HKSAR v. PEREZ OSORIO LUIS FERNANDO

CACC 284/2016

[2018] HKCA 567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 284 OF 2016

(ON APPEAL FROM HCCC 50/2016)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  The applicant was tried before Madam Justice Barnes (“the judge”) and a jury, of unlawfully trafficking in a dangerous drug, namely 1.07 kilogrammes of a powder containing 0.81 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 19 August 2016, he was acquitted of this charge but convicted, by the unanimous verdict of the jury, of the alternative charge of attempting to unlawfully traffic in the dangerous drug, contrary to the same section and Ordinance, and section 159G of the Crimes Ordinance, Cap 200.[1] On the same day, the applicant was sentenced by the judge to 21 years’ imprisonment.

2.  On 6 September 2016, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his conviction only.  On 24 October 2017, the application for leave to appeal was adjourned by this court, differently constituted, to allow the applicant to obtain additional transcripts and documents relating to some of his grounds of appeal. 

3.  At the hearing of the application we reserved our judgment which we said we would hand down at a later date and this we now do.

The prosecution case

4.  On 17 April 2013, at around 4:05 pm an El Salvadorean male, Rodolfo Tobar (“Tobar”)[2] arrived at Hong Kong International Airport where he was stopped by Customs officers.  He had flown from Honduras, via Panama City and Amsterdam, to Hong Kong.  His suitcase was searched and the cocaine, the subject matter of the charge, consisting of nine packets, was found concealed inside the lining of the suitcase.  Tobar was arrested and Customs officers found him to be in possession of a hotel booking for the Cosco Hotel in Kennedy Town, for 17 to 20 April 2013 inclusive.

5.  Tobar agreed to cooperate with the Customs officers by taking part in a controlled delivery operation.  He was arranged to stay in Room 239 of the Cosco Hotel with the officer-in-charge, Inspector Ho, to await the person to whom he should hand over the drugs.  At the same time, other Customs officers would lie in ambush inside the adjacent room, namely Room 237.

6.  It was an admitted fact that Tobar had in his possession a mobile phone containing a CSL SIM card with the number 68243911 and US$1,020 in cash.  It was also an admitted fact that stored in the SIM card of the applicant’s mobile phone was the name “Laura” and the telephone number 61774380.

7.  At around 7:45 pm on 17 April Customs officers took Tobar to the Cosco Hotel in Kennedy Town.  Inspector Ho, the officer-in-charge, and some Customs officers took Tobar to Room 239 while other Customs officers stayed in the adjacent Room 237.  Tobar could not speak English and all communication with him took place in the Spanish language.  Inspector Ho did not speak Spanish but had a Spanish language interpreter with him.  The Spanish interpreter was not called as a prosecution witness and nor was Tobar.  Consequently, the evidence that the prosecution could adduce in respect of anything said by Tobar was very limited. 

8.  When the prosecution closed its case the applicant’s counsel, Mr Andrew Bullett, who also appeared on this application for leave to appeal, submitted that there was no case to answer.  The failure of the judge to accede to this application is one of the applicant’s grounds of appeal.

9.  Inspector Ho testified on how he communicated with Tobar and on the instruction he gave Tobar in the event someone came to the hotel room to collect the suitcase.  His evidence was as follows:[3]

“All my instructions were given to Tobar through Senior Inspector Li, who speaks Spanish. I gave instruction in English. As soon as we entered Room 239, I explained to Tobar his situation. That means we would be waiting in the hotel room for somebody to come and collect the suitcase.

…

My instruction given to Tobar was that when somebody came to collect the suitcase, when he confirmed that that should be the person who was supposed to collect the suitcase then he could give the suitcase to that person.”

10.  Nothing eventful occurred on the evening of 17 April or during the morning of 18 April 2013.  However, about 1 pm on 18 April 2013, Inspector Ho checked the SIM card in Tobar’s mobile phone and saw in it a Hong Kong number in the name of “Laura”. He instructed Tobar to call “Laura” on the hotel room’s telephone.  There were a number of telephone calls, all of which took place in Spanish.  The person speaking to Tobar on the telephone, according to Inspector Ho, had a woman’s voice. 

11.  Around 4 pm the Customs officer who was the Spanish Interpreter was replaced by a civilian interpreter who also did not give evidence in the prosecution case.

12.  At about 5 pm a call was received on the hotel room telephone and this was also a woman’s voice.  Later another call was received by Tobar. 

13.  Shortly before 6:25 pm, Inspector Ho repeated the instruction he had previously given Tobar about handing over the suitcase only after confirming that the person coming to the hotel room was the person who was supposed to collect it.  At about 6:25 pm, the applicant turned up outside Room 239, knocking on the door.  The suitcase containing the cocaine was passed to Tobar and Inspector Ho concealed himself in a wardrobe behind the hotel room door.  This wardrobe had a sliding door which Inspector Ho partially opened.  Another Customs officer was standing near the bed with the interpreter and a third officer waited in the bathroom. 

