HKSAR v. MURAMOVA ANNA

CACC 420/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 420 OF 2014

(ON APPEAL FROM HCCC NO. 69 OF 2014)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.  On 20 November 2014, the applicant was convicted in the High Court before Deputy Judge S D’Almada Remedios (“the judge”) and a jury of one count of unlawfully trafficking in a dangerous drug, namely 10.26 kilogrammes of a powder containing 8.04 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the following day, she was sentenced to 29 years’ imprisonment. She now seeks leave to appeal against conviction only.

The prosecution case

2.  Apart from the calling of two live witnesses, the prosecution case was largely agreed by way of admitted facts.  In particular, it was admitted that, at about 1 pm on 13 August 2013, the applicant, at the time a 22-year-old Russian national, was intercepted by a Customs officer as she attempted to pass through the green channel at Hong Kong International Airport carrying a handbag and pulling a grey suitcase.  She had arrived on a flight from Beijing, although her journey had originated in São Paulo, Brazil on 11 August 2013.

3.  An ion analysis on the applicant’s luggage produced a positive result in respect of her suitcase.  Accordingly, it was then scanned in an X-ray machine.  When a blurred image of the inside of the suitcase was revealed, the applicant was asked to unlock the combination lock of the suitcase for a search, which she did.  Apart from clothes and sundry items, four backpacks were found, inside of which, wrapped in black plastic sheets, were concealed the dangerous drugs in question.  The applicant was immediately cautioned and arrested, after which she said she had nothing to say.  The cocaine had a retail value at the time of HK$10,044,540.

4.  It was an admitted fact at the trial that, on 23 August 2013, upon a lawful search conducted on the applicant’s personal property at Lo Wu Correctional Institution, where she was by then being detained, her passport was also seized.  That passport, which had been issued to her in Russia shortly after she had turned 19 years of age, depicted an extensive pattern of travel in Southeast Asia during the intervening years.  The passport was exhibited as part of the prosecution case by way of an admitted fact.[1]

5.  The prosecution alleged that the applicant knew that her suitcase contained the drugs in question.  It also alleged that her purported belief that she was carrying clothes for her friend, who had then mysteriously missed the flight, was incredible; given, inter alia, that the suitcase weighed some 28 kilogrammes, and yet she had made no enquiries as to why it should be so heavy.

Defence case

6.  At trial, the applicant elected to give evidence and called her brother-in-law as a defence witness.

7.  The applicant testified that she had entered a Russian technical university initially to study history and archaeology for two years before switching to another department where she read sea and land logistics and transportation.  She was eventually intending to work for Russian Customs Control.  She described herself as a Christian, who participated in charitable work for disabled children and orphans, and was a gifted pianist and singer.  She had won first place in the Russian History Olympiad in order to enter university, as a result of which her university fees were subsidised.  The applicant claimed that in June 2012, she had performed a two-week internship as a court clerk or bailiff dealing with the non-payment of fines.  She said she had never been in trouble with the law before anywhere in the world.

8.  Brought up by a single mother, known in Russia as a “hero mother”, she lived with her fiancé who was a driver’s assistant for the municipal railway.  He would pay her expenses.  She said that six months prior to her arrest, she had come to know a female friend in Russia called Anastasia Pitomets (“Anastasia”), whom she described as a “coffee-shop friend” of around the same age, and with whom she would meet perhaps twice a month to have a meal and chat.

9.  In early July 2013, Anastasia, having been invited by her friends in Brazil to pay them a visit to that country, invited the applicant to be her companion on the trip, the costs of which would be paid by Anastasia’s friends and the applicant’s fiancé.  The applicant accepted what she described as “a very attractive offer” and said she had no reason to doubt other people’s generosity.

10.  The applicant said that the trip to Brazil was uneventful, although at times she would stay in her hotel room alone because Anastasia would go and meet her own friends and she did not want to go out alone in a strange country.  On the night before she was due to leave Brazil, Anastasia had returned to their hotel room very late with a new suitcase, which she explained she had bought for the applicant to replace her old suitcase.  She told the applicant that she had accidentally broken the wheels of the applicant’s old suitcase.

