HKSAR v. JITSATTA CHOSITA

CACC 443/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 443 OF 2011

(ON APPEAL FROM HCCC 70 OF 2011)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.  The applicant seeks leave to appeal against her conviction on 26 September 2011, after trial before McWalters J and a jury, for the offence of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and in respect of the sentence of 25 years’ imprisonment, imposed in consequence of that conviction.

The count on the indictment

2.  The single count on the indictment averred that on 16 August 2010 the applicant had unlawfully trafficked in a dangerous drug, namely 1,962.05 grammes of methamphetamine hydrochloride, commonly known as ‘ice’, at Hong Kong International Airport.

THE TRIAL

The prosecution case

3.  There was no dispute at trial that, having been stopped by a customs officer she made her way through the Green Channel in the Customs Arrival Hall at Hong Kong International Airport, a search of the applicant’s suitcase revealed the presence of the ice, concealed in the lining of a portable electric cooler box in the suitcase.  At issue in the trial was whether or not the applicant knew of the presence of the dangerous drugs concealed in the cooler in her suitcase and, with that knowledge, intended to exercise custody and control of them.  The prosecution case was that, having regard to all the evidence, it was to be inferred that was the case.

4.  In the prosecution case a video recorded interview of the applicant was adduced into evidence, in which the applicant gave an account of the reasons for her travel movements.  The prosecution invited the jury to regard the travel movements as unusual.  In particular, they pointed to the applicant’s travel itinerary and to the fact that, having travelled from Bangkok, via Singapore, to Hong Kong on 8 August 2010, the applicant had travelled to Johannesburg on 10 August 2010.  However, she had remained there for only four days before returning to Hong Kong by a flight that left South Africa on 15 August 2010.  In that respect, the prosecution pointed to the fact that the applicant had been found in possession of an E-ticket with a flight booking from Johannesburg to Hong Kong on 22 August 2010.  Also, the applicant was in possession of E-tickets, one showing a booking for a flight to Singapore from Hong Kong on 24 August 2010 and the other a flight from Hong Kong to Ho Chi Minh City on 15 August 2010.

5.  The prosecution invited the jury to reject the applicant’s account in the video record of interview, repeated in her evidence, that she was visiting her boyfriend in South Africa and, after she had determined that the relationship had soured, given that she only saw him once whilst she was in South Africa, she had decided to return to Thailand.  They pointed to the small amount of personal effects contained in the suitcase, so much so that there was room to accommodate the portable electric cooler.  The prosecution suggested that the real reason that the applicant had cut short her planned trip to South Africa was because she knew that she had secured possession of the dangerous drugs concealed in the portable electric cooler, so that there was no further reason for her to stay in South Africa.

The defence case

6.  The applicant gave evidence in the trial adopting the account that she had given in the out-of-court video recorded interview, which account she supplemented and explained in testimony.  She denied any knowledge of the presence of the dangerous drugs concealed inside the portable electric cooler.  She worked as a waitress in Pattaya, Thailand where she lived with her two children, but separate from their father.  There, she had formed a relationship with a South African man called Emmy and they began to cohabit and he provided her with a monthly allowance of Thai Bhat 10,000. A month or so prior to her arrest, Emmy had returned to South Africa to deal with personal matters.  At his invitation, she had travelled to Johannesburg to join him.  She was to be introduced to his family and friends.  Emmy’s brother, who was married to a Thai woman and who lived in Bangkok, had made all her travel arrangements.

7.  Notwithstanding the great distance that she had flown to join Emmy, he was not at the airport to meet her on her arrival on 11 August 2010 and she had to make her own way to the hotel.  Later that day Emmy had taken her shopping, during which shopping expedition the portable electric cooler box had been purchased for her by Emmy.  He was the one who had shown initial interest in its purchase, after which she had come round to thinking it would be of use to her in her apartment in Thailand as a substitute refrigerator.  It had been delivered to her at the hotel on 13 August 2010 by a female friend of Emmy.  Emmy spent the night of 11/12 August 2010 with her in the hotel.  That was the last that she saw of him.

8.  Although in the days that followed 11 August 2010 Emmy had been in telephone contact with her they did not meet, notwithstanding his promises to the contrary.  As a result, they quarreled.  It was as a result of that treatment of her, evidencing apparent indifference to her, that she had determined to return to Thailand.  Emmy had made those arrangements for her.  She had begun the journey on a flight from Johannesburg to Bangkok on 15 August 2010.

