HKSAR v. FADONOUGBO FREJUS LEZIN

CACC 121/2022

[2023] HKCA 808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2022

(ON APPEAL FROM HCCC NO 74 OF 2021)

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J U D G M E N T

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Introduction

1.  This is a case in which it was alleged that the applicant was an international drug courier who brought drugs into Hong Kong concealed in the shoes he was wearing. 

2.  On 21 July 2022, following a trial before Deputy High Court Judge Woodcock (the judge)  and a jury, the applicant was convicted of trafficking in a dangerous drug, namely 988 grammes of a powder containing 806 grammes of cocaine.  He was sentenced to 22 years and 3 months’ imprisonment.

3.  On 12 August 2022, the applicant filed an application for leave to appeal against his conviction.  He was denied legal aid and represented himself at the leave hearing on 30 June 2023.  He had submitted a series of letters in which he had made various complaints as well as several requests for additional material and information.  The applicant’s complaints can be distilled into four grounds of appeal against his conviction.  The first ground concerned a general complaint about the video recorded interview in which he participated.  He submitted that the video recorded interview was not voluntary, and the judge did not properly address or direct the jury on this issue.  The second ground averred that the judge wrongly directed the jury about the shoes he was wearing and how he was walking when he was intercepted.  The third ground complained that the judge misdirected the jury that his evidence regarding the circumstances of his arrest should be considered a recent invention due to the lack of puttage from his counsel.  The fourth ground alleged that the judge erred in “cancelling” his first trial and ordering a second trial. 

4.  I was of the view that the fourth ground of appeal raised several questions that needed to be addressed.  They were as follows:  Question 1: Does the Court of Appeal have jurisdiction to entertain a ground of appeal against conviction on an order to discharge a previous jury?; Question 2: Did the judge err in discharging the previous jury because of (i)  the period of deliberation; and/or (ii)  the nature of questions asked by the jury?; and Question 3: If the judge erred as claimed in Question 2, what are the consequences, if any, of the order to discharge the jury on the conviction in a subsequent trial by a newly empanelled jury? 

5.  After receiving submissions on the grounds of appeal, I directed that the leave application be treated as part-heard to address the questions arising from the fourth ground of appeal.  I granted the applicant a legal aid certificate for this purpose only.  Mr Hanif Mughal, of counsel, was assigned to represent the applicant.

The brief facts

6.  The prosecution case against the applicant, a Beninese national, can be briefly stated as follows.  On 1 February 2020, he arrived in Hong Kong on a flight from Johannesburg, South Africa.  He was intercepted by Customs officers for inspection.  A body search was conducted on the applicant and the shoes that he was wearing felt unusually heavy.  This aroused the suspicion of the Customs officers, who arranged for the shoes to be X-rayed and examined.  A white powder was detected inside the soles of the shoes, which tested positive for cocaine.  When confronted about the discovery, he denied knowledge of the white powder. 

7.  The following day, in a video recorded interview, the applicant admitted that he knowingly brought the drugs into Hong Kong.  He said he was offered money to deliver the drugs but had to go first to Johannesburg to collect them.  He said a man called “Yudi” gave him the shoes, which he knew contained drugs.  The plan was that after he arrived in Hong Kong and checked into the hotel that had been booked for him, someone would come to meet him to collect the drugs.  He was to be paid US$5,000 as a reward.

8.  At trial, the applicant testified in his defence.  He said he did not know that drugs were inside the shoes, nor was he transporting drugs into Hong Kong.  He claimed that he was in possession of the shoes because he was bringing them to Hong Kong to give to someone on behalf of his client.  The client offered to introduce this person in Hong Kong to him to discuss business.  He met the client in Johannesburg before he flew to Hong Kong, who gave him the shoes outside his hotel in Johannesburg.  The shoes were in a bag, and he put them in his suitcase.  He was not wearing them at the time Customs officers stopped him in Hong Kong. 

9.  It was also the applicant’s case that his admissions about knowing of the drugs in the video recorded interview were not true.  He said he made those admissions because he had been mistreated and deceived by the Customs officers.

