HKSAR v. OLIINYK ALLA

CACC 276/2021

[2023] HKCA 188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 276 OF 2021

(ON APPEAL FROM HCCC NO 130 OF 2020)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court)

1.  On 5 October 2021, the applicant was convicted after trial before Deputy High Court Judge Bruce and a jury of a single count of trafficking in a dangerous drug, namely 1,467 grammes of a solid containing 1,080 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  On 24 November 2021, she was sentenced to 22 years and 4 months’ imprisonment. Subsequently, she applied for leave to appeal against conviction. On 10 January 2022, the Secretary for Justice was granted leave to apply for a review of the sentence under section 81A of the Criminal Procedure Ordinance, Cap 221. This judgment only deals with the application for leave to appeal against conviction, in which the applicant was represented by Mr Philip Ross and Ms Amy Chan.

3.  We refused to grant leave after the hearing and dismissed the appeal. We indicated we would give our reasons later. That we now do.

The prosecution case

4.  On 16 July 2019, the applicant, a Ukraine passport holder, arrived in Hong Kong on board a flight from Addis Ababa, Ethiopia[1]. She had with her a purple “checked in” suitcase, a black suitcase and a pink backpack[2]. After she was stopped and taken for customs clearance[3], an X-ray scan on the black suitcase revealed a suspicious image. An ion analyzing test conducted on the black suitcase indicated a positive result of the presence of cocaine.

5.  A customs officer, PW1, opened the black suitcase and he noticed an exceptionally thick interior. A false compartment inside the interior lining was then cut open. A silvery package inside was found to contain the cocaine particularized in the charge with an estimated street value of HK$2,083,140[4].

6.  The applicant was arrested. It was an admitted fact that she had visited Hong Kong once between 17 and 21 June 2019 prior to the present trip[5]. A mobile telephone which contained communications between the applicant and two persons called “Dimanche” and “Alinka” via WhatsApp and Viber was found amongst her belongings and seized[6].

7.  Amongst the messages between the applicant and Dimanche, she had informed Dimanch that there was “security everywhere” in the transit hotel in Addis Ababa. She was concerned about how to receive the black suitcase without infringing the hotel security policy when she was told his colleague would pass some company documents to her[7]. Dimanche instructed her to try and fit all her belongings into the black suitcase so that she could carry it on board the plane as a piece of hand luggage[8]. She had been asked before she set off for Addis Ababa “to fly with small suitcase or backpack. Not big luggage”. At this juncture she mentioned about toothpaste: “I do not have a big suitcase, I gave it because there was a toothpaste for you”, “There are 4 pieces” and “You asked to bring 4 toothpastes last time”[9].

8.  In her messages with Alinka, Alinka asked her what was in the black suitcase. The applicant mentioned that it was “heavy from one side”. Although Alinka suggested that there might be something between the lining, the applicant continued to chat with Dimanche. She never made any enquiry in those message with Dimanche about the black suitcase[10].

9.  A video-recorded interview (“VRI”) was conducted with the applicant, the admissibility of which was not challenged. In the VRI, the applicant said that Dimanche was her boyfriend and it was he who had instructed her to collect the black suitcase when she was in transit in Addis Ababa and take it to Hong Kong. She admitted to having some minor suspicion about the contents in the black suitcase. She said she had checked it, but did not find anything. She denied knowledge of the cocaine in question[11].

10.  The applicant revealed in her VRI that this was her second visit to Hong Kong[12], and the third time for her to “hand over things”[13]. She mentioned two prior occasions where she was instructed by Dimanche to deliver bags to Hong Kong and Sri Lanka respectively[14]. On both occasions Dimanche failed to show up as promised[15] and she only found out that she had to pass something to others when she was about to leave for Ukraine and her tickets were changed all of a sudden. When asked if it had ever occurred to her that there was something unusual or strange about the arrangement, the applicant replied, “At the beginning, no, but for the third time, even for the second time in the end, I started having suspicions”[16].

The defence case

11.  The applicant had a clear record in Hong Kong[17]. She elected to give evidence but did not call any defence witness. The defence case was that the applicant had been manipulated and set up by Dimanche as a dupe, unbeknownst to her, to bring a significant quantity of cocaine into Hong Kong.

12.  The applicant testified that she worked as an assistant epidemiologist in Ukraine and had no financial difficulties[18]. She got acquainted with Dimanche on a dating website. They fell in love but she had never met him in person. She claimed she intended to marry him[19].

13.  She gave evidence that the two previous trips were funded by Dimanche in order for them to meet up. She travelled business class on the first trip from Kharkov, Ukraine to Lisbon, Portugal, then to the Republic of Cabo Verde[20]. However, Dimanche did not turn up. At the very last moment he instructed the applicant to carry a rucksack to Hong Kong. She did so accordingly and handed it over to Dimanche’s brother in Hong Kong[21].

