HKSAR v. LAI WING HUEN

[English Translation - 英譯本]

CACC 290/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 290 OF 2012

(ON APPEAL FROM HCCC NO.6 OF 2012)

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JUDGMENT

Hon Barnes J (giving the judgment of the Court):

Background

1.  The applicant 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 of the Laws of Hong Kong.  She pleaded not guilty.  After trial before Deputy High Court Judge Anthea Pang (as she then was) sitting with a jury, she was convicted on 12 July 2012 and was sentenced to 20 years’ imprisonment.  She applies for leave to appeal the conviction.

Particulars of offence

2.  The particulars of offence stated that on 6 September 2011 the applicant unlawfully trafficked in 2.29 kg of a solid containing 1.60 kg of cocaine at the Central Post Office, Nathan Road, Yau Ma Tei, Kowloon.

Prosecution case

3.  The prosecution case was by and large not in dispute.

4.  Two parcels declared to contain women’s shoes arrived in Hong Kong from Brazil by air on 2 September and 4 September 2011 respectively.  However, the two parcels contained instead two glass bottles resembling wine bottles (“wine bottles”) which were subsequently confirmed to contain a mixture of solid and liquid cocaine.

5.  On 6 September 2011, the applicant went to the Kowloon Central Post Office in Nathan Road, Yau Ma Tei to collect the said two parcels.  She showed a staff member of the post office the letters of authorization and copies of passports of the two recipients of the parcels (Singh and Prince).  She opened the parcels and put the four wine bottles therein into a reusable bag she brought with her.  Meanwhile, she more than once talked to others in English on her mobile phone.

6.  The Customs & Excise Officers who kept the applicant under surveillance in the vicinity stopped and arrested her when she was leaving the post office with the four wine bottles.  When she was cautioned, the applicant became emotional and started to cry.  She told the Customs & Excise Officers that she was collecting the two parcels for someone else and that she did not know what they contained. She said she intended to take the two parcels to Mainland China where she would hand them to someone else.

7.  Later, the applicant attended a video-recorded interview under caution.  She said she “collected wine samples” for one Charles, a friend of hers whom she came to know on the internet.  Charles used to be her boyfriend.  Not being a Hongkonger, Charles could not come to Hong Kong.  The recipients of the parcels were not in town either. As Charles was in urgent need of the wine samples to do business and was worried about other people taking out the wine samples, and so the applicant helped Charles collect the wine samples.  The applicant did not know the recipients and did not receive any reward for collecting the wine samples for Charles.

8.  The applicant said that the parcel boxes were too big and so, having obtained consent from Charles, she took out the four wine bottles and put them into a bag.

9.  The applicant stated that at that time she did not open the polyfoam bottle packaging to see what the bottles contained because she believed they contained wine.

10.  The applicant said that she did not know the wine bottles contained drug.

11.  Later, the applicant’s family members passed on to Customs & Excise records of her chats with others in an internet chat room.  Those records were also adduced as evidence.

Defence case

12.  The applicant elected to testify at trial.  She basically adopted what she had said during the video-recorded interview and reiterated that she did not know  the wine bottles contained a dangerous drug.

13.  The applicant explained that she came to know Charles in October 2009 on a social website called TAGGED.  She met Charles, who claimed to run a red wine business, in Shenzhen and did not feel anything wrong about him.  Later, they became lovers.  In early October 2010, the applicant collected a wine sample from DHL and took it to the Mainland for Charles, and they even consumed that wine sample together.  Around November 2010, the applicant met another male called Faith, following which her relationship with Charles “cooled off”.

14.  The applicant said that in August 2011 she gave Faith “the silent treatment” in August 2011 and knew that she might break up with him.  As she did not like being bored, she started seeing Charles again.

15.  The applicant said that she heard there were black people on the Mainland who engaged in drug business, and she wondered whether Charles was one of them.  Therefore, she asked Charles in the chat room “looking for someone help you on your drug business[?]” in order to “bluff him”.  At that time, Charles replied, “baby no”.  Thereafter, the applicant put aside her suspicion as she felt she had no evidence to prove that Charles was engaged in drug business and there were more than 200,000 black people on the Mainland.

16.  The applicant said to Charles in the chat room:

“You know the time I be with you, I love you with my heart,

but I find out you are using me to collect something for you,

why you do this to me that time?”

The applicant indicated that she said so because she thought Charles considered her a “gopher”.

17.  The applicant also said the following to Charles in the chat room:

“What I worried is the police come and catch me.”

“If there have something bad, cause I don’t know.”

“I protect myself.”

As to why she said these, the applicant pointed out that she considered there might be a problem about duty not having been paid on the wine samples, and “one might also be caught for not paying duty”.

18.  The applicant said she eventually agreed to collect the two parcels in question for Charles.  She said she believed they contained wine samples and she knew nothing about the drug inside.

19.  The defence also called as witnesses her former colleague(s), her superior at the real estate agency for which she worked at the material time, and her elder sister’s boyfriend. Their testimonies were essentially to the effect that the applicant was a simple-minded and trusting person but was able at work and not “brainless”. Her elder sister’s boyfriend also confirmed that she had been with Faith at one stage.

