HKSAR v. BUITRAGO AGUDELO, HAYDEE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 412
(Criminal)

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J U D G M E N T

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Power, Ag. Chief Judge H.C. (giving the judgment of the Court)

1. The applicant was convicted on 10th July 1997, after trial before Gall J. and a jury of one count of trafficking in dangerous drugs. That count particularized that she, on 1st of August 1996, at the Arrival Hall of Hong Kong International Airport, unlawfully trafficked in a dangerous drug, namely 1,996.41 grammes of a mixture containing 1,537.58 grammes of cocaine hydrochloride. She seeks leave to appeal against that conviction.

2. The drugs were concealed in her suitcase and were found during a search by Customs officers. The defence was duress. The applicant said that she had been coerced into carrying the drugs by a woman and two men who, in Colombia, had kidnapped and were holding her five-year old son.

3. In her cautioned statement which she made immediately after arrest, the issue of duress was squarely raised, as it was in the evidence which she gave and in the evidence which was given by her daughter.

4. Mr. Whitehouse, who appeared below and appears before us today, submits in Ground 3 that the judge, the defence of duress having been raised, misdirected the jury in relation to the burden and standard of proof in relation thereto. At our direction this ground was argued first.

5. Early in his Summing-up, the trial judge said:

". . . the issue you're going to have to decide is, first of all, whether the question of duress is properly raised and secondly, whether the prosecution have proved that there was none; that really is the fundamental question."

6. No complaint can be made of this direction. It was, of course, for the judge to tell the jury how duress could be "properly raised". The judge then went on, again correctly, to set out the onus of proof. He said:

"The task, the job, the burden of proving the guilt of the Accused lies upon the prosecution, that is, Miss Chan, throughout the trial. It is for the prosecution to prove her guilt. In our law, she does not have to prove that she is innocent."

7. As we have indicated the cautioned statement squarely raised duress in the following passage:

"Q. Where did you get the narcotics?

A. Marta Lucia Pena gave me the suitcase.

Q. Why did she give you the luggage?

A. She gave me the suitcase and I accepted it, the reason why I accepted it is because my children are being threatened and my youngest one was kidnapped.

Q. Apart from Marta Lucia Pena having given you the suitcase; did she tell you anything else?

A. That I should go to Hong Kong and deliver the suitcase and that when I return to Colombia she would give my son back."

8. The trial judge when dealing with that statement said:

"The statement made by the Accused is evidence against her if you believe it to be true. It's also evidence in her favor if you believe it to be true. You must decide whether or not that statement or any part of it is true. In deciding that you must consider the evidence as to how it was made. You've heard that she was brought in by the customs officer and an interpreter was there and questions and answers were given.

This statement is what we call a mixed statement. Some parts are in favour of the Accused and some parts are not. Parts such as her admission that she did bring the suitcase from Columbia, that she knew that there were drugs hidden in it, are all are against her because they go to prove her guilt but parts of it are in her favour, the parts where she says that her son was kidnapped that she was under threat; that helps her. So it's a mixed statement, and where statements are mixed, you must consider all of the statement, both those parts in her favour and those parts not in her favour and determine what you are sure is true, what facts you are satisfied that you can rely upon to reach your decision."

9. The judge went on to say:

"If you are unsure for any reason that any part of a statement is true, then you must disregard that part. It's only if you are sure of its truth, can you rely upon it."

The judge was in clear terms telling the jury that if, for any reason, they were unsure whether any part of the statement was true they "must disregard that part". He was telling them that if they were in doubt as to the truth of any part of the statement they must reject that part. Such a direction would have been incorrect even if there had been no issue of coercion it was a grave error where coercion was an issue. The statement, the truth of which was affirmed by the applicant in her evidence, made coercion a live issue. This had to be considered by the jury and which could only be disregarded, if the prosecution established that it had not been made out. Halsbury states the matter simply, in para.24 Vol. 11(1) says:

"Where it sought to rely on duress as a defence, the accused must show a proper foundation for the defence so that the issue is fit and proper to be considered by the jury; once this is done, it is for the prosecution to establish beyond reasonable doubt that the defence is not made out."