14.  After partly opening the door and exchanging greetings with the applicant, Tobar, acting in accordance with instructions given by Inspector Ho, tried to hand the suitcase containing the cocaine to the applicant.  Tobar and the applicant spoke to each other in a foreign language for about a minute.  From his concealed position Inspector Ho saw the applicant touch the side of the extended handle of the suitcase[4] and start to enter the room.  Inspector Ho’s evidence was as follows:[5]

“A. Well, the situation was like this. I was hiding in the wardrobe and it was a sliding door of the wardrobe, I slid it open a bit so that I could see from the gap to see what was outside. And Tobar had opened the door so I could through the door gap of the sliding door to the outside of the hotel room.

…

A. At the time, I could see the person at the outside of the hotel room door was wearing black jacket, blue jeans and red sport shoes.

Q. And could you see it was a male or female?

A. Male.

…

A. I saw the man speaking with Tobar.

Q. Just pause there. Were you able to understand what they were saying?

A. No, I couldn’t.

…

Q. And then what happened?

A. After they had talked about a minute, I saw a hand was being extended into the hotel room through the door gap, intending to collect the suitcase.

Q. … what did you see?

A. At the time when I saw the hand was being extended into the inside of the hotel room, I saw the hand touch the handle of the suitcase.

…

A. The handle had been fully extended.

COURT: So was the -- how was the bag -- the suitcase being carried or -- by Tobar? How did Tobar deal with it first before the man touched the handle?

A. The suitcase was being placed next to Tobar. They had been talking for about a minute. By that time, the door had already been opened a bit. However, if the person at the outside wanted to collect the suitcase then there was a need to open the door wider. And that’s the gesture which I saw of the - of the other person at the outside of the hotel room door.

COURT: So he’s grabbing not the top but the right corner of the top.

Q. It seems that he’s grabbing the upper handle with his four fingers, is that right?

A. That’s right.

COURT: Can everyone see? Yes. So you mentioned something about the door had to be opened a bit more if the person needs to get the suitcase. So was the door opened more or what?

A. Yes, it was.

COURT: So what happened first, the hand coming first before the door open wider, or at the same time, or afterwards?

A. Both happened at the same time.

COURT: Thank you.

Q. And - and then what happened?

A. Well, as I saw the hand being extended inside to hold the handle - as I demonstrated just now - I, at the same time saw a foot stepping in.

COURT: Yes.

Q. So what did you infer from the foot stepping in?

A. I infer from that to think that the person outside was going to push open the door and step into the room.

Q. So what did -- was it -- do you remember if it was the right foot or the left foot?

A. Right foot.

Q. And then - then what did you do?

A. And I, through the radio, instructed 99105, Customs Officer Tsang Kai-chung, who had been stationed in Room 237 to come over and arrest the man outside the room.

Q. And then?

A. Customs Officer Tsang then came to our room to arrest that man.

Q. And when he arrested him, was he outside the room or inside the room, or at the entrance of the room or what?

A. The man was arrested by Customs Officer Tsang inside the room.

Q. Inside Room 239?

A. Yes.”

15.  Inspector Ho’s evidence, therefore, was that when the applicant was arrested he had stepped through the doorway entrance of the room and was standing in the entrance corridor, near to the suitcase. 

16.  In cross-examination Mr Bullett obtained from Inspector Ho his agreement that the longer the delay for a controlled delivery to take place the more suspicious the intended recipient of the drug was likely to be and that such a person could easily ascertain the actual time that a plane landed.

17.  Hindered by the rule against hearsay, Mr Bullett was limited by what he could get Inspector Ho to say about the conversations he had with Tobar.  Nevertheless, he was allowed to obtain from him evidence that as a result of the earlier telephone calls with the woman he, Inspector Ho, was under the impression a woman would come to take delivery of the suitcase, but that after the call at 5 pm he was under the impression that it would be a man who would come.  He was also allowed to obtain from Inspector Ho evidence that Tobar never told him that when he had the telephone conversations, none of them were with a man who had said that it would be he who would be coming to collect the suitcase.

18.  Mr Bullett also cross-examined Inspector Ho on what he observed from his concealed position inside the wardrobe.  The transcript of this part of Inspector Ho’s evidence is as follows:[6]

“Q. Your evidence has been that a hand reached in and touched the handle and also a foot came in, a right foot.

COURT: I think it would be more proper to say ‘grab’. I mean, his description is not ‘touching’.

MR BULLETT: Yes.

COURT: It’s holding the side, so grabbing would be better.

INTERPRETER: Shall I...

COURT: Just, a hand reached in, grabbed the handle and also a right foot had come in. That’s what you said.

A. Yes.

Q. The person was coming in to the room.

A. Yes.

Q. And at that moment you really had no choice but to set in motion the arrest of the defendant, did you?

A. Yes.

Q. Because anyone entering the room will see that there were Customs officers there.

A. Yes.

…

Q. I suggest that the hand you saw touching the handle did not grab the handle as you’ve said.

A. I disagree. I could see very clearly that the hand was grabbing hold of it.

Q. But can you -- if - if that is true, can you explain why there is no fingerprint obtainable...

COURT: I don’t think it is a fair question for this officer to explain why or why isn’t there any fingerprint. You know very well.

