HKSAR v. SILVA BARBA ALEXANDER ALBERTO

CACC 12/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 12 OF 2015

(ON APPEAL FROM HCCC NO. 225 OF 2013)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1. The applicant sought leave to appeal against his conviction on 17 December 2014, after trial by Deputy High Court Judge Tallentire and a jury, of one count of trafficking unlawfully in a dangerous drug, namely 5.03 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. On 18 December 2014, the applicant was sentenced to 29 years’ imprisonment. At the hearing on 23 August 2016, we reserved our judgment, which we said we would deliver in due course. That, we do now.

2. At the hearing of 18 March 2016, pursuant to rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap. 221 the Court granted the applicant a legal aid certificate to provide him with representation to conduct his appeal against conviction.  On 1 April 2015, the applicant had been refused the grant of legal aid to pursue his application.  On 29 May 2015, the Hong Kong Bar Association’s Bar Free Legal Service Scheme had declined to assist him.

The trial

3. At the outset of the trial, the judge ruled against an application made on the behalf of the applicant that the trial be stayed permanently, given that the prosecution had failed to preserve exhibits that were relevant to a fair trial, including the material used to test for dangerous drugs and CCTV film of the place at which the applicant had been detained, and examinations conducted of his baggage.

The prosecution case

4. At about 3:15 p.m. on 31 January 2013, the applicant was intercepted by a Customs & Excise Officer in the Arrival Hall of the Hong Kong International Airport, having flown to Hong Kong from Dubai.  He was carrying a black computer bag and pulling a black suitcase with wheels.  He was invited by another Customs & Excise Officer to the clearance area for a routine check of his luggage, which included a ‘wipe’ test of the luggage and an X-ray.  In the wipe test a piece of white cloth was used to wipe lightly on the zips and handles of the luggage.  Then, the cloth was placed in an Ionizer, after which the cloth was discarded.  The wipe test indicated the presence of cocaine, and the X-ray showed suspicious packages.

5. Next, the applicant was taken to a baggage examination counter where, in the presence of another officer, he was asked in English whether the baggage was his.  The applicant nodded.  As requested, the applicant opened the baggage.  That officer emptied the contents of each of the bags and placed them separately in containers.  Having found each of the bags unexpectedly heavy and the linings of each bag unexpectedly thick, that officer suspected the bags to have concealed compartments. As a result, a further X-ray examination was performed.  It revealed suspicious lump-shaped objects in the concealed compartments of the bags.  None of the X-ray images were kept.

6. A search of the applicant revealed nothing suspicious.  Then, he was taken to an adjoining room where,in the applicant’s presence, two needles were used to pierce the lining of each piece of luggage.  The powder found on each of the needles tested positively in a reagent test for cocaine.  However, both needles were discarded.  Then, the applicant was arrested and cautioned, after which he was taken to an adjacent room, Room 5T024.

7. At about 6.15 p.m. that day, the lining of the handbag and the suitcase were cut open in the presence of the applicant, and the dangerous drugs were found and photographs taken.

8. On the arrival of a Spanish interpreter, the applicant asked for a lawyer.  Having been supplied with a directory of Hong Kong lawyers, the applicant said he did not want to pay for a lawyer and would not have one.

9. The retail value of the cocaine was over $5 million.

The defence case

10. The applicant elected to give evidence at trial.  He said that he was a lawyer practising in Bolivia.  He had been detained at Hong Kong International Airport as he was travelling from Bolivia to the Mainland to conduct business.  He had flown from Santa Cruz to Sao Paulo and then to Dubai before flying into Hong Kong.  At Santa Cruz, he had his baggage opened and checked with a 5-inch needle, and was cleared.

11. The defence case was that the suitcase and handbag presented in court as exhibits were not his luggage.  At the time that he was intercepted at the airport he was carrying a black computer bag and a black suitcase which he had bought in Bolivia two days before he began his journey from Bolivia to Hong Kong.  He had packed each of the bags with their contents himself.  His possessions had been removed by the officers and placed in the bags containing the drugs.  Apart from the tests with the needles, none of the tests on the luggage, the discovery of the cocaine and the photography were done in the applicant’s presence.  No one said anything about the needle testing positive, and he was never arrested or cautioned.

12. The applicant said that his bags were removed from Room 5T024 by the officers, who returned six or seven hours later with the luggage which was exhibited at trial.  Those bags were not his luggage.  No one explained to him his rights, and he was told to “collaborate”.  His requests for a lawyer and to be allowed to call his Consulate were refused. 

13. The two bags with which the officers had returned were the ones that were exhibited at trial as exhibits P14 and P16.  In court during his trial he was able to identify his personal possessions when they were produced as prosecution exhibits.  That was the first time he had seen them since his own two bags had been taken from him at the airport.

Grounds of appeal against conviction

14. In the Re-Amended Perfected grounds of appeal against conviction, Mr Donald submitted that the judge had erred in rejecting the application for a permanent stay of the proceedings. Secondly, he contended that the absence of evidence of fingerprints or DNA evidence relating to the applicant on the luggage or the dangerous drugs was consistent with the applicant’s defence that the luggage had been switched and these were not his bags.  In those circumstances, there was a ‘lurking doubt’ as to the safety of the conviction.

15. At the hearing of 13 July 2016, we granted Mr Donald leave to amend his grounds of appeal against conviction to argue, thirdly, that the judge had erred in the directions that he gave in respect of the drawing of inferences, by failing to direct the jury that they could not draw an inference “…unless it is the only reasonable inference that can be drawn.”  The judge had not given the jury the standard specimen direction set out in the Judicial Institute’s ‘Specimen Directions in Jury Trials’.[1]  Mr Donald submitted that, although the judge had given the jury some directions in respect of the drawing of inferences, nevertheless there was a risk that the jury may have applied the wrong standard for inferring knowledge in the applicant in respect of the dangerous drugs.  

