HKSAR v. ZHOU LIMEI

[English Translation – 英譯本]

CACC 254/2017

[2018] HKCA 592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 254 OF 2017

(ON APPEAL FROM HCCC 51/2017)

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JUDGMENT

Hon Yeung Acting CJHC (giving the judgment of the Court):

Introduction

1.  The applicant (ZHOU Limei) was charged with trafficking in 1.79 kilogrammes of a mixture containing 0.8 kilogramme of heroin at the Hong Kong International Airport when she entered Hong Kong on 15 November 2012.   The applicant pleaded not guilty and was tried before Yau J (the trial judge) sitting with a jury.

2.  On 28 July 2017, the jury convicted the applicant of the charge.  The applicant now applies for leave to appeal against conviction.

The prosecution case

3.  On 15 November 2012, the applicant arrived at the Hong Kong International Airport on board Malaysian Airlines Flight MH 72 from Kuala Lumpur.  The applicant was intercepted by Customs officers for a search in the Nothing to Declare Channel in Arrival Hall B.  At that time, the applicant was pulling a black suitcase with a black rucksack on her back.  Customs officers found upon search a quantity of clothes, including underclothes, bed sheets and rice bowls in the black suitcase.  From the outer nylon lining of the black suitcase, Customs officers found upon search the dangerous drugs in question, namely two bags of a mixture weighing 890 grammes and 900 grammes respectively, each containing 400 grammes of heroin, with a retail price of about HK$1,600,000 in total, and some packaging materials containing tin foil.

4.  At the material time, the applicant had US$380, Malaysian Ringgit 435.10 and RMB 10,587 on her.

5.  On finding the dangerous drugs upon search a Customs officer arrested the applicant.  The applicant said under caution that the black suitcase in question was not hers and that it was given to her by a male called Sam.

6.  During the video-recorded interview with Customs officers between 10:55 pm and 11:55 pm on 15 November 2012, the applicant maintained the above version and claimed that she did not know that the black suitcase carried by her contained dangerous drugs.

7.  The applicant told Customs officers that she engaged in the sale of cosmetics and skin care products with a monthly income of RMB 8,000-odd. Her husband engaged in construction and decoration work with each project involving hundreds of thousand yuan. She stated that on 12 November 2012, she went to Kuala Lumpur to get some clothing samples for an African male called CJ.

8.  The applicant also said that three months prior to the incident, when she was selling cosmetics in the shop, CJ talked with her on various occasions and invited her to go to Africa to explore the possibility of developing business there and take back some samples for him.  As a result, the applicant obtained a passport and gave it to CJ. CJ got a visa and purchased an air ticket for her to go to Nigeria for pleasure. The applicant stated that she went to Nigeria from Guangzhou on 20 October 2012 and stayed there until 27 October 2012.  The air ticket and hotel had been arranged. During her stay in Nigeria, a male claiming to be CJ’s brother brought the applicant out to have fun every day.

9.  The applicant further said that CJ later also persuaded her to tour Kuala Lumpur and take back some samples for him.  The applicant stated CJ told her that there were many Chinese in Kuala Lumpur and there would be greater fun. As a result, the applicant accepted his invitation.  Apart from agreeing to take samples for CJ, the applicant also indicated that she wanted to explore the possibility of developing business in Kuala Lumpur.

10.  The applicant stated that the return ticket to Kuala Lumpur was purchased by CJ while she was to bear the expenses of board and lodging. However, the hotel where she stayed was also arranged by CJ.

11.  The applicant indicated that she first went to Beijing on 12 November 2012 where she waited for 9 hours until 1 a.m. on 13 November when she boarded a plane for Kuala Lumpur. When she arrived at Kuala Lumpur, it was already the morning of 13 November 2012.  She slept for most of the day.

12.  Later on 14 November 2012, an overseas Chinese drove the applicant around to have fun. She planned to go back to Guangzhou by Express Rail Link upon return to Hong Kong on 15 November 2012.

13.  The applicant said that the morning of the day she left Kuala Lumpur, CJ telephoned her, indicating that (a) customer would send over samples. Later, an African male called Sam came to the hotel in a  chauffeur-driven vehicle to look for the applicant. As the applicant had already checked out, Sam rented another room. At that time, Sam brought an empty suitcase with him and put some samples into that suitcase when he was in the room.  The applicant stated she saw that Sam put clothes, bed sheets and some ceramic items into the suitcase and closed it but it was not locked.

14.  After leaving the hotel, Sam parted company with the applicant on the way and sent the applicant to the airport in a taxi. The applicant checked in the suitcase upon arrival at the airport. She was intercepted for a search and arrested by Customs officers when she retrieved the suitcase at the Hong Kong International Airport and entered Hong Kong.

15.  The applicant indicated that she originally intended to return to Guangzhou immediately to meet CJ after buying things in Hong Kong. The applicant said that when she went to Nigeria for the first time, CJ gave her RMB 4,000 as a reward and she would get RMB 3,500 for going to Kuala Lumpur. Although at the material time, she had not yet received the money, it was expected that she would receive the reward when she gave the samples to CJ.

16.  The admitted facts showed that upon fingerprint examination, the examining officers of the police identification bureau confirmed the packaging of the exhibit dangerous drugs did not bear any fingerprints of forensic value.