The first ground

10.  A key issue at trial concerned the circumstances in which the applicant participated in the video recorded interview and the answers he gave in response to the questions asked of him.  Having regard to the emphasis placed on these matters by the defence, the judge comprehensively addressed them in her summing-up[1]. It was the defence case that he did not understand his rights, particularly his right to silence, and that he had been given a false and misleading impression that he was assisting the authorities[2]. He submits that his video recorded interview was not voluntary and should not have been admitted into evidence because it was highly prejudicial against him.  The prosecution submitted at trial that the Customs officers had explained to the applicant his rights and that he voluntarily participated in the video recorded interview. 

11.  The applicant also questioned the manner of the investigation of his case and complained about the arrangements made for him to attend the hospital for his asthma when he needed to take his HIV medicine.

12.  The matters the applicant complained about in his evidence were fairly and fully summarised and put to the jury to consider by the judge[3]. Moreover, she repeatedly reminded the jury that if they accepted what the applicant said was or may be true, he should be found not guilty and that even if they rejected his evidence, the prosecution still had to satisfy them so that they were sure by evidence of the applicant’s guilt.[4]   

13.  There is no substance to the applicant’s complaint about the judge’s directions to the jury on the challenge to his video recorded interview.  She very fairly addressed the issue in her summing-up to the jury.  There is no merit to this ground of appeal.

The second ground

14.  The applicant averred that the judge wrongly directed the jury when she told them:

“Anyway, members of the jury, you may think that if he knew he had drugs in his shoes, he would try his best to walk normally and naturally even if he shoes were a bit heavier than normal because he did not want to look suspicious and he wanted to make sure he did not get arrested.”[5]

15.  These remarks have to be read in context.  Immediately before she made them, the judge addressed defence counsel’s submission on how the applicant was walking at the time he was intercepted when there was no evidence to support his factual assertions.  The judge said in the preceding passage：

“It was suggested in closing by Mr Percy that neither PW4 or 3 or 6 noticed or gave evidence that the defendant’s manner of walking was funny, was peculiar, was unusual. Do not speculate on how a person would walk with a pound or half a kilo of something in the soles of their shoes. There is no evidence how the defendant walked normally without shoes on nor is there evidence of whether it would have been obvious to someone looking at him walking that the defendant had something in his shoes.”[6]

16.  As is apparent, the judge commented on defence counsel’s submission to the jury on factual matters for which there was no evidence.  She reminded the jury not to speculate about defence counsel’s comment that none of the officers in question noticed that the applicant was walking funny when they had not been examined on this matter, and, therefore there was no evidence on how the applicant was walking.  She sought to balance what had been submitted by defence counsel in suggesting to the jury that they may also think that someone wearing weighted shoes would walk normally to avoid bringing attention to themselves.  In the circumstances, it was not an inappropriate remark to make.  Moreover, earlier, she reminded the jury that it was their responsibility to decide the facts and that they did not have to accept any views she expressed about the facts[7]. This ground of appeal is not reasonably arguable.

The third ground

17.  The applicant alleged that the judge misdirected the jury that his evidence regarding the circumstances of his arrest should be considered a recent invention due to the lack of puttage from his counsel. Nowhere in the judge’s summing-up did she direct the jury that the applicant’s evidence was a recent invention due to the lack of puttage. 

18.  The judge very fairly and fully summarised the applicant’s evidence and the issues that had been taken by the defence regarding the prosecution case.

19.  This ground of appeal is devoid of merit.

The fourth ground

20.  The applicant complained that the judge erred in “cancelling” his first trial and ordering a second trial.  The applicant was first tried before the judge and a jury from 20 May to 10 June 2022, when the judge discharged the jury.  He contended that the judge unfairly stopped his first trial.

21.  In his first trial, the jury panel consisted of seven jurors, but on 8 June 2022, a juror was discharged because of non-compliance with the public health restrictions that prevailed at the time. The trial then continued with six jurors.  The jury retired to deliberate its verdict late in the morning on 9 June 2022 and continued until late the next day but were unable to reach a verdict.  The jury had submitted various questions, and appropriate directions were given to them. 