11.  In the morning, the applicant woke up to find that Anastasia had already helped her pack her new suitcase and transferred everything from her old suitcase to the new suitcase; she also saw Anastasia put some backpacks, which she told her contained her clothes, into the applicant’s new suitcase.  She did not find it strange that Anastasia would put her own things into the applicant’s suitcase.

12.  The applicant said she then took a taxi to the airport by herself without waiting for Anastasia, who needed to speak to one of her friends about a problem with the hotel bill.  However, Anastasia, who was someone who was routinely late, did not show up at the airport for the return flight at 6 pm.  The applicant was unable to contact Anastasia and, therefore, made the return journey on her own, by first transiting through Madrid, and then Beijing, before arriving in Hong Kong, where she was intercepted by Customs officers.

13.  The applicant’s brother-in-law testified about the applicant’s character, describing her as someone who was always ready to help but was somewhat naïve.  He said she had a decent circle of friends.

14.  In essence, the defence case was that the applicant had misplaced her trust in Anastasia, who had turned out to be an unscrupulous drug trafficker.  It was stressed that the applicant had not behaved in a suspicious or untoward way consistent with guilty knowledge when intercepted by Customs officers, and had not hesitated in opening her suitcase for examination when requested.

Summing-up, questions from the jury and verdict

15.  At the outset of her summing-up, the judge rightly identified the ultimate issue in the case:

“If you find that [the applicant] was not aware, or may not have been aware that the drugs were in her suitcase, then you will find her not guilty, in other words, acquit her. If, however, you are sure that the defendant knew of the drugs, then you will find her guilty, which in other words means convict her.”

16.  The judge told the jury that the prosecution had no direct evidence to show the applicant had knowledge of the presence of the dangerous drugs, and explained what was meant by circumstantial evidence and how inferences might be drawn.  She gave the following direction:

“...the prosecution is asking you, members of the jury, to draw the inference, or to infer, that the defendant had knowledge that the drugs were in the suitcase. If you find certain facts proved on the evidence before you, you are permitted to say, well, on the basis of those facts which I find proved, here are other facts about which I can be sure.

Let me give you an example of drawing an inference from established facts. If you see there is black smoke coming out of a window of a flat, you may reasonably draw an inference there is something burning inside. You must not draw an inference based on mere suspicion. So in my example, if you are not sure whether there is smoke coming out of the window, you cannot draw the inference that there is something burning inside. In criminal cases, the inference you wish to draw must be the only reasonable inference that can be drawn in the circumstances. It must be an inference that no reasonable person could fail to draw from the established facts.

Always remember that you may only draw inferences of guilt or other inferences against the defendant if you are satisfied that the inference of guilt is the only inference you can draw.  In drawing this adverse inference, you must be satisfied beyond reasonable doubt, that is, you must feel sure.”

17.  The judge then summarised both the prosecution and the defence cases. In setting out the defence case, she said:

“The defendant, as you have heard, was 22 years old last year. She had travelled quite a bit in her life. Certainly, as you see in her passport, there were visits to Macau, to China, to Brazil and Thailand. She had this passport since she was 19 years old. Soon after that, she began travelling. Her first stop was Macau. Then, you will remember, she had been to China on a few occasions, Hong Kong on a few occasions, Brazil and Thailand. In 2012, it appears she had travelled quite extensively. In February 2013, she spent some two months in China. She said she was reasonably well-educated. She was studying logistics at university in a long-distance course - or long distance learning.

The prosecution point to the fact and say look at this travel pattern. Is this the life of a student even if she is a student who is a long distance learner? Look at the defendant’s notebook, P16. The defendant wrote in her notebook, “I have earned renminbi 25,000”. The prosecution say this is because she really earned, as in worked, for that money and that is why it is written expressly and it is not, as the defendant said, because it was a student allowance, because student allowance doesn’t come in renminbi because she is a Russian student. Or the second reason the defendant gave was she was playing a psychological trick on her own mind. The prosecution say is she a student, if she has some 30,000-odd renminbi of expenses as noted? Further she purchases an iPhone 5.”

18.  Of the applicant’s state of mind in respect of the presence of the dangerous drugs, the judge said:

“In the present case, the defendant said she had no knowledge of the drugs in the suitcase or backpack. If you believe her evidence, or find her evidence may be true, if you are not sure she had knowledge of the drugs, then you must acquit her and find her not guilty. However, if you are satisfied so that you are sure she had knowledge of the drugs then, equally, it is your duty to return a verdict of guilty.”

