HKSAR v. CHEN HUANDI

[English Translation - 英譯本]
CACC 523/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 523 OF 2011

(ON APPEAL FROM HCCC 324 OF 2011)

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REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the Court):

1.  The appellant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134, Laws of Hong Kong).  The dangerous drug involved was 0.64 kg of heroin hydrochloride.

2.  After trial before Deputy High Court Judge Li (as he then was) and a jury, the appellant was convicted as charged and sentenced to imprisonment for 20 years and 8 months.  The appellant applied for leave to appeal against conviction and sentence, but subsequently withdrew her application in respect of sentence, which was accordingly dismissed by the Court. After hearing the application in respect of conviction, we allowed the application and, treating the application as the appeal, quashed the conviction and ordered a retrial.  We now give our reasons for judgment.

The prosecution case

3.  The prosecution case was very straightforward. On 3 April 2011, the appellant arrived at the Hong Kong International Airport on a flight from Kuala Lumpur.  She was intercepted by Customs officers when going through Customs and her suitcase was checked.  Inside the suitcase there was a concealed compartment in which the drug in question was kept.   The drug was confirmed upon laboratory tests to be 1.3 kg of a mixture containing 0.64 kg of heroin hydrochloride. 

4.  When asked by the Customs about the item concerned, the appellant said under caution that the suitcase was not hers and that she had no idea what that was.  Shortly afterwards, she told the Customs that she had something more to say by way of addition and explanation.  Under caution, she said that when she was in Kuala Lumpur, she was given the suitcase by a black person who told her that it contained clothing samples.  The black person was a friend of K.C., who was in turn a black friend of hers in Guangzhou.

The appellant’s evidence

5.  The appellant elected to give evidence.  She said that she had no idea about the presence of the drug in the suitcase.  She brought the suitcase from Kuala Lumpur back to Hong Kong for someone called Peter who was a brother of her boyfriend K.C..  Peter and K.C. were both black Africans and  K.C. was a national of Guinea.  The appellant lived in Guangzhou and was educated up to the second year of senior high school.  She cohabited with K.C. soon after she met him in August 2010.  Around November of the same year, the appellant wanted to marry K.C. and visit his family at his native place.   The appellant went to Kuala Lumpur because K.C. told her that she could apply for a Guinean visa there.  K.C. told her to find a person called Peter who would take care of her visa application for her.  K.C. arranged for her a round-trip flight ticket to Kuala Lumpur and asked her to take some samples of jeans and shoes to Peter since she was going on the trip.  The appellant stayed at Peter’s home in Kuala Lumpur and handed her passport to him so that he could take care of her visa application.  The appellant was scheduled to leave Kuala Lumpur on 30 March 2011, but K.C. told her that she had to stay there for two more days as her visa had not yet been obtained.

6.  In the early hours of 3 April 2011, Peter came home with another black person, holding a new suitcase and a plastic bag containing clothes.  Peter opened the appellant’s backpack, took out all her clothes, and put the clothes in the plastic bag, along with her empty backpack, into the suitcase.  Peter said that the clothes in the plastic bag and the suitcase were samples for K.C.  The appellant emptied the suitcase of all the clothes, shook the suitcase and checked the clothing samples one by one.  She wanted to lift up the suitcase by its left and right parts but was unable to do so because Peter put all the clothes back into the suitcase.  The right side of the suitcase was where the drug was subsequently found to be hidden.  Peter gave her the flight ticket and her passport.  She found that her passport did not contain any Guinean visa. Peter said that the visa application would take a week to process and that there was insufficient time.  Peter locked the suitcase and gave her the keys. She left Peter’s home at 4:40 a.m. and found that a taxi called by Peter was already waiting to pick her up and take her to the airport.

Whether the appellant had the requisite knowledge

7.  It can be seen from the above that the charge in the present case is a very simple one.  The only issues were whether the appellant knew that there was drug inside the suitcase given to her by Peter and whether the appellant had, as she had said, no chance to conduct a check by lifting up the right part of the suitcase where the concealed compartment was subsequently found.  The appellant said that the quantity of the clothes given to her by Peter to bring back to the Mainland was similar to that of the clothing samples she had taken to him.  The suitcase and the items therein were adduced as evidence at trial, as were the relevant photographs. The jury, who had direct sight of the items, had to determine whether the defence put forward by the appellant was credible.