22.  The first set of questions were submitted at about 9:30 am on 10 June 2022 (MFI-11), which were in the following terms:

“(1)  In terms of the post-recorded statement translation should we base on tab 8 & tab 9 (exhibit P33 & P33A), or should we base on the video footage & audio in the DVD? In terms of counter 117, the transcript says ‘I have admitted for the offence’ while in the DVD audio, the Cantonese we heard are ‘我係嫌疑犯’ which has big difference in terms of meaning.

Should we base on the transcript or the DVD?

If there is fundamental error in translation of claiming the suspect admitted for the offence which he didn’t intent to, should we still look at this evidence?” [8]

23.  There was a discussion between the judge and counsel about the nature of the jury’s questions, with the following initial exchange between prosecuting counsel and the judge:

“MR RAFFELL: My Lady, I’ve looked at the question. I suspect there’s someone on the jury - I don’t know who it is - but they think they’re Miss Marple. First of all, I don’t understand the question because Chinese is not what we’re not talking about. There’s something in Chinese. What counts is, is the question at 117, ‘Does that mean you recognise that you are committing an offence?’, is correctly translated in French.

COURT: Hang on, hang on, hang on. I need to make -- well -- sorry, ‘Does that mean’? Say that again? So -- yes.

MR RAFFELL: If you look at 117, that’s Madam So.

COURT: Yes.

MR RAFFELL: At the end, she says to him, in French, not in Chinese, and no one has said this in Chinese, ‘Does that mean you recognise that you have committed an offence?’ and he says, ‘Yes.’

COURT: Yes.

MR RAFFELL: Now, what counts is the French ...

COURT: Yes.

MR RAFFELL: ... not the Chinese.

COURT: Well, I agree.

MR RAFFELL: So I don’t even understand the question.

COURT: Well, I do, because they are -- they’re right in that the 116 ...

MR RAFFELL: Yes.

COURT: ... ‘I’m already suspected of an offence’, right?

MR RAFFELL: Yes.

COURT: He does say that.

MR RAFFELL: Yes.”[9]

24.  After further discussion, the judge gave the following answers to the jury’s questions and instructed them to continue with their deliberations.

“COURT: Good morning, members of the jury. I have your question. I’m going to answer it. I’ve spoken to counsel. Let me just read the question out again: ‘In terms of the post-record statement translation, should we look at tab 8 and tab 9?’ Well, tab 8 and tab 9, I think you’ve just made a mistake here. It’s not the post-record. It’s the video-recorded interview.

So ‘In terms of the video-recorded interview translation, should we base on tab 8 and 9, or should we base on the video footage and audio in the DVD? In terms of counter 117, the transcript says, “I have admitted for the offence”, which in the DVD audio, the Cantonese we heard is’ - I can speak Chinese but I can’t read it, so I can’t read that sentence to you, but you wrote the question – ‘which has a big difference in terms of meaning. Shall we base on the transcript or the DVD?’

Let me answer that. First, the DVD, which you have seen several times, is the best evidence. The transcript for the -- the tab 8 is the transcript, word for word, French-Chinese, French-Chinese, French-Chinese. Tab 9, we call it a translation, is all English, so it’s someone translating the Chinese and the French into English.

In this case, we all need to rely on the transcript translation to help us. Unless you speak French, you need the transcript, which is -- it’s to help you. We call it an aid, you know, it’s to help you, and it is accurate. It’s a certified translation, so we accept it as accurate translation. So you are right. There is a difference in the Chinese and the French.

But, you must remember to look at the French only. I know you can’t read the French, but look at the translation of the French, but you must look at the French only, because the defendant only speaks French. So what is important is the French spoken between the defendant and the interpreter. The defendant didn’t speak Chinese, so he did not understand the Chinese at 117. When the interpreter repeat -- when the interpreter spoke to the police -- to the Customs officer and said, ‘I have admitted for the offence’, she was speaking Chinese. The defendant didn’t understand that. So you have -- what counts is the French and the French translation.