19.  About 3 hours after the jury had retired to consider their verdict, they sent a note to the judge saying “[w]e have not reached a verdict (ie four to three)”.  The judge called the jury into court and reiterated that there was no pressure of time to reach a verdict.

20.  About an hour and a half later, the judge received a further note from the jury, in which the following questions were posed:

“What is the definition of ‘sure/beyond reasonable doubt’? Does it mean 100 per cent sure? For example, an example given in the morning, seeing black smoke does not mean one can be 100 per cent sure that something is burning. Are there more examples? Further guidance.”

21.  The judge discussed both questions with counsel and, with their agreement, gave further directions as follows:

“I will now answer your questions. Let me deal with the first two questions together. That is “What is the definition of ‘sure/beyond a reasonable doubt’? Does it mean 100 per cent sure?”

This morning I told you that to be sure beyond a reasonable doubt means the prosecution must satisfy you so that you are sure of the defendant’s guilt, and nothing less than that will do.  It means making you sure of it.  If there are any doubts, you are not sure.  That is my answer to your first two questions.

In respect of more examples and further guidance, it is clear from your question here, as I read it, that this refers to my direction on inferences.  So I am going to, once again, repeat to you my direction on inferences and then, after that, I will give you a further example.  My repetition of inferences, I hope will be guidance to you once again, if you hear it again for a second time.

So as I mentioned this morning, you can only draw an inference based on facts that have been proved to your satisfaction.  So that was when I said you must not draw an inference based on mere suspicion.  So my example I gave you about the black smoke, I said if you’re not sure there is smoke coming out of the window, you cannot draw the inference that something is burning inside.  But if you see there is thick black smoke coming out from the window, you may reasonably infer that there is something burning inside.

That is an inference that no reasonable person could fail to draw from the established facts.  The inference you wish to draw, therefore, must be the only inference that can be drawn in the circumstances.  It must be an inference that no reasonable person could fail to draw from the established facts.  You may only draw inferences of guilt or other inferences against the defendant, if you are satisfied that the inference against the defendant is the only inference you can draw.  In drawing that adverse inference, you must feel sure.

So if, from a set of facts, you find there is a reasonable inference to draw against the defendant, as well as one in her favour, then you must not draw the inference against her.  So if there are two inferences to draw and one is in the defendant’s favour and one is not, you draw the inference that is in the defendant’s favour.

I will give you another example of inferences.  Let us say you were in Singapore and you met some person there called ‑‑ that you met your friend called Ms A.  Later that day, you took an airplane to Hong Kong and on that same day, a few hours after you arrived in Hong Kong, you saw your friend, person A in Central.  The only reasonable inference from those facts is that your friend A had also flown from Singapore to Hong Kong on that same day for the simple reason that there is no other way for a person to get from Singapore that quickly other than by flying.

So that inference would seem to be the only reasonable inference, that is, that that person flew from Singapore to Hong Kong.  So what you would not be able to infer is that that person A, your friend, had travelled on the same flight or the same airplane as you because it is possible that that person took another flight, another airplane to Hong Kong and at another time.”

Three hours later, the jury convicted the applicant by a majority of 6:1.

Grounds of appeal against conviction

22.  Mr Richard Donald, on behalf of the applicant, has advanced two grounds of appeal against conviction.

Ground 1

23.  The first ground consisted of two limbs.  First, it was contended that the judge should not have permitted “evidence of the applicant’s extravagant lifestyle and previous overseas travel” to be admitted in the trial at all; but, secondly, having permitted such evidence to be adduced, the judge “failed to direct the jury on the relevance and proper approach” to dealing with such evidence.

24.  In respect of the first limb of this ground, Mr Donald submitted that the admissibility of the impugned evidence depended on its relevance and probative significance in relation to an issue in the case; and, given that the sole issue to be decided was the applicant’s knowledge, the impugned evidence was wholly prejudicial and would not have assisted the jury in determining that issue at all.  On the contrary, the jury would inevitably have wondered why the applicant had been cross-examined at such length about her previous travel experience and would have clearly understood that the implication was she had carried dangerous drugs before.  Mr Donald said that the judge should therefore have exercised her discretion to exclude the evidence of her travel records based upon the passport from the trial, particularly one involving a jury.