14.  They were meant to meet up at Doha, Qatar on the second trip, but Dimanche once again stood her up. She was rearranged to go to Sri Lanka instead and to bring along a rucksack at the very last minute. She acceded to the request and passed the rucksack to some men there[22].

15.  According to the applicant, Alinka was her close girlfriend. She said that she did mention her suspicion about the black suitcase to Alinka but found nothing in the suitcase to justify her suspicion. She considered it appropriate and safe to take the black suitcase to Hong Kong[23].

Grounds of appeal

16.  Mr Ross advanced three grounds of appeal. Ground 1 complains that the judge should not have admitted the evidence regarding the first two trips and the evidence concerning the toothpaste on the basis that such evidence could have been misused by the jury as propensity evidence.

17.  Should Ground 1 fail, Ground 2 alleges that the judge failed to direct the jury sufficiently as to how the evidence of the first two trips could properly be used. Mr Ross submits that the judge, in directing the jury that they should not take into account “what happened on those two earlier trips”[24], and that it was open for them to reason that “at least by the third trip, she must have known”[25], could have misled the jury into finding that the two previous trips involved drug trafficking activities and the applicant was likely to have done the same on the present trip. The warning given by the judge was said to be insufficient to dispel any chance of an impermissible line of reasoning by the jury.

18.  Ground 3 complains that by only referring to the prosecution’s assertion that the toothpaste was a code used for a dangerous drug trade[26] without any reference to the exculpatory explanation provided by the applicant, the summing-up was unbalanced and the applicant had been deprived of a fair trial. It is further contended that the cross-examination of the applicant about her prior delivery of toothpaste could have led the jury to find that she had the requisite knowledge on prior occasions and used that as propensity evidence to infer knowledge for the present case.

Respondent’s reply

19.  Mr Derek Lau, with him Miss Katie Fong, opposed the leave application.

20.  In respect of Ground 1, Mr Lau submitted that the evidence of her earlier trips was probative of the issue of knowledge and was not propensity evidence in law. This evidence had been relied on by the defence to show that the applicant was “blinded by love” and to explain why she got used to the “last minute” instruction by Dimanche to do something for him in support of her claim of lack of suspicion and knowledge. The prosecution case, however, was that this was no love scam and she had been following Dimanche’s instructions all along[27]. In the circumstances, the evidence of the previous trips was highly relevant and plainly admissible. The prosecution was entitled to question and challenge the veracity of it: HKSAR v Wong Hei Chit[28]; HKSAR v Muramova Anna[29].

21.  For Ground 2, Mr Lau submits that the prosecution case was never premised on the suggestion of any drug trafficking by the applicant in the first two trips. Prosecuting counsel had focused on questioning whether the applicant would have complied with Dimanche’s sudden request merely because she was in love[30]. The judge had emphasised to the jury before he summarized the prosecution evidence that they should decide the applicant’s guilt in respect of the offence in question but not whether she had trafficked drugs on any other occasion, including the previous trips[31]. He explained that the use of evidence of the earlier trips was restricted as a piece of circumstantial evidence in support of the prosecution case that “by the time of the third trip, she must have known”[32] and “there was no love scam”[33]. The jury were warned not to speculate as to what had happened in the earlier trips[34]. The judge’s direction in respect of the two trips was comprehensive and there was no misdirection regarding the use of that evidence. An appellate court must assume that the jury had faithfully followed the judicial instructions: HKSAR v Indra Agus Setiawati[35].

22.  In reply to Ground 3, Mr Lau argued that the jury could not have lost sight of the applicant’s evidence that the “toothpaste” mentioned in the messages was a genuine request made by Dimanche and not any drug trafficking code as contended by the prosecution. Dimanche’s requests for toothpaste in the first and third trips[36] was mentioned in the summing-up to remind the jury of the prosecution’s contrary contention and to proffer a balanced view: HKSAR v Wiwik Lestari[37]. The judge was not obliged to repeat every piece of the defence evidence.

