HKSAR v. MISTUN

CACC 264/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 264 OF 2012

(ON APPEAL FROM HCCC 430 OF 2011)

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R E A S O N S  F O R  J U D G M E N T

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Hon Line J (giving the reasons for judgment of the court):

1.  This was an application for leave to appeal against a conviction for trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and the sentence of thirteen years imprisonment that followed. The trial took place before Macrae J and a jury, who returned their verdict by a majority of 6 to 1 on 18 June 2012.

2.  On the 10 October 2013 we dismissed the application against conviction and said that we would give our reasons later.  This we now do.  We also dismissed the application in relation to sentence upon it being abandoned.

3.  The facts of the matter were that on 30 June 2011 the applicant had collected a parcel originating in Argentina from a post office here that contained, concealed within various plumbing fixtures, 287.95 g of cocaine.  The applicant was not the addressee of the parcel.  She had been able to collect it on producing a parcel notification card and a photocopy of a Nigerian national’s passport in the same name as the addressee of the parcel, as well as her own identification document.  The applicant was stopped by customs officers shortly after picking up the parcel.  The parcel had been intercepted by customs officers, who were monitoring its collection.  She said to customs officers that the contents of the parcel were for her and that she believed the contents were wedding clothes for her own marriage.

4.  Four grounds of appeal have been advanced.  The first claims that the judge erred in failing to exclude evidence of a post recorded statement of what was said upon arrest and what was said in a video recorded interview.  The claim is based upon the fact that when the applicant was arrested she was only told that she was suspected to have committed an offence under the Dangerous Drugs Ordinance, when the officer was in a position to have told her specifically that she was suspected of trafficking cocaine.  It was argued that the applicant had been deprived of the opportunity of making an informed choice of whether to speak or remain silent.  Reliance was placed upon the fact that in the video recorded interview, when the applicant was told that she was to be formally charged with trafficking in a dangerous drug, she then chose to stop answering questions and remain silent.

5.  It was also argued that the judge was wrong to have relied on the evidence of the inspector in charge of the party of customs officers as he failed properly to weigh it and to consider its inherent improbability.  The inspector had testified that after the applicant was arrested, and in the presence of the arresting officer, he had told the applicant that they suspected the parcel she was carrying contained cocaine.  He had made no written record of this.  The arresting officer had not mentioned it, although she was never asked specifically about it and no application was made to recall her.  The decision not to re‑call her was one consciously taken by defence counsel.  The inspector did not mention it in the course of the video recorded interview which he conducted.  It was not suggested by him that the applicant had made any response to what he told her.  The evidence was elicited in cross‑examination.

6.  The judge accepted the evidence of the inspector.  He was quite entitled to do so.  Nothing we have heard begins to persuade us that we should upset the judge upon his finding of fact, when he saw and heard the witnesses.  The judge also considered that the alleged failure to mention cocaine at the scene of the arrest was of little moment.  He was of the view that what was important was making clear to the applicant that she was suspected of committing a dangerous drug offence as opposed to specifying whether it involved heroin, cocaine or ice or whatever.  We share that view.  Whilst it may have been preferable to name the drug, we do not consider that the failure to do so should have led, by itself or in combination with the other points made, to the exclusion of the evidence in question.

7.  This leaves the failure of the officers to mention the word "trafficking".  The applicant's mother tongue was Indonesian.  The judge assumed in her favour that the word "trafficking" would have carried its usual significance but nonetheless he declined to exercise his discretion to exclude the evidence as he was satisfied that the applicant had been told in plain and simple terms, in a way she would be expected to understand, the reason for her arrest.  He had no doubt that she would have understood what was being alleged.  It was not only the evidence of the inspector which led him to this view, for it was also the case that as soon as the applicant had been arrested, the arresting officer had taken her to a rear lane where she pointed at the parcel the applicant was carrying and asked what was inside, receiving the answer "It's my friend, sent to me.  It's a wedding present.  It’s clothes."  Incidentally, that was revealed to be her defence when she gave evidence on the general issue.  The applicant was not called to give evidence on the voire dire.  There was no evidence from her, therefore, that she did not understand the reason for her arrest.

8.  Near the beginning of the video recorded interview the applicant acknowledged the accuracy of the post record, and subsequent questions referred to her carrying the parcel and being arrested on suspicion of violating the Dangerous Drugs Ordinance.  We are in no doubt that the applicant then well understood that the reason for her arrest was an allegation that she was carrying drugs in the street in the parcel.  The judge decided that the fact that such an activity was not described by the word "trafficking" to be insufficient to engage his discretion to exclude the evidence.  We agree with him.  The submissions made on behalf of the applicant lost sight of the distinction between telling suspects the reason for their arrest and identifying the actual crime suspected.