25.  In arguing the second limb of this ground, Mr Donald submitted that the judge should have comprehensively directed the jury on the precise probative significance (if any) of the impugned evidence and then made it clear that it was for the jury to decide whether the evidence bore such probative significance.  In support of that contention, counsel relied on HKSAR v Chu Pak Cheong[2006] 3 HKC 330and the English authority of R v Grant [1996] 1 Cr App R 73.

Ground 2

26.  By Ground 2, it was contended that the judge over-prescriptively and unnecessarily repeated her directions on inferences to the jury.  Mr Donald also complained that the judge’s directions regarding the drawing of inferences were unclear and did not assist the jury in any event. He particularly took issue with the examples she gave of how an inference might be drawn.

Respondent’s submissions

27.  Mr Eddie Sean SADPP, on behalf of the respondent, stressed in respect of Ground 1 that the applicant’s evidence in respect of her previous travel experience was not “lifestyle” evidence, and that the word “extravagant” was never even used by the judge in her summing-up.  He submitted that the applicant’s travel experience was nevertheless relevant to the credibility of her evidence, particularly when the defence hinged on her purported naïvety in trusting her friend Anastasia.  He argued that the impugned evidence was rightly admitted before the jury, who could apply their common sense and experience of life in viewing the same without the need for any special directions.

28.  As to Ground 2, Mr Sean submitted that the judge had a duty to direct the jury on how to approach the evidence in the case properly; and that it was essential for her to direct the jury on how to draw inferences from the facts presented to them, since there were several obvious inferences flowing from the applicant’s claimed account and the circumstances as to how she came to be involved in the trip to Brazil and its extraordinary routing in the first place.  In any event, the judge had made it perfectly clear in her summing-up that if the jury found the applicant’s version was or might be true, they must acquit her.

Discussion

29.  We can quickly dispose of Ground 2.  We do not accept the criticism of the judge’s directions, or of the repetition and elaboration of those directions when specifically requested by the jury. Furthermore, what was said to the jury came after discussion with, and with the express approval of, both counsel.

30.  In respect of Ground 1, we were initially concerned on reading the papers in this case as to why and at whose behest the applicant’s passport had been adduced by way of an admitted fact during the prosecution case.  We were also interested to know what the defence position was on its admission and whether the matter had ever been raised or canvassed with the judge at any stage of the trial.  These were very much the same sort of concerns which had prompted a differently constituted Court in HKSAR v Calaunan Concepcion Salcedo (unrep., CACC 109/2010, 13 December 2011) to make similar enquiries in not dissimilar circumstances.

31.  As a result, we were informed on a joint basis by counsel appearing before us that prosecuting counsel in the court below (not Mr Sean) took the view that there were six relevant stamps in the passport connected with the journey which had led to the applicant’s arrest on 13 August 2013.  Since the applicant had said nothing to Customs officers under caution and had given no record of interview, prosecuting counsel knew very little about the applicant and did not know, therefore, what she might say should she give evidence.  Accordingly, prosecuting counsel wished to forestall a line of defence suggesting that the applicant was a young, naïve and innocent dupe with little experience of life or travelling, who had been prevailed upon by more sophisticated and unscrupulous people to carry drugs across the world.  She considered that the passport would demonstrate that from the age of 19, the applicant had already travelled extensively and repeatedly in Southeast Asia and would, therefore, have been well familiar with Customs and travel requirements in this region.

32.  We were also informed that, for his part, defence counsel at trial (not Mr Donald) took the view that he could not resist the admission of the applicant’s passport, however marginal its relevance to the issues before the jury and that if he did not admit it, the prosecution would simply call a Customs officer to produce it.  He did not consider canvassing the matter of the potential prejudice of the passport with the judge, and did not at any stage do so.

33.  We wish to make clear that where the relevance of a piece of evidence is in issue, or where it is believed that the evidence in question is or may be more prejudicial than probative, the proper course is for the defence to ask for the matter to be determined by the trial judge, rather than later seeking to argue before this Court that the evidence should never have been admitted in the first place.  The judge was not privy to what use the prosecution intended to make of the passport beyond the obvious record of her route on the journey prior to her arrest.  Nor was the judge to know what the defence was until the applicant gave evidence.  She was not to know, therefore, whether the defence wanted the passport admitted for their own purposes, as indeed had been the case in Salcedo.  If defence counsel was concerned about its admissibility or prejudicial effect, he should have raised the matter with the court.  He never did.