The appellant’s trips

8.  The major factor leading to the quashing of the appellant’s conviction by this Court relates to the approach taken by Deputy Judge Li in dealing with the appellant’s various trips to Kuala Lumpur and Bangkok prior to this particular trip to Kuala Lumpur.

9.  On the admitted facts, the appellant’s travel records for the period between 7 June 2010 and 3 April 2011 are as follows:

1) On 27 July 2010, she left Shenzhen Airport for Kuala Lumpur;

2) On 4 August 2010, she arrived at Shenzhen Airport from Kuala Lumpur;

3) On 22 September 2010, she left Shenzhen Airport for Kuala Lumpur;

4) On 18 October 2010, she arrived at the Hong Kong International Airport from Kuala Lumpur and returned to the Mainland via Lok Ma Chau Control Point;

5) On 30 October 2010, she left Baiyun Airport for Bangkok;

6) On 7 November 2010, she arrived at the Hong Kong International Airport from Bangkok and returned to the Mainland via Lok Ma Chau Control Point;

7) On 24 November 2010, she left Baiyun Airport for Kuala Lumpur;

8) On 25 November 2010, she left Kuala Lumpur for Bangkok;

9) On 5 December 2010, she arrived at the Hong Kong International Airport from Bangkok;

10) On 8 December 2010, she left the Hong Kong International Airport for Bangkok;

11) On 15 December 2010, she arrived at the Hong Kong International Airport from Bangkok and returned to the Mainland via Lok Ma Chau Control Point;

12) On 23 December 2010, she left Baiyun Airport for Bangkok;

13) On 4 January 2011, she arrived at Baiyun Airport from Bangkok;

14) On 9 January 2011, she arrived in Hong Kong via Hung Hom Control Point;

15) On 14 January 2011, she returned to the Mainland via Lo Wu Control Point;

16) On 21 January 2011, she arrived in Hong Kong via Lo Wu Control Point;

17) On 27 January 2011, she returned to the Mainland via Lo Wu Control Point;

18) On 3 February 2011, she arrived in Hong Kong via Lo Wu Control Point;

19) On 4 February 2011, she returned to the Mainland via Lo Wu Control Point;

20) On 26 February 2011, she arrived in Hong Kong via Lo Wu Control Point and travelled to Kuala Lumpur via the Hong Kong International Airport;

21) On 3 March 2011, she arrived at the Hong Kong International Airport from Kuala Lumpur and returned to the Mainland via Lo Wu Control Point;

22) On 25 March 2011, she arrived in Hong Kong via Shenzhen Bay Control Point and travelled to Kuala Lumpur via the Hong Kong International Airport;

23) On 3 April 2011, she arrived at the Hong Kong International Airport from Kuala Lumpur.

10.  The above records show that, prior to the trip which led to the present charge, the appellant had made four visits to Kuala Lumpur, in July, September and November 2010 and February 2011 respectively.  In addition, she made four visits to Bangkok between October and December 2010, one of which was via Kuala Lumpur.  The appellant returned to the Mainland via Hong Kong on many of her return trips.

The appellant’s explanations

11.  The appellant provided explanations for these trips.  She said that she went on the first trip to Kuala Lumpur because her ex-boyfriend asked her to accompany a woman named Chen Yuji (transliteration) there to collect clothing samples. When she returned to the Mainland from Kuala Lumpur, K.C. was the one who picked her up at the airport.  They became lovers after they had met and she travelled with K.C. to Bangkok, Kuala Lumpur and Hong Kong from time to time for various purposes such as to accompany K.C. to Kuala Lumpur to obtain renewals of his visas to China, to apply for the appellant’s own Guinean visa, to accompany K.C. to those cities for business negotiations, to take some samples to people in those cities for K.C., and to bring some samples back from those cities to K.C..

The respondent’s position

12.  It was put to the appellant in cross-examination that she paid repeated visits to Kuala Lumpur with a view to “studying and becoming familiar with the actual setting”. By saying in its closing submission that the appellant visited Kuala Lumpur and Bangkok for the purposes of undergoing practical training, getting to know the people there and getting used to travelling on the plane, the prosecution suggested that the trips prior to the present offence were all taken by way of preparation for the drug trafficking in question.