9.  Accordingly, we are of the view that there is nothing in ground one.

10.  The second ground of appeal complained that the judge prevented counsel from asking this question in the course of his cross‑examination of the inspector when he gave evidence on the general issue before the jury:

“Q: Before you started the video interview did you think that - consider that if you had in fact started the interview by telling her what the investigation was about in regard to trafficking in dangerous drugs, the defendant might not have answered your questions?”

11.  Prosecuting counsel had objected on the basis that the witness was being asked to speculate.  The judge agreed and would not allow the question.

12.  The Respondent concedes that the question was one directed to a fact, namely what was in the mind of the witness, and was not asking for speculation.  We agree.  However, we do not agree that disallowing this one question amounted to a material irregularity or that it rendered the trial unfair.  In fact, a question in very similar terms had been put to the witness on the voire dire.  It had, not surprisingly, met with a negative response.  We cannot conceive that it would have been otherwise if the question had been allowed on the general issue.  We detected no merit in the argument that the ruling prevented defence counsel from developing an effective cross‑examination. The judge’s injunction not to speculate did not prevent counsel from dealing with the topic of how the witness chose to conduct the video recorded interview.

13.  Accordingly we are of the view that such irregularity as there was fell well short of being material to a degree that would have moved us to grant leave to appeal.

14.  The third ground of appeal complained that the judge gave a lies direction when it was not called for and it was argued that by doing so the judge "gave a strong inference. . . to the jury that the applicant had lied".

15.  The question of whether or not the summing up should include a lies direction was canvassed between bench and bar before speeches.  Prosecuting counsel urged that one should be given.  At first defence counsel said that he did not wish for one.  The judge pointed out that prosecuting counsel was likely to address the jury in a way that emphasized his case that the applicant had lied (as turned out to be the case) and was to make the suggestion that the reason for such obvious lies was her realization of guilt.  He pointed out that the direction was one designed for the protection of a defendant in such circumstances.  Defence counsel then came round to agreeing that it would be better for the direction to be given.  The same counsel now appears before us to complain of it.  He apparently then judged that the direction could help his case as the jury could consider that the applicant may have lied to protect her boyfriend.  Lying to protect the applicant’s boyfriend was therefore a matter on which prosecuting counsel addressed the jury in closing.

16.  It is thus not at all surprising that the judge gave the direction and we can see nothing wrong in his taking that course, although this was not the usual classic case for the direction where the alleged lies were distinct from the denial, and innocent explanation of, the prosecution case.  However, whether or not the direction was called for is not the issue.  The issue is whether the giving of the standard direction could conceivably have done any harm to the applicant.  We reject the claim that it could have done so.  The direction was in standard terms and left the issue of whether or not a lie had been told as a question of fact for the jury.  If the applicant's argument is correct, the standard direction could never be given in a case where there was a dispute about whether a lie had been told, without giving rise to the mischief claimed.  Such is obviously not the case.

17.  Accordingly, we find there to be nothing in the third ground.

18.  The fourth ground of appeal claimed that there was a lurking doubt in the case because the applicant’s exculpatory statement that she did not know there were drugs in the parcel was enhanced by her inculpatory statement that the contents of the parcel were destined for her.  It was said that it was inherently improbable that a guilty person would devise such a defence, especially when the parcel was not addressed to the applicant but to someone else.

19.  We find no lurking doubt in this case.  The issue was fairly and squarely before the jury.  The point was, of course, made by defence counsel in his closing address to the jury.

20.  The point was no more than one of many jury points that were available to both sides.  It is not our job to retry this case, but we add that we do not find it inherently improbable that someone in the position of the applicant, caught carrying a parcel containing a dangerous drug, may admit that the contents were destined for her in order to support her assertion that she believed the contents to be innocent.

21.  We do not wish to leave this case without commenting on the fact that in the papers put before us by the parties there was no mention whatsoever of the fact that the giving of a lies direction was the subject of discussion before the judge and that defence counsel had agreed that the direction be given.  It beggared belief that neither side had done so.

22.  The material came to light when a member of this court, of his own motion, searched it out by listening to the audio recording of the proceedings.  The standard direction concerning lies urges judges to consult counsel on the matter.  It was to be expected that any judge, let alone one of this experience, would have done so.

23.  We express ourselves strongly in relation to the failure in this regard by the applicant’s counsel.  We do so for we cannot imagine how he could have settled this ground of appeal complaining of the giving of the direction when he must have known that he had agreed to it.  We received an apology for the omission but no real explanation of it.

24.  We express ourselves likewise in relation to the failure of the respondents.  It is a failure that dramatically reveals the mischief of the practice of the Department of Justice of conducting criminal appeals by new counsel without even the consultation of trial counsel.  We understand that, as is common practice, trial counsel was never even shown the grounds of appeal.  Too often this court is hampered by counsel displaying a lack of knowledge of what occurred at trial.  With this in mind we asked counsel for the respondent to pass on our remarks to the Director of Public Prosecutions.