34.  Although we accept that the passport may have had some relevance in proof of the prosecution case, it certainly became highly relevant to the cross-examination of the applicant.  First, in her evidence, the applicant had initially given the impression that she had “entered” university (to use her own word) after leaving school and was still studying at university at the time of her arrest.  Prosecuting counsel therefore asked the applicant, by reference to an entry stamp in the passport showing that she had been in Thailand between 20 November and 4 December 2012, how it was that she could have been on holiday whilst she was supposed to be studying at university.  In answer to this question, the applicant explained that she was studying “as a distance learner”, and that previously no one had asked her what sort of student she was. That answer in cross-examination was relied upon in the closing speech of prosecuting counsel to demonstrate how the witness was able to make up her answers spontaneously in order to explain the stamps in her passport which might seem inconvenient or inconsistent with her evidence.

35.  Secondly, prosecuting counsel wished to show that for the first two weeks in June 2012, when the applicant claimed she was doing an internship as a court clerk or bailiff, she was in fact in various places in southern China.  According to entry stamps in her passport, the applicant had arrived in Hong Kong on 19 May 2012, before leaving on 20 May 2012.  She entered Hong Kong again on 1 June 2012, and entered Macau the same day, where she was permitted to remain until 1 July 2012.  She had further entry stamps for Hong Kong on 23 July 2012, and for Hainan Island on 24 July 2012.  It was accordingly put to the witness that her claim of being a trusted court clerk or bailiff for the first two weeks of June 2012 was a lie.  The applicant disagreed.

36.  Thirdly, prosecuting counsel wished to show that the picture the applicant had painted of herself generally as an accomplished, morally upright, hardworking university student was simply untrue.  Apart from the travel already referred to, prosecuting counsel established from the applicant’s passport, that she had entered Macau on three further occasions in 2010, namely 2 July, 13 July and 21 September 2010; whilst she had also been to Beijing for lengthy periods from 6 March to 31 March 2012, and from 21 March to 20 April 2013.  Prosecuting counsel put to the applicant in cross-examination in direct terms that she was not the simple university student she had presented herself to be to the jury.  The applicant again disagreed with this proposition.

37.  Allied to this latter point was the suggestion that, far from being subsidised as a university student, with no other income save for the provision of her expenses by her boyfriend and her mother, she was in fact working on her own account in the mainland.  This, prosecuting counsel sought to demonstrate by the number of entry stamps to Macau and the mainland in her passport and by the references to various payments made and received in her diary in respect of a dancing club, with which she was associated somewhere in the mainland.  Much was also made in cross-examination of the existence in the applicant’s passport of two entry stamps for Macau, which suggested that the applicant’s right of entry to Macau had been cancelled.  This led prosecuting counsel to put a positive case to her that she had in fact been working in Macau.  With this suggestion, the applicant disagreed but not before the judge had warned her of her right not to answer the question if to do so might incriminate her.  Although the applicant denied that she had ever worked in the mainland, it was nevertheless put to her in cross-examination that she had indeed been working in the mainland.  Again, the applicant disagreed.

38.  It seems to us that since the applicant had sought to present a rather flattering picture of her own background and character as someone who was virtuous, hardworking and trusted, the prosecution were entitled to engage her on that issue by reference to the entries in her passport, the nature and extent of which may have suggested otherwise.  It has been clear since the seminal decision of the House of Lords in Stirland v Director of Public Prosecutions [1944] AC 315, at 326-327, that a defendant may be cross-examined:

“2. ... as to any of the evidence he has given in-chief, including statements concerning his good record, with a view to testing his veracity or accuracy or to showing that he is not to be believed on his oath.  3. An accused who “puts his character in issue” must be regarded as putting the whole of his past record in issue. He cannot assert his good conduct in certain respects without exposing himself to inquiry about the rest of his record so far as this tends to disprove a claim of good character.”