Discussion

Ground 1

23.  We made it plain at the outset of the hearing that Ground 1 was not arguable. The evidence of the two trips mentioned by the applicant in her messages and the VRI were put before the court by way of admitted facts, and the applicant referred to them in her testimony and gave her explanation. Mr Ross accepted the relevance of the evidence of the three trips to demonstrate an increasing frustration on the applicant’s part to meet up with Dimanche; and the purpose of the trips was romance rather than trafficking in drugs. Not only did the defence not raise any objection to the evidence of the previous two trips on the basis of potential prejudice, the defence had in fact sought to put this matter in evidence to support the applicant’s case of love scam and to show a pattern of her making deliveries on Dimanche’s behalf. The two trips were referred to in counsel’s submission to the jury[38]:

“…she’s used to or she’s familiar with the defendant suddenly springing a request or an instruction upon her to do something for him. She’d been groomed. She’s used to having these messages received at the last moment…she delivered things for Dimanche in the past, innocent backpacks, work documents and now, the third time, the main run into Hong Kong, she’s asked to bring a suitcase, something she’s done twice before, and unfortunately this time the suitcase contains dangerous drugs…”

24.  This evidence was plainly admissible provided that proper directions were given to guard against its misuse by the jury for an impermissible purpose: HKSAR v Muramova Anna[39]. Such directions were given by the judge. Ground 1 must fail.

Grounds 2 and 3

25.  We will deal with Grounds 2 and 3 together.

26.  Once admitted, the prosecution was entitled to question and challenge the credibility of the evidence of the two previous trips and the applicant’s explanation of what was meant by “toothpaste” in the messages. In the case of HKSAR v Wong Hei Chit[40], it was held that the prosecution was entitled to explore the claim of previous deliveries of iPhones when the accused had made it an important part of his explanation for the delivery of the dangerous drug in question[41].

27.  The prosecution’s stance on this evidence was clear: by the time the applicant carried the black suitcase from Addis Ababa to Hong Kong, she must have realized that she was trafficking in dangerous drugs[42]; the Ukranian toothpaste was clearly a code for trafficking in dangerous drugs[43].

28.  Mr Ross complained that, by telling the jury that the applicant must have known by the third trip that she was carrying dangerous drugs, the judge’s direction was tantamount to an invitation to them to consider the evidence of all of the trips. The emphasis on the prosecution’s contention that the toothpaste was a code for dangerous drugs exacerbated the situation.

29.  Unlike the case of Muramova where the direction was left open, the judge’s direction in respect of the applicant’s previous trips were comprehensive and given in strong terms. The jury were warned that they should only focus on the present trip, and the evidence of the previous trips was only for use on a very limited basis[44]:

“Uncharged acts

The only thing that you have to decide is whether the accused is guilty of trafficking in the cocaine mentioned in the indictment. She is not charged with trafficking on any other occasion. That includes her first trip to Hong Kong and her trip to Sri Lanka. No matter what you think of what happened on those two earlier trips, your sole focus must be on the conduct which is the subject of the indictment in this case. There is a very limited basis on which you could use the information from the earlier trips to help you determine the only real issue in this case before you, the issue of whether, on 16 July 2019, the accused knew that what she was carrying was a dangerous drug.

I would describe the trips in greater detail later, but the essence of what the prosecution says is by the time she came to carry the additional suitcase from Addis Ababa in Ethiopia to Hong Kong, she must have realized that she was trafficking in dangerous drugs. She must have realized that she was carrying drugs and not just a suitcase full somewhat odd, ill-fitting clothes which were totally inappropriate for her. What you are not permitted to do is say, “Well, she must have trafficked on those other occasions, so therefore she’s guilty this time.” That is not a permitted mode of reasoning, but you can use the circumstances, as long as you use them in the permitted way. That is, you add them all together and say, “Well, whatever happened on those other occasions, we don’t know”, and you could not know because there is no evidence about whether there was a drug involved.

Whatever happened on those last occasions, by the time she got to carrying this suitcase on this occasion, she must have known. That is the prosecution case, and it is up to you, essentially, to say whether or not you are sure that that is properly justified, but that is the issue. As I say, it would be open to you, if you thought it was appropriate to do so, to say to yourself, “Well, whatever happened on those other two trips, at least by the third trip, she must have known that what she was carrying.”” (emphasis added)

30.  Contrary to Mr Ross’ submissions, the judge rightly stressed to the jury that they were to focus on the present trip[45] and “whatever happened” on the previous two trips, which would necessarily include the evidence relating to the toothpaste, they were only one of the strands for them to put together to draw the inference of knowledge of the presence of drugs on the third journey[46].

31.  The jury had been specifically warned against adopting an impermissible line of reasoning and of the limited use of the previous two trips as circumstantial evidence for an inference of knowledge to be drawn. Further, the judge repeated the prosecution case on this aspect as follows[47]:

“Putting the strands together, and whether or not that makes up a convincing case is precisely what you are asked to decide. [The prosecution] say on each occasion the accused agreed to travel to various destinations and at the last minute, a bag was given to carry for a further destination. The further destination was not in the original itinerary. That, of course, is relates to only trip 1 and trip 2. She knew she was coming to Hong Kong in trip 3, via Ethiopia.