MR BULLETT: Very well, my Lady.

COURT: Yes.

Q. There is no fingerprint on the tape, is there?

A. Right. To be accurate, I would say there were no fingerprints of probative value were found.

Q. Yes. And the defendant’s fingerprint wasn’t found anywhere else on the handle, was it?

A. Well, I, myself, cannot be sure whether the suitcase was sent for forensic examination, but what I can say is that there were no fingerprints of the defendant on the tape.

Q. Yes. Well, it’s an admitted fact that there are no fingerprints of the defendant, yes, on the tape. But -- and we haven’t heard about any others. Officer, the position of the suitcase as the defendant entered the room actually blocked his way in, didn’t it?

A. You are right. You are right.

Q. So - so he would either have to fully open the door and step around it.

A. Yes.

Q. Or touch the suitcase in order to move it out of his way.

A. Well, not necessarily. He could have opened the door wider, letting him enough space to go inside without touching the suitcase.

…

Q. Now, you’ve said you had to arrest him when he came into the room.

A. Yes.

Q. And that - that was in fact earlier than you had planned to arrest him.

A. What I planned?

Q. Well...

A. What do you mean? My plan was I would see how the situation was before I made my final decision as to what to do.

Q. Well, you had - you had told Tobar before - before the defendant arrived, you had told him, had you not, not to let the man who came or the person who came, into the room.

A. My instruction was that he should try his best not to allow the person in.

Q. And that - that is because -- that is for two reasons, isn’t it? First, the hotel room was full of Customs officers.

A. I agree to this point.

Q. And secondly, you wanted something more than someone merely turning up at the hotel room. You wanted them, for example, to take the suitcase away.

A. Right.

Q. You didn’t hear any -- well, you didn’t understand the conversation at the door.

A. Right.

Q. So you don’t know if there was any discussion about have you come to collect the drugs.

A. Right, I have no idea.

Q. You didn’t see the defendant make any attempt to inspect the suitcase or its contents.

A. Right. Because he had already been arrested by us, Customs officer, as soon as he came in before he could do anything further.

…

Q. Yes. But you had no way -- when the defendant was arrested, you had no way to tell whether he had come for drugs or for some innocent purpose.

A. But I really saw him grab hold the suitcase.

Q. We’ve talked about that. He didn’t - he didn’t grab hold of the suitcase and attempt to leave the room with the case, did he?

A. Right. He was going to come into the room, yes.

Q. Yes, he was going to come in. And I’ve already put it to you that he didn’t actually grab the suitcase so much as touch it in order to move it.

COURT: There is no need to repeat. You have already done it as you said, no need to repeat it.

MR BULLETT:  Yes, yes.”

19.  It was an admitted fact that at the time of his arrest, the applicant was found to be in possession of HK$17,930.50 in cash and two mobile phones.  In one of the mobile phone’s SIM card there was stored, under the name “Nata”, the telephone number 61774380, the same number stored in Tobar’s telephone under the name “Laura”.

20.  An examination of the telephone records revealed that there were 14 telephone contacts between 61774380 (“the Laura/Nata number”) and the applicant’s telephone number 60211354.  They started at 10:33 hours on 17 April 2013 with the Laura/Nata number calling the applicant.  This was followed by two more calls at 11:14 and 11:15 hours.  At 12:17 hours the applicant called the Laura/Nata number and he did the same again at 13:24 hours and 19:02 hours on 17 April and again at 7:07 hours on 18 April.  The Laura/Nata number then called the applicant at 12:09 hours and the applicant called the Laura/Nata number at 13:14 hours.  The Laura/Nata number called the applicant at 17:10 hours and 17:38 hours and the applicant returned call at 18:06 hours.  The final call was from the Laura/Nata number to the applicant at 18:12 hours.  None of the calls were particularly long in duration, being for no more than 2‑3 minutes and often less.

21.  The call records also showed that the Laura/Nata telephone number called the Cosco hotel five times on 18 April, all between 17:02 and 18:59 hours, and two times on 19 April, between 00:48 and 01:00 hours.

22.  The applicant’s telephone called the Cosco hotel twice on 18 April, at 17:48 and 18:19 hours.  There is no record of any contact between the applicant’s two telephone numbers and the telephone number of Tobar.     

23.  A receptionist of the hotel said that at round 1345 hours on 18 April she received a call from a male who spoke in a foreign language and who could hardly speak English.  In the course of their conversation the male suddenly handed over the telephone handset to a female who requested to be connected to Tobar’s room.  After obtaining instructions from a Customs officer who was beside her to do so, she put the call through.

24.  The cocaine had an estimated retail value of HK$1,094,610.

The issue of the applicant’s character

25.  Immediately after the jury was empanelled, on 12 August 2016, prosecuting counsel, Mr John Marray, who also appeared for the respondent on this application, sought to adduce the applicant’s immigration record into evidence to show that he had entered Hong Kong illegally.  It was submitted that it was a relevant background circumstance which the jury could rely upon to draw the inference that the applicant entered Hong Kong to traffic in dangerous drugs.