39.  In our judgment, although defence counsel could at least have raised the question of the relevance and potential prejudice of the passport as part of the prosecution case, it clearly achieved a much greater relevance and significance in the light of the applicant’s own evidence on oath, over and above demonstrating the applicant’s journey from Russia to São Paulo in Brazil, and from São Paulo to Hong Kong, with the somewhat intriguing inclusion of a visa for the mainland valid from 22 July to 22 October 2013.  Accordingly, we do not accept Mr Donald’s primary complaint that this evidence should never have been admitted at all.  Indeed, the judge was never even asked by defence counsel to adjudicate on the issue of its admissibility.  To be fair to Mr Donald, he recognised in argument the force of the points being made by prosecuting counsel in cross-examination with reference to the passport, and accepted in argument before us that she was justified in asking such questions.

40.  However, as he correctly went on to observe, that was not the end of the matter.  One of the inevitable consequences of this line of attack upon the applicant in cross-examination, proper though we consider it to have been, is that it drew the attention of the jury away from the applicant’s knowledge of what she was carrying during the journey which led to her arrest, and invited the jury to wonder what the real purpose of all her previous travel and repeated entries to various parts of this region was.  At the very least, there was a clear innuendo, which would have been readily picked up by any Hong Kong jury, that the applicant’s extensive and lengthy visits to Macau and the mainland, particularly in conjunction with her apparent earnings from dance clubs, were associated with prostitution.  That was the obvious implication of prosecuting counsel’s questions, particularly in respect of her alleged earnings from dance clubs, even though the suggestion was never put to the applicant in explicit terms.

41.  Such an innuendo or implication was nevertheless readily susceptible of judicial direction to the effect that simply because the jury did not believe that the applicant was the virtuous, hardworking and trusted university student she had claimed to be in her evidence, and even if they suspected that she had engaged in prostitution whilst posing as a tourist, that did not and could not mean that she knew she was carrying dangerous drugs on the occasion of her arrest.  Unfortunately, whether because prosecuting counsel was not explicit in her questioning or because neither party asked for any direction on the issue, the judge did not give a direction designed to deal with the innuendo.  It may be that defence counsel thought the less said the better.  If that were the case, it became a somewhat optimistic and unrealistic prospect in the wake of prosecuting counsel’s closing speech.

42.  Had this been the limit of the implication of prosecuting counsel’s questioning of the applicant, we would not have disturbed the conviction.  It did not follow that simply because the jury did not believe the applicant’s denial of working in the mainland, or her evidence about her background and character, that she was guilty of trafficking in more than 8 kilogrammes of cocaine narcotic.  We do not think that disbelief of these aspects of the applicant’s case translated to guilty knowledge of trafficking in dangerous drugs.  Indeed, the jury were told as much in clear terms, consistent with the specimen directions in jury trials promulgated by the Hong Kong Judicial Institute.  The judge directed the jury:

“In the present case, the defendant said she had no knowledge of the drugs in the suitcase or backpack. If you believe her evidence, or find her evidence may be true, if you are not sure she had knowledge of the drugs, then you must acquit her and find her not guilty.”

Later, after reviewing the applicant’s evidence, the judge said:

“Members of the jury, the main issue in this case is whether the defendant had knowledge of the drugs in her suitcase. If you find there may be some elements of truth in the defendant’s evidence, and if there is a reasonable doubt, you give the benefit of the doubt to the defendant and find her not guilty.

Even if you reject the defendant’s evidence completely, you still have to go through the prosecution evidence and satisfy yourself so that you are sure she has committed this offence of trafficking.”

43.  However, this was not the only implication of prosecuting counsel’s line of questioning which needed to be addressed.  Mr Donald has submitted that, if so much emphasis was being given in cross-examination to the fact that the applicant had travelled extensively around the region between 2010 and 2013, when as she claimed she was not working or being paid anything save for the expenses provided by her boyfriend and mother, the jury may have been led to believe that she was only able to do so on the proceeds of other drug trafficking activities.  He derives support for this concern from one of the final questions put to the applicant in cross-examination by prosecuting counsel.  Immediately following the suggestions that the applicant was not a simple university student and that she had been working in the mainland, both of which suggestions were refuted (see para’s 36 and 37 supra), the following exchange in cross-examination took place:

“Q. And I further put it to you this trip to Brazil was not invited by Anastasia for holiday. It’s one of your work to travel and to carry drugs for others for money. (Emphasis supplied)

A.     I disagree and I believe that one cannot make such a claim.”

Mr Donald argues that prosecuting counsel’s question went beyond the trip which was ultimately to lead to her arrest for trafficking in dangerous drugs and carried with it (at least so far as the italicised part of the question is concerned) the implication that the applicant’s work was travelling in order to traffick in dangerous drugs for other people: in other words, she had done it before on her other travels.