Applicant’s position and evidence

17.  The evidence adduced by the prosecution was basically undisputed. The applicant’s position was that she had absolutely no knowledge that the black suitcase contained dangerous drugs. The applicant stated that she was deceived by others and without knowing the truth, she innocently brought the dangerous drugs in question into Hong Kong.

18.  When the applicant testified in her own defence, she reiterated her position and gave a detailed account of how she came to know CJ and how she went to Nigeria and Kuala Lumpur under his influence.

19.  The applicant also described her meeting with Sam in Kuala Lumpur and how Sam, having put the samples into the black suitcase in question, passed the suitcase to her on their way to the airport.

20.  The applicant also mentioned that she had met some overseas Chinese during her stay in Kuala Lumpur for the purpose of expanding her business. She pointed out that there were records of her communications with her family, business friends, CJ and Sam on her telephone.

21.  The applicant stressed that what she said during the interview with Customs officers was the truth. She also reiterated that she had no knowledge that the black suitcase contained dangerous drugs. She stressed that she had been set up by CJ and Sam.

22.  Under cross-examination, the prosecution attacked the applicant’s evidence from various aspects. The prosecution alleged that the applicant had (1) deliberately concealed the purpose of her trip to Kuala Lumpur from her friend(s); (2) deliberately hidden the identity of CJ by using “Business” as the abbreviation for CJ in the contact (list) of her telephone; (3) deliberately deleted the messages on her mobile telephone; (4) lied to manager Yeung Fan (transliteration) of Chinese Medicine Headquarters on her way to Kuala Lumpur that as something had happened to her family, she had to return home and could not attend the scheduled meeting; (5) not told her good friend Ms Wan (transliteration) that she went to Malaysia for pleasure; and (6) deliberately and falsely claimed that her husband was a farmer.

23.  The purpose of the prosecution’s attack on the applicant with respect to the above matters was not only to undermine the credibility of the applicant’s evidence but also to show, in support of the prosecution’s allegations against the applicant, that the applicant, knowing the unlawful purpose of the trip to Kuala Lumpur, did  cover up and remove evidence and create a false impression that the applicant’s low level of literacy had rendered her gullible.

The trial judge’s directions to jury

24.  The trial judge set out in great detail the positions and evidence of the prosecution and the defence. The judge pointed out the position taken by the applicant was that her family was in comfortable financial circumstances and hence she did not have any motive for committing the offence. However, the judge pointed out that people with a positive background might also commit crimes and asked the jury to consider, whether the applicant, given her background, would be used by others without knowing the truth.

25.  The trial judge pointed out to the jury that the facts admitted by both parties showed that no fingerprints of forensic value were found on the packaging of the dangerous drugs in question. At the same time the judge indicated that as a matter of common sense, someone who touched an object would not necessarily leave fingerprints or DNA of forensic value. Therefore, the fact of the absence of the applicant’s fingerprints or DNA on the packaging of the dangerous drugs in question was neutral, namely the evidence did not show whether the applicant had touched the dangerous drugs in question or not.

26.  The trial judge also indicated to the jury there were both pros and cons for drug traffickers of using people having knowledge or people having no knowledge to carry dangerous drugs. The judge stated that using people having no knowledge to traffic in dangerous drugs was more likely to result in a loss of dangerous drugs. However, people having no knowledge would behave more naturally when carrying dangerous drugs and were less likely to attract the attention of law enforcement officers.

27.  In respect of the Customs officer’s account that one could not see from the outside of the suitcase containing dangerous drugs that dangerous drugs were concealed therein, the trial judge said this to the jury:

“You might ask whether the defendant would have checked this suitcase so carefully? And did the defendant have the opportunity to do so? However, of course, even if the dangerous drugs were concealed in this suitcase very carefully, it does not mean that the one carrying the suitcase definitely did not know there were dangerous drugs inside…”

28.  The trial judge recounted the prosecution’s position that the applicant had told lies and covered up the truth but he did not further direct the jury on how the alleged acts of telling lies and covering up the truth of the applicant should be dealt with.

29.  The trial judge went further to comment on the applicant’s claim that it was necessary to delete messages and photographs on the mobile telephone to make space for taking photographs and thus data regarding the trip to Kuala Lumpur was deleted. The judge said this to the jury:

“You might think that as it was necessary to delete photographs, why were messages also needed to be deleted? Why wasn’t it that only photographs were deleted for taking photographs?”

30.  The trial judge gave a detailed account of the applicant’s evidence, pointing out that she claimed she distributed a lot of business cards in Malaysia for the purposes of developing business. However, there was no evidence that she received business cards from any persons or shops.

31.  During the trial, on 13 and 18 July 2017, the jury, on two occasions (the first occasion and the second occasion), raised various questions to which they needed an answer from the court. The questions raised on the first and the second occasions are irrelevant to the issues in the present appeal.

32.  The trial judge gave a summing-up to the jury on the mornings of 26, 27 and 28 July 2017. The jury raised questions on two occasions (the third occasion and the fourth occasion) on 25 July and 26 July 2017 (received by the court on 26 July and 27 July respectively). At that time the trial judge had not started or was giving directions to the jury. On 28 July 2017, when the trial judge finished the summing-up, the jury raised further questions (the fifth occasion).

