HKSAR v. MISTUN

CACC 264/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 264 OF 2012

(ON APPEAL FROM HCCC NO. 430 OF 2011)

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D E C I S I O N

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Hon Lunn VP (giving the decision of the court):

1. On 16 October 2013, we handed down our Reasons for Judgment for dismissing on 10 October 2013 an application by the applicant for leave to appeal against her conviction on 18 June 2012 after trial by Macrae J, as he was then, and a jury of a single count of unlawfully trafficking in dangerous drugs, namely 287.95 grammes of cocaine on 30 June 2011.

2. By a notice of motion filed on 5 June 2014, the applicant seeks leave to make an application out of time for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, that points of law of great and general importance are involved in our decision.

3. At the suggestion of Court, and with the consent of the parties, we deal with the applications on the papers without an oral hearing.

Application out of time

4. The application for an extension of time to make the application arises because Practice Direction 4.3 requires that an application for a certificate be made within 7 days of the handing down of judgment.  The application is more than seven months out of time.  In an affirmation filed with the court on 5 June 2014 Mr Philip Swainston, the applicant’s solicitor, sought to explain the delay as having arisen from the delay in the Director of Legal Aid in granting the applicant’s application for legal aid to assist her in making the application.  The application was made first on 22 October 2013 and was refused on 16 December 2013.  However, on 3 January 2014 the applicant applied to the Legal Aid Services Council to review the decision of the Director of Legal Aid.  On 22 April 2014, an Appeal Aid Certificate was granted to make an application to the Appeal Committee of the Court of Final Appeal.  Following an application filed on 9 May 2002, a second Appeal Aid Certificate was granted on 29 May 2014 to make an application to this Court.

5. Whilst it is clear that those representing the applicant, at the hearing of the appeal and subsequently, acted reasonably expeditiously, nevertheless truly lamentable delay has ensued between the handing down of our Reasons for Judgment on 16 October 2013 and the filing of the notice of motion on 5 June 2014.  Although we are not privy to any detailed explanation of that delay, it appears to have occurred because of a deplorable lack of urgency within the Legal Aid Department in processing and then reviewing the applicant’s application for Legal Aid, evidencing an indifference to the statutory time limits for the making of this application.

6. Nevertheless, as we have said, it is clear that the applicant has acted with reasonable expedition in applying for legal aid and so we grant her the extension of time she seeks.  We now turn to the merits of her application.

7. The points for which certification is sought are posed in the following questions:

“ 1. Whether it was appropriate for the learned trial court to give a “lies direction” to the jury where the matter contended by the prosecution had not been admitted by the Applicant as lies and they were not proved to be lies, especially as there was nothing in this instant case to show there was a deliberate lie relating to material issue in this case and no innocent explanation for the lie.  In addition the Applicant had not admitted a lie nor were there major inconsistencies in the Applicant’s evidence, it being the Applicant’s defence that the Applicant believed the parcel contained clothes and were a wedding present for her.  Thus, there was no evidence to show a lie by the Applicant by independent evidence thereby, was it wrong in law, unnecessary and inappropriate to give a lie direction in this instant case.

2. Whether it was sufficient in law for the Applicant to be only told and/or informed at the time of her arrest she was suspected to have committed an offence under the Dangerous Drug Ordinance where the customs officer was clearly in a position to have specifically told the Applicant and she was suspected of trafficking in cocaine, thereby the omission to do so contravened and/or breached the Applicant’s constitutional right to remain silent after arrest and caution, and/or failed to provide the Applicant sufficient information about the suspicion to enable the applicant to make an informed and reasoned decision to exercise her constitutional right to silence.”

The issues

8. During the night of 27/28 June 2011 Customs & Excise offices intercepted a parcel sent from Argentina which, on inspection and testing, was found to contain plastic bags of cocaine hidden in plumbing fittings. Thereafter, they monitored its collection.  The applicant was arrested on the morning of 30 June 2011 by Customs & Excise officers after she had collected the parcel from a Post Office.  It was the prosecution case that, in face of being told in English that she was being arrested for an offence contrary to the Dangerous Drugs Ordinance and cautioned, the applicant claimed that she believed that the contents of the parcel were wedding clothes for her own marriage.  It was the defence case that the applicant did not understand for what she had been arrested. So, the crucial issue was the applicant’s knowledge of the contents of the parcel.