26.  This application was refused by the judge who ruled that the prejudicial effect of admitting his immigration record outweighed its probative value.  In exchanges with counsel, the judge made it clear that in her view this evidence demonstrated that the applicant was not a person of good character and so she would not be giving a good character direction.  She said it was sufficient to state as an admitted fact, which was done, that the applicant had a clear criminal record in Hong Kong and Colombia.  The judge alerted counsel that it would be a matter for the applicant, if he chose to testify, whether to advance a claim that he was of “good character”.  If he decided to do so then the judge indicated she would be sympathetic to allowing the prosecution to make use of his immigration record to challenge his claim that he was of “good character”.

27.  Both Mr Marray and Mr Bullett, who appeared for the applicant at trial and on this application, agreed to the course proposed by the judge.  Mr Bullett advised the judge of his position, saying:

“Well, my Lady, I’m content to proceed in that way.”

28.  Prior to counsel delivering their final speeches the judge discussed with counsel the directions she should include in her summing-up.  She repeated her stance in respect of a good character direction, saying[7]:

“COURT: … I have already made it clear, I’m not giving any good character direction. So I will leave it that he had a clear record. I mean that’s admitted. I mean you want to say anything about a particular defence, you want to say that he had a clear record, that’s fine. But I am not going to give the direction on credibility and propensity; I will just leave that totally out.”

Mr Bullett responded by simply saying:

“No, Indeed.”

The submission of no case to answer

29.  At the close of the prosecution case, Mr Bullett submitted that there was no case to answer because the applicant’s presence at the hotel was equally consistent with the applicant being a person who went there on an innocent errand.  If this was so then the evidence did not allow of an inference to be drawn that the applicant knew of the drugs and went to the hotel intending to collect them.  Mr Bullett, therefore, asked the judge to direct the jury that they could neither draw an inference of knowledge of the drug, nor intent to collect the drug, by reason merely of the applicant’s presence at the hotel. 

30.  The following exchange took place between the judge and Mr Bullett[8]:

“MR BULLETT: Well, my Lady, really my submission is that the defendant’s presence at the hotel was equally consistent with a person who went there on an innocent errand.

COURT: But surely that is the matter for the jury. That’s my point. It’s not for me to decide whether it is an innocent purpose or not. My job is, if you can convince me that putting the prosecution case to the highest, a jury, properly directed, would not convict, then I should not leave it to the jury. But to me so far, from what I heard, it is still a jury question. They decide whether the prosecution can show that it’s not for an innocent purpose.

MR BULLETT: Well, my Lady, my submission is that if you direct them, as I’m sure you will, properly on the burden of proof, they cannot be sure about an inference of knowledge of drugs or intent to collect drugs.

COURT: I’m not...

MR BULLETT: They can be sure...

COURT: I don’t agree with you. Of course, I will direct them that they have to be very careful and they have to be sure that that’s the only inference to be drawn, but I can’t say that they can’t draw the inference, surely, no. I can’t say that. They can. Why not?

MR BULLETT: Well, that’s my submission, my Lady.

COURT: Yes, right. So, basically, that’s all you have. You are just saying that on the evidence of the prosecution it should be a second limb of Galbraith.

MR BULLETT:  Yes.  I’m saying that the prosecution at the moment is equally ‑‑ the evidence is equally consistent with a person who came with an innocent intent, on an innocent errand.”

31.  Without calling on Mr Marray, the judge ruled a case to answer. 

The defence case

32.  The applicant elected to give evidence and called Tobar as his witness.

33.  The applicant testified that he had gone to the hotel at the request of and as a favour to a sometime girlfriend, Natasha, who was unable to go there herself, to collect what he thought would be garments or similar merchandise.  The several recent telephone contacts with her concerned this task and also the applicant’s efforts to find somewhere to stay temporarily after moving out from his girlfriend’s flat. 

34.  On arrival outside Room 239, the applicant said Tobar pushed the suitcase outside of the room and said “take it”.  But the applicant did not want to take it because he thought that the merchandise he had agreed to collect for his friend Natasha should be a bigger package and he suspected Tobar had stolen the merchandise.

35.  Tobar also gave evidence as a defence witness.  He said he was given the suitcase containing the cocaine by a person in Tegucigalpa, Honduras.  That person also gave him a Hong Kong SIM card which he was to insert in his telephone on his arrival.  He was then to go to his hotel and await a call from a woman called Laura.  This woman would take delivery of the drugs and pay him his reward. The reward was US$4,000 and Laura would pay him at least half, if not the whole of this amount.  If she only paid him half this amount then he would receive the balance when he returned home.  He was expecting Laura to pay him at least half the amount.

36.  He said that because he was arrested he was prevented from using his telephone containing the SIM card that had Laura’s name and telephone number stored in it.  But the next day the Customs officers checked all his things, found his telephone, noticed it contained a Hong Kong SIM card, saw the number for Laura in the SIM card and asked Tobar if he was willing to call this number. 