16. At the hearing of 23 August 2016, we also granted Mr Donald leave to advance a fourth ground of appeal, namely that the judge had failed to give the jury adequate directions to remedy the prejudice arising from statements made by counsel for the prosecution in his closing speech, in which, so it was contended, he had said that the case advanced by the applicant could not be true because, if it was true, many of the Customs & Excise Officers who testified had performed illegal acts, which allegation was inherently improbable given their status as Customs & Excise Officers.

The respondent’s submissions

17. Mr Sean, for the respondent, submitted that the judge was correct in refusing the application for a permanent stay of the proceedings.  The absence of the evidence of which the applicant complained was not such that it was established on the balance of probabilities that the trial was so prejudiced that it was beyond the power of the judge to conduct a fair trial for the applicant.  All the prosecution witnesses were available for cross-examination and the jury was directed repeatedly that the burden of proving the applicant’s guilt lay squarely on the shoulders of the prosecution.

18. Of the absence of evidence of fingerprints or DNA implicating the applicant with contact with the dangerous drugs or the luggage, Mr Sean said the jury was directed correctly to consider the significance of such evidence, as well as being asked to consider the fact that there may be many reasons why contact may not result in such evidence being discerned.[2]

19. Then, Mr Sean submitted that, although the judge had not given the jury the direction set out at Specimen Direction 21.3 in terms, nevertheless the summing up, taken as a whole, adequately conveyed to the jury that it was for the prosecution to prove, so the jury was sure, that the applicant knew that he was in possession of the dangerous drugs as alleged.

20. Finally, Mr Sean contended that there were no impermissible observations made by counsel for the prosecution in his closing speech in respect of the conduct of the Customs & Excise Officers called as witnesses by the prosecution.  If those witnesses had conducted themselves as alleged by the applicant, they would have committed serious criminal offences.  It was not suggested that they were inherently honest because they were Customs & Excise Officers.  In any event, the judge had directed the jury that they were to treat “all witnesses equally in your assessment, whether they are police officers, Customs & Excise Officers, construction workers or professionals”, adding that “…no one enjoys a special position.” [3]

A consideration of the submissions

Stay

21. In advance of the hearing of the application for a permanent stay, the parties had provided the judge with written submissions.  In the undated submissions of the respondent, the issue of evidence relevant to the application was addressed “…The Court is invited to peruse the statements of the four prosecution witnesses required by the defence to testify during the stay proceedings.”  Those witnesses were identified by name and by reference to their statements in the paginated bundle.  They were CO 8931, 98107, 9847 and 97108.[4]

22. At the hearing, in response to Ms Panesar’s enquiry as to whether or not the judge wished to receive any evidence relevant to the issue, he said:[5]

“ COURT: No, I don’t require any witnesses. It is a matter for you to present your case as you wish. I’m happy with what you put before me. The normal application, of course, in a stay is simply by representation.”

23. In the event, no oral testimony was called.  In his witness statements CO 8931 said that at 15:15 hours on 31 January 2013, he had been asked to deal with the applicant by a senior officer.  First, he had wiped the two pieces of luggage in the possession of the applicant with a new cloth.  Then, he had tested positively for “Cocaine” in an “Itemiser” (sic) (Ionizer?).  He did not print out that analysis or preserve the cloth, which he disposed of in a rubbish bin.  Next, he subjected the luggage to an X-ray examination and observed suspicious objects in each of the pieces of luggage.

24. At 15:40 hours, CO 8931 took the applicant to a search room, 5T-044A, where he conducted a search of the applicant’s person.  Then, having emptied the two pieces of luggage of its observable contents, he subjected it to further X-ray examination which revealed “suspicious lump-shaped objects” in the lining of the luggage.  Next, at 15:45 hours he penetrated the luggage with a needle and detected the presence of a powder, which tested positively for cocaine when subjected to a reagent test.  As a result, he arrested the applicant for contravention of the Dangerous Drugs Ordinance.

25. At 18:15 hours, in Room 5T014, in the presence of the applicant, CO 9847 cut open the lining of the two pieces of luggage, finding packages of a substance wrapped in black paper.  There were three such packages in the smaller bag and two in the suitcase.  One of the packets from the suitcase tested positively in a reagent test for cocaine.

26. There was no dispute that the cloth used to wipe the luggage and the needles had not been preserved, nor had any direct record been made of the result of the ionizer or reagent tests.  Similarly, the images depicted in the X-ray examination had not been recorded nor preserved.

27. A manager of the Electronics Systems Maintenance of the Airport Authority stated in his witness statement that the CCTV footage maintained in respect of parts of the relevant area were kept for one month only, after which they were overridden by new material.  There was no dispute that no request was made of the prosecution to preserve the CCTV film until long after it had been overridden automatically by the passage of time.

28. In his ruling, refusing the application for a permanent stay of the proceedings, the judge said:[6]

“ The basis of that application is the inability of the prosecution to produce to the court the wipes and needles used to test for the presence of dangerous drugs on the surface of the bags and inside, as they were not seized and retained as exhibits. Nor was the kit used to conduct the chemical test of the said wipes and needles, nor were photographs taken of such, nor were any CCTV recordings of the area where the Customs & Excise operations were conducted retained as exhibits.”

29. The judge noted that it was contended that, in consequence, the applicant was deprived of a fair trial on the basis that:[7]

“ (1) The exhibits would have shown no dangerous drugs were found inside your bags or on their surface.

(2) The bags were not searched with dangerous drugs found in your presence.

(3) That in the absence of such exhibits, you are compelled to testify, thereby leading to a breach of article 11(2)(g) of the Bill of Rights whereby you may incriminate yourself and lead the jury to dislike you for whatever reasons there may be.

(4)  The failure of the prosecution to seize and make available such exhibits has deprived you of the right to a fair trial and that it would be an abuse of process for the trial to continue.”