As to Question 1: the ‘lies’ direction

9. As was noted in the Reasons for Judgment of the Court, Mr Fitzpatrick, counsel for the prosecution at trial invited the judge to give a ‘lies’ direction to the jury.  Although at first Mr Beel, counsel for the applicant at trial, told the judge that he did not wish a ‘lies’ direction to be given to the jury, “Defence counsel then came round to agreeing that it would be better for the direction to be given.” [1]  In his summing up, the judge reminded the jury that the prosecution had opened on the basis that the applicant had lied in the account of events that she had given in her out-of-court statements, thereby demonstrating a “guilty knowledge of what was in the parcel”.  Further, that it was contended “that she persisted with those lies in her evidence before you”.

10. In those circumstances, as was noted in the Reasons for Judgment of the court, “It is thus not at all surprising that the judge gave the direction and we can see nothing wrong in his taking that course, although this was not the usual classic case for the direction.” [2]  Nevertheless, the nub of the complaint made on behalf of the applicant was identified as being, “whether the giving of the standard direction could conceivably have done any harm to the applicant”.  In rejecting the submission that it could have done so, this Court said: [3]

“ The direction was in standard terms and left the issue of whether or not a lie had been told as a question of fact for the jury. If the applicant’s argument is correct, the standard direction could never be given in a case where there was a dispute about whether a lie had been told, without giving rise to mischief claimed. Such is obviously not the case.”

11. We are satisfied that no point in law of great and general importance arises.

As to Question 2: the provision of sufficient particulars of the offence for which the applicant was arrested

12. Although, as posed, Question 2 does not identify specifically the issue to which the provision of sufficient particulars of the offence for which the applicant was arrested was relevant, it appears to be directed to the judge’s ruling in the voir dire as to the admissibility of out-of-court statements made by the applicant.  That issue was addressed as the first ground of appeal in the Reasons for Judgment of the Court.  The basis of the submission was described as being: [4]

“ The claim is based on the fact that when the applicant was arrested she was only told that she was suspected to have committed an offence under the Dangerous Drug Ordinance, when the officer was in a position to have told her specifically that she was suspected of trafficking cocaine. It was argued that the applicant had been deprived of the opportunity of making an informed choice of whether to speak or remain silent.”

13. The Reasons for Judgment went on to note of the judge’s ruling: [5]

“ The judge also considered that the alleged failure to mention cocaine at the scene of the arrest was of little moment. He was of the view that what was important was making clear to the applicant that she was suspected of committing a dangerous drug offence as opposed to specifying whether it involved heroin, cocaine or ice or whatever. We share that view. Whilst it may have been preferable to name the drug, we do not consider that the failure to do so should have led, by itself or in combination with other points made, to the exclusion of the evidence in question.”

14. Furthermore, the judgment went on to note that, given that the applicant did not testify in the voir dire, there was no evidence from her, therefore, that she did not understand the reason for her arrest.[6]  By contrast, it was noted that in the video record of interview the applicant acknowledged the accuracy of the written post-record made in respect of the circumstances of her arrest and was reminded in questions that she had been carrying a parcel and had been arrested on suspicion of violating the Dangerous Drugs Ordinance.[7]

15. Of the failure of the police officers to stipulate to the applicant that she was suspected of “trafficking” in dangerous drugs the judgment noted:[8]

“  We are in no doubt that the applicant then well understood that the reason for her arrest was an allegation that she was carrying drugs in the street in the parcel.  The judge decided that the fact that such an activity was not described by the word “trafficking” to be insufficient to engage his discretion to exclude the evidence.  We agree with him.  The submissions made on behalf of the applicant lost sight of the distinction between telling suspects the reason for their arrest and identifying the actual crime suspected.”

16. Obviously, the issues identified in Question 2 are fact sensitive and do not give rise to any point of law of great and general importance.

Conclusion

17. Accordingly, we dismiss the application.

[1] Reasons for Judgment, paragraph 15.

[2] Reasons for Judgment, paragraph 16.

[3] Reasons for Judgment, paragraph 16.

[4] Reasons for Judgment, paragraph 4.

[5] Reasons for Judgment, paragraph 6.

[6] Reasons for Judgment, paragraph 7.

[7] Reasons for Judgment, paragraph 8; Appeal Bundle; pages 236-241, counter #s 136-165;pages 243-6, counter #s 182-203.

[8] Reasons for Judgment, paragraph 8.