37.  When he did call Laura she was suspicious at the delay in him contacting her and he tried to allay her suspicions by saying that his flight had been delayed.  There were three calls with Laura and in the end she said she would not come to pick up the suitcase but would send someone else to do so.  She said this person would be a man and she said she would pay Tobar herself, the following day.

38.  The Customs officers remained in the room awaiting the arrival of this man.  They concealed themselves in various places in the room and instructed Tobar not to allow the man to enter the room but to pass over the suitcase to him at the doorway entrance of the room.

39.  Subsequently, the applicant knocked on the door of the room at around 6:25 pm.  Tobar said that he had tried to get the applicant to take the case when he opened the door, but the applicant did not want to do so.  The applicant said: “I have to come in a minute because I cannot just collect the suitcase and leave.  I need to go inside” and “let me enter the room and let’s talk”.  So Tobar had to let the applicant inside the room even though Inspector Ho had instructed him not to do so. 

40.  In order to get the applicant’s fingerprints on the suitcase Tobar said he placed it in the applicant’s way in the entrance corridor of the room with the handle extended.  The applicant’s left hand lifted the handle of the suitcase in order to turn it 90 degrees so that he could walk past it.  At this time the Customs officers arrested him.  In all his conversation with the applicant no mention was made by either of them of drugs or of a payment for Tobar.

The Perfected Grounds of Appeal

41.  Mr Bullett advanced seven grounds of appeal in support of the application for leave to appeal conviction.  The first ground of appeal asserts that the judge erred in ruling that there was a case to answer.  In support of this ground Mr Bullett submitted that the prosecution evidence was insufficient to link the applicant to the cocaine and the prosecution could not establish a prima facie case because the evidence of the applicant’s mere presence at the hotel room did not allow an adverse inference to be drawn that he attended the hotel room for the purpose of taking delivery of the suitcase knowing that it contained dangerous drugs.

42.  The applicant’s second ground of appeal complains that the judge failed to properly direct the jury on the drawing of inferences and in particular, she failed to direct them that no adverse inference could be drawn from the applicant’s persistence in entering the room.

43.  The third ground of appeal asserts the judge was wrong to have left the alternative charge of attempt to the jury and, even if she was right to do so, she failed to give proper directions on attempt when directing the jury on what constituted conduct that was ‘merely preparatory’.  It is submittedthat the judge’s reference to an intervening event, namely being arrested, that stopped the applicant from taking possession of the suitcase, was unbalanced and prejudicial to the applicant.

44.  The fourth ground of appeal asserts that the judge erred in ruling that no good character direction should be given in favour of the applicant.

45.  The fifth ground of appeal complains of the judge’s failure to discharge the jury upon realizing that the Admitted Facts bore the case number in respect of the applicant’s first trial, thereby revealing to the jury that this was a retrial.

46.  The sixth ground of appeal claims that as a result of what is asserted in the other grounds of appeal the judge’s summing-up was unbalanced. 

47.  The seventh ground of appeal argues that there is a lurking doubt in respect of the conviction.

Discussion

48.  We shall briefly deal with Grounds 3-5 of the Perfected Grounds of Appeal before dealing with the other grounds of appeal.  Grounds 3-5 all have in common an attempt by Mr Bullett to argue on appeal a different stance from that adopted by him at trial.

49.  On 17 August 2016, after the defence case was closed, and before counsel delivered their final speeches, Mr Bullett drew the judge’s attention to “one small point” in respect of the first Admitted Facts.  This document contained the case number of the first trial in the title, thereby inadvertently revealing that the trial was in fact a re-trial.

50.  The judge replied to Mr Bullett’s concern as follows[9]:

“Leave it, I think, is the best because I don’t think they would particularly pay attention to that. If they do ask then we say it’s a typo. That’s better rather than bringing their attention to a typo right away.”

51.  Then, Mr Bullett raised the possibility of the jury searching the Judiciary’s website for material in relation to the first trial.  The judge’s response, which Mr Bullett accepted, was[10]:

“… they were told not to look up the internet. In any event, by the time they come to deliberate they have no access to internet anyway.”

52.  Mr Bullett did not make an application to discharge the jury on the basis of this erroneous reference in the first Admitted Facts to the first trial.

53.  There then followed another discussion on the issue of “attempt”, and it was agreed by counsel for both sides that this alternative verdict should be left to the jury and that the judge would give the usual direction on “attempt”.  After obtaining Mr Marray’s affirmative view that attempt should be left to the jury as an alternative verdict, the judge turned to Mr Bullett and this prompted the following exchange[11]:

“COURT: … So, do you accept that as well, Mr Bullett, that should be left to the jury?

MR BULLETT:  Yes, my Lady.”

54.  The judge also took the opportunity to repeat to counsel that she would not give a good character direction.  The following exchange took place:[12]

“COURT: Apart from the usual direction, I can’t think of anything unusual in this case except that I have already made it clear, I’m not giving any good character direction. So I will leave it that he had a clear record. I mean that’s admitted. I mean you want to say anything about a particular defence, you want to say that he had a clear record, that’s fine. But I am not going to give the direction on credibility and propensity; I will just leave that totally out.