Ground of appeal against conviction

9.  The single ground of appeal against conviction advanced by Mr. Loughran is that the judge’s summing up was unbalanced in that, whilst he drew the jury’s attention to many points favourable to the prosecution he failed to balance that by reference to those points that were in favour of the applicant, save for repeated and particularised invitations to have regard to the points made in the closing speech by the applicant’s counsel.

A consideration of the submissions

10.  In the course of his summing up which, having begun on a Friday, concluded on Monday morning, the judge directed the jury repeatedly that they were the sole arbiters of the facts and, in particular, that they were free to reject any view that he might express on the evidence unless it accorded with their own view of the evidence.  

11.  The duties of a judge in summing up a case to the jury were described succinctly by Chan PJ in Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52, at 59 G - H, paragraph 24 :

“ A trial judge is under a duty to summarize the issues and the evidence relating to those issues clearly, accurately and fairly to the jury.”

He went on to observe that, notwithstanding the standard direction to the jury that they were to form their own view on the evidence, notwithstanding observations made by the judge, “... it is perhaps understandable that the jury might sometimes attach more weight to the views of the trial judge than those expressed by counsel”.  In that context he said :

“ However, what the judge says to the jury is very often the last word they hear before they retire and carries more weight than what defence counsel says in a closing address and what the judge says must truly and accurately reflect the evidence, must give a fair and balanced guidance to the jury….”

12.  In the particular circumstances of the applicant’s trial perhaps even more significance is to be given to the observation as to the judge having the last word to the jury, given that the weekend had intervened between the speech of counsel for the applicant and the concluding parts of the judge’s summing up.  In particular it is to be noted that the judge’s references to the evidence relevant to the issue of the applicant’s credibility were made on the Monday morning, shortly before the jury retired to consider their verdict.

13.  In R v Nelson [1996] EWCA Crim 707 (25 July 1996), cited with approval by Chan PJ in Lin Ping Keung, in the judgment of the Court of Appeal of England and Wales, Simon Brown LJ said (page 7)

“ Every defendant, we repeat, has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury. But, that is not to say that he is entitled to have it rehearsed blandly and uncritically in the summing-up. No defendant has the right to demand that the judge shall conceal from the jury such difficulties and deficiencies as are apparent in his case.”

14.  All of the impugned passages in the summing up are encompassed in the judge’s summary to the jury of matters that he reminded the jury both counsel had invited the jury to regard as relevant to a consideration of the credibility of the applicant’s evidence.  He told the jury that he proposed to do likewise.  Whilst he told the jury that he did not intend to address all of the matters raised by counsel, the judge said that he intended to address the ones that seemed to be the “main issues”.  The judge identified those issues as being :

·  the romantic relationship with Emmy;

·  whether or not the applicant behaved as a tourist;

·  the reasons for the applicant’s return to Thailand;

·  the applicant’s interest in the cooler; and

·  the itinerary for the applicant’s return journey.    

15.  In his analysis of the “main issues” relevant to the credibility of the applicant’s evidence the judge said (appeal bundle, page 300 S - 304 I) :

“ First the credibility of the defendant’s claim that she was in a romantic relationship with Emmy. [Indented and underlined to highlight the issue.]

This issue overlaps also with the issue of the reason for her leaving Johannesburg early and her account of what took place between her and Emmy between the 11 and 15 August. When considering this issue do not just take into account the defendant’s inability to state Emmy’s full name or produce a picture of him. Also take into account his treatment of her in not meeting her at the airport when he had not seen her for one to two months, yet was anxious for her to meet his family and have a two week holiday with him.

His treatment of her in paying for her tickets and making the travel arrangements for her, yet putting her up in a hotel rather than having her stay with him. His treatment of her in not spending time with her and finally his treatment of her in not taking her to the airport.  Does this treatment of her appear to be the way that lovers would treat each other?  This is a matter you may wish to consider.  But if you should find anything odd about their conduct, you should consider whether there might be other explanations for it.  In this respect I remind you of the points made by Miss Cheng in her closing submission.  [Italics added.]

Secondly, did the defendant behave like a tourist?

You will recall that this was her first time abroad and there is no doubt that she was travelling a long way from home. Yet she does not appear to have tried to discover much about South Africa before she left. She did not know much about her travel movements, yet she was going via two places, Singapore and Hong Kong. She did not take a camera with her and she was going for a two week holiday to a country which was in its winter season but took minimal clothing and no upper garments that were suitable for winter.