You are right. In 116, the translation is, ‘He said, “I’m already suspected of an offence.”’ The interpreter says in Chinese, ‘I have admitted to the offence.’ There is a mistake, but you will recall and you will see that she clarifies, she checks the mistake, because at the bottom of 117, I know you don’t have your bundle with you, but at the bottom of counter 117, she says in French, but we can read it in English, she says in French, ‘Does that mean that you recognise that you have committed an offence?’ That’s what she asked him, so she is checking her translation, and his answer was ‘Yes’ at 118. You will recall that. You can check that again when you return to the jury room.

So she checked, she clarified the mistake, and she can do that because she’s doing her job properly, if she thinks ‘Maybe I made a mistake, I need to check what my mistake is’, so she does. If you are concerned that there is this error, mistake or conflict in the translation, then you can resolve that conflict or error in favour of the defendant. You can ignore this sentence. 116, 117, if you want to ignore it, if you feel you cannot resolve the mistake, then ignore it.

So that’s the answer to your last question. Your last question, let me repeat: ‘If there is a fundamental error in translation of claiming the suspect admitted the offence, which he didn’t intend to, should we still look at this evidence?’ So my answer to you is, if you are concerned about this fundamental error, you can resolve that error in favour of the defendant and ignore it. But you will recall that I told you in my summing-up, ‘Look at all the evidence.’ That means if you ignore this, you do not ignore the whole video-recorded interview. You must look at all the evidence, includes all the other answers.

That is my answer to your question. I hope I have resolved your query. So, members of the jury, I am going to ask you now to continue your discussions and debate, and follow my usher back into the deliberation room. Thank you.”[10]

25.  At 12:25 pm, the jury submitted a note briefly stating that their first verdict was 4 to 2 (MFI-12)[11]. 

26.  After the luncheon break, the jury submitted another set of questions (MFI-14), which were in the following terms:

“(1)  Kindly re-confirm the principle/guideline for making a judgement (guilty/not guilty)  if this should be based on:

(a)  Defendant knew he brought an unlawful item into HK?

or

(b)  Defendant knew he brought an item into Hong Kong without knowing this was unlawful until he arrived, and was cautioned/arrested in HK?

(2)  Possible procedural flaws/loopholes which directly/ indirectly affect the given testimony as recorded? e.g. (Explain right to defendant, signing on documents in language not understood by defendant), which may put the defendant into an unfair situation?” [12]

27.  The second set of questions brought the following response from prosecuting counsel:

“MR RAFFELL: I have to be honest, my Lady. These questions really worry me.

COURT: Yes.

MR RAFFELL: They really worry me about there’s at least somebody on the jury who hasn’t understood ...

COURT: Yes.

MR RAFFELL: ... anything.

COURT: Yes.

MR RAFFELL: To start with, ‘the defendant knew he brought an unlawful item into Hong Kong’. Well, they should be focusing on the evidence. The evidence was that it was hidden in his shoes. If they don’t believe that, it was hidden in the shoes inside the suitcase. You don’t hide something if you think it’s lawful.

COURT: Well ...

MR RAFFELL: I mean, it’s just ...

COURT: I’m not -- yes, now, see, you read that question that way. Now, I read it the other way. There are several ways to read these questions. That’s just the first one. They’re basically saying, is he guilty or not guilty if he knew he brought an unlawful item into Hong Kong, or is he guilty or not guilty if he knew he brought that item without knowing this was unlawful.”[13]

28.  The discussion continued regarding the terms of the questions and how they should be answered.  The judge then gave defence counsel time to explain the situation to the applicant, but after some further discussion, she decided that it was in the interests of justice to discharge the jury.  She said to the counsel:  

“Yes. Yes, thank you. I’ve considered both what you said, what I have said, and I’ve come to this decision: I am going to discharge the jury. I know it’s undesirable but I -- my reasons are that, in the interests of justice, to make sure there’s no injustice, I really feel I have no choice. It’s been a long time, they are a hung jury, and then the questions asked demonstrate to me that they don’t -- they have not at this stage grasped the fundamental principles. They have not grasped the main issue, and the main issue is not difficult in this case.