30. Of the burden of proof, the judge said:[8]

“ The defence, of course, bear the burden to show that, on a balance of probabilities, it is so prejudiced that it is beyond the power of the judge to preside over and hold a fair trial. As was said in HKSAR v Lee Ming Tee [2001] 4 HKCFAR 133, 1491:

‘  However, the common thread in these authorities is the requirement that a fair trial has become an impossibility, making continuance of the prosecution an abuse of the court’s process.’ ”

31. In the result, the judge determined:[9]

“ I do agree with Mrs Panesar to the extent that this was poor procedure and practice by the officers of the Customs & Excise. There is no reason that I can see, no good reason, why the wipes and the needle could not be seized and kept as exhibits. The X-ray images are, in my opinion, a different case and not as needful of preservation.

However, I do agree with Mr Liu that the relevance of these exhibits is limited, being merely a preliminary signpost on the route to the alleged discovery of dangerous drugs.

In respect of the CCTV, there is no reason at all why this was not preserved and retained. This is potential evidence of very high importance which could be of benefit either to the prosecution or to the defence, and certainly to the jury in reaching their decision. I suggest very strongly that Customs & Excise should seriously review their procedures in relation to the seizure and preservation of exhibits in cases where there is an alleged seizure of dangerous drugs.

I want to make it clear that, at this stage, I am making no suggestion or finding that dangerous drugs were actually found in this case. This is to be decided on its facts.

Having said that, I do not find the non-preservation of these pieces of potential evidence to import in any way on your rights and the ability of the court to ensure that you receive a fair trial. The onus rests, as always, on the prosecution to prove the case beyond all reasonable doubt if a conviction is to be returned.

There is no requirement at law on you to raise any defence, nor thereby are you forced to testify. This is a matter for you to consider at a later stage. The jury can, and will, be advised of this in the strongest terms. Effectively, this case will turn on the live prosecution witnesses, which defence can test by normal cross-examination. Thereafter, you will, freely and without any compulsion, decide if you wish to give evidence.

I do reject criticism in the strongest possible terms of the juries.”

The law

32. There is no dispute that a court has jurisdiction to stay criminal proceedings in the exceptional cases where such a course is justified.  In the judgment of Ribeiro PJ, with whom all the other judges agreed, in HKSAR v Lee Ming Tee [10] the circumstances in which the remedy was to be granted was addressed:[11]

“ In most such cases, the court only grants the stay because, notwithstanding the range of remedial measures available at the trial, a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process. In Jago v The District Court of New South Wales (1989) 168 CLR 23 at 30, Mason CJ put it as follows :-

“ The continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the Court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.” ”

33. Of the exceptional nature of the circumstances in which stay may be ordered, Ribeiro PJ said:

“ There are cogent reasons why in principle and in practice such stays are highly exceptional.

In the first place, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is “impossible”. The “fairness” achievable is judged in practical and not absolute terms. As Brennan J pointed out in Jago v The District Court of New South Wales (1989) 168 CLR 23 at 49 :-

“ If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it.  Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.”

More importantly, the court’s primary endeavour is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save as a last resort. To quote Brennan J again :-

“ A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party.” (Ibid at 46)

His Honour continued :-

“ Obstacles in the way of a fair trial are often encountered in administering criminal justice.  Adverse publicity in the reporting of notorious crimes (Murphy v The Queen (1989) 63 ALJR 422; 86 ALR 35), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25), absence of competent representation (McInnis v The Queen (1979) 143 CLR 575; MacPherson v The Queen (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed.  Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness.  When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues.  The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.” (at 47)  [Italics added.]

CCTV

34. It was contended in the submissions advanced in support of the application for a stay of proceedings that had the CCTV film been preserved, seized and adduced in evidence it would have assisted the defence in establishing that the computer bag and the suitcase in the possession of the applicant as he entered the Arrival Hall were different from the luggage produced in evidence, exhibits P14 and P16, which were said to have been seized in his possession.[12]

35. However, in the application no evidence was led from or on behalf of the applicant of the description of the luggage of which he said he was in possession.  Moreover, there was no evidence in the application before the judge of the capabilities of the CCTV cameras or whether they depicted images in colour or black and white.  Clearly, there was a paucity of evidence of how the absence of film from the CCTV cameras inhibited the identification of different luggage being carried by the applicant as he entered the Arrival Hall from that which the Customs and Excise Officers said he was carrying.

36. In his evidence before the jury, the applicant testified that he entered the Arrival Hall carrying a black computer bag and wheeling a small black suitcase. There is no dispute that P18 and P14 were respectively a black computer bag and suitcase.  He said that his black computer bag was different from exhibit P18 in that his computer bag had a flap which came to the bottom front.  Although he said that, when first confronted with exhibit P14 by Customs & Excise Officers some hours after his own baggage had been taken away, he recognised that it was different from his own suitcase with wheels, he did not provide any details as to the differences.  Nevertheless, he did not make any complaint to that effect to the Customs & Excise Officers.  In the result, it appeared that the effect of the applicant’s evidence was that P18 and P14 were bags that matched very closely those which he had carried into the Arrival Hall.

37. The second issue arising from the absence of the CCTV evidence was the contention that it might have shown how long the applicant was detained in the search room, who took his bags away and where they were taken.[13]  There was no dispute that there was no CCTV in the search room.

38. It is clear from the judge’s ruling, in respect of the failure to preserve the CCTV film, that he considered that potential evidence as of “very high importance”.  He went on to note that it was of potential benefit, either to the prosecution or defence, and in any event, of benefit to the jury in reaching their decision.  Nevertheless, the judge determined that, together with the failure to preserve and retain as potential exhibits “the wipes and needles”, the failure to preserve the CCTV film did not impact on the “ability of the court to ensure that you receive a fair trial”.[14]  He found that the relevance of the wipes and needles was “limited, being merely a preliminary sign of ” the presence of dangerous drugs.

The judge’s directions

39. The judge’s ruling was made in prospect of evidence being led in the trial.  There was no renewal of the application during the trial.  However, this Court has had the advantage of having regard to the manner in which the issue was addressed in the trial itself in cross-examination of prosecution witnesses, the defence speech and in the summing up. 

40. In her closing speech, Ms Panesar made repeated references to the failure of the Customs & Excise Officers to retain the wipes and needles[15]; to record and retain X-ray images[16]; and to obtain and retain the CCTV film.