Additional evidence

20.  The applicant applied by motion on 20 June 2013 for production of additional evidence, which consisted of records of messages sent by someone called Charybrown2004 to the applicant in a chat room between 23 July 2012 and 23 September 2012 subsequent to the applicant being convicted of the offence.  The contents include:

“I am so sorry for what happened to you last year”

“it is all my [fault]”

“my friend lied to me”

“I want to pay you for the trouble my friend put you into”

The applicant submitted that if the jury had had the opportunity to consider such evidence, they would very likely not have convicted her of the offence.

21.  The respondent did not object to the production of additional evidence.

22.  Having considered the provisions on additional evidence under section 83V of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, we allowed the application.

Grounds of appeal

23.  Mr. Wong, Counsel for the applicant, has advanced three grounds of appeal in support of the contention that the conviction is unsafe and unsatisfactory.  We find it necessary to deal only with the first ground of appeal.

24.  This ground of appeal is that the directions given by the trial judge to the jury were unbalanced and unfair, as a result of which the applicant did not receive a fair trial.

25.  Mr. Wong submits that:

“(i) In his final submission, prosecuting counsel emphasized the applicant’s state of mind, ‘the defendant had already suspected that this so-called [CHARLES] might be a drug trafficker’, ‘she should have been wary’, ‘she herself knew that this CHARLES might be a drug trafficker’, ‘if the defendant thought that there might be something wrong with the wine, why wouldn’t she have thought that, apart from duty not having been paid, the wine might be a drug instead of wine’, ‘she did not check, obviously because she knew it was not red wine inside’ and ‘had you harboured slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look’. None of these is equivalent to ‘knowledge’ as required by law. However, in directing the jury, the deputy judge merely pointed out that the following requirements: -

(a) As to the law, you must follow the directions and explanations given to you. In other words, in case of differences between what counsel said and what I said, you must accept and follow the directions on the law that I give you.

(b) I shall not repeat the final submissions made respectively by prosecuting and defence counsel that you heard yesterday. If you agree with their views, you may of course take them into consideration; otherwise, you should ignore those views and apply your own inclinations and views when you consider the evidence adduced in the present case.

(c) There are three elements to possession: first, the defendant must have knowledge, which means she knew she was in possession of a dangerous drug or drug. I repeat, the defendant must have knowledge, which means she knew she was in possession of a dangerous drug or drug;

(d) In respect of the defendant’s chat room records, prosecuting counsel emphasized certain parts thereof in his final submission, including: -

(da) ‘causes you are looking for someone help you and your drug business.’

(db) ‘I am stupid, but I can see what is true.’

(dc) ‘ask me to collect something for you, I think you are using me.’

(dd) ‘what I worried is the police come and catch me.’

However, the deputy judge never directed the jury as to whether what prosecuting counsel emphasized as the applicant’s state of mind was different from the ‘knowledge’ that she referred to, and whether what prosecuting counsel suggested was equivalent to ‘knowledge’.  Coupled with the fact that the jury was asked to consider whether they agreed with prosecuting counsel or not, this might have caused them to mistakenly conclude that the applicant’s state of mind that [she] ‘should have known’, ‘should have understood’ or ‘should have checked’, which fell short of ‘knowledge’ in law, was also sufficient to support a conviction.  The chat room records showed that the applicant raised doubts about CHARLES.  The failure to mention all such things, coupled with the sheer reference to those recorded doubts which plainly showed that the applicant’s state of mind was one of suspicion not knowledge, might have caused the jury to think that what prosecuting counsel had emphasized and its possibly misleading [effect] were all the more powerful and compelling.”   

Discussion

26.  In her chat room conversations with Charles, the applicant had said things which appeared to be unfavourable to herself, such as “looking for someone help you on your drug business”, “… asked me to collect something for you…”, and also “what I worried is the police come and catch me” etc.  In all circumstances of this case, if the jury did not believe the explanation she gave in the court, the jury would very likely draw the only reasonable inference that the applicant knew that the bottles contained a dangerous drug.

27.  There is no doubt that prosecuting counsel said in his final submission that “she did not check, obviously because she knew it was not red wine inside” and that “had you harboured slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look”.  Prosecuting counsel appeared to be pointing out to the jury that, from the applicant’s conduct of deliberately not opening the wine bottles to take a look, an inference could be drawn that the applicant knew what the bottles contained.     

28.  The only issue in the present case was whether the applicant had “knowledge”.  The judge must make it clear to the jury that mere suspicion was not enough and that the prosecution had to prove that the applicant knew the wine bottles contained a dangerous drug.  In light of the above submission from prosecuting counsel, it was necessary for the judge to clearly point out to the jury that mere failure to examine the wine bottles or “to check” was not by itself equivalent to the applicant having knowledge of what the wine bottles contained.

29.  In the present case, the judge had more than once reminded the jury that the prosecution bore the burden of proof and had to prove that the applicant knew the bottles contained a dangerous drug.  However, after prosecuting counsel made the above submission, the judge did not make it clear to the jury that mere suspicion was not enough, and this might have misled the jury into thinking that if the applicant had harboured slight suspicion but had not opened the polyfoam boxes to see what the wine bottles contained, this would be equivalent to her having knowledge.

30.  For the above reasons, the conviction is in our view unsafe.  We grant the applicant leave to appeal the conviction and, treating the hearing of the application as the appeal proper, we allow the appeal, quash the conviction and set aside the sentence.

30.   We will hear submissions as to whether there should be a re-trial.