HKSAR v. KARAUL DARIYA

CACC 349/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 349 OF 2011

(ON APPEAL FROM DCCC 427 of 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the reasons for judgment of the Court):

1.  The applicant was convicted on 24 August 2011 before Deputy Judge Anthony Kwok in the District Court of a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sentenced to six and a half years’ imprisonment.  The drug in which she was trafficking was 140 grammes of a powder containing 110 grammes of ketamine.  She appeals against her conviction only.

2.  On 5 December 2012, we refused the application for leave to appeal against conviction and said we would give our reasons in due course.  This we now do.

3.  Mr Egan, who appears for the applicant, has advanced three grounds of appeal, which essentially come down to the same point, namely, that the applicant did not receive a fair trial by virtue of the conduct of her defence by her counsel (defence counsel).  Although he shied away from asserting flagrant incompetence, that in truth had to be his assertion, for otherwise he was alleging no more than tactical decisions which were questions of judgment within an acceptable range. 

4.  Given the nature of the complaint, and pursuant to an order made by Stock VP on 3 May 2012, defence counsel and his then instructing solicitor were required to file an affirmation in response to the allegations made.  These affirmations having been placed before us, Mr Egan was content to make his submissions on the basis of what they contain without recourse to further evidence from the deponents.

5.  In the light of the argument and the issues which it engages, it is necessary to set out the evidence at trial in some detail.

The prosecution case

6.  At about 10:00 pm on 1 March 2011, police officers were conducting an anti-dangerous drugs operation in the vicinity of Pitt Street and Portland Street in Yaumatei, Kowloon.  At 10.55 pm, the applicant was observed carrying a black bag and looking around nervously.  Accordingly, they approached her and asked to look inside the black bag.  In a pullover inside the bag, one of the officers found a transparent resealable plastic bag containing two further plastic bags containing white powder which they suspected to be ketamine.  At 11:00 pm, the applicant was arrested for trafficking in dangerous drugs, whereupon she became somewhat agitated.  She was subsequently subdued and brought back to the police station where she remained silent under caution.  The contents of the two plastic bags were later examined by the government chemist and confirmed to be ketamine in the quantities set out above.

The defence case

7.  Although the applicant testified that she was born in Ukraine and that her native tongue was Russian, she nevertheless gave her evidence in English.  She had arrived in Hong Kong in 2004 to work as a dancer and in 2005 married her husband who was a Hong Kong permanent resident. However, things began to go wrong with the marriage and in 2010 she moved out to live with a male friend who had been very supportive of her during her difficulties with her husband.  She had by then already made the acquaintance of a Chinese male, whom we shall simply call Anthony, although his full Chinese name was given in evidence.  Anthony was the boyfriend of one of her Russian friends. She understood that Anthony had previously been a policeman, although he was currently involved in business.

8.  There came a time when the applicant wished to get back together with her husband but neither of them was employed nor could they afford to rent an apartment.  Accordingly, Anthony offered them both the use of one of his apartments in Yaumatei on the condition that they would share it with two other tenants.  The applicant eagerly accepted this offer and arrangement.

9.  At the same time, Anthony offered to use his car to transport her belongings from the home of the male friend with whom she had been living to the new premises.  However, for reasons it is not necessary to go into, some of the applicant’s belongings were temporarily stored at a guesthouse owned by Anthony in Yaumatei.  A few days later, on 1 March 2011, Anthony together with his wife collected the applicant in his car in order to retrieve her belongings from the guesthouse.  However, when she was about to take her bags down to Anthony’s car, he suddenly told her that he had something urgent to do and asked if she could do him a favour.  He explained that his wife was waiting for him at an MTR station and he needed to pass something to her.  Given the help which Anthony had so far rendered to the applicant and her husband, she thought nothing of doing him this favour which would only have taken 10 minutes.

10.  Accordingly, Anthony gave her a black bag and she walked down to the MTR station.  On her way she was intercepted by police officers who initially asked her for some identification.  However, she explained that she did not have it with her, although she had some identification at home.  They then asked to search her handbag but nothing of any consequence was found.  One of the officers then told her that she would still be required to go back to the police station with them.  At that point she tried to call her husband but her mobile telephone was taken away from her as was another telephone in her possession.  The applicant then began arguing with the officers, during which time one of the officers took from her the black bag which Anthony had given her and went aside to examine it.  Shortly afterwards, she saw him lift something up with his hand to show his colleagues. The applicant was then arrested and a commotion ensued in which she accused the police of planting something in the bag.  She accepted that she became quite emotional, asked the police why they were doing this to her and refused to be placed in a police vehicle.  However, she was subsequently subdued and conveyed to the police station.