            On arrival she did not acquire any tourist literature and despite having a lot of time on her hands she did not take any local tours.  She explained that she was relying on Emmy to take her sightseeing and was warned by him and the hotel that it was not safe to venture out on her own.  Again, you must decide whether the defendant’s evidence is believable but before reaching any conclusion on this issue please again consider all the matters raised by Miss Cheng.  [Italics added.]

Thirdly, her reason for coming home.

She said she had come a long way to have a two week holiday with her boyfriend, who had paid for her tickets and made all the arrangements for her travel. One could well understand that not being met by Emmy at the airport was not a good start to the holiday. But he did meet up with her later on the 11th, took her shopping, later to dinner and spent the night with her. There is no reason to think that on the morning of the 12th everything was not fine between them. As far as we know it was.

However, Emmy does not come and see her any further that day despite promising to do so. You may well think that a woman in that situation might start to feel a bit neglected and might start to wonder what was going on. But would one day of neglect be sufficient to cause the defendant to suddenly want to cancel the rest of the holiday and fly home? For you may consider that this is effectively what the defendant is saying.

By the 13th she says she had made up her mind to travel back to Bangkok. We don’t know exactly when she made this decision, but perhaps by the time she made it it seemed apparent to her that she was unlikely to see Emmy that day either and that two days of neglect in a row were more than she could bear. Is it possible that even a woman on her first overseas holiday would react in this way? This is something, members of the jury, that you may wish to consider.

Then there were other explanations from the defendant, even a quite extraordinary one that she began to wonder whether she might be kidnapped for prostitution. If she genuinely held this fear, what does it say about her relationship with Emmy?  If she did not hold this fear then why did she say it and what does it say about her credibility?  Again, before reaching any concluded view on this aspect of her evidence please take into account all the matters raised by Miss Cheng.  [Italics added.]

Of course, this matter cannot be isolated from the next matter I wish to discuss with you and that is the defendant’s interest in the cooler box.

I say this because Miss Crebbin suggests that the real reason for the defendant going home early is because she had got what she came for, namely, a cooler box full of drugs. Was it just a coincidence that the defendant decided to leave around the same time that the cooler box was delivered to her? This is a matter for you to decide, members of the jury.

The defendant says that at first she showed no interest in the cooler box but later, after comments by Emmy, her interest was aroused as she thought that she could use it as a small fridge in her flat. Miss Crebbin has made much of the fact that it would be quite unsuitable for this purpose. You have seen it. It appears to be designed for use as a picnic accessory so that food items can be safely preserved and kept cold whilst travelling about the landscape in a motor vehicle. I say a motor vehicle because it needs electric power to operate it and it seems to be intended that the power source be a motor vehicle’s cigarette lighter.

Is it possible that the defendant did not realise this and further realise that its very design limited the use that could be made of it. Part of her evidence was that she checked that the cooler box was operating properly, but how she checked that was the subject of different versions in her video record of interview and in her evidence in court. Under cross-examination she seemed to be saying that she personally did not check that the cooler box was operating properly, that the woman who delivered it attended to this and that she, the defendant, was on the phone to Emmy at the time the woman was checking the box and so did not see what she did.

Is her evidence in respect of her interest in the box, her reasons for wanting to have it and her checking that it operated properly, believable?  This is a matter for you, members of the jury, but again before reaching any view on this do take into account what Miss Cheng has said to you.  [Italics added.]

Finally, I wish to discuss with you the homeward journey.

This time the defendant avoids Singapore and returns via Vietnam but the defendant is, she says, anxious to get home for a number of reasons, work, her children, disappointment with what happened to Emmy. Why not then catch a flight direct to Thailand from Hong Kong? Why is it necessary to have a four day stay in Ho Chi Minh City? Of course, the defendants answers to all questions in respect of her travel arrangements is that she did not make them herself, everything was done by Emmy and that she did not know what they were.

Her understanding of what was to happen seems to be quite different from what had been planned by Emmy.  The travel documents would suggest that it was intended that the defendant not return to Bangkok by the most direct route and that she go to Vietnam and stay for some days in Ho Chi Minh City.  It is for you, members of the jury, as to what you make of these travel plans.  You may think it a rather unusual route for a person to take if that person wished to get home quickly.  But before reaching any view on this, again, please consider what Miss Cheng has suggested to you.”   [Italics added.]

16.  In her closing speech counsel for the applicant, Ms Cheng, referred specifically to various points that counsel for the prosecution at trial had made in her closing speech, suggesting to the jury explanations favourable to the applicant.

