HKSAR v. ROSNAH BINTI ABDUL LATIP

FAMC No. 59 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 59 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 368 OF 2011)

_____________________

____________________________________

REASONS FOR DETERMINATION

____________________________________

Mr Justice Ribeiro PJ:

1.  At the hearing, we dismissed this application for leave to appeal, reserving our reasons which we now provide.

2.  The applicant was convicted of trafficking dangerous drugs after being intercepted at the airport with a suitcase containing 1197.16 g of a mixture containing 724.12 g of heroin hydrochloride. She was sentenced to 22 years’ imprisonment.

3.  The only issue at the trial was as to whether she knew that she was carrying those drugs.  Her case was that she had been duped by a former lover, a Nigerian named Kelly, into carrying the suitcase from Kuala Lumpur to Hong Kong and that she did not know that it contained the drugs.  She claimed that Kelly had promised her US$800 if she would travel to Guangzhou via Hong Kong to deliver to Kelly’s cousin a “pen drive” (used to store digital data) which he wanted to have copied on the Mainland.  She also claimed that he wanted the suitcase copied for sale in Nigeria.  She was convicted by the jury and her appeal was dismissed by the Court of Appeal.[1]

4.  The applicant seeks leave to appeal on the substantial and grave injustice basis, advancing the same ground as that which was rejected by the Court of Appeal.  The complaint is that the Judge[2] had delivered a summing-up which was unbalanced and unfair by posing a series of rhetorical questions which, Mr Dykes submitted, amounted to comment designed to strengthen the prosecution’s case.

5.  The passages complained of ran as follows:

“Members of the jury, in your approach to the account given by the accused, you will of course use your commonsense and your sense of realism. The uncontradicted evidence for the prosecution as to the value of these dangerous drugs is that their street value in Hong Kong in December 2010 was over HK$840,000.

On the accused’s account, it is being suggested that somebody used her to import these dangerous drugs into Hong Kong by duping her – in other words, by tricking her – in the way suggested. Ask yourselves this question – answering it with commonsense and realism: would anybody owning very valuable dangerous drugs entrust them to anyone other than a knowing drug courier who knew the precautions to be taken over them? Would drug dealers entrust valuable dangerous drugs to a wholly unsuspecting courier unaware of the care to be taken to ensure that the suitcase in which they were being carried was not lost or stolen? Would drug dealers take such a risk? And would not it be an even greater risk to entrust such drugs to a courier who, although not a known courier, had some suspicion? Would not the danger, apparent to the drug dealers, then be that the courier might, acting on such suspicion, reveal them to a policeman, to airport security staff or airline staff? If that was done while the drug dealers were nearby, they would not only lose the drugs but could themselves be arrested.

   These are the sorts of considerations which form the prosecution’s case – which the defence disputes and is for you to decide on – that the only reasonable inference is that the accused was a willing courier of these dangerous drugs and was unlawfully trafficking in them.”

6.  Mr Dykes submits that, without posing questions suggesting to the contrary, possible reasons why the jury could consider that such risk might be run by a drug supplier (such as that the courier might refuse to go at all, or might demand higher payment), the summing-up was unbalanced.

7.  Judges should of course bear it in mind that their fundamental duty in summing-up a case is to ensure a fair trial.  Their task is to identify the issues, relating them to the applicable law; to help the jury to understand how the accused may be guilty of the offence charged and also to understand the basis on which the accused asserts that guilt has not been established beyond reasonable doubt, giving any specific directions called for in the particular circumstances of the case.  The Judge is permitted to comment on the facts but such comment must be fair and balanced.[3]

8.  The direction given bore on an aspect of the central issue concerning the applicant’s knowledge.  It was an issue arising in the context of evidence which raised substantial questions as to the credibility of the applicant’s denial of the requisite knowledge.  The applicant had found it difficult to explain in cross-examination why, as she claimed, it had been necessary for her personally to make an international trip (and to be paid US$800) to deliver a “pen drive” worth no more than HK$120 and which was small enough to fit in her handbag, to Kelly’s cousin (whose contact details she did not have).  This is especially so in the light of her evidence that she had, while at Kuala Lumpur Airport, changed her return flight so as to return from Hong Kong the day following her arrival instead of after five days – which did not fit in with the idea of going to the Mainland to deliver the pen drive to Kelly’s cousin.  Although she had initially told Customs officers when intercepted that she had packed her own bag, her evidence was that Kelly had supplied the suitcase and insisted that she use it instead of her own; that Kelly and a friend of his had overridden her objections and re-packed her personal items in that suitcase and also placed in it a black item that she had not clearly seen; that Kelly had padlocked the suitcase and had given her no chance to look inside; and that he had hastened to check the bag in and then accompanied the applicant to the airport.  Kelly’s conduct was obviously highly suspicious and had caused the applicant to ask him whether there was anything illegal in the suitcase.  She said that she went ahead with the trip since she loved and trusted him. 

9.  Stock VP, giving the judgment of the Court of Appeal, rejected the applicant’s complaint about the rhetorical questions.   His Lordship pointed out that in the summing-up as a whole, the judge had outlined in considerable detail the applicant’s defence, mentioning a series of factors urged on the applicant’s behalf by her counsel at trial while stressing that the jury was entitled to disagree with any view that the Judge expressed; that they had to decide the case fairly; that questions of fact were for them alone; and that the prosecution bore the burden of proof.  Stock VP drew attention to the passage immediately following the impugned rhetorical questions, pointing out that it showed that those questions were put to the jury as representing contentions made or which might be made by the prosecution, being valid points for the jury to consider.

10.  We agree.  It would have been wiser for the Judge not to explain the prosecution’s case or possible case in the suggestive language of rhetorical questions – language that the prosecution itself might have used.  However, looking at the summing-up in the context of the evidence as a whole, we do not consider it reasonably arguable that it constitutes a substantial and grave injustice.  Leave was accordingly refused.