41. Of the fact that the wipe had not been preserved, she said:[17]

“ Now, if there was a positive reading for cocaine, you would think that they’re going to preserve this wipe which produces a positive result. It would be a very important part of the prosecution’s case. Why would they not preserve it? Because it did not give any positive result for cocaine or any other dangerous drug, that’s why it was worthless, it was thrown away.”

42. Of the failure to obtain and retain the CCTV film, Ms Panesar said:[18]

“ Why have they not saved it? Why hasn’t someone gone along and said, look, we need this recording of this segment?

You may think things just didn’t happen the way the prosecution have told you in this case.  All that material may have contradicted the prosecution’s case.”

43. At an early stage in his summing up, the judge suggested to the jury that the applicant’s case was that he had been “framed up by the Customs & Excise Department”,[19] it being his case that they had switched his own luggage with luggage which contained dangerous drugs.

44. Of relevance to that issue, the judge reminded the jury of the evidence of the various prosecution witnesses.  CO 8931said that he had discarded the cloths used to wipe the applicants luggage and the needles inserted into the lining of the two bags, that being the practice of the Customs and Excise Department.[20] On the other hand, it was his evidence that it was not possible to store images of X-rays on the X-ray machine used for that purpose.[21]

45. Then, in the course of summarising the defence criticism of the apparent strength of the prosecution case [22], the judge said:[23]

“ The defence went on to point to the lack of CCTV footage which is erased after a short time. You may wonder and consider why the Customs & Excise, knowing this to be the case, did not arrange for the footage to be preserved as evidence. Similarly, with the wipes and the needles, although you may consider these to be only preliminary tests, (.) with regard to images on the X-ray machine and the ioniser, there is no proper evidence before you, despite counsel’s submission, that they could in fact have been maintained and preserved and produced. Again, take all these matters into account.”

Conclusion

46. We are satisfied that the judge was entitled to refuse the application for a permanent stay of the trial.  He was correct in determining that such disadvantage that enured to the applicant from the unavailability of the evidence described by the judge was capable of being redressed by cross-examination of prosecution witnesses.  Further, as Brennan J had noted in his judgment in the High Court of Australia in Jago, quoted earlier, the judge’s responsibility of ensuring a fair trial was buttressed by the power of the judge “to give directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”  The judge availed himself appropriately of that power.

Inferences

47. The judge directed the jury:[24]

“ You must decide the case on the evidence before you now. You are entitled to draw inferences from that evidence, that is to come to logical conclusions based on commonsense. However, you must not look for evidence which is not there, nor speculate about what other evidence there might have been. Be wary of drawing inferences, especially ones adverse to the defence, if different scenarios or possibilities cannot be excluded.” [Italics added.]

48. Much later in his directions the judge went on to say:[25]

“ The prosecution, to obtain a conviction, must show beyond all reasonable doubt not only that the defendant had the dangerous drugs in his luggage, that it was in his possession in the legal sense, but he was aware he had dangerous drugs in his luggage. To this end, Mr Lui points to the packing and the bulk and the weight of the powder to suggest that you draw an irresistible inference that the defendant was aware of what he had in his possession. Again, that is a matter for yourselves.”

49. In his closing speech to the jury, Mr Lui said:[26]

“ All in all, I have proved, the prosecution has proved the act of carrying the drugs into Hong Kong without any lawful authority. But other than that, we have to prove that he had the intention of committing the drugs (offence?); in other words, he knew what it was. And we don’t have direct evidence but we can see, look, Exhibit P14 and P15 (P18?) were carried by him when intercepted. Both bags were with him.

…………

MR LIU: It was both found on him together. The bags of dangerous drugs, I mean the lumps, were sewn together, they were sewn and hidden in the various compartments of the Exhibits P14 and P18. Again, I invite you to look at the photographs. If these are not -- if not unlawful and dangerous drugs, why hidden in such secretive manner?

So it simply, I say that it shows that the defendant was aware that he was carrying cocaine, as a courier. Why so secretive about it? Because it was dangerous drugs, it was prohibited by law. Also, there’s a large quantity. For the amount you can look at the indictment and you know there is a large quantity there and we say that a large quantity is easy for transportation, easy for handling, easy for wholesale purpose.

All this evidence, if you put it together, shows that the defendant must have known the substances he was carrying were dangerous drugs, namely, cocaine.”

50. The judge having invited counsel “to listen very carefully to my summing up” and to raise with him after the summing up any matters “you want me to raise or change”,[27] at the conclusion of the summing up there ensued a discussion between counsel and the judge:[28]

“ COURT: Mr LIU anything that you want to draw to my attention?

MR LIU: …….

Yes. And is there any need to tell them how to draw inference? Lawyers all know it but then it seems that -- how to draw inference based on facts.

COURT: I can deal with that, but I think that was more or less covered but I will just...

MR LIU: Yes, I mean, to us all, it’s all commonsense.

MRS PANESAR: No, it’s been covered, there has been a direction on that.

COURT: I did deal, in my opening part, with inferences.

MR LIU: All right.”

51. There is no dispute that the judge’s direction in respect of the drawing of inferences was not made in the terms of Specimen Direction 21.2, which suggests that, if the judge determines that there are exceptional circumstances which require that such a special direction be given, it be given in the following terms:

“ You are entitled to draw inferences — in other words, if you find certain facts proved, you are entitled to infer the existence of other facts. But you may only do so if that inference is the only reasonable inference to draw from the proved facts. So, if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference. [In this particular case, the prosecution says that there is direct evidence that (specify one or a number of primary facts which the prosecution say are clearly shown) and the prosecution says that the only reasonable inference to draw from those facts is that …. On the other hand the defence says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw; and that another inference one might reasonably draw is that……. .]” [Emphasis added.]

52. Very obviously, the crux of that direction is the often used simple direction “…if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference.”