33.  The questions raised by the jury on the above three occasions were as follows:

  The third occasion (raised on 25 July 2017)

“1. The defendant did not obtain any business cards in Nigeria and Malaysia, making it hard to believe that her trips on those occasions were to open up the market. This is in great contradiction to her having a large number of Mainland Chinese business cards.

2. A certain number of contacts were added to the defendant’s mobile telephone at the same time on 24 July 2012. It is difficult to believe that she came to know these contacts at the same time. If this was because she changed to use a new mobile telephone and copied these contacts, we would not be able to determine when she came to know CJ.

3. The defendant mentioned the psychologist mentioned that if she pleaded guilty, the psychologist would let her go the next day. At that time the prosecution categorically said that this was impossible. How can one prove whether the defendant was telling lies or not?

4. The defendant had several books bearing handwritten sales records of Liu Qian (transliteration) Shop and Tian He (transliteration) Shop covering several months of the year 2012. If we do not believe such handwritten records made by staff (there are no bank passbooks and tax returns for us to make verification), can we refuse to accept these several books?

5. It was mentioned in the SMS records of the mobile telephone that a person of Kang Ke (transliteration) Bureau (Bian (transliteration) 3, 62, P4,SMS69) said he wanted the defendant to repay money. It was not mentioned by either the prosecution or the defence. We think that this matter greatly affects whether we believe in the defendant’s financial capability.

  6. If we think that the evidence of both parties is not sufficient for us to determine whether the defendant is guilty or not, do we have to acquit the defendant? (Because the benefit of doubt goes to the defendant?)”

  The fourth occasion (raised on 26 July 2017)

“1. If one has to be sure of her knowledge for her to be guilty, that means the prosecution has to prove what was in her mind, which is simply impossible. It is because the prosecution can only infer that she had knowledge in her mind. This is not certain in nature. It was because even if she had knowledge, she would definitely say she did not. She could also make the excuse that she was naive and silly but she had no knowledge. What is in one’s mind is not susceptible of proof. That being the case, is it that theoretically she could only be found definitely not guilty? Then what is the point of bringing the case to court?

2. When confronted with many questions concerning contradictions, she said she had forgotten. Does forgetting something mean that there is a doubt and the benefit of doubt goes to the defendant? Moreover, what happened in the hotel was only her version of the events, which is not susceptible of proof.

3. We see from her Permit for Travelling to and from Hong Kong and Macau that only a single-journey, not return-journey, visa was granted. It shows that she initially knew that it was a single trip from Malaysia to Hong Kong. If the purpose of her application was for a tour, there would be no reason for not applying for a return-journey but only a single-journey (visa).

4. The defence had said that it was impossible for the defendant to do it so explicitly by providing CJ with her own account number for CJ to deposit money to her. Then in the absence of other information of her family’s accounts, we have no way to know whether the defendant had received any reward from CJ and what the amount was.

5. The defence had pointed out that the defendant’s husband conducted business negotiations and signed contracts via the company “Li Chuang (transliteration)” for his own company. However, the payee on the deposit slip(s) subsequently produced was not “Li Chuang”. Thus, there is no means by which we can know whether her husband had received payments for goods. It cannot prove her husband’s financial circumstances either. (The contract(s) signed by the husband is/are of Li Chuang)

  6. The defendant could not explain why the monthly rent of Tianhe Youyicheng was actually $18,000 when the contract set out clearly the monthly rent was to be $2,887. Thus, the truthfulness of the contract is in grave doubt.”

   The fifth occasion (raised on 28 July 2017)

“ 1. Assuming that the only piece of prosecution evidence is that there was a suitcase containing dangerous drugs and there is no other evidence, how can one prove the defendant’s guilt (?)

  2.  Can the total weight of the sample be provided, both including and excluding the suitcase (?)”

34.  After the jury had raised questions on the third and the fourth occasions, the trial judge repeatedly explained the burden and standard of proof to the jury. In response to the questions raised by the jury on the third and the fourth occasions, the judge had the following to say:

“In fact, you have noted that in my summing-up, (I) had actually already answered some of your questions. Let’s begin with the first sheet. The first question is about business cards. I had referred to it in the summing-up. Of course, if you have further queries, you can write them on a sheet of paper and give it to us later.

As to when (she) came to know CJ, in fact, as I said in the summing-up, of course, (I) need to, with you - - that means that’s all for the evidence. The defendant said she forgot why she input these contacts at the same time. I had also dealt with it in that. Of course, in the end, make your decision on the information now available, make a decision on the evidence now available. However, of course the most important thing is to remember that the burden of proof lies upon the prosecution. The defence does not bear any burden of proof.

The third point is about the psychologist. Actually I had also dealt with the part regarding the psychologist. You remember that at trial, counsel for the prosecution put to the defendant that the psychologist did not do so and the defendant disagreed. Bear in mind that the defendant disagreed. Therefore, what counsel for the prosecution put is not evidence. That is to say, there is no evidence in the case that the psychologist did not do so. But of course, that is because of this, it is also up to you to decide whether to accept such evidence in the end. But, of course, bear in mind that there is no other evidence to rebut what the defendant said. I have said that the defendant gave a response in respect of this part. If you think this is favourable to the defendant, you can of course deal with it in this direction.