The romantic relationship with Emmy

17.  In respect of the issue of whether or not the applicant had a romantic relationship with Emmy, in light of her inability to provide his full name counsel said (transcript, page 6 M - R) :

“ That may be partly correct to say so. If you are only looking at her video interview record, yes, she was asked that question and that was the answer she gave. But remember she was cross-examined on this in the witness-box. She told us, in fact, she had been told the full name of Emmy but that was not an ordinary English name. It’s long and complicated that she cannot remember.

This is possible, bearing in mind that the South African may come from different origin.  We have no idea how the name was pronounced, why the defendant said it’s complicated, but to be sure, it’s not something familiar to a Thai national, a simple nightclub waitress like the defendant, and it is not extraordinary that she could not remember a long surname.”

18.  Of the evidence that Emmy had not come to the airport to meet the applicant on her arrival in Johannesburg but that he had taken her shopping later that day, counsel suggested that the jury consider that as explicable on the basis that Emmy had said, “I expect to do something else but I can’t pick you up in the airport, let’s go for shopping”.  Clearly, that submission resonated with the account that the applicant had given in her video recorded interview in which she said that Emmy had provided her with the name of the hotel in which she was to stay in Johannesburg and sent a message to her mobile phone (#500) :

“ After I finish my work, I will see you at the hotel.”

19.  Further, counsel suggested the jury consider an alternative explanation, namely that Emmy might have had an ulterior motive from the outset and not wished to have disclosed unnecessary details of himself to the applicant (Transcript, page 7 I - O) :

“ … but have you ever considered the possibility that Emmy might have a purpose to start with when he courted with the defendant?

If that was the case - it’s only a short relationship, it started some six months before the defendant’s arrest - if Emmy wanted to make use of an innocent nightclub waitress to carry drugs for him, the best thing to lower her alertness is to get close to her, to develop a relationship. But having the ulterior motive behind, Emmy may not want to give the defendant so many information such that in case there’s anything went wrong, he could not be traced.

And that may explain why Emmy would not readily provide his particulars, his full home address, to set up a bank account or to give her anything like a photograph such that he may be traced if the defendant got arrested.”

Whether or not the applicant behaved as a tourist     

20.  Of the issue of the relevance of the quantity of clothing in the applicant’s suitcase to the question of whether or not the applicant was a tourist to South Africacounsel for the applicant had said to the jury (transcript, page 8 I - J) :

“ You had the benefit of seeing the defendant showing you the clothing inside the suitcase. There are eight to nine tops, three jeans, two shorts and a number of underwear. For two weeks’ stay one cannot say is not sufficient.”

21.  Also, counsel reminded the jury of the applicant’s evidence that she expected to buy some more clothing in South Africa, explaining that she had not done so when she had been shopping with Emmy because, although she had been shown some clothing, it was very big in size and did not fit her.  

22.  Of the fact that the applicant did not possess a camera in her luggage, counsel said to the jury (transcript, page 7 T - 8 A) :

“ nowadays, for all of you, you must have friends, or from your personal experience, for those new generation born after the 80s, how many of them carry a proper camera with them when they go for a trip? They all use Smart phone, iPhone, where itinerary can be updated to internet within seconds. So the absence of a camera did not speak for itself.”

23.  There was no dispute that the applicant did have a telephone, which was described in the list of exhibits.  Furthermore, she had been questioned about it, in particular about a particular photograph, apparently stored in the mobile telephone (see #1878 - 1893 of the video record of interview).

24.  Of the fact that the applicant did not possess any tourist literature and maps, counsel suggested to the jury (transcript, page 8 C - F) :

“ In fact, the defendant gave you the direct answer in the box. She explained, ‘I was there to see Emmy, to meet his family members and Emmy promised to take me for sightseeing’. If you have a local boyfriend, a native of that country who is prepared to show you around, why bring along pamphlets, guidebooks? Those are not necessary.”

25.  Notwithstanding the fact that in her closing speech to the jury counsel for the applicant had invited the jury to have regard to the specific possible explanations set out above in response to the central criticisms of the prosecution, the judge did not refer to any single one of those suggested explanations in his analysis of what he had identified as the “main issues” in respect of the credibility of the applicant’s testimony.

The itinerary for the applicant’s return journey

26.  By contrast, in respect of the issue of the itinerary for the applicant’s return journey, in reminding the jury that the applicant had testified that all her travelling arrangements had been made by Emmy,the judgewas repeating faithfully the point made on behalf of the applicant by her counsel in her closing speech in dealing with the criticism of her circuitous and time-consuming return to Thailand.  Counsel had said (transcript, page 12 K) :

“ The point is these tickets, according to the defendant, are not arranged by her. She rely on her boyfriend and she received these tickets from the sister-in-law of Emmy.”