So I think their questions demonstrate the danger of a miscarriage of justice. So I’m -- and as I -- as Mr Raffell has pointed out, Mr Raffell has pointed out, I have a duty to ensure a fair trial, and I’m not of a view -- I’m of a view that that’s not possible under these circumstances, with those questions posed, and I will discharge the jury. I’ll ask them to come in now and I will just tell them that we’ve considered the stage -- situation that they have not been able to return a verdict, we’re going to stop the trial there, and I’ll thank them for their hard work. Thank you.”[14]

29.  The jury then returned, and the judge told them:

Yes, members of the jury.  It’s late in the afternoon.  I have considered that at this stage you are still what we call a ‘hung jury’, four to two.  That’s the situation as it is now.  You have been a long time deliberating, since about half past 11 yesterday.  You have -- you’ve stayed overnight.  You have spent today deliberating, and you are at this impasse. We’re at a hung jury.  So I have considered the situation.  I’ve discussed it with the parties, but ultimately it’s my decision to stop the trial now.  That means you will not have to return a verdict.  I will discharge you as a jury.

But before I do that, I’m going to thank you for your hard work. You have been very conscientious, I know.  I can see the note-taking, the questions that you asked.  You have thought about the evidence.  You thought about submissions, and we don’t have a verdict but at the same time you have worked hard to get to this stage of the afternoon and throughout the entire trial.  So I do thank you.  I’m sure you realise that criminal trials can’t go on here without a jury and so you have performed fundamental civic duty, that we, the Judiciary and I, thank you for your work.

So there is nothing else left for you to do.  You are free to go. Thank you very much.”[15]

30.  Whilst the judge told the jury that she had discharged them because of the time they had taken in their deliberations, it appears she was also concerned that by their questions, they had not grasped the main issue of the case.

31.  The judge discharged the jury and empanelled a new jury of seven jurors, and after trial they returned a unanimous verdict of guilty.

32.  Given the complexity of a criminal trial, it is not uncommon for something to occur where a trial judge is asked to exercise his or her discretion to discharge a juror or the whole jury.  There are a range of circumstances when the discretion is exercised, but it is usually done in the interests of justice or in accordance with a statutory or procedural requirement.  Under the Jury’s Ordinance, Cap 3, a court has the power to discharge individual jurors where, in the interests of justice, it is expedient to do so or where it is in the interests of the juror: section 25(1); and a jury when it sufficiently appears it cannot agree upon a verdict: section 27[16]. 

33.  The first question as to whether the Court of Appeal in Hong Kong has jurisdiction to entertain a ground of appeal against conviction on an order to discharge a previous jury will depend on an examination of the legal framework of the appellate jurisdiction and the circumstances of the case. 

34.  The parties submit that in England and Wales a trial judge’s decision to discharge the jury is not reviewable by the appellate court: R v Gorman [17]. That is, to some extent, understandable because the decision to discharge a jury is an exercise of discretion by the trial judge, and the trial will normally continue with the empanelment of a new jury.  However, the parties acknowledged the argument that an appellant court in Hong Kong may have jurisdiction to entertain such a ground of appeal if it is relevant to or had a bearing on the conviction.  Although, it is hard to think of a circumstance where an error in discharging a previous jury would impact on the conviction in a subsequent fair trial of a defendant by a newly empanelled jury.

35.  It is questionable whether the decision to discharge a jury is susceptible of appeal in Hong Kong because of the limited jurisdiction of the Court of Appeal[18].

36.  The second and third questions are interrelated.  They raise an important matter for consideration concerning the exercise of a trial judge’s discretion to discharge a jury and, arguably, whether such discretion had been exercised judicially in the circumstances of the present case. 