In fact, I have also already dealt with the fourth point.

As to the fifth point, it is very careful of you to have seen this message. Let (me) tell you here. The content of the message is what was said by the sender who sent the message. Hence, you cannot treat the content of this message - - it itself cannot prove that the content of this message is true because we do not have any other evidence to prove the content of the message. Put simply, it is common sense that anyone can send a message saying “you owe me money”. Only the persons concerned know whether it is true or not. On its face, we do not know whether it is true or not, or even know whether it was sent wrongly or not. Thus, this cannot be used to prove that the defendant really owes people money. Therefore, one important thing is that as regards this message, when you make consideration, (you) should disregard it, should not take it into account. Forget this message.

Sixthly, you said in the case of insufficient evidence presented by both parties, insufficient evidence presented by the prosecution and the defence, here I need to tell you that the burden of proof rests with the prosecution. The defence does not have the duty to prove anything. Thus, there is no such thing that the evidence put forward by the defence is insufficient because what is required is sufficient evidence adduced by the prosecution. Therefore, as I have said, even if you disbelieve what the defendant or her witness(es) said, you cannot find the defendant guilty because you disbelieve them. You cannot do so. Even if you disbelieve them, you have to consider all the evidence of the case as a whole to decide whether the prosecution can prove the defendant’s guilt beyond reasonable doubt. So you must bear this in mind. If you are of the view that the prosecution fails to prove the defendant’s guilt beyond reasonable doubt, that means (it) fails to prove that the defendant is guilty so that you are sure, you have to acquit the defendant.

I think it is better to write on a sheet of paper in case there are questions. It would make things clearer. It is because as a matter of procedure, that is although it is, that is - - because we have to ensure we know what your question is, because we may need to - - I need to discuss with lawyers as to how to answer you. After you have asked a question, it may not be desirable if we answer you before having time to discuss.

All right, this is the first sheet. There are two other sheets with three questions on each sheet. There are three questions on each sheet of paper. As to the first question, I have actually repeated the principle on inference already. You may draw inference only on the factual basis of conclusive evidence. I have talked about the requirements for drawing an inference. Of course you have to use your personal experience and common sense to see if the only reasonable inference can be drawn. This is how our judicial system works. If the only reasonable inference which you can draw is that the defendant knew, when she took the suitcase to Hong Kong from Kuala Lumpur, she knew that dangerous drugs were hidden in it, you have to find her guilty. If you are unable to arrive at this inference, you have to acquit her.

The second point talks about forgetting which in fact, I have also dealt with.

Thirdly, the Permit for Travelling to and from Hong Kong and Macau, this is one of the exhibits. However, we do not have any evidence about how the Permit for Travelling to and from Hong Kong and Macau works. As to what the stamps therein actually mean, we have absolutely no idea. Actually the purpose of producing this exhibit is just to let you know that the defendant could enter Hong Kong on the strength of this document. There is no other purpose. Therefore, do not use this permit for any other purposes. This - - apart from this, (it) has no other evidential value.

(You) of course also remember that the defendant said she had already applied for this document before she came to know CJ, that is to say she did not apply for this document specifically for CJ’s trip. Of course in the end it is for you to decide whether her evidence is accepted or not and what are the findings of fact.

Fourthly, you ask whether there is other evidence. Let me tell you. That’s all for the evidence of the case. There is no other evidence. You can only rely on the evidence available to give a verdict on the case. Do not speculate. Do not guess whether any evidence exists, whether there is any other evidence. Remember one thing, namely the defence does not bear any burden of proof. It has no duty to present all such things. Hence, you must bear in mind that the burden of proof lies on the prosecution. If the prosecution alleges that she received CJ’s money to - - a lot of money to carry dangerous drugs, it is for the prosecution to prove. The defence does not need to prove I did not do so. The burden of proof rests with the prosecution. Therefore, you can only return a true verdict on the case on the basis of the evidence now available.

Likewise, regarding the fifth point about Li Chuang, the situation is the same as the previous one, that means the burden of proof lies on the prosecution. If there is no evidence, there is none. Do not speculate. Just give a verdict on the case on the basis of the evidence available.

     Sixthly, here both parties did not explore why it was so stated in the tenancy agreement with the actual rent as such. Neither party has explored this. Thus, you do not have evidence in this regard either nor can you speculate. The defendant said it was done as the management office wished. Of course as regards her running this shop, apart from the tenancy agreement, there is other evidence and the evidence is not challenged by the prosecution. Also, there is not any - - the prosecution did not challenge her evidence in this regard nor did it, that is adduce any evidence alleging that it was incorrect.  Notwithstanding this, of course, in the end, what findings are to be made on the facts according to the evidence falls within your domain. It is for you to decide.”

