HKSAR v. MAKHUBU BUSISIWE MINAH

CACC 423/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 423 OF 2008

(ON APPEAL FROM HCCC NO. 214 of  2008)

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JUDGMENT

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Hon Wright, J. (giving the judgment of the Court):

1.  On 16 December 2008 the applicant was convicted, after trial, by a jury, which returned a majority verdict of 6 to 1, before Deputy High Court Judge Line on a single charge of trafficking in a dangerous drug, namely 551.5 grammes of heroin hydrochloride. She was thereafter sentenced to undergo imprisonment for a period of 15 years. She has abandoned today her application for leave to appeal sentence which accordingly stands dismissed. She now seeks leave to appeal conviction.

The conviction

2.  The facts are simple and were not disputed at trial. The applicant arrived by air from Johannesburg, South Africa, on 16 May 2008. She collected her suitcase from the baggage conveyor belt and entered the "nothing to declare" Channel in Customs Arrival Hall B at Hong Kong International Airport. She was stopped. Enquiries were made of her. She was asked to undergo Customs examination. The suitcase was x-rayed. The results of that examination aroused the suspicions of the customs officer. The applicant provided the number to the combination lock to enable the suitcase to be opened. When it was, the lid appeared unusually heavy. The lining was removed. Beneath the lining there was a sheet of carbon paper beneath which was a concealed compartment. That compartment contained 10 transparent plastic bags which, in due course, were found to contain the drugs which were the subject matter of the charge.

3.  The applicant was cautioned. She was thereafter interviewed, in English. She said that as far as she was concerned the only thing inside the suitcase had been her personal items and clothing, that she knew nothing of the concealed compartment or the presence of the drugs. The suitcase had been provided to her by an unknown and unnamed Nigerian whom she was unable to contact. She had come to Hong Kong to visit her mother who, she believed, was living here. The issue before the jury, therefore, was whether the applicant knew that she was carrying dangerous drugs.

4.  The judge commenced his summing up to the jury on 15 December 2008. He identified the issue clearly for the jury and explained to them that this was a matter for them to decide: that it was their decision as to how much weight to attach to the applicant's evidence. He explained to them that it was sufficient for the prosecution to prove that the applicant knew that the substance was a dangerous drug of some sort, that she need not know the precise nature of the substance. The judge explained, clearly and in the usual terms, the burden and standard of proof to the jury. No complaint is made concerning any of the directions given on 15 December 2008.

5.  The judge continued and concluded his summing up on 16 December 2008. He told them in what manner they should approach their decision; that he was able to accept a majority verdict; what would happen when they came back into court to return a verdict; not to feel rushed; and that the jury usher would be at their disposal outside their room. He then went on to say:

"What I shall do is I shall just try and identify for you some talking points that can be made for either side. The fact that I select these, and it is a selection from the evidence, does not mean these are the good points or the bad ones either way. It is for you to make up your mind what you think is important in the case as I told you at the beginning of my summing up. But sometimes it may help the jury merely to have what could be the possible points for or against told to them at this stage...."

6.  The judge then went on to point out, quite accurately, a number of matters that "could be said on the prosecution's side". Having done this he considered "What would you say from the defence point of view?". After he, again quite accurately, highlighted salient features in the defence case he said this:

"Balancing all of those things is your job. Not an easy job but it is one you are about to undertake now. So that is all I need to say to you and, as I stress too, those things I have taken out of the case, those considerations I have just given you, those are the ones that occurred to me. I might well have missed some. There might be ones that you think are more important or better will help you decide the case. You follow your own judgement."

7.  It is the applicant's contention that by his opening phrase the judge totally undermined a summing up which otherwise was impeccable in terms of the directions given on law, was fair and was completely balanced for both the prosecution and the defence. It is submitted that this phrase, following as it did on a précis of aspects of the respective parties evidence, could well be or have been understood by the jury that it was permissible for them to perform a balancing exercise to establish which of the prosecution and defence case they found preferable – an approach which, of course, is incorrect.

8.  We do not agree. It is both unhelpful and unrealistic to extract a single word or phrase from an entire summing up, subject it to microscopic examination ignoring its context and then proclaim its part as destructive of the whole. It is the overall summing up and its impact on the jury which falls to be considered, not the odd word even if it be wayward.

9.  It would have been perfectly apparent to the jury that the judge was simply illustrating the two competing cases by reference to certain facets of the evidence. Given the clear and emphatic terms in which the judge earlier in his summing up, albeit the preceding day, had directed the jury on the burden and standard of proof there can be no realistic suggestion that the jury would or may have been misled into thinking that they should be anything other than satisfied of the applicant’s guilt beyond reasonable doubt.

The result

10.  There is no merit in the application which is dismissed.