MR BULLET: No, indeed.

COURT: And I can’t think of any, really any part apart from the usual.

MR MARRAY: Yes.

COURT: There’s nothing unusual in this case that needs special direction that I can think of.

MR BULLET:  I don’t believe so.”

55.  All these decisions by Mr Bullett were considered decisions which he reached by employing his legal knowledge and exercising his professional judgment in what he then considered were the best interests of his client.  Unless he can say that by adopting these positions he acted in a flagrantly incompetent way or he unwittingly led the judge into clear judicial error or the effect of his conduct was in some way to deprive the applicantof his right to a fair trial, then we do not see that he can now adopt a different stance before us.

56.  Mr Bullett made it clear that he was not alleging that he was guilty of flagrant incompetence; merely that, on reflection, he made the wrong decision.  In respect of Ground 5 this is a rather surprising admission given that the judge made her decision in respect of the good character issue at the beginning of the trial.  Mr Bullett had ample opportunity to reflect on his decision and the fact that he failed to resile from it speaks volumes to the correctness of the judge’s ruling.

57.  In respect of the third ground of appeal concerning the propriety of leaving attempt as a verdict, both parties referred to the Court of Appeal’s judgment in HKSAR v Mohammed Saleem[13]. In that case, the court held that, insofar as the actus reus is concerned, where there is no evidence that the appellant had possession of the drug, a charge of “attempt” should be left to the jury.  At paragraphs 14-15 of that judgment, the court said:

“14. The prosecution had to establish that the appellant had possession of the ketamine for the purpose of trafficking. For this purpose, it was necessary for the prosecution to prove that the appellant knowingly had either physical custody of the ketamine or, alternatively, that it was otherwise within his physical control and that he intended, as and when the occasion arose, to exercise control over the drugs whether or not by physically handling them.

15. In this case, the customs officers had physical possession of the drugs at all times and, furthermore, they were under instructions not to allow the appellant to lay so much as a finger on them.  Indeed, this was borne out by the fact that when the appellant made a move towards the drugs, no doubt to pick up the bag in which they were contained, he was immediately arrested.  The offence which, in these circumstances, should have been charged from the outset was attempting to traffic in dangerous drugs as the prosecution had produced no evidence of physical custody of the ketamine or control over the ketamine at the stage when the appellant was arrested.”

58.  In our view this was precisely the position in respect of this controlled delivery operation.  The applicant was arrested prior to acquiring possession of the suitcase.  It was the prosecution case that the applicant came to the room intending to take possession of the suitcase in the knowledge that it contained dangerous drugs but was arrested before he could do so.  A verdict of attempt was clearly available on these facts and the judge was quite right to leave it to the jury.  To suggest that the facts did not establish that the applicant’s conduct was not more than ‘merely preparatory’, is nonsensical.  The applicant attended the hotel room, took steps to enter it and reached out to take hold of the suitcase containing the drugs.  These facts easily meet the threshold for leaving an alternative verdict to the jury as laid down by the Court of Final Appeal in Ho Hoi Shing v HKSAR[14].

59.  Nor can we find any merit in the complaint that the judge’s comments were prejudicial to the applicant when directing the jury on the question of whether his conduct went beyond the merely preparatory.  Her comments were legitimate common-sense observations on an issue that the jury had to determine.  That this is so is readily apparent when the impugned direction by her is placed in the context of her overall comments.  This is what the judge said:

“But if you think that ‘Ah, he has not quite done all that because he was just getting into the room, he was already arrested, he did not take the suitcase and walk out of the hotel, let us consider whether he had done an attempt’, then you would have to decide: did he intend to commit the offence of trafficking in dangerous drugs? That is, whether you are sure that the purpose he went to the hotel was to take delivery of the drug, to take it away. That was his intention. You have to be sure of that first, and if you are not sure, again, that is the end of the matter.

But if you are sure of that, then you have to consider the second part. He had that intention. Now, what had he done? Did he do more than what is mere preparation of committing that offence? So you would think, well, he is already at the hotel door. Is it more than mere preparation? Preparation in the sense, maybe a day ago, youknow, you heard that you are going to go somewhere. You go and get items. You get a suitcase or something like that. That may be preparation. All sorts of -- there are different preparations.

You just have to decide. Is it still only preparation or it is already more than a mere preparation for committing this offence? Put yourself in the position of the defendant, if you find that he had theintention to commit this offence of trafficking. He was part of the trade. He was there to take delivery. What else could he have done? What more could he have done after getting into the room?