53. It is not apparent to this Court why, having determined to give a direction to the jury in respect of inferences, the judge did not give the standard direction set out in the Specimen Directions.  In directing the jury that they were entitled to draw inferences from the evidence adduced at the trial, the judge went on to define the term ‘inference’ by stating “…that is to come to logical conclusions based on common sense.”  Clearly, such an inference was a reasonable inference.

54. In that context, in directing the jury almost immediately afterwards “Be wary of drawing inferences, especially ones adverse to the defence, if different scenarios or possibilities cannot be excluded”, the judge could have been understood by the jury to be addressing other reasonable inferences.  But, in so directing the jury the judge failed to deliver the crucial message that, in such circumstances, namely where there were competing reasonable inferences, the jury must not draw an inference adverse to the defendant.  The direction the judge gave the jury left it open to them, notwithstanding that they were wary of doing so, to draw an inference adverse to the defendant, even if other possibilities and scenarios giving rise to other reasonable inferences could not be excluded.  Clearly, that was a misdirection.

55. As noted earlier, the matter in issue to which the jury had been asked to have regard in drawing an inference was as to the applicant’s knowledge that “he had dangerous drugs in his luggage.”  That was a vital issue in the case.  Of that, the judge had reminded the jury that the prosecution pointed “to the packing and the bulk and weight of the powder to suggest that you draw an irresistible inference that the defendant was aware of what he had in his possession.”  We are satisfied that the misdirection was material.

56. It is to be noted that, immediately prior to giving that direction, the judge had reminded the jury yet again of the burden and standard of proof “The prosecution, to obtain a conviction, must show beyond all reasonable doubt not only that the defendant had the dangerous drugs in his luggage, that it was in his possession in the legal sense, but he was aware he had dangerous drugs in his luggage.”  At an early stage in the summing up, the judge had given a similar direction:[29]

“ To secure a conviction, the prosecution has to prove beyond all reasonable doubt that the defendant had the dangerous drugs in his possession. To do that, they have to prove that he had knowledge of the dangerous drugs being in his possession; in other words, they have to show beyond all reasonable doubt that the defendant had a substance in his possession which he knew to be dangerous drugs.”

57. Then, the judge returned to the same issue in directions he gave under the rubric “The Burden and Standard of Proof ”, in which he repeated the effect of those directions.[30]  Finally, in his concluding directions to the jury, the judge said:[31]

“ If, after considering the evidence and my directions on the law in this summing-up, you come to the conclusion that the prosecution has failed to prove to your satisfaction beyond a reasonable doubt, in other words, you are not sure the defendant has committed the offence of trafficking in dangerous drugs, it is your duty to give him the benefit of the doubt and to find him not guilty.”

58. As noted earlier, the primary issue taken in the defence case was that the two pieces of luggage, in which the Customs & ExciseOfficers testified the cocaine had been found concealed in the lining, were not the applicant’s luggage.  Of that, the judge said to the jury:[32]

“ The defendant never had any dangerous drugs in his possession and P14 and P18, the handbag and the suitcase, were not his; that his actual bags were removed by officers from the second room and, after a long period, they were replaced by P14 and P18; that the defendant never saw his bags again.”

59. In further directions that the judge gave the jury at the request of Ms Panesar, following the conclusion of his summing up, the judge said:[33]

“ If you accept what the defendant has said, there is no problem; then you dismiss the case. If you think, find that what the defendant said may have been the truth, then you dismiss the case. If you find it possible that the defendant’s evidence is true or acceptable, then again you dismiss the case. The only time that you would totally disregard his evidence is if you totally disbelieve the evidence of the defendant.”

60. Earlier, the judge had directed the jury as to their approach if they rejected the evidence of the applicant:[34]

“ Even if you disbelieve the defendant, you still must look very carefully at the prosecution case to see if it does reach the required standard. Nearly sure is not good enough. You have to be sure. The case has to be proved beyond all reasonable doubt.”

61. It followed that, if the jury rejected the evidence of the applicant, in particular that the two pieces of luggage, in respect of which the Customs & ExciseOfficers testified the applicant was in possession when intercepted, were not in his possession and the jury was satisfied that the dangerous drugs were found concealed within those pieces of luggage, nevertheless the jury still had to determine whether or not they were sure that the applicant knew that the luggage contained the cocaine the subject of the charge.  Significantly, it was in respect of that issue that the judge reminded the jury that counsel for the prosecution had invited them to infer, from the “packing and the bulk and weight of the powder” that the applicant knew that he was in possession of the dangerous drugs.

62. Highly relevant to the issue of the inference to be drawn from that evidence, if accepted by the jury, was whether or not there was any reasonable inference to be drawn other than that the applicant knew that his luggage contained concealed dangerous drugs.  When that question was posed, Mr Donald said that he was unable to suggest that there was any other reasonable inference to be drawn.  We are satisfied that he was correct to make that concession.  It is to be noted that CO 8931 said that, after he had emptied the two bags of their contents he found the lining to be very thick and the bags to be heavy.  The three packets of cocaine concealed in the lining of the computer bag weighed no less than 3.9 kg.  The only other contents of the bag were a laptop computer, a charger and a newspaper.

Conclusion

63. In those circumstances, if this was the only ground of appeal, we would have been prepared to apply the proviso.

The absence of the applicant’s DNA and fingerprints

64. It was an admitted fact that:[35]

“ There is no fingerprint or DNA evidence of the defendant found or lifted from any of the prosecution exhibits.”

65. The phrase ‘prosecution exhibits’ was not defined.  However,  the List of Exhibits in the Appeal Bundle, compiled by the judge’s clerk, refers to prosecution exhibits which include five packets, consisting of plastic bag and paper wrappings, of the cocaine; five exhibits described as “wrapping material”; a black suitcase (exhibit P14); a black handbag (exhibit P18); a laptop computer; charger; and a newspaper; and clothing.  In addition, other prosecution exhibits included three boarding passes in the name of the appellant, together with an itinerary and hotel reservation and a passenger receipt.