Directions given by Deputy Judge Li

13.  In his directions to jury, Deputy Judge Li dealt at great length with the appellant’s previous trips to Kuala Lumpur and Bangkok and repeated those aspects which the prosecution had considered unreasonable in respect of the appellant’s explanations on the purposes of such trips.  Deputy Judge Li then proceeded to give the following direction:

“All right, members of the jury, I have finished talking about the defendant’s evidence. I would, however, like to draw your attention to certain noteworthy aspects of the defendant’s evidence, namely the means by which the samples were brought from Kuala Lumpur back to Guangzhou and from Guangzhou [to Kuala Lumpur]. Are such means reasonable? Now let us turn to how the visa was applied for. Despite the fact that K.C. had been in Kuala Lumpur and Bangkok for quite some time and the appellant stayed with K.C. in Bangkok also for quite some time, they had never gone together to apply for a visa. Instead, the defendant later visited Kuala Lumpur twice and Hong Kong once on her own for visa applications. Of course, we have no evidence that visa applications may also be made in Bangkok, but you should consider: why did the two of them not make any visa application even though they had been in Bangkok for such a long time? All right, you should also note: what were the actual reasons for the defendant to travel to these places, Bangkok and Kuala Lumpur, and back? I have just talked in great detail about the matters you should take into account in assessing whether the defendant is credible.”

Our views

14.  In our view, the directions to jury as a whole are deficient in that, having given the relevant directions, Deputy Judge Li did not remind the jury in clear and specific terms that even if they rejected the appellant’s explanations on her previous trips, they could not rely on this to find the appellant guilty of the present charge. Although Deputy Judge Li did direct the jury in his summing-up that they were obliged to find the appellant not guilty if they considered what she said might be true, we do not consider such direction adequate.  It would have been all the more essential that Deputy Judge Li reminded the jury of the above when he had dealt with the appellant’s previous trips in such great detail.

15.  In our view, of even greater importance is that, although the prosecution submitted that the appellant’s previous trips were for the purpose of undergoing practical training for the drug trafficking in question, the prejudice to the appellant arising out of such evidence went even further.  Given the doubt cast by the prosecution about those trips, the jury would likely have formed the view that even prior to the present offence the appellant had already engaged herself in drug trafficking activities in the various trips she had made to and from Kuala Lumpur and Bangkok.  Indeed, the possibility of such inference being drawn could not be ruled out on the facts of the present case.  DeputyJudge Li did not clearly remind the jury that the appellant was charged solely for the present drug trafficking incident and not for any other drug trafficking conduct, that it was not the prosecution case that the appellant had previously visited Kuala Lumpur and Bangkok in connection with any drug trafficking activity, and that the jury could not therefore make such conjectures about the appellant’s conduct as were adverse to her.  However, Deputy Judge Li not only failed to ask the jury not to speculate on the reasons for the appellant’s previous trips to Bangkok or Kuala Lumpur, but instead invited the jury to consider what the appellant’s purposes of visiting these two places were.  For this very reason, the jury’s verdict is unsafe and unsatisfactory.  We have allowed the appeal accordingly.

Other grounds

16.  Mr Hung advanced a number of other grounds of appeal for the appellant.  Having allowed the appeal for the above reason, it is not necessary for us to deal with those grounds of appeal in detail.  That said, there are two matters on which we feel we should express some comments.

1) Extensive repetition of the prosecution’s responses

17.  First, under our jury system, the jury is charged with the function of making findings of fact.  Members of juries in Hong Kong are highly educated and, as we have observed from our experience, capable of making correct judgments on the charges before them.  In its closing submission, the prosecution makes detailed responses pertaining to their case and the defence case.   We do not consider it necessary for the trial judge in his directions to jury to extensively repeat the prosecution’s responses to the defence after setting out the defence.  It is of course open to the judge to offer his own views on the defence concerned, but in the end he has to set out, in an impartial and balanced manner, the positions of the prosecution and the defence.  If the trial judge exhaustively restated the prosecution’s arguments, this would cause a reasonable bystander to think that the judge was making another closing submission for the prosecution.

2) Proper language

18.  Second, the lawyer representing the prosecution at trial (Mr Tse appears for the prosecution on the present appeal only) used relatively vulgar and exaggerated language, such as “[the appellant] is not only a liar but also a best actress” and “she inclined herself to K.C. when she saw the chance for dosh”.   It is our view inappropriate for lawyers to use such language in the solemn setting of a court.  We hope lawyers will bear this in mind.

Retrial

19.  The respondent applied for a retrial and Mr Hung, Counsel for the appellant, had no objection thereto.  In our view, the conviction was quashed solely on the ground that the jury had been inadequately directed, and the prosecution’s evidence against the appellant was overwhelming.  Accordingly, we have ordered a retrial.