10. This is not the only matter as to which the summing-up was in error.

11. The judge went on to say:

"So she gave evidence - you're looking at her as a witness at this state, she's not proving that she is innocent, she has to prove nothing, but you must analyse the evidence that she gave. Now, her evidence was that she was impelled by that reasonable belief to commit the offence. If, however, you disbelieved her, either that she reasonably believed that her son had been kidnapped, if you believed that was not true, or secondly if you've found that she did reasonably believe her son was kidnapped, and the threats were made but you don't believe it impelled her to commit the offence, then there would be no duress. You would then go on to consider the other evidence in the perfectly normal way."

12. While this is a correct direction it would, much more appropriately, have been given following a direction as to the proper approach either if the evidence as to coercion was accepted or if the jury were left in doubt as to whether or not they believed it. The judge went on to say:

"If, however, you've found, as a matter of fact that the Accused reasonably believed that her son had been kidnapped and that threats were made to her family, that she was or may have been impelled by that belief, that reasonable belief to commit the offence of carrying drugs because she had good cause to fear for her son and for her family, then you must acquit the Accused, unless the prosecution have made you sure that a sober person of reasonable firmness of the same general characteristics of the accused, that is a woman of her age and nature would not have given in to the threats and taken part in the offense, because the burden of proof is always upon the prosecution to prove the guilt of the Accused. She doesn't have to prove she was acting under duress. She's given evidence about it, but she doesn't have to prove she was acting under duress. Once she has raised the issue and by raising it, it means once you believe the evidence available to you that there was a kidnapping, that there were the threats and that it did impel her or may have done, then unless the prosecution proved so that you are sure that it didn't happen, you acquit." (Emphasis supplied.)

13. This passage contains a serious misdirection. The judge had already told the jury that if they totally rejected her evidence, the defence of duress would fail. He then told them how to approach the matter if they believed her evidence indicating that duress was only raised if they believed her evidence. Belief is, however, only one of two possibilities upon which a defendant raising duress may rely. The other possibility is that they might have been uncertain as to whether to believe her evidence or not.

14. In the circumstances of this case, it seems to us that the judge was required to tell the jury that if they believed the evidence of the applicant and her daughter, there being no evidence to the contrary, they should acquit. That he then tell them that if they were, at the end of their deliberations, left in doubt as to whether or not to believe that evidence, they must acquit. That he should, when so directing, have reminded the jury that the onus is on the prosecution to remove any doubt and that if it fails to do so the benefit of that doubt must be given to the accused.

15. The judge, to an extent, compounded the misdirection referred to above in two later in two passages. In the first, he said:

"You might ask yourself how did he know there had been a refusal to carry the drugs which warranted the kidnapping of the child. You can't speculate about it but we do not know that the door had been opened because the big man who came in closed it. You know there were raised voices and the voices were raised because, on the evidence of the Accused, she was refusing to carry the drugs. They are all details which you must look at to decide. At that point. are you satisfied on the evidence before you that there was the kidnapping and threats?" (Emphasis supplied.)

He went on, shortly thereafter, having dealt with the evidence of the applicant in which she told of the directions which she said were given to her by the kidnappers, to say:

"These are matters you must consider in determining what you find you are sure is evidence upon which you can rely." (Emphasis supplied.)

16. It is true that the judge finally gave a clear and correct direction saying:

"This has been a short trial, members of the jury. The evidence has been reasonable brief and is quite clear. You have the unenviable task of deciding what facts you can rely upon so that you can be sure of a conviction, or ,if you cannot be sure, of the facts or what happened, then you will acquit. If you find that there was or may have been duress which impelled the accused to act as she did, if you find as a fact that duress in the terms that I have given you as a matter of law, was, or may have been in existence, then you will acquit, unless the prosecution have made you sure that a normal person, a sober person of reasonable firmness, like the Accused, would not have acted as she did.

The burden of proving it, as I say, the guilt of the Accused is always upon the Prosecution."

17. Mr. Bruce, who appears for the respondent, submits that any earlier misdirections were set right by the clear terms of this later direction. We do not agree. We are satisfied that we cannot approach the matter upon the basis that the later direction must have put right the serious, earlier misdirections. The jury had been told that they must disregard any part of the cautioned statement if they were unsure, for any reason, as to its truth. They were then told that they would only consider the issue of coercion if they believed the evidence of the applicant and her daughter. These were misdirections of such gravity that we cannot be satisfied that the jury properly applied their minds to the assessment of the evidence.

18. This conviction is neither safe nor satisfactory and must be quashed.

19. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the appeal is allowed. We order that the applicant be retried on a fresh indictment.