35.  In respect of the questions raised by the jury on the fifth occasion, the trial judge had the following to say in response:

“For the other two questions, one is that you say if there was only one suitcase containing dangerous drugs without anything else, however, this is a hypothetical question, but (I) will answer you anyway. Of course in the present case, it was not that the evidence only is merely one suitcase with nothing else. In the present case, it is not disputed that the suitcase was taken back from Malaysia by the defendant. Of course there is also other evidence, for example, what was said in the video-recorded interview and all other things. We have already told you what evidence you can take into account. Of course, in the end, it is for you to decide what evidence is to be taken into account. That means you have to understand clearly that in the present case, we have, what we agree is - - it is not in dispute that the defendant took this suitcase to Hong Kong from Malaysia. It is also not in dispute that the dangerous drugs specified in the charge were concealed in the suitcase. You must consider, on the basis of matters which are not in dispute and all the evidence in the present case as a whole, whether the prosecution can prove beyond reasonable doubt that the defendant is guilty. The burden of proof lies on the prosecution. The defendant does not have to prove anything. It must be for the prosecution to prove, to prove (its case) beyond reasonable doubt. If you are sure the defendant is guilty, you of course find her guilty. If you are not sure that the defendant is guilty, you must find her not guilty.

 Turning to the second question, as to whether the total weight of the sample, both including and excluding the suitcase, can be provided, I have said that’s all in terms of the evidence, without anything further, without any new evidence. Thus, you have to deal with it on the basis of the evidence now available. Therefore, there is no further new evidence. You may go for your meal first.”

Grounds of appeal

36.  Mr Anthony Lai and Ms Holly Cheng, counsel for the applicant, advanced two grounds of appeal:

(1)  The trial judge’s summing-up to the jury was neither objective nor fair, depriving the applicant of a fair trial;

(2)  The trial judge failed to deal with the questions raised by the jury properly. In particular, he failed to direct the jury in accordance with Liberato & others v The Queen (1985) 159 CLR 507.

37.  Mr Lai submitted that the trial judge’s summing-up to the jury lacked objectivity and fairness. The examples he gave include:

(1)  In the absence of supporting expert evidence, the trial judge directed the jury on fingerprints and DNA, saying that even if someone had touched the dangerous drugs in question, he might not necessarily leave fingerprints or DNA.

(2)  The trial judge directed the jury on using people having knowledge or people having no knowledge to traffic in dangerous drugs by drug traffickers, suggesting that drug traffickers would not give dangerous drugs worth HK$1.6 million to a person having no knowledge. However, the judge did not state clearly that HK$1.6 million was only the retail price. The Customs’ interception of the applicant for a search showed that she behaved unnaturally and hence attracted the attention of law enforcement officers. The incident would lead the jury to think that the applicant had knowledge.

(3)  When commenting on the applicant’s deletion of messages, the trial judge said, “The applicant had already deleted photographs to make space. Why did she still have to delete messages?”     It showed that the judge was of the view that the applicant’s version was not credible. In fact, the applicant’s acts of covering up, even if established, were not relevant to whether she was guilty or not.

(4)  The trial judge pointed out to the jury that people with a positive background could also commit crimes and posed the question of whether the applicant, given her background, would have been used by others. The judge was actually intimating to the jury that given the applicant’s background, she would not have been used by others.

(5)  The trial judge indicated to the jury that even if the dangerous drugs were carefully concealed, it did not mean that the person carrying the suitcase definitely did not know it contained dangerous drugs. The judge was intimating that the person carrying the suitcase should know the suitcase contained dangerous drugs.

38.  Mr Lai stressed that regardless of the strength or otherwise of the parties’ cases, the defendant was entitled to a fair trial. In directing the jury, the trial judge should not express too much of his views on the facts of the case so as to avoid unduly affecting the jury’s verdict.

39.  Mr Lai also emphasized that the questions raised by the jury on various occasions showed they were concerned about the credibility of the applicant’s evidence (which) troubled them. Nevertheless, the trial judge did not make it clear to them that if the applicant’s evidence was true or might be true, they should give the applicant the benefit of the doubt and find her not guilty. Mr Lai submitted that because of the judge’s summing-up, the jury would misunderstand that in considering the applicant’s evidence, they had to make a “finding of fact” first or an “established” factual basis was required, namely it had to be established that the applicant’s evidence was credible before considering whether the applicant was guilty or not. This goes against the decision in HKSAR v Mosen [2011] 1 HKLRD 45. Mr Lai further contended that the judge did not make it clear enough to the jury that they must follow the judge’s directions on the law.

Discussion

40.  A judge sitting together with the jury in a case is under a duty to give a summing-up of the evidence of both parties and their respective cases. He is also entitled to make fair and reasonable comments on the evidence and the parties’ cases. The judge’s comments on the evidence and the parties’ cases are not necessarily accepted by the jury. Provided that the jury have been reminded that they can draw conclusions which they consider to be appropriate without accepting the judge’s views, the judge’s comments on the evidence, which are adverse to the defendant, do not necessarily in themselves constitute a ground for overturning the conviction.

41.  Sometimes, as the evidence from a party and/or its case is/are not credible, when the judge recounts the evidence and/or case and makes comments, that party will argue that in doing so, the judge is unfair to him. However, in fact, the judge’s comments are not unfair. It is only that the evidence and/or case is/are not convincing. Even if the comments on the evidence and/or the case are reasonable, objectively speaking, they might still lead to consequences prejudicial to the party putting forward the evidence and/or case. In such circumstances, the contention that the defendant is unable to obtain a fair trial because the judge has made comments adverse to the defendant cannot stand. We must emphasize that the court has no duty to conceal or modify the deficiencies in the defence case or arguments (see HKSAR v Hong Tsz Yin [2011] 5 HKLRD 447 at para 71).