66. Given the inherent improbability that no trace of the applicant’s DNA and fingerprints had been found on the prosecution exhibits including the applicant’s many personal possessions described above, which he testified were in the two bags which he brought into Hong Kong, at our request Mr Sean provided the Court with information in respect of the forensic examination of the luggage and its contents.  No DNA examination was conducted of any item.  An examination for fingerprints, described in the unused material, was conducted on the various layers of the different materials in which the five packets of cocaine were contained.  No marks with sufficient characteristics were discerned to permit identification.  No such examination was conducted on any other prosecution exhibits, including the suitcase and the computer bag.  There is nothing to suggest that the judge was made aware of the limited extent of the forensic examination of exhibits by the prosecution.

67. In all those circumstances, it is extraordinary that counsel for the prosecution made the admission in the wide terms in which it was made.  However, that admission was made and was and is conclusive.  As noted subsequently, the judge gave the jury specific directions to that effect.  That is the basis on which this Court too must approach the issue.

Defence closing speech

68. In her closing speech for the applicant, Ms Panesar made repeated references to the admitted facts that dealt with the issue of the defendant’s DNA and fingerprints.[36]  She said:[37]

“ …there is an admitted fact which says that the defendant’s DNA and fingerprints were not found on those two bags, anywhere.

You may think, if the prosecution are telling you the truth, with one hand he carries the bag and with the other hand, he pulls the trolley handle, he may have, at some stage, zipped, unzipped those bags, you may think that he would have deposited a lot of skin cells on those two bags. He’s carried his bags, it would appear, all the way from Bolivia to Hong Kong, and not a single skin cell was found.  No fingerprints found.  And then we have the lining, the wrapping of the drugs, no fingerprints on that either.”

69. At the close of the defence speech, Mr Liu raised with the judge the use made by Ms Panesar of the admitted facts in respect of the applicant’s DNA and fingerprints.  Having provided the judge with a copy of the judgment of this Court in HKSAR v Oswaldo,[38] he drew the judge’s attention to paragraph 56 and the paragraphs that followed.

Admitted facts

70. Of the approach to be taken to the admitted facts, the judge directed the jury:[39]

“ Remember also that certain facts which have been admitted as truth into evidence must be so accepted. In this case, the Admitted Facts must be regarded as hard fact and I will refer again to that.”

71. Later, the judge repeated that direction:[40]

“ Remember, you cannot go behind those facts. You must accept them. They are hard facts agreed by both sides.”

72. Of the relevance of the admitted fact in respect of the absence of evidence of the applicant’s fingerprints and DNA on the prosecution exhibits, the judge said:[41]

“ It is also accepted that there is no DNA evidence nor fingerprints on either the bags or the wrappings of the drugs. You must consider how significant the lack of such evidence is in reaching a verdict. However, I should say there are many reasons why contact may not result in traces of DNA and/or fingerprints. Again, this is a matter for yourselves.” [Italics added.]

73. Of course, no evidence had been produced in the trial of the applicant of the circumstances in which traces of DNA or fingerprints might or might not be left by contact with exhibits.

74. In HKSAR v Oswaldo, there was no dispute that the applicant had been detained on his arrival in Hong Kong in possession of the blue suitcase concealed in which had been found three bags containing cocaine.  At issue, was the applicant’s knowledge of the presence of the cocaine in the suitcase.  The applicant testified that he did not know that there was cocaine in the suitcase.  He said that he had been provided with the blue suitcase in Colombia by one of the persons who had been involved in making arrangements for him to travel to China to buy shoes.  Evidence was led at the trial that the three plastic bags in which the cocaine was contained was examined by the Identification Bureau of the Hong Kong Police Force to determine whether or not they were able to discern and lift fingerprints.  Although five marks had been found on the plastic bags, four of them were found not to belong to the applicant and the fifth one did not have sufficient characteristics for identification.[42]

75. In the context of the applicant’s complaint about the lack of DNA evidence and the fact that his fingerprints were not found on any of the packets of cocaine, Yeung CJHC(Ag) said, at paragraphs 56-7, in the judgment of the Court:[43]

“ The judge, in his direction to the jury, reminded them of the absence of the applicant’s fingerprint on the bags of cocaine, but fairly and correctly reminded them that “there may be many reasons why a person who touches an object with his fingers does not leave his fingerprint on that object” and that “even if you conclude that this defendant did not have physical contact with the plastic bags containing the drugs, you will still have to consider whether he knew those drugs were in the suitcase. Of course, in considering the issue, you will take into account whatever view you form of the fingerprint evidence.

There was no DNA evidence and it was never the prosecution case that the applicant was the only person who had handled the drugs.  The absence of DNA evidence was not significant and it would not be unfair to the applicant or in any way render the trial unfair. ”

76. In his summing up, the judge, McWalters J, as he was then, had reminded the jury of the evidence of the police officer who spoke to the issue of fingerprints:[44]

“ The final prosecution witness was a police officer who is an expert in the area of fingerprints. He provided you with details of his experience and expertise prior to explaining to you how individuals can be identified by their fingerprints. He was called to explain why, notwithstanding that a person may have touched an object with their hands, no discernible fingerprint is left on the object. This evidence relates to paragraph 15 of the Admitted Facts.” [Italics added.]

77. Of the relevance of that testimony, the judge said:[45]

“ … it is before you as part of the evidence as a whole to assist you with regard to one particular aspect of the evidence, namely paragraph 15 of the Admitted Facts, and specifically to help you understand that persons may touch an object with their fingers, yet not deposit their fingerprints on that object, or may not deposit a fingerprint possessing sufficient characteristics to enable the identification of the owner of it.

Paragraph 15 of the Admitted Facts makes it clear that the defendant’s fingerprints were not found on the three plastic bags that contained the cocaine.”

78. It follows that the statement, quoted above, in the judgment of Yeung CJHC(Ag) in respect of the significance of the absence of the applicant’s fingerprints reflected evidence led in the trial.