Was it only preparation by the time he arrived at the room or he had already done all the preparation? He was already there. It was only an intervening event - that is, the Customs officers being there and arrest him - that stopped him from getting the suitcase and leaving, taking actual delivery of the dangerous drug. So that is what is meant by that he did something which was more than mere preparation for committing the offence.” [15]

60.  It is the last paragraph quoted above on which Mr Bullett relies.  But the judge’s reference to the arrest acting as an intervening event was an obvious comment to make in the circumstances of this case.  Furthermore, it could not be disputed, and was not in fact disputed, that the arrest had this effect.  The issue in this case was whether the applicant knew the suitcase contained drugs; not whether he went to the hotel intending to take delivery of the suitcase, which was admitted, and not whether he actually took delivery of the suitcase, which was conceded he did not.  On these two matters, relevant to the actus reus of the attempt, the prosecution and defence were in agreement.  There is no merit at all in the third ground of appeal.

61.  In relation to Ground 4, we agree with Mr Marray that a judge has a wide discretion in deciding whether a good character direction should be given and in this case the judge had properly exercised her discretion.  In this respect the comments by the Court of Final Appeal in Tang Siu Man v HKSAR (No 2)[16] are relevant.  What is apparent from the majority judgment in Tang Siu Man, and subsequent cases, is that a trial judge has a wide margin of assessment when considering whether disreputable conduct of a defendant amounts to bad character so as to impact on the decision of the judge as to whether the defendant should receive the benefit of a good character direction.  Once the judge has made that assessment the decision of whether to give a good character direction will be an exercise of judicial discretion by the judge.  The ultimate issue is not whether a direction should have been given but whether its absence rendered the judge’s summing-up unbalanced and unfair.

62.  It was not disputed by Mr Bullett before the judge that the applicant had entered Hong Kong illegally and that this fact deprived him of the status of a person of good character.  Mr Bullett argues that as long as the disreputable conduct is not before the jury then the defendant remains a person of good character and is entitled to a good character direction.  We do not agree.  The cases do not say that at all.  What they do say is that there has to be good reason for the judge to conclude that the defendant is not of good character and there is no doubt that good reason existed in respect of the applicant. That this good reason was not placed before the jury in order to protect the applicant’s right to a fair trial is neither here nor there in terms of how the judge should exercise her judicial discretion on this issue.  In resolving this issue the judge acted with commendable common sense and fairness.  There is no merit in the fourth ground of appeal.

63.  The fifth ground of appeal complaining that the judge should have discharged the jury when she became aware the Admitted Facts contained the case number for the first trial, which could have alerted the jury to the fact this was a retrial, is unworthy of a counsel of Mr Bullett’s experience.  The judge’s response, to which Mr Bullett agreed at the time, was a sensible one which balanced the interests of the applicant with the overall interests of justice.  To suggest that the judge’s response may have in some way impacted adversely on the fairness of the applicant’s trial is, itself, nothing more than speculation.  This is a ground of appeal which should never have been advanced.

64.  We now turn to the first ground of appeal which asserts that the judge erred in ruling that the applicant had a case to answer.  In addressing this ground of appeal it is necessary to bear in mind an important contextual element; namely that at this stage of the trial there was no evidence of the content of any of the telephone calls or of the content of the conversation between Tobar and the applicant.  

65.  In respect of the first ground of appeal.  The only issue was whether the primary facts allowed the jury to draw the inference that the applicant knew the suitcase contained dangerous drugs.  In the language of the Court of Appeal in Attorney General v Li Fook Shiu Ronald[17] “could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established?”  Answering this question in respect of the element of the prosecution case of the applicant’s knowledge that the suitcase contained dangerous drugs requires an examination of the evidence as it stood at the close of the prosecution case. 

66.  The following list of facts are the primary facts from which the inference of knowledge could be drawn:

(1) the applicant called the Cosco Hotel twice on 18 April 2013;

(2) the telephone number of the person Tobar called, stored in his telephone under the name Laura, to arrange the handing over of the drugs was a telephone number known to the applicant, and stored in his telephone under the name Nata;

(3) there were a large number of calls between the Laura/Nata number both on 17 and 18 April 2013 and the applicant;

(4) a woman who called Tobar at around 13:45 hours on 18 April was, at the time of the call, in the company of a man who had initiated the call and was seeking to be connected to Tobar;

(5) a man was expected to come to the hotel room to take delivery of the suitcase containing the drugs;

(6) Tobar was under instruction not to hand over the suitcase until he had determined that the person attending the hotel room was in fact the person sent to collect it;

(7) Tobar engaged the applicant in conversation at the doorway entrance to the hotel room;

(8) the applicant was intercepted after he made a move towards the suitcase; 

(9) the applicant had a large quantity of Hong Kong currency on him; and

(10) the cocaine was valued at over $1 million.

67.  From these primary facts it could be inferred that:

(i) Laura/Nata was the drug trafficker for whom Tobar had couriered the drugs to Hong Kong;

(ii) Laura/Nata was the person who spoke to Tobar in the telephone call at about 13:45 hours on 18 April;

(iii) a man was associated with Laura/Nata and was in her presence when she spoke to Tobar in the telephone call at about 13:45 hours on 18 April;

(iv) a man was tasked by Laura/Nata to take delivery of the suitcase;

(v) a drug trafficker was unlikely to send a person to collect $1 million worth of drugs who was totally ignorant of the value of the contents of the suitcase; 

(vi) any person performing the task of couriering this suitcase for another would, in all likelihood, expect to be rewarded for doing so; and

(vii) the monies in the possession of the applicant could have been used to reward Tobar.