42.  In the present case, the trial judge did make it clear to the jury that if the jury accepted the judge’s views, they could take such views into consideration. But if they thought the judge’s observations were incorrect, they could disregard them. The judge also reminded the jury that they must take into account evidence which they considered material even if it was not mentioned by him. The judge did leave the right of finding of fact in full to the jury.

43.  We first deal with Mr Lai’s criticism of the details of the trial judge’s summing-up.

44.  Firstly, the trial judge pointed out that the applicant had stressed that she had a good background and was well-off and thus would not do illegal acts. In directing the jury, the judge said that the well-off could also commit crimes but their propensity must be lower than that of those in financial difficulties. At the same time the judge asked the jury to consider whether the applicant would have been so stupid that she was used by others while having no knowledge, given the education she had received, her professional qualifications, work and business experience. These are neither unreasonable nor unfair comments.

45.  Secondly, the trial judge indicated to the jury that the applicant would not necessarily have checked the suitcase in question carefully nor did she necessarily have the opportunity to do so. However, he also pointed out that even if the dangerous drugs were carefully concealed, it did not mean that the one managing the suitcase definitely did not know that the suitcase contained dangerous drugs. What the judge said is merely common sense. It is both neutral and reasonable.

46.  Thirdly, the trial judge told the jury that both parties agreed that the dangerous drugs in question were worth HK$1,600,000-odd and the admitted facts also clearly stated that in the case “the retail market price of 1.79 kilogrammes of the mixture of heroin hydrochloride was estimated to be HK$1,605,630 at the material time”. Whether it was the retail price or wholesale price, the dangerous drugs in question must be of considerable value. There was a basis for the judge’s comments in respect of the price of the dangerous drugs.

47.  Fourthly, the trial judge merely pointed out to the jury that there were both pros and cons for drug traffickers of using people having knowledge or people having no knowledge to traffic in dangerous drugs. There was no evidence of the reason for the interception of the applicant by Customs officers for a search. Mr Lai is not entitled to contend that as the applicant was indeed intercepted by Customs officers for a search, the judge’s remarks were intimating that the applicant was intercepted for a search because she behaved unnaturally due to her having knowledge.

48.  Fifthly, undeniably, the trial judge told the jury in the absence of supporting expert evidence that even if someone had touched an exhibit, he might not necessarily leave fingerprints or DNA. But the judge did make it clear to the jury that fingerprint or DNA was neutral and not conclusive evidence in the incident. The judge did say clearly to the jury that there was no fingerprint and DNA evidence showing that the applicant had touched the dangerous drugs in question.

49.  Relying on HKSAR v Silva Barba [2017] 1 HKLRD 29, Mr Lai asserted that in the absence of supporting expert evidence, the trial judge erred in telling the jury that even if someone had touched an object, he would not necessarily leave fingerprints or DNA. This remark might have even misled the jury, causing them to think that they could speculate about certain facts in the absence of evidence. This went against the principle that the jury could only and must give a verdict on the basis of the evidence. In particular, Mr Lai referred to the following ruling in Silva Barba at para 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.”

50.  The facts in Silva Barba were special. That case involved many exhibits. The trial judge only gave the following directions to the jury:

“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.”

51.  The trial judge in Silva Barba did not make it clear to the jury that there were no fingerprints and DNA on the packaging of the dangerous drug which linked up with the defendant. Nor did he point out that the absence of fingerprint and DNA evidence was neutral in the incident. He also failed to tell the jury that there was no fingerprint and DNA evidence in the case to show that the defendant had touched the dangerous drug concerned. It was under such circumstances that the Court of Appeal ruled that the judge could not direct the jury by simply saying “there are many reasons why contact may not result in traces of DNA and/or fingerprints”. We agree with Ms Vinci Lam, Senior Assistant Director of Public Prosecutions, for the respondent that in Silva Barba the Court of Appeal did not rule in general that all such similar directions were necessarily wrong. The judgment in Silva Barba is of little assistance to the applicant’s application.

52.  The trial judge pointed out that even if someone had touched an exhibit, he would not necessarily leave fingerprints or DNA. Such a remark is common sense. In fact, as emphasized by Ms Lam, expert witnesses had stated clearly in a number of similar cases that even if someone had touched an object containing dangerous drug, he would not necessarily leave fingerprints or DNA. The reason was that factors such as the texture of the object, duration of contact, the lapse between contact and examination, temperature and humidity would affect whether fingerprints or DNA could remain on the surface of the object. More importantly, the judge did make it clear to the jury that the absence of evidence of fingerprints and DNA was neutral. He went further to stress to the jury that there was no evidence of fingerprints and DNA showing that the applicant had touched the dangerous drugs in question.

53.  Like HKSAR v Henao Torres Oscar Oswaldo (CACC 428/2012) and HKSAR v Law Wing Hong (CACC 169/1998), the absence of evidence of fingerprints and DNA has no significance whatsoever in the present case. Taking the trial judge’s directions to the jury as a whole, the fact that he told the jury in the absence of expert evidence that even if someone had touched an exhibit, he would not necessarily leave fingerprints or DNA does not affect the safety of the conviction.

