address, when the applicant had never suggested any such thing in evidence.

21.  Had the applicant made such a claim in evidence, prosecuting counsel would no doubt have explored the existence and involvement of the friend and the feasibility and possibility that he might deliberately have set the applicant up with a trip to Hong Kong via Dubai.  He did not do so because, on the applicant’s account, it was he himself who decided that he wanted to go to Hong Kong, an adventure in which his friend was not particularly interested.  Mr Haynes’s submission to the jury was indeed speculative and not derived from the evidence, which is the point the judge was concerned, correctly in our view, to make.  Even so, she left it to the jury to decide on the available evidence whether the friend might in fact have been in control of the applicant’s itinerary but warned them to be careful of basing their conclusion on evidence and not mere argument.

22.  Mr Haynes suggests that, as counsel at trial, he could not have asked the applicant in evidence whether he had been set up because the applicant may not have known he had been deceived.  We disagree. It would have been entirely possible and indeed proper to explore with the applicant, for example, how well he knew and trusted his friend, how his friend came into the picture, why the friend should have come with him to Brussels and Amsterdam, how he behaved in Brussels and Amsterdam, how the suggestion of Hong Kong as distinct from any other destination had come about, where the idea of going via Dubai came from, whether any money was given to him, whether the friend took any interest in what he should do when he arrived in Hong Kong, whether the friend took, or was in possession of, any photographs of the applicant, and how proactive generally the friend had been in promoting the trip to Hong Kong and making the necessary arrangements.  He might even have explored any contact, or lack of contact, he had had with the friend since his arrest.

23.  Had he done so, no doubt prosecuting counsel would then have asked questions of the applicant designed to reinforce what the applicant had told Customs officers, namely that he himself had decided on the trip and the friend was not very interested in it.  Or he might have put to the applicant that he and the so‑called friend were in it together.

24.  Instead, the distinct impression from the applicant’s answers in his record of interview and in his evidence was that the friend was not involved in “setting up” anything, in the pejorative sense of that expression; certainly, there was no basis for saying that he had “launched” the applicant on an expedition of international drug trafficking across the world.  Consequently, there was no cross-examination by the prosecution on the friend’s involvement: indeed, no one ever even asked the applicant for the name of his friend.  In our judgment, the judge was right in the circumstances to give the directions she gave.

25.  Allied to this complaint is the criticism of the judge’s directions to the jury when asked for further help on the drawing of inferences; in particular, when she directed that[28]:

“So the only difficulty is – and you may never get to this last point - the only difficulty is if there’s a reasonable inference that the prosecution say you should draw and also a reasonable inference that the defence say you should draw. That’s the only time you’re going to have a problem. All right”.

However, any residual concern there might have been from the use of the word “problem” was immediately answered by the judge, who went on to say[29]:

“And when you get to that stage, if there is one reasonable inference from the prosecution and one from the defence, then you must not draw the reasonable inference that is against the defendant - in other words, the prosecution’s reasonable inference - because that is how our system of law works.”

Clearly, the effect of the judge’s resolution of the so‑called “problem” was that where there was one inference to be drawn against the applicant and one in his favour, the jury must not draw the adverse inference.  We see no mischief in this direction, which was to the benefit of the defence.

26.  Finally, it is said that there is a lurking doubt about the correctness of the jury’s verdict because there was no evidential basis to challenge the applicant’s account (Ground 4).  The fact is that the applicant was subjected to a full and rigorous cross-examination. Those aspects of his account which the prosecution were able to challenge, they did challenge.  Those aspects of his account which the prosecution were not in a position positively to refute because they lay within the knowledge of the applicant alone, they properly tested by means of what is sometimes euphemistically referred to as a “raised eye-brow” technique.  Nobody can have been left in any doubt at the close of the case as to what the prosecution thought of the applicant’s account of being found in possession on his arrival in Hong Kong of 2.461 kilogrammes of cocaine solid masquerading as biscuits and confectionery, worth more than HK$2.6 million.

27.  The application for leave to appeal was, for the above reasons, refused and the appeal accordingly dismissed.

Appeal against sentence

28.  The applicant is also appealing against his sentence of 25 years and 11 months’ imprisonment.  However, legal aid has been refused for his appeal against sentence.  Since Mr Haynes intimated that he might be prepared to act for the applicant on a pro bono basis, we adjourned the matter of sentence for two months for a mention hearing so that this Court can be advised whether the application is to be pursued by the applicant in person, or by Mr Haynes on his behalf on a pro bono basis, or not.  We were not prepared to hear argument on 6 February 2018, since there were no properly articulated grounds of appeal, nor any written argument from the applicant, and accordingly no written response from the respondent.

29.  The ground of appeal mooted by Mr Haynes, but not as yet perfected or articulated as a formal ground of appeal, is that this Court’s guidelines for sentencing in cases of trafficking in dangerous drugs should be reconsidered, since the deterrent rationale behind them has dramatically failed and they are no longer warranted.  We were not prepared to grant legal aid to the applicant in respect of this ground.

30.  Accordingly, the matter will be mentioned again in two months’ time for a hearing date to be set down, if required, and any further directions as to the filing of perfected grounds of appeal and written arguments by the parties.