HKSAR v. TSIM HIU YEE

CACC 154/2017

[2019] HKCA 1097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 154 OF 2017

(ON APPEAL FROM HCCC 423/2016)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The appellant was charged with trafficking in a dangerous drug, namely, 1,372.70 grammes of a powder containing 864.70 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  She pleaded not guilty to the offence but on 22 May 2017, after a trial before Zervos J (as Zervos JA then was) (“the judge”) and a jury, the appellant was convicted.  On the next day the appellant was sentenced to 11 years and 9 months’ imprisonment. 

3.  On 26 May 2017, the appellant filed a Notice of Application for Leave to Appeal (Form XI) against her conviction.  On 6 September 2019 the appellant was granted leave to appeal on the respondent informing the court that it would not be opposing the appeal and would not be seeking a retrial.  At the hearing of the appeal we allowed it, quashed the conviction and set aside the sentence.  These are our reasons for so doing. 

The trial

The prosecution case

4.  The prosecution case was largely undisputed. It was an admitted fact that on 16 May 2016, the appellant was stopped by Customs Officers at the Customs Arrival Hall, Lok Ma Chau Control Point.  At the material time, she was carrying a white paper bag which contained a white cardboard box.  Inside the cardboard box were 9 transparent plastic bags which contained a total of 864.70 grammes of ketamine narcotic. 

5.  In her video-recorded interview, the appellant said she encountered a post on Facebook about recruiting someone to go abroad. Having contacted the person, whom she referred to in her phone book as “Going Abroad”, via WhatsApp a week before the arrest, the appellant was offered HK$50,000 for delivering some “things” in two trips.  The appellant said that when she asked this person what the “thing” was, “Going Abroad” told her that it was “DD”.  When the appellant further asked what “DD” was, “Going Abroad” said it was ivory powder.

6.  After her arrest the appellant agreed to participate in a controlled delivery and to this end she was given access to her phone.  Whilst in possession of her phone she deleted many of the messages in it which would have supported her exculpatory explanation that she believed she was transporting ivory powder.

7.  The prosecution case was that given the education level of the appellant, she must have known that “DD” meant dangerous drug and the reason she deleted her phone messages was because they were incriminating.  Much was made by the prosecutor of her suspicious conduct in his closing address.  He said:

“You might think in those circumstances, members of the jury, that the only sensible inference that you can draw from that behaviour was that the messages, firstly, said absolutely nothing about ivory powder, and secondly, you might think, mentioned dangerous drugs because why else delete them? Why delete them? Why not let the Customs officers see them if they were either exculpatory, in other words said ivory powder, or meant nothing because they said nothing? The only reason you would want to delete them, members of the jury, is this, isn’t it, because they would have confirmed that she knew what she was doing and she knew what she was bringing back into Hong Kong?”[1]

The defence case

8.  The appellant elected to testify at trial. The appellant repeated her explanation that she contacted a woman through Whatsapp pursuant to a post listed on Facebook.  When this woman, “Going Abroad”, told the appellant that she was to transport “DD”, which she said was ivory powder, the appellant conducted research on the internet, but did not get any results, from typing in “DD” or “DD and ivory powder”.  However, she learnt that there was a quota restriction on the export and import of ivory products.

9.  The appellant explained that she agreed to participate in a controlled delivery operation so that Customs could arrest the person who gave her the cardboard box.  She hoped that this person could tell Customs that she, the appellant, did not know what was inside it. The appellant admitted that she had, during the controlled delivery operation, deleted some messages on her phone but, she said, this was because she was afraid the Customs Officers would not believe her.

10.  Part of the cross-examination of her by the prosecutor focused on her deletion of these messages which the prosecutor suggested was because she knew their contents would incriminate her. 

The Perfected Grounds of Appeal

11.  Mr HY Wong, counsel for the appellant relied on four Perfected Grounds of Appeal.  We shall only refer to Grounds 1 and 3 as they are the only ones that are relevant to the resolution of this appeal.