54.  We do not agree with Mr Lai’s submission that the trial judge’s approach had led the jury to speculate about certain facts in the absence of evidence. In our view, Mr Lai’s concern is far-fetched and unconvincing. The judge did state clearly to the jury that they must reach the verdict on the basis of the evidence and tell them the relevant evidence in the case. The judge went further to emphasize that the absence of fingerprint or DNA evidence was neutral and that there was no such evidence showing that the applicant had touched the dangerous drugs in question.

55.  Sixthly, another argument advanced by Mr Lai was that in dealing with the questions raised by the jury, the trial judge failed to give proper directions to the jury according to Liberato and other cases derived from it including Mosen, HKSAR v Wong Wai Man (No. 2) [2003] 4 HKC 517 and Law Chung Ki v HKSAR (2005) 8 HKCFAR 701 and so on. Mr Lai submitted that the judge must state to the jury clearly that if the applicant’s account in respect of an issue was true or might be true, they should make a finding which was favourable to the applicant. Mr Lai contended that the judge failed to give correct directions to the jury as regards contentious factual evidence but directed the jury that they could only act on the basis of established facts. This was also a contravention of the principle laid down in Liberato and cases derived from it, namely if the defendant’s version might be true, the jury should not find against the defendant on the issue.

56.  We do not accept Mr Lai’s argument, even more so, we do not agree with his submission that on any factual issues in dispute, the judge must give a Liberato direction to the jury, namely if the applicant’s version is true or might be true, the jury must make a finding which is favourable to the applicant.

57.  In a criminal trial, a duty of the jury is to make findings of fact including finding which witness’s evidence is credible and can be accepted and which witness’s evidence is not credible and should be rejected. The jury must decide on the facts on the basis of all the evidence. It is unrealistic to ask the jury to take the Liberato approach to make findings of fact at that stage. This is because such an approach will highly likely render the jury unable to decide on factual issues.

58.  The Liberato direction only relates to the burden of proof in criminal cases. The prosecution bears the burden of proving the charge against the defendant beyond a reasonable doubt. Under the aforesaid circumstances, even if the jury reject the defendant’s evidence, but if the jury are of the view that the defendant’s evidence may be true and casts doubt on the charge, it shows that the prosecution has failed to discharge its burden of proof, namely causing the jury to be satisfied beyond reasonable doubt that the defendant is guilty. In such circumstances, the defendant is entitled to the benefit of the doubt and should be acquitted.

59.  The “issue” referred to in Liberato relates to the issues of whether the defendant is guilty and that the burden of proof lay on the prosecution, not any issues involving factual disputes. The prosecution bears the burden of proving the defendant’s guilt. The existence of any reasonable doubt on such issue shows that the prosecution has failed to discharge its burden of proof. In such circumstances, the defendant must be acquitted. The prosecution has no duty to conclusively prove its allegations on all issues involving factual disputes. The judge is not obliged to give Liberato directions on all issues involving factual disputes.

60.  We agree with Ms Lam’s views on the above issue. Directions in Jim Fai v HKSAR (2006) 9 HKCFAR 85 are in line with the directions in Liberato.

61.  In the present case, the trial judge repeatedly reminded the jury that the burden of proof rested with the prosecution, and the defence had no duty to prove anything. The judge also reminded the jury that even if they did not believe the evidence of the applicant and her witness(es), they could not in light of that jump to a verdict of guilty. The jury must on the basis of all the evidence find that the prosecution had proved beyond a reasonable doubt that the applicant was guilty before they could convict her of the charge.

62.  Hence, we do not agree that the trial judge has made the mistake alleged by Mr Lai. Nevertheless, in our view, there are defects in the directions given by the judge which render the conviction of the applicant unsafe.

63.  We note that the trial judge did point out to the jury that the applicant denied having knowledge of the dangerous drugs in question. The judge reminded the jury twice that if they thought that the applicant’s account was true or might be true, they must find the applicant not guilty. However, these reminders were made at the early stages of the judge’s directions to the jury.

64.  The jury’s questions on the third and the fourth occasions were raised at a late stage of the directions given by the trial judge. The questions on the fifth occasion were even raised after the conclusion of the directions.  Their questions all concerned the credibility of the applicant’s evidence. They had a lot of queries about the applicant’s evidence, showing that they doubted the truthfulness of the applicant’s evidence and also showing that they were troubled by how to deal with the credibility of her evidence. We should point out that the applicant’s evidence with which the jury were concerned directly affected whether the prosecution had been able to prove the applicant’s offence beyond a reasonable doubt.

65.  In these circumstances, we take the view that a safer approach is that after the jury had raised questions on the above three occasions, the trial judge should have reminded the jury once more that if, having considered all the evidence, they came to the view that the applicant’s account that she had no knowledge of the dangerous drugs in the suitcase was true or might be true, they must return a verdict of not guilty. This approach would be fairer to the applicant.

