HKSAR v. HENAO TORRES OSCAR OSWALDO

CACC 153/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 153 OF 2011

(ON APPEAL FROM HCCC NO. 262 OF 2010)

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BETWEEN

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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 28 March 2011 the applicant was convicted after trial before Deputy High Court Judge Li and a jury upon an indictment which charged that on 10 March 2010 at Hong Kong International Airport, he unlawfully trafficked in 608.76 g of cocaine. He was sentenced to 20 years 6 months’ imprisonment and now seeks leave to appeal against conviction.

2.  The facts were that on the morning of 10 March 2010, the applicant arrived at the Airport on a flight from Moscow and was stopped going through the green channel at the Arrivals Hall.  He was carrying a blue suitcase with plastic wrapping and also a green case.  Hidden in a compartment of the blue suitcase were three bags containing the drugs valued at HK$1.58 million.

3.  The applicant is a national of Colombia.  His evidence was that he was in the business of selling sports shoes in Colombia.  One of his regular customers was a person called Gabriel who had an associate named José.  In 2009, Gabriel proposed that he would fund a trip by the applicant to Mainland China where the applicant would purchase counterfeit sports shoes for sale in Colombia.  Prior to the trip, José delivered to the applicant the blue suitcase and it was José who packed the two cases.  The applicant did not know that drugs were hidden inside the blue case, he said.  He had been told that his ultimate destination was Guanzhou to where he would travel in the company of an associate of Gabriel called Barmenio who lived on the Mainland.

4.  The primary ground of appeal contends that the nature of the summing-up was such as to cross the line from permissible judicial comment to a balance of a kind rendering the trial unfair.

5.  In HKSAR v Punsalang Elmer Umali [2011] 3 HKC 146, the Court pointed out that it was open to a judge to comment upon evidence and, if the circumstances so warranted, he might do so in forceful terms.  However, a summing-up must be fair and balanced and a judge should not descend into the arena and don, or appear to don, the mantle of the prosecutor.  A summing-up which renders otiose the standard reminder that the decision is that of the jury’s is not an acceptable summing-up.  Whether the permissible line is crossed, so as to render the trial unfair, is a question of context, degree and feel of the summing-up as a whole.

6.  We are satisfied that, unfortunately, this summing-up, delivered before that judgment, was because of its tenor and imbalance such as to deprive the applicant of a fair trial.

7.  The applicant was cross-examined for almost a full day.  No stone was unturned by prosecuting counsel and prosecuting counsel’s closing submission made all the points which could sensibly and powerfully be made in support of the prosecution case.  It was, in other words, not a case in which there was a failure by prosecuting counsel so to conduct the case as to give rise to a real risk that, for that reason, an obvious miscarriage of justice was likely; for, in such a case, the judge is not bound to remain mute. He may tactfully and in a measured way draw the jury’s attention to obvious matters they may wish to consider, even if they are contrary to the case put forward on an accused’s behalf, as long as the summing-up remains balanced and fair.

8.  Having briefly stated the applicant’s defence in this case, the trial judge engaged upon a detailed analysis of almost every aspect of that defence but did so in a way which constituted a point-by-point demolition of the applicant’s evidence and in a way which clearly suggested, in its effect, that any application of common sense and experience would lead a fact-finder to reject that evidence.  It was not a question of one or two aspects of the evidence treated in this manner, but a seriatim analysis of a series of assertions central to the defence case; with a comparison in each instance of differences between the oral evidence and the record of interview taken shortly after the applicant’s arrest or with what common sense would dictate.  And the manner of that analysis and the questions posed for the jury’s consideration gave to the summing-up a decidedly prosecutorial air and in reality left the jury with little option but to reject the evidence of the applicant in its entirety.  There was no direction that lies were not to be equated with guilt, so the conviction is impeachable for that reason too.

9.  There is an ancillary complaint, allied to this main ground, that cross-examination of the applicant was interspersed with questions by the trial judge of a kind almost uniformly sceptical of the applicant’s case.  It is not necessary for us to decide whether these questions were such as, on their own, would have rendered the conviction unsafe but it suffices for present purposes to say that in their number and nature, they too took on an air which went beyond clarification or the illustration of an obvious oddity that called for explanation.

10.  It is obvious to us that the conviction cannot stand and, accordingly, we grant the applicant leave to appeal against conviction, treat the hearing of the application as the appeal, allow the appeal and set aside the conviction.  We order the applicant to be retried upon a fresh indictment.