79. By contrast, noting that no evidence had been led in respect of DNA, Yeung CJHC(Ag) said only “The absence of DNA evidence was not significant”.  That statement resonates with the observation of Power VP in the judgment of this Court in HKSAR v Law Wing Hong[46], “…the applicant complains that there was no evidence of fingerprints on the knife.  It is true that there was not, but lack of fingerprint evidence is a neutral factor….Where, however, there is no fingerprint evidence at all that proves nothing either way.” [47]

80. It is clear, in contrast to the judge’s directions in respect of fingerprints in Oswaldo, that there was no evidential basis for the judge’s direction to the jury that “…there are many reasons why contact may not result in traces of DNA and/or fingerprints.”  Such evidence as there was adduced, was limited entirely to the admitted facts.  No witness testified that a person might touch an object and leave no discernible fingerprint or one within sufficient characteristics to permit identification, let alone a witness who spoke to contact with an object leaving no discernible DNA.  The items included in the ‘prosecution exhibits’, at least those listed in the List of Exhibits included a range of materials, namely: the textile fabric used in luggage; the hard surfaces of zippers and the computer; newspapers, boarding cards and travel documentation; clothing and the different materials used to package the cocaine.  No doubt, many different considerations applied to whether or not contact with one of those various objects left a discernible fingerprint or DNA.

81. In our judgment, it was not permissible in the circumstances of this case, in the absence of evidence, for the judge to direct the jury simply that “there are many reasons why contact may not result in traces of DNA and/or fingerprints.”  To do so was, in effect, to give a judicial imperator to speculation as to what evidence there might have been.  Certainly, in the absence of evidence, the judgment of this Court in HKSAR v Oswaldo gave no support to the judge’s direction.  With respect, the judge was in error in giving that direction.  It was a material misdirection.

Conclusion

82. In those circumstances, we are satisfied that the appellant’s conviction must be quashed.

Customs & Excise Officers: inherent improbability of illegal acts

83. In his closing speech for the prosecution Mr Liu invited the jury to accept that the applicant’s evidence that his two bags had been switched with two other bags, exhibit P14 and P18 was a “made-up story.”  He said:[48]

“ The Customs officers did not take away any bags, two bags or any bags that the defendant has purportedly carried from Bolivia. In other words, they did not take them away without his consent, because by taking away like this, it will be almost like, without his consent, taking something illegally from him.

The C and E officer, Customs & Excise officer did not take out the personal effects and computer of the defendant from his so-called original bag and put them, respectively, into Exhibit P14 and Exhibit P18. Of course, they did not put in cocaine either because all this will be quite illegal. If you put in cocaine there and say “you are the one who did the trafficking,” we all know that it’s absolutely not allowed under the laws of Hong Kong. It’s almost like perverting the course of public justice. So the C and E officers, if they were to do that, they would be really, really, breaking a lot of laws here.

It is not true the defendant first saw Exhibit P14 and Exhibit 18 only six to seven hours after the beginning of the incident. We know that the incident began around 1515 and six to seven hours would bring it up to 9 o’clock, 9‑ish, 10 o’clock. There was absolutely no reason why Exhibit P14 and P18 would be produced so much later by the C and E, by the Customs & Excise.

There is absolutely no truth for the defendant to say there’s a whole group of Customs & Excise officers put their heads together - not one person, all of them - put their heads together and fabricated this kind of evidence implicating, incriminating the defendant of committing this offence.

It’s not one person, it’s a whole -- people in uniform, people in plainclothes. You think about that. Not at any moment, not to say six to seven hours after the interception, but anyway, there’s nothing of this sort. This is a wild allegation without any foundation or any evidential basis, simply saying it.

No truth -- not true for the defendant to say no test by needles and no cutting of the linen compartment, Exhibit P14, P18, and no photographing.  So there’s a whole string of events he said it did not happen, it did not happen in his presence.  Again, we say it was alleged by the defendant to smear, to paint black of what the C and E officers had done, had purportedly done.  Absolutely no foundation.”  [italics added.]

84. The nub of Mr Donald’s submissions is that part of the address of Mr Liu was an invitation to the jury to conclude that the Customs & ExciseOfficers were less likely to fabricate evidence, thereby committing illegal acts, than others.

85. There is no dispute that, if that was in fact the import of Mr Liu’s submissions, it invited the jury to pursue an impermissible line of reasoning.  In the judgment of Mortimer NPJ, with which all the other judges agreed, in Lee Fuk Hing v HKSAR [49] it was said to be trite law that directions should not be given to a jury that invite “the jury to approach police witnesses as likely to be more credible than other witnesses”.  In that case, the impugned direction of the judge in respect of the alleged conduct of police officers included the following:[50]

“ Whether they would behave like robbers : board the vehicle and allowing no explanation to be offered, break his window(s), drag him out of the vehicle, beat (him) up severely, handcuff (him), put a hood on (him), and then inflict the beating again, this would be a matter for you yourselves to consider. What was their purpose for doing that? Whether such acts would in fact bring not only disciplinary actions against them, but they might even be prosecuted for criminal offence(s)? In particular, if no dangerous drugs could be found there and then, their acts were no different from that of the robbers and would certainly bring prosecution (on themselves). When you consider the question of credibility, you can also consider this point.”

86. Mortimer NPJ went on to cite with approval [51] the judgment of this Court in HKSAR v Leung Ka Yin [52] delivered by Woo JA, as Woo VP was then, in which, having reviewed and considered earlier authorities, this Court had discerned the following guidance:

“ (1) that it is desirable for a judge not to mention the consequences of a witness, including a police witness, fabricating evidence, such as his being liable to be prosecuted for a criminal offence or a serious criminal offence, or liable to lose his job;

(2) that a trial judge must not indicate to the jury that the police as a category or otherwise are unlikely to fabricate evidence, or are more unlikely than other witnesses to fabricate evidence; and

(3) that words which may lead the jury to believe that the police are less likely to tell lies, or give any undue weight to police evidence, or not to consider defence allegations in an impartial manner must be avoided.”  [Italics added.]