44.  We consider that that is a possible interpretation of the question in the context of the cross-examination which had preceded it.  It seems to us astonishing, therefore, that following it, defence counsel said nothing to the judge about it.  Even if he thought it more prudent not to object to the question there and then, he could have raised the matter in the absence of the jury before re-examination, as a result of which the judge would almost certainly have called on prosecuting counsel to clarify her position with the witness in front of the jury.  At the very least, defence counsel should have requested the judge to deal with the imputation in her summing-up.

45.  Instead, nothing further was said or done, save that prosecuting counsel herself endeavoured to explain the limit of the relevance of her cross-examination on the passport in her closing address to the jury.  She said:

“And of course not only the Thailand trip would cause you concern, you can see there are further trips shown in this passport, into Beijing, to Hainan Island. There is also entry visa issued from Gongbei, Zhuhai, which is next to Macau. I am not trying to prove my case on knowledge by these chops because all these in fact happened before the incident, before she travelled to Brazil. But the importance of asking you to consider all these itinerary in her passport is to help you to understand what she told you about what she did before she left for Brazil cannot be true.” (Emphasis supplied)

Defence counsel, in his closing address which followed, contented himself with saying:

“...the prosecution is unable to point to any evidence that she has done anything other than lead a blameless and normal life prior to arrival in Hong Kong on 13 August 2013. There is no evidence from the prosecution. They don’t show that she has done anything to the contrary during her travels in this region or elsewhere since she obtained her passport in 2010 as a 19 year-old.”

46.  As we have said, prosecuting counsel was entitled to pursue this line of attack.  However, her own attempt to limit the relevance of her questions as to the applicant’s previous travel in her closing speech, and defence counsel’s correct assessment of the effect of that evidence in his closing speech, were not, in the circumstances, sufficient to remove from the jury’s mind the suggestion that she may have trafficked dangerous drugs on previous occasions.  That could only be done by the judge.

47.  There is nothing unusual in evidence being admissible for a limited purpose only, such as for impugning credibility, and for a judge to have to guard against misuse of that evidence by the jury for other purposes, for example as part of an impermissible process of reasoning in resolving whether key elements of the offence have been proven.  A common example of such evidence routinely encountered in practice and explained to a jury by way of direction is hearsay evidence which, although otherwise inadmissible as to the truth of the statement reported, is admissible to explain the hearer’s conduct or state of mind as a result.

48.  The problems faced by a judge in this situation and his/her role in preventing the risk of an impermissible process of reasoning by a jury eventuating, have been addressed by the courts when dealing with evidence of “lifestyle” adduced by the prosecution in drug trafficking cases.  For example, in Rv Guney [1998] 2 Cr App R 242, the English Court of Appeal said, at 266B:

“The perceived risk of permitting the admission of money and lifestyle evidence is that it may lead the jury to what Professor Sir John Smith QC in his commentary on Smith [1995] Crim LR 941, described as “forbidden reasoning”, that the presence of such money or evidence of lifestyle may show that the defendant has been guilty of drug dealing in the past making it more likely that he was “going on to deal with these drugs”.”

49.  In R v Gordon [1995] 2 Cr App R 61, at 67C-E, the Court said of a case where the evidence of cash and other property found in the possession of the appellant, as well as his financial dealings, was of marginal relevance:

“In our judgment, this was a simple case which got swamped with superfluous, irrelevant and eventually prejudicial issues. Evidence of those issues having been admitted, nothing was done in the summing-up to right the matter or to keep the jury focused on matters that could properly go to proof of possession with intent to supply. In our judgment, at the end of the day there is here a real risk that this jury convicted of intent to supply on the basis of the suspicion of ill-gotten gains arrived at in an investigation of his lifestyle which did not simply concentrate on the intention to supply the drugs found, but extended back into his life, apparently to suggest past drug dealing.”