The grounds of appeal

11.  The sole complaint in this appeal is, in its true effect, that the applicant did not get a fair trial by virtue of defence counsel’s flagrant incompetence.  There is no direct attack on the deputy judge’s findings or the way in which he approached the evidence.  However, Mr Egan argues that the consequence of defence counsel’s advice and conduct of the trial was that the deputy judge was erroneously led into believing, as he observed at the outset of his Reasons for Verdict, that the case was “a classic stop and search scenario”, when in reality it was something quite different.  Consequently, the full picture was never properly presented to the court, as a result of which she did not receive a fair trial.

The applicant’s instructions

12.  The basis of the argument is that prior to trial, defence counsel had been given 16 pages of written instructions as to the applicant’s case.  In those instructions, the applicant gave further details about Anthony, whom she had come to know through his Russian girlfriend. It was through the girlfriend that she discovered that Anthony had once been a policeman.  She also learned that he was involved in drugs and had in fact served two months’ imprisonment for possession of dangerous drugs.  The applicant further disclosed that Anthony’s girlfriend had also been charged with trafficking in dangerous drugs in an unconnected incident.

13.  Further in her instructions, the applicant detailed an incident which took place on 20 December 2010; some three months before her own arrest.  She had been about to get into Anthony's car early one morning together with Anthony and another Chinese male when the police intercepted the three of them.  The car was searched and 7.43 grammes of cocaine found inside.  All three were then arrested for possession of dangerous drugs.  In the event, she and Anthony were never charged because the other Chinese male “took the blame for the drugs”.

14.  The applicant also disclosed in her instructions that her husband had been sent to prison for nine months in early 2010 for possession of an offensive weapon.

15.  As a result of what she knew about Anthony, whom she described as “a person of some influence”, still with connections in the police force, the applicant said that she had come to the conclusion that she must have been set up by Anthony for the police to arrest her in possession of drugs.  In support of her belief, she alleged that her husband had been beaten up by Anthony's driver as a warning not to get involved in the case.

Defence counsel’s advice

16.  It is accepted by defence counsel that he had read and discussed these written instructions with the applicant at his second conference with her at Tai Lam Centre for Women.  However, he was concerned that if she were to give evidence concerning Anthony’s background involving dangerous drugs, in particular the incident in which the applicant had herself been arrested with Anthony for possession of drugs, it would undermine her defence that she did not know what was in the bag when he gave it to her to pass to his wife.  Defence counsel was of the view that it would have been “highly prejudicial” to have given evidence suggesting that Anthony was a known drug dealer when she had accepted the black bag from him in the circumstances she described.  He was concerned that if such matters were explored in cross-examination, it would have had a very damaging effect on her case.  Consequently, he advised the applicant that she should not lead evidence of the previous incident in which she and Anthony had been arrested for possession of dangerous drugs.

17.  Nevertheless, defence counsel indicated to her that he could still paint a picture for the court that someone had set the applicant up.  To that end, he proposed admitting into evidence two admitted facts, which he had brought with him in draft form for the purposes of the conference.  The admitted facts were to the following effect:

“7. At 8:30 pm on 1 March 2011, PC 5327 attached to District Special Duty Squad 3 Kowloon City interviewed a casual informer who gave the information that a blonde hair foreign girl of twenty odd years of age and of medium build, was trafficking in dangerous drugs at Pitt Street and the vicinity in Yaumatei area.

8.      PC 5327 passed on the information to his team Sergeant 33138 which resulted in the anti-dangerous drugs operation during which the defendant was arrested.”

18.  Defence counsel took the view that proof of those facts was a necessary part of her defence and, indeed, was consistent with the notion that somebody may have set her up.  Whilst they could never be evidence of the truth of the assertions made, he considered that the proposed admitted facts did establish that the police were acting on a tip off from somebody who was able to give an accurate description of the applicant.

19.  He has explained in his affirmation that the applicant agreed to these tactics; as a result, she would not lead evidence of Anthony’s background in dangerous drugs but still testify that Anthony had given her the black bag in the circumstances she described in her instructions.  Indeed, she subsequently signed a confirmation prepared by the solicitors to this effect, which has been produced before us.  In due course, these admissions were incorporated in the Admitted Facts produced at trial.

