HKSAR v. CHEN QIANXIA

CACC 57/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2013

(ON APPEAL FROM HCCC NO. 188 OF 2012)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1. On 1 February 2013, the applicant was convicted after trial before Deputy Judge Geiser and a jury of trafficking in dangerous drugs and sentenced to 7 years and six months’ imprisonment. She now seeks leave to appeal the conviction.

2. The evidence against her was that of three police officers who testified that at about 11 pm on 3 November 2011 at the Po Tin Estate in Tuen Mun, they saw the applicant carrying a white plastic bag.  They stopped her and in the plastic bag which she was holding was a chocolate box inside which were two small transparent plastic bags plus one larger bag which contained dangerous drugs, namely, 26.27 g of methamphetamine hydrochloride.  She was cautioned and arrested.

3. What she said upon caution was recorded but subsequently ruled inadmissible by the trial judge.  She was taken to a police station and interviewed twice.  In the first interview, she exercised her right of silence.  She is alleged in the course of the second interview to have made inculpatory statements but the record of this second interview was also ruled inadmissible.

4. After a number of witnesses had testified upon the voir dire, prosecuting counsel said that he could not conscientiously rely upon the evidence of what had been said upon her arrest or in the second interview.  This was for two prime reasons: first, because there was evidence that after the first interview, two pieces of paper had been slipped under the door of the interview room for the benefit of the interviewing police officer or officers but that these notes were no longer available; and, second, because there was no rational explanation for why, having at the first interview refused to say anything, she (allegedly) changed her mind and made inculpatory remarks.

5. Against that background, the post-recording of her comments upon her arrest and the video-recording of the second interview were ruled inadmissible.

6. Counsel for the applicant made a submission of no case to answer on the basis that since the evidence of the police officers was unreliable on the voir dire, their evidence on the general issue could not be reliable.

7. The judge ruled against the submission noting the particular basis upon which the concession by prosecuting counsel had been made in relation to admissibility and, in particular, the fact that the possession of the chocolate box was not denied by the applicant.  What was denied by her was that she knew that there was a chocolate box in the paperbag and that she knew that there were drugs there.  Since the physical possession of the chocolate box was unchallenged, there was no basis on which to suppose that the evidence of the finding of the drugs was or might be untrue.  The fact of her physical possession of the drugs was sufficient to raise a prima facie case.

8. The applicant testified in her own defence upon the general issue.  She said, in relation to no fewer than six telephones found in her possession, that she repaired mobile telephones for a living.  As to the drugs found in her possession, she said that she had been in the company of a friend named Ah Sam who had been holding a white plastic bag which she, the applicant, knew contained clothing.  After they alighted from a bus upon which they had together been travelling, and crossed the road to go into Po Tin Estate, Ah Sam asked her to hold the bag whilst he went into a nearby shop to buy some items.  Less than two minutes later she was stopped by the police.  She had never seen the chocolate box before and had not touched it and did not know what was inside it.

9. The grounds of appeal advanced by Mr Allan on behalf of the applicant are that the judge erred in refusing to accede to the submission of no case to answer and gave erroneous directions in relation to the evidence of two of the prosecution witnesses.

10. It is unnecessary for us to delve into those grounds for the purpose of determining the safety of the conviction, since two entirely separate matters, very properly drawn to our attention by Mr Edmond Lee for the respondent, are sufficient to dispose of the appeal.

11. The first is that the judge said to the jury:

“I must tell you that as a matter of law that if a person is proved to have had in his or her possession anything containing a dangerous drug, in this case the chocolate box contained in the white plastic bag, then that person shall, until the contrary be proved, be presumed to have had that drug in his or her possession and to have known the nature of the drug.”

12. Thus it was that the judge prayed in aid the presumptions in section 47 of the Dangerous Drugs Ordinance, a step which quite clearly he should not have taken: see HKSAR v Hung Chan Wah (2006) 9 HKCFAR 614. The presumptions are to be treated as evidential only and once the judge has decided in such cases that the evidential burden has been discharged (as it clearly had been in this case), he is merely to tell the jury that it is for the prosecution to prove knowledge and not for the defendant to prove lack of knowledge: see Hung Chan Wah v HKSAR [2005] HKLRD 291 at 356.  The manner in which it was put to the jury was to raise the real possibility – even if the jury understood a direction couched in the terms of this direction without further explanation – of the jury treating it as a persuasive burden.  The fact that the judge subsequently told the jury that the burden was on the prosecution to prove that the defendant knew “of the presence of the chocolate box containing the drugs inside the white plastic bag” does not cure the inappropriate application of the presumption, for the jury could not possibly have made head or tail of what they were supposed to do in light of the conflict between the two directions.  The fact that in replying to the submissions of no case to answer prosecuting counsel (not Mr Lee) himself relied on the presumption and the further fact that counsel acting for the applicant, Mr Allan, did not point out the error is not comforting.

13. The second error relates to the failure by the applicant to tell the police upon her arrest that she had, moments before, been given the plastic bag by Ah Sam.  At one stage in her evidence she suggested that she had told the police immediately upon her arrest that he had just given her the bag yet later she said she had not said that to the police at the time of her arrest but later at the police station.  Be that as it may, the judge, having referred to this contradiction, said:

“Whilst this is entirely a matter for you, members of the jury, you may think it to be odd that if indeed it is true that Ah Sam had almost immediately before her interception by the police given the white plastic bag to the defendant to hold, why she did not there and then on the drugs being found by the police protest to them that they did not belong to her, she did not know that they were there, and that the bag belonged to Ah Sam who had literally just left.”

14. This, with respect, was an unfortunate statement for the judge to make.  The direction which he should have given was that there was no obligation upon her to say anything and that, not least because she had just been told of her right to maintain silence, it would be entirely inappropriate for the jury to hold against her the exercise of that right.

15. Once again, neither prosecuting nor defence counsel alerted the judge to this fundamental error; and it is, therefore, not surprising that defence counsel who now appears for the applicant has not advanced it as a ground of appeal.  One can but be thankful, in the circumstances, for the alertness of Mr Lee in drawing the matter to our attention.

16. It follows that the application for leave to appeal is granted; we treated the hearing of the application as the appeal, allow the appeal and quash the conviction.

17. We shall hear counsel on the question of retrial.

[Submissions]

18. We have heard counsel on the question of a retrial.  The application for a retrial is, realistically in our view, not opposed and accordingly, we order that the applicant be retried on a fresh indictment alleging the same offence.  We direct that, insofar as possible, that retrial should take place within 3 months.