At least on the first and second trip, she was expecting to meet Dimanche at the end of the planned journey. He did not turn up on those two occasions, and he gave an excuse or excuses for why not. Of course, the prosecution are not in a position to say whether Dimanche would have turned up on this third occasion. The case for the prosecution is this was no love scam with the accused, this is no woman blinded by something between love and lust to such an extent that she agreed on three occasions to pick up bags all of a sudden and carry them to a destination, and blinded in particular, the only trip you need to think about, the third trip.

What was going on in those first two trips is only speculation. You might think she was blinded, or she says she was blinded by love or something else, to go on those other trips. But, here, when you put all the strands together, it is what happened on this third journey. We are not concerned with what was in the rucksack, it is whether she was following instructions, whether there was this pattern of shifting arrangements and all of that.

Now, just to repeat because it is so important: the prosecution points to journey 1 and journey 2 for only a limited purpose. The limited purpose is to invite you to the conclusion that whatever was going on in those journeys, by the time it came to the third journey, within a matter of a few weeks between the first, second and third journey, the accused must have realized she was not going to Ethiopia to pick up a suitcase with a few clothes in it.

The prosecution say surely the light must have gone on in the head of the accused when she was sent to Ethiopia on a way point to Hong Kong, or a journey between Kharkov and Hong Kong, then at the last minute whilst in Ethiopia, received another bag. Now, let me be clear. The prosecution have to prove she knew. It is not sufficient for you simply to say this woman did not ask all the right questions because she was looking through glasses with hearts in them. It is whether she knew.” (emphasis added)

32.  Furthermore, a general direction against speculation had been appropriately given by the judge[48].

33.  It was the evidence of the applicant that Dimanche had asked her to bring four tubes of toothpaste on her first trip, which she did, and to deliver them to his brother. On this occasion, she was again asked to bring toothpaste. During cross-examination of the applicant as to her claim of bringing toothpaste for Dimanche on the first and this occasion, she explained that Dimanche liked Ukranian toothpaste very much. Although Mr Ross insisted that she brought toothpaste with her on this trip, we note that no such evidence was adduced nor was any such toothpaste made an exhibit. Although the prosecutor suggested that “toothpaste” was a code for dangerous drugs, the applicant firmly denied this claim. Neither prosecuting nor defence counsel referred to it again in their closing speeches.

34.  Mr Ross complained that by only emphasising the prosecution’s stance that the Ukranian toothpaste was a code for drug trafficking without also mentioning the applicant’s denial, the summing-up was unbalanced.

35.  We noted, however, that the applicant’s evidence on this aspect was implicit in the summing-up[49]:

“According to the accused, you might think curiously, Dimanche asked for four tubes of Ukrainian toothpaste. You remember that. The prosecution contends that it is unlikely that there is something particularly appealing about Ukrainian toothpaste and this is clearly code for what the prosecution say you might conclude that is code for trafficking in dangerous drugs.”

36.  Further, in relation to the applicant’s testimony that Dimanche again made a request for toothpaste on the trip in question, the judge said[50]:

“You will recall that, once again, he asked for four tubes of Ukrainian toothpaste. Again, the prosecution say the dental health of Dimanche could not have been the reason for this message, and the only reason is “coke” for cocaine. As far as my notes go, I do not know whether there is any evidence she actually brought toothpaste on the third journey. There does not seem to be any evidence of that. So we do not try and make up evidence or imagine evidence. Just put that to one side. It is the message that matters, according to the prosecution.”

37.  It is trite law that a trial judge is not obliged to remind the jury of every piece of evidence which is capable of an interpretation favourable to the defence, since the jury have heard the evidence and are the judges of fact: R v Cheng Pak Chang[51]. In the present case, the jury were told in unambiguous terms that[52]:

“If I do not mention something that you think is important, you should give it the weight that you consider is appropriate. I cannot emphasize enough that when it comes to the facts of this case, the only thing that counts, the only thing, is your evaluation and judgment as to the facts…”

38.  Nor is it necessary for a trial judge to make every point that can be made for the defence in giving a fair and balanced summing-up: HKSAR v Fu Chu Kan and Others[53].

39.  Further, as to the arguments and submissions in the speeches by counsel, the judge said[54]:

“They have given you arguments and submissions from their perspectives as the prosecutor and defence counsel…you are by no means bound to accept any or all of what they have had to say. Further, as each counsel has correctly pointed out to you, those submissions are not, in themselves, evidence. They are submissions and they are made to make you think. They are made to persuade. Whether or not you are persuaded is entirely a matter for you…”

40.  There is no merit in any of the grounds of appeal against conviction. Accordingly, we refused leave and dismissed the appeal.