20.  Mr Egan takes issue with this advice and argues that to have made the admissions that defence counsel did on behalf of the applicant necessarily required the defence to expose the full history and role of Anthony, if there was to be any hope of raising a reasonable possibility in the mind of the deputy judge that she may indeed have been set up as a drug courier.  He submits that for defence counsel to have made the admissions but to have suppressed the true history and role of Anthony, and to have made the tentative suggestion in submissions (as he did) without identifying the prime candidate for the set up, was always going to be a forensic lost cause.  Accordingly, he says that such advice and conduct on the part of defence counsel imperiled the fair trial of the applicant.

Discussion

21.  It may be that Mr Egan would have conducted this trial differently.  However, exposing the full history and role of Anthony as a matter of tactic also carried with it obvious risks.  It is quite apparent from a letter sent by the applicant's solicitors to the Department of Justice on 25 July 2011 (ie the month before the trial) making enquiries about Anthony's possible involvement in this case that the prosecution would have been alerted to the incident in which cocaine was found in his car; for that incident was specifically referred to in the letter as was the fact that the applicant and Anthony had been arrested for possession of dangerous drugs, albeit they were not ultimately charged.  As defence counsel correctly anticipated, the very first question in cross-examination of the applicant by prosecuting counsel was “Is Anthony a drug addict?”, while the second was “Is he a drug trafficker?” To the latter question, the applicant answered “I’ve never seen Anthony do anything illegal.  Whenever we met, for dinner or at a house, I've never seen or noticed anything that looked illegal.”

22.  If the applicant's instructions about Anthony were true, then her answer in evidence was disingenuous.  Be that as it may, it had the effect of preventing prosecuting counsel from developing the very point which defence counsel feared, namely, that she was carrying a bag for someone she knew from her own experience and knowledge was connected with dangerous drugs.  Had the full history and background of Anthony’s connection with dangerous drugs (and, for that matter, his girlfriend’s connection with dangerous drugs) been disclosed, the cross-examination would have taken a very different course.

23.  We do not think that defence counsel can be criticised for the tactical decision that he took.  It is clear that he had thought about it carefully and discussed it thoroughly with his client before making the decision (with her understanding and written approval) that the trial would proceed along the lines it did.  Mr Egan’s different tactical approach may well also be valid; although, as we have pointed out, it carried with it certain risks.  It should also be remembered that the notion that Anthony had set the applicant up involved a large measure of conjecture on the applicant’s part.  Even if it had been true that Anthony had given her the black bag containing dangerous drugs to pass to his wife, it does not necessarily mean that he was intent upon setting the applicant up.

24.  Mr Sham for the respondent, in his helpful submissions, relies upon the statement of principle in R v Birks (1990) 48 A Crim R 385, which has a particular resonance in the present appeal.  At 390, Gleeson CJ held:

“As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.”

25.  This particular passage was cited with approval in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, where the Court of Final Appeal concluded, at 144:

“It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any grounds for appeal, anymore than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”

26.  Although the Court went on to recognise that in exceptional circumstances “an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice”, we do not consider that defence counsel’s tactical decision to conduct the defence of the applicant in this way came anywhere near the sort of exceptional circumstances the Court had in mind.  On the contrary, we think that it was a legitimate tactical decision by defence counsel, which was properly reasoned, explained and consented to by the applicant.  Whilst not conclusive of the matter, defence counsel has attached to his affirmation a letter written to him in English from the applicant prior to the delivery of the verdict complimenting him on the way in which he dealt with the case and its difficulties.  The applicant wrote in her own hand:

“…I want to say thanks to you for my Friday court. I think you guys did a great job. I want to apologise for the problem I (have) been giving you all this time!”

27.  It would seem that the applicant’s complaint about the conduct of her counsel at trial has only surfaced since her conviction and sentence and upon her instructing other counsel.  We would suggest that counsel advising on appeal should consider very carefully indeed before impugning tactical decisions taken by different counsel at trial with which they may disagree, or before criticising purported errors of judgment which they may regret.  They should bear well in mind the very exceptional nature of such complaints as grounds of appeal.  In our view, this was not a ground that should have been taken in this case.

28.  For these reasons, the application for leave to appeal against conviction was refused.