66.  However, in our view, there is another cause for greater concern in the case. During cross-examination of the applicant at the trial, the prosecution for the first time alleged on various occasions that she had told lies and concealed the truth about various incidents. It was the prosecution case that the applicant had concealed the trip to Africa before the case happened, and she had also concealed the trip to Kuala Lumpur from Yeung Fan and Ms Wan. The prosecution alleged that the applicant had deliberately misled Customs officers by claiming that her husband was a farmer so as to give a false impression that she had a low level of literacy which rendered her gullible. The prosecution further alleged that the applicant had deliberately hidden the identity of CJ by using “Business” as the abbreviation for CJ and deliberately deleted the messages concerned  on her mobile telephone after the incident to cover up the real purpose of her trip to Kuala Lumpur.

67.  The prosecution not only submitted that the above acts of the applicant undermined her credibility but also specifically submitted that the above acts of the applicant were to cover up the real purpose of her trip to Kuala Lumpur. It further asked the jury to draw the inference that the applicant knew that the trip to Kuala Lumpur involved illegal acts and thus needed to cover it up. However, the prosecution did not state clearly the basis of the above argument.

68.  In our view, the prosecution’s contention that the applicant’s lies and acts of covering up could support the charge is open to question. We do not consider it appropriate to express strong views on the issue and the matters concerned at the present stage. However, it is indeed difficult to see why some of the lies and acts of covering up alleged by the prosecution must be relevant to her “drug trafficking” offence.

69.  We have to point out that the prosecution’s allegation that the applicant had told lies and deliberately concealed the truth might cause extremely adverse consequences for the applicant. In light of the jury’s concern about the credibility of the applicant’s evidence as shown in their questions, it was highly likely that they would have a bias against the applicant because she had allegedly told lies.  Even more so, they might as a result conclude that the applicant had deliberately told lies or concealed facts as alleged by the prosecution and further infer that she was guilty.

70.  In our view, for the sake of fairness, before allowing the prosecution to make use of the so-called lies and concealment of facts on the part of the applicant as evidence against the applicant, the trial judge must first consider whether such acts are relevant to the offence the applicant is alleged to have committed. Even if the judge takes the view that the lies and concealment of facts are relevant to the offence the applicant is alleged to have committed, the judge must also remind members of the jury to ensure that they will not misuse such evidence (see HKSAR v Wang Jinwei [2018] 4 HKLRD 450 at para 51).

71.  At the trial, the prosecution did not state clearly how the alleged lies and concealment of facts, including lies and concealment of facts prior to and after the incident, could prove that the applicant had committed the offence of “drug trafficking”. The trial judge did not deal with the issue either.  This Court must not overlook that the prosecution’s position of the applicant having told lies and concealed facts was only put forward during the cross-examination of the applicant. Although the defence did not raise any objection on the basis that the said issues under cross-examination were not relevant to the charge, the judge should have understood the essence of such cross-examination and dealt with it appropriately.

72.  Ms Lam emphasized that as regards how to deal with the questions raised by the jury on the third occasion on 25 July 2017, the defence’s position was that no directions on lies should be given to the jury in order to avoid causing the jury to focus on considering whether every sentence uttered by the applicant was a lie. Both parties agreed that a general direction on lies would be all that was required. However, the questions raised on the third occasion were not related to the lies and acts of covering up alleged by the prosecution.

73.  In our judgment, the trial judge should have, as in dealing with the defendant’s lies, absconding or post-offence suspicious conduct, stated clearly to the jury that they must consider whether the applicant had told lies or concealed the offence as alleged by the prosecution, including absconding (hiding) or other acts of concealing the offence (lies and acts of covering up in the present case). The judge had to explain to the jury that if they could not be sure that the applicant had told lies or concealed facts as alleged by the prosecution, they simply should not take those matters into account. The judge should also have made it clear to the jury that even if they were sure that the applicant had told lies and/or concealed facts as alleged by the prosecution, those acts in themselves were not sufficient to prove she was guilty. This was because there might be innocent reasons which could explain the lies and/or concealment of facts in question. The judge must state clearly to the jury that it was only when they were sure that the lies and/or concealment of facts on the part of the applicant as alleged by the prosecution were not made for any “innocent” reason that such acts could be regarded as evidence in support of the prosecution case against the applicant.

74.  In the present case, the trial judge did not consider why the lies and/or concealment of facts on the part of the applicant as alleged by the prosecution were supportive of the prosecution case against the applicant. Even more so, he did not give directions to the jury as to the use which they could make of the lies and/or concealment of facts on the part of the applicant as alleged by the prosecution. In our view, the above omission on the part of the judge might be extremely unfair to the applicant, and would render the applicant’s conviction unsafe.

75.  In these circumstances, we are of the view that it is necessary to quash the applicant’s conviction.

76.  Ms Lam asked this Court to apply the “proviso” to uphold the original guilty verdict. The verdict in the present case was wholly founded on whether the applicant’s explanation was credible and sufficient to  raise a doubt about the offence she is alleged to have committed. We do not consider it appropriate to apply the “proviso” to uphold the original conviction.

77.  For the above reasons, we grant the applicant leave to appeal against conviction. We allow the appeal, quash the conviction and set aside the sentence.

78.  We anticipate that the prosecution will apply for a retrial. We order that the prosecution do make an application for a retrial, if any, within 7 days of delivery of this judgment and set out the grounds of the application. If the defence should object to such an application, the grounds of objection have to be submitted within 7 days thereafter. The application will be dealt with on paper. In the meantime, the applicant shall continue to be remanded in custody, pending the determination of the application for retrial.