The applicant’s interest in the cooler

27.  Similarly, although the judge reminded the jury of the criticism of counsel for the prosecution as to the suitability of the portable electric cooler box for the use proposed by the applicant, and although that specific issue had not been touched upon in Ms Cheng’s closing speech for the applicant, the judge suggested an explanation favourable to the applicant.  At issue was the unsuitability for use of the portable electric cooler box in her domestic premises in Thailand, no doubt with AC electric current, given that it was powered through a cigarette lighter connection, and therefore DC electric current.  The judge suggested that it appeared to be a device for use as a picnic accessory in a motorcar.  Nevertheless, the judge went on to invite the jury to consider a possible explanation in favour of the applicant (appeal bundle, page 303 J - K) :

“ Is it possible that the defendant did not realise this and further realise that this very design limited the use could be made of it?”

28.  The judge concluded his remarks on this issue by reminding the jury of the apparent inconsistencies between the out-of-court account of the applicant and her testimony.  In her video record of interview, she had said that she had tested that the machine was working.  The judge said that in cross-examination the applicant testified that she had not personally checked that the portable electric cooler box worked, that had been done by Emmy’s female friend who had delivered the product.  However, that account was not wholly inconsistent with what the applicant had said overall in the video recorded record of interview (#781-792; #851-866 of the video record of interview). Having said initially that she had inserted the plug into the socket and found that the machine worked, soon after the applicant qualified that by giving the account to which she testified, namely that in fact Emmy’s female friend had performed the test. 

29.  Whilst the judge was certainly not required to repeat every point made by counsel for the applicant in her closing speech he was required to maintain a balance in his summing up.  Accordingly, having chosen to remind the jury of key points made by counsel for the prosecution, for example in respect of the amount of clothing taken by the applicant on her trip to South Africa, the absence of a camera and tourist literature, the judge ought to have reminded the jury of the essence of the applicant’s explanations and those advanced on her behalf in her counsel's closing speech.  To do so was to give the jury a balanced picture of the evidence.  Similarly, although the judge drew the jury’s attention to the points made on the part of the prosecution of the applicant’s inability to provide the full name of Emmy or his photograph and the surprising treatment of the applicant, if she did enjoy a romantic relationship with Emmy, he made no reference at all to the points made in the defence case.  Clearly, it was not sufficient to merely repeatedly invite the jury to “...consider all the matters raised by Miss Cheng”. Similarly, it is no sufficient answer to point to the fact that the judge had told the jury repeatedly that they were the sole arbiters of the facts and that they were free to reject any suggestion that he made in respect of the evidence unless it accorded with their view.

30.  There is no dispute that the judge was accurate in describing the points with which he dealt, as relevant to the applicant’s credibility, as being the “main issues”.  The applicant’s credibility was, of course, key to the primary issue that the jury had to determine.  At an early stage in the summing up the judge directed the jury (transcript page 285 O - S) :

“ An essential ingredient of the offence with which the accused is charged is that she knew that she had the drugs in her possession and intended to exercise custody and control over them.

She is not guilty, therefore, of this offence unless it is proven that she had this knowledge of the drugs and intention to exercise custody and control over them.  What this case is about as essentially proof of this element of the offence.”

31.  There having been no dispute that the applicant was possessed of a suitcase in which, concealed inside the lining of the portable electric cooler box, there was the dangerous drugs the issue for the jury was how that had come about.  The applicant’s explanations both in her out-of-court statements and in her testimony of the purpose of her trip to South Africa and her relationship with Emmy were the core of the defence case, yet what has happened is the stark contrast between, on the one hand, a forceful and perfectly permissible reminder of strong pointers relied upon by the prosecution with, on the other hand, no summary of central answers to those pointers.

Conclusion

32.  In the result, we are satisfied that the judge’s summing up in respect of the evidence relevant to the jury’s consideration of the credibility of the applicant was not balanced as was required; an imbalance clearly unintended but unfortunate in the impact.   Accordingly, treating the application to leave to appeal against conviction and hearing of the appeal, we allow the appeal and set aside the conviction. 

33.  The respondent indicated that, in the event that the appeal was allowed, it sought a retrial.  For his part, Mr. Loughran, understandably and sensibly, did not oppose the court making that order.  Accordingly, we order that the applicant is to be retried on a fresh indictment.  She is to be remanded in custody pending the retrial.