87. Mortimer NPJ also cited with approval [53] a passage in the judgment of Lord Bingham CJ in the Court of Appeal on England and Wales in R v Bentley (Deceased) [54]:

“ There is an obvious risk of injustice if a jury is invited to approach the evidence on the assumption that police officers, because they are police officers, are likely to be accurate and reliable witnesses and defendants, because they are defendants, likely to be inaccurate and unreliable.”

88. Of the direction required to be given to the jury, Mortimer NPJ said [55]:

“ …juries must be invited to consider the reliability and credibility of all witnesses impartially and fairly.”

89. In his summing up, the judge gave directions which resonated with that statement of Mortimer NPJ:[56]

“ Treat all witnesses equally in your assessment, whether they are police officers, Customs & Excise officers, construction workers or professionals. In the witness-box, all are equal, all equally entitled to be believed or disbelieved. No one enjoys a special position.”

90. In his closing speech Mr Liu invited the jury to have regard to the fact that, if the applicant’s testimony was true, the Customs & Excise Officer witnesses had fabricated evidence and committed serious criminal offences.  Clearly, it was to be inferred that in consequence they were liable to be prosecuted.  Although Mr Liu did not invite the jury in terms to regard the Customs & ExciseOfficers as more unlikely than others to fabricate evidence or as more likely to be credible than others, without a direction from the judge, clearly there was a risk that the jury might have understood that to be the case and to have pursued that impermissible line of reasoning.

91. However, although the matter was not raised by Ms Panesar in the discussion between counsel and the judge at the close of speeches, as noted above, the judge did direct the jury to treat all witnesses equally in their assessment of credibility.  We are satisfied that not only was the direction appropriate but also it cured any risk of the prejudice to the applicant and prohibited the impermissible line of reasoning described above.

Conclusion

92. We are satisfied that this ground of appeal fails.

93. For the reasons set out earlier, we allow the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we quash the applicant’s conviction.

Retrial

94. At the hearing, in response to an enquiry from the Court, Mr Sean indicated that if the Court were to allow the application and quash the conviction, the respondent sought a retrial of the applicant.  For his part, Mr Donald indicated that he could not oppose that application.

Conclusion

95. We are satisfied, given the seriousness of this case and the strength of the evidence, that it is appropriate to order a retrial and we so order.  The applicant is to be retried by another judge on a fresh indictment on the same count.  The indictment is be filed with the Court within 14 days and the matter listed before the Listing Judge for the fixing of trial dates within 28 days hereof.

[1] Specimen Direction 21.3.

[2] Appeal Bundle, pages 26 T - 27 B.

[3] Appeal Bundle, page 10 R-U.

[4] Appeal Bundle, pages 38-9.

[5] Appeal Bundle, page 193 I-K.

[6] Appeal Bundle, page 178 L-O.

[7] Appeal Bundle, pages 178 Q - 179 B.

[8] Appeal Bundle, page 180 A-D.

[9] Appeal Bundle, pages 180 K - 181 F.

[10] HKSAR v Lee Ming Tee [2001] 4 HKCFAR 133.

[11] HKSAR v Lee Ming Tee, pages 148 I - 149 B. 

[12] Appeal Bundle, page 133.

[13] Appeal Bundle, page 191 K-M.

[14] Appeal Bundle, pages 180-1.

[15] Appeal Bundle, page 296 K-N.

[16] Appeal Bundle, page 294 A:

  “So these machines quite clearly have the capacity and the capability to store the data, store the images, to be reproduced later if necessary.  They have not done it in this case.  Why?  Because it showed nothing?  There was nothing suspicious in the bag?  That’s why they were not saved?”

[17] Appeal Bundle, page 292 I-K.

[18] Appeal Bundle, page 294 I-K.

[19] Appeal Bundle, page 8 L.

[20] Appeal Bundle, pages 13 F; 14 C.

[21] Appeal Bundle, page 14 O-P.

[22] Appeal Bundle, pages 25 A - 27 J.

[23] Appeal Bundle, page 26 E-J.

[24] Appeal Bundle, page 10 H-L.

[25] Appeal Bundle, page 27 L-P.

[26] Appeal Bundle, pages 278 J - 279 F.

[27] Appeal Bundle, pages 304 T - 305 C.

[28] Appeal Bundle, page 182 I-S.

[29] Appeal Bundle, page 9 A-E.

[30] Appeal Bundle, page 11 D-O.

[31] Appeal Bundle, page 28 M-P.

[32] Appeal Bundle, page 8 G-J.

[33] Appeal Bundle, page 31 C-G.

[34] Appeal Bundle, page 28 C-E.

[35] Appeal Bundle, page 5, paragraph 9.

[36] Appeal Bundle, pages 297 A-F; 298 Q and 300 Q.

[37] Appeal Bundle, page 297 A-F.

[38] HKSAR v Oswaldo (CACC 428/2012; unreported, 34 June 2013).

[39] Appeal Bundle, page 11 A-C.

[40] Appeal Bundle, page 22 P-Q.  See also, page 23 O-P.

[41] Appeal Bundle, pages 26 T - 27 C.

[42] HKSAR v Oswaldo, paragraph 7.

[43] HKSAR v Oswaldo, paragraphs 56-7.

[44] HCCC 49/2012, page 14 Q-U.

[45] HCCC 49/2012, page 15 H-N.

[46] HKSAR v Law Wing Hong (CACC169/1998; unreported, 11 November 1998).

[47] HKSAR v Law Wing Hong, page 8.

[48] Appeal Bundle, pages 276 S - 277 P.

[49] Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600.

[50] Lee Fuk Hing v HKSAR, paragraph 14.

[51] Lee Fuk Hing v HKSAR, paragraph 19.

[52] HKSAR v Leung Ka Yin,at page 10(CACC 225/1999; unreported, 18 February 2000).

[53] Lee Fuk Hing v HKSAR, paragraph 20.

[54] R v Bentley (Deceased) [2001] 1 Cr App R 307, at paragraph 53.

[55] Lee Fuk Hing v HKSAR,paragraph 17.

[56] Appeal Bundle, page 10 R-T.