68.  There is nothing unusual about a drug trafficker sending an associate to take delivery of drugs from a courier and in these circumstances,like the present case, the issue is whether the associate knew of the presence of drugs in the suitcase.  This is an issue that regularly arises in drug trials and which it is the duty of the jury to resolve.  Is there anything about this case which distinguishes it from all these other drug cases which give rise to the same factual issue for resolution?

69.  Mr Bullett submits that what distinguishes the present case from other cases of its kind is that here there was considerable delay between the time Tobar entered Hong Kong and the time he contacted the Laura/Nata woman.  Mr Bullett argues that this fact, in conjunction with the fact that instead of coming herself to take delivery of the drugs she sent the applicant, may allow of the inference that the Laura/Nata woman may have suspected a trap and so may have sought to distance herself from the drugs.  This in turn raises the question of whether, in these circumstances, she would have sent someone who was her associate in drug trafficking or would have sent an unwitting dupe, which was what the applicant claimed to be. 

70.  But the problem with this scenario painted by Mr Bullett is that at the end of the prosecution case there was simply no evidence to support it, other than the fact that Tobar may have been regarded by Laura/Nata as being very late in making contact with her.  According to Tobar, the Laura/Nata woman was in fact suspicious of the delay and queried the reason for it.  In order to allay her suspicions he explained to her that his plane was late, an explanation which could be readily revealed as a lie by checking the plane’s arrival time.  However, this evidence of Tobar was not before the judge at the close of the prosecution case. 

71.  That being so, we are not persuaded that at the close of the prosecution case there existed an inference from the primary facts that the Laura/Nata woman was suspecting a trap and would have sent a dupe to take delivery of the suitcase.  As the evidence stood at this stage of the trial, such a possibility was mere speculation.

72.  On the primary facts that we have set out and the inferences available from them we are satisfied that a properly instructed jury could, may or might find that the only reasonable inference to be drawn from those facts was that the applicant knew that the suitcase contained dangerous drugs.  That being so, the first ground of appeal fails.

73.  The second ground of appeal complains of the judge’s directions on the drawing of inferences.

74.  After explaining the nature of an inference and how it could be drawn the judge turned to the evidence on which the prosecution relied as primary facts.  These primary facts were[18]:

(a) the evidence of Tobar which showed that there was a plan to bring the drugs to Hong Kong;

(b) the amount of the dangerous drugs, their nature, namely cocaine,and their value;

(c) the applicant was the person who appeared at the hotel, after Tobar had made contact with Laura, for the purpose of collecting the suitcase containing the cocaine;

(d) the applicant had over $17,000 cash in his pocket, not contained in any wallet, and this amount would have been sufficient to pay for half of Tobar’s US$4,000 promised reward; and

(e) the behaviour of the applicant in insisting on entering the room.

75.  Then, the judge turned to the defence’s arguments, namely, that there were other reasonable inferences to be drawn such as that the applicant was an innocent dupe caught up in doing a friend a favour.  Another reasonably available inference was that since no one had contacted Tobar to collect the drugs on 17 April 2013 or the morning of 18 April 2013, the deal had been called off.  In support of this inference, the judge, reminded the jury of Mr Bullett’s point that anyone could easily check the arrival time of Tobar’s flight and having done so would become suspicious at the delay in Tobar making contact. 

76.  No complaint is made about the judge’s directions on the legal principles relating to the drawing of inferences.  Nor can we see any imbalance in the judge’s description of each party’s case on drawing the inference of knowledge.  Each party’s case was fully and fairly laid before the jury.  By referring to the primary facts on which each party relied the judge made it clear that the jury were entitled to have regard to all of these facts for the purpose of deciding what, if any, inference they could draw.  In so doing the judge did tailor her directions to the evidence in the trial.

77.  Complaint is also made that the judge wrongly allowed the jury to make use of the fact, as a primary fact for the purpose of drawing an inference of knowledge, that the applicant persisted in entering the hotel room.  That he did so is not disputed and in fact it was his evidence that he wanted to enter the room and he explained why.  The prosecution asked the jury to reject his explanation and act on the fact that he was intent on entering the room. 

78.  We do not agree with Mr Bullett that the jury should not have been permitted to act on this fact as a primary fact for drawing the inference of knowledge.  The conduct of the applicant suggested that he was there to do more than just take the suitcase away.  He had other things he wanted to do.  They could have been to check the contents of the suitcase or to pay Tobar.  If he had been an innocent dupe cruelly misused by the Laura/Nata woman, then the last thing she would have wanted him to do was to check the contents of the suitcase.  She would have given him strict instructions to get the suitcase, leave immediately and bring it to her.  To that extent his conduct in wanting to enter the room was inconsistent with the conduct of an innocent dupe and more consistent with that of a person who had knowledge of the contents of the suitcase. 

Conclusion

79.  For these reasons we refuse the applicant leave to appeal his conviction.