50.  We should make clear that we are not in the case before us dealing with money and lifestyle evidence in the sense of large, unexplained or incongruous amounts of wealth or the trappings of wealth in the hands of a defendant.  Nor, for reasons we have already addressed, are we dealing with the admission of evidence which may be said to be of no, or only marginal, relevance.  Here, the evidence was admissible but only for the limited purpose of attacking the credibility and challenging the good character of the applicant; and for establishing that she was not an inexperienced traveller.  There was nothing in the evidence that was probative of her involvement in the trafficking of dangerous drugs, as alleged in the indictment.

51.  However, it seems to us that the same danger of “forbidden reasoning” may derive from the suggestion that a young Russian woman has made extensive and repeated trips to Southeast Asia over the course of the three years prior to her arrest for drug trafficking, for reasons which remain unclear but are strongly suggestive of something other than innocent sightseeing by a hard-working university student.  When it was further suggested by prosecuting counsel that her “work” may have involved travelling for the purposes of international drug trafficking, then the jury were being wrongly invited to journey down a path of impermissible reasoning.  This was something which the judge had to correct, but did not.

52.  In our judgment, while the evidence of the passport entries was plainly relevant and admissible, the more so in the light of the applicant’s evidence, it demanded that the judge give a clear direction to the jury as to what use they could and could not make of this evidence.

53.  In Chu Pak Cheong[2], a different division of this Court held, at 335G-336A, that:

“The need for the judge to have given directions to the jury of the approach to be taken to such part of the evidence about the appellant’s ‘lifestyle’ that was admissible was adverted to in the judgment of the Court of Appeal of England and Wales in R v Morris [1995] 2 Cr App R 69. There, the appellant was convicted after trial of possession of dangerous drugs with intent to supply. On her arrest she was found to be in possession of over 6,000 sterling in banknotes. Of the need for the judge to give a direction to the jury of how they were to approach that evidence, Morland J in the judgment of the court said (p 76C-D):

‘If such evidence is admitted, it is incumbent on the judge to spell out to the jury what its probative significance can be while making it clear to the jury that it is for them to decide whether it has or has not that probative significance.

The judge must then warn the jury that, if they reach the conclusion that the defendant is a drug dealer, this is not of itself either evidence of possession of drugs on a particular occasion or a basis for disbelieving a defendant.’ ”

54.  Like the Court in Gordon[3], at 67E-G, we have some sympathy for the judge in the light of the complete silence on the issue from defence counsel at trial.  Nevertheless, the matter could not simply be left to stand on the assurance of prosecuting counsel in her closing address that the evidence had not been led in order to prove the applicant’s knowledge of the presence of dangerous drugs in her bag on the occasion of her arrest: it required the judge herself to “spell out” what the probative significance of the evidence was, and what it was not.

55.  Accordingly, with respect, the judge ought to have directed the jury that the evidence of her past travels around Southeast Asia had been introduced for the purpose of challenging the applicant’s credibility in respect of her evidence as to character and background; and to show that she was a seasoned traveller who would be familiar with Customs requirements, restrictions and routines in the region and on entering Hong Kong.  Further, it was incumbent on the judge to bring home to the jury that the evidence of her extensive travelling prior to the trip in question, whether or not she was working in the mainland in some capacity other than a university student, was not, and could not be used as, evidence to show that the applicant had trafficked in dangerous drugs before, or that she had in fact trafficked in dangerous drugs on the occasion on which she was arrested.

56.  We have asked ourselves, and been addressed by both parties, as to whether we could properly apply the proviso in the circumstances of this particular case.  However, if we pose the question whether the perceived risk of “forbidden reasoning” was one which could safely be excluded by the way in which the summing-up was otherwise perfectly fairly handled, without the directions which in our judgment should have been given, we must find that it could not.  Accordingly, we do not consider that this is an appropriate case for the application of the proviso.

Conclusion

57.  In the circumstances, we have decided that we must grant this application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allow the appeal.  Mr Sean has asked that there be a retrial of this matter on the basis of the seriousness of the case and the strength of the evidence.  Mr Donald, correctly in our view, accepts that he cannot resist such an application.  Accordingly, we order a retrial of the same charge on a fresh indictment before another judge.

58.  In the light of the conclusion to which we have come as to the relevance and admissibility of the passport, we shall order a full transcript of the evidence below to be provided to the court and the parties; incorporating the evidence of both prosecution witnesses, as well as the evidence of the applicant and her witness.