37.  There is a body of case law regarding the discharge of a jury or jurors and how questions from the jury after they have retired to consider their verdict should be handled and addressed when that occurs[19]. From the case law, there are some important fundamental principles when a defendant is put in the jury’s charge until they are asked to return a verdict.

Leave to appeal

38.  In explaining the importance and purpose of the leave procedure, this Court in HKSAR v Chung Ho Yin[20], said:

“39. The primary task of a Single Judge when deciding a leave application to appeal is to determine whether there are reasonably arguable grounds of appeal. What constitutes a reasonably arguable ground of appeal was succinctly put by Macrae VP in HKSAR v Chua Shirley Maisigla and others, unrep., CACC 254/2018, 11 June 2021, at paragraph 81:

‘A ground of appeal is not reasonably arguable simply because it sounds reasonable by virtue of being articulately or plausibly presented. It must have some reasonable chance of success.’

  40.  When deciding whether to grant leave to appeal in respect of grounds that are advanced, a key consideration is whether they are ‘reasonable’ in that they ‘afford some real chance of success’.[21] If the grounds do not afford some real chance of success then it cannot be said that they are reasonably arguable for the purpose of granting leave to appeal.  The requirement for leave to appeal is an important filter to ensure that the Court of Appeal is not unnecessarily burdened with unmeritorious applications, thereby deferring or delaying the Court from dealing with meritorious cases.”

39.  By virtue of section 82(1)  of the Criminal Procedure Ordinance, Cap 221, a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction on a broad range of grounds; involving a question of law, a question of fact, or a question of mixed law and fact, or on any ground which appears to the Court of Appeal to be a sufficient ground of appeal.  There will be occasions in an appeal against conviction when a question raised in or with regard to trial proceedings is of general importance to the administration of justice and requires the consideration of the Court of Appeal regardless of whether it will impact on the result of the trial[22].

Conclusion

40.  I consider that the fourth ground raises a point of general importance to the administration of justice, and leave is granted to the applicant.  The principal issues that arise for consideration by the Court of Appeal are what is an appropriate period of deliberation or circumstance to discharge a jury; and on what basis, if at all, should a jury be discharged because of the nature and content of the questions asked by them during their deliberations, and if so, how should that be assessed.

41.  The applicant is reminded of his right to renew his application for leave to appeal against conviction to the Court of Appeal on the grounds for which leave was refused, but he is also informed of the consequences of doing so, which may include a further direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for renewal of his application.

[1]   Appeal Bundle (AB), 12M-N, 21E-25J, 25P-26C, 31H-32S, 34S-36F (the evidence of Ms So King To, PW2, the French Chinese interpreter), and 42D-N.

[2]   AB, 22B- 26C.

[3]   AB, 20H-26C. 

[4]   AB, 42D-N.

[5]   AB, 40D-F.

[6]   AB, 39S-40C.

[7]   AB, 9B-10U.

[8]   AB, 154.

[9]   AB, 165C-T.

[10]   AB, 173Q-175H.

[11]   AB, 156.

[12]   AB, 158.

[13]   AB, 176F-R.

[14]   AB, 199D-L.

[15]   AB, 199M-200A.

[16]   See also section 24 regarding majority verdicts.

[17]   R v Gorman (1987)  85 Cr App R 121. 

[18]   See section 13 of the High Court Ordinance, Cap 4; and sections 82 and 83 of the Criminal Procedure Ordinance, Cap 221.  See also Criminal Procedure, Trial on Indictment, Andrew Bruce, Volume 1, Chapter VI, [1355]-[1400], in particular Footnote 5. 

[19]   See Criminal Procedure, Trial on Indictment, Andrew Bruce, Volume 1, Chapter VI, [1355]-[1400]; [1455]-[1500]; [1505]-[1550] and [1551]. 

[20]   HKSAR v Chung Ho Yin, unreported, CACC 75/2020, 17 September 2021.

[21]   See Practice Direction 4.2, at [5]. 

[22]   See section 83 of the Criminal Procedure Ordinance, Cap 221.