12.  By Ground 1, Mr Wong submitted that the legal representatives for the appellant at trial were flagrantly incompetent and thereby deprived the appellant of a fair trial.  Amongst the various allegations made against them, the key one is that they failed to inform the appellant of the existence of a forensic report prepared by Senior Customs Officer 99121 which, inter alia, reported the retrieval of the deleted messages which showed that the appellant had indeed asked “Going Abroad” what it was she was expected to carry and had been told that it was ivory powder.  Mr Wong submitted that the retrieved text messages confirmed, or at least tended to confirm, the appellant’s defence that she genuinely believed she was transporting ivory powder.  The failure to present this evidence to the jury enabled the prosecution to undermine the appellant’s credibility on the basis that the appellant deleted the messages because she knew they showed that she was transporting a dangerous drug and not ivory powder.  Also under this ground it was claimed that, independently of the Custom’s forensic report, the appellant’s legal representatives should have made their own efforts to retrieve these deleted messages, and the appellant’s internet browsing history, from her phone by utilising the services of a computer forensic expert.

13.  By Ground 3 Mr Wong complained that the retrieved messages were not translated into English even though the trial was conducted in English and were not brought to the attention of prosecuting counsel notwithstanding that they had been served and filed with a Notice of Additional Evidence.  As a consequence of these failures and because the prosecutor was unable to read Chinese, the prosecutor was unaware that the deleted messages and search history had been retrieved or of their contents. Had he known that they supported the defence case by showing the appellant was told she was expected to carry ivory powder and that she had, in fact, conducted research on the internet about the customs clearance of ivory powder products, he would not have cross-examined the appellant on the false basis that he did. His cross-examination of the appellant was unfair and prejudiced her defence and her credibility. 

The Notice of Motion to admit fresh evidence

14.  By way of a Notice of Motion dated 9 May 2019, the appellant sought to adduce as fresh evidence a forensic report prepared by Miss Frances Chu in relation to the retrieval of the deleted messages and data from the appellant’s mobile phone.  The report contained forensic analysis of the deleted messages and the search history.

15.  The respondent agreed to the reception by the Court of Appeal of Miss Chu’s report as being necessary in the interests of justice.  It was accepted that the contents of her report are consistent with the findings of the forensic report of Senior Customs Officer 99121 which showed that the appellant had, on her mobile phone, searched “customs clearance of ivory powder”, “ivory powder customs and excise” and “dd ivory powder”. 

16.  We also received evidence from the appellant herself, her trial solicitor and her trial counsel. The appellant claimed that when she raised the issue of trying to retrieve her deleted messages she was told to ask her brother to retrieve them but he did not know how to do so.  In any event the appellant’s phone was in the possession of the Customs and Excise Department.

17.  The trial solicitor’s evidence was to the effect that although her firm was served with the Notice of Additional Evidence to which the Custom’s forensic report was attached, it was not brought to her attention and so she did not forward it to trial counsel.  She could not explain how it came about that it was not brought to her attention.  In respect of the trial counsel and her failure to explore the possibility of retrieving the deleted messages and search history, she confirmed that they discussed the matter with the appellant.  In her affirmation she then explained:

“11. … As we were not certain about the relevant retrieval techniques and their chances of success, I suggested to the Applicant that she should consider hiring an expert witness to attempt retrieving these records.

12. Notwithstanding, Ms Tim’s (sic) instruction to us was that she would arrange her brother to try recovering the deleted messages from the i-cloud backups of her phone, which turned out to no avail.”

18.  A similar explanation was made by her trial counsel as follows:

“16. The Applicant did ask if some more messages can be retrieved, to that I had a discussion with the representative of the trial solicitors and we did not know if such retrieval can be done. The Applicant then informed us that she was using an i-phone at the time and she wondered if those WhatsApp messages could have been backed-up automatically in the i-cloud. She then suggested that her elder brother might be able to assist in retrieving those WhatsApp messages for her.”

The respondent’s submissions

19.  The respondent conceded that the appellant’s appeal should be allowed on the basis that the appellant did not have a fair trial as a crucial piece of evidence which supported the defence case had not been put before the jury for its consideration.

20.  The respondent explained that although the forensic report prepared by the Customs officer was in English, the critical message containing a reference to “ivory powder” was in Chinese and it had never been translated into English.  The English-speaking counsel for the prosecution did not understand Chinese and so he was not aware of the message’s contents and no one had ever told him that one of the messages concerned the meaning of ivory powder. 

21.  Compounding the errors, counsel for the prosecution had cross-examined the appellant on a basis that was contradicted by the forensic report by putting to the appellant that the recruiter “Going Abroad” had in fact told her the substance was “white powder” instead of “ivory powder”.

22.  The respondent submitted that no matter which party was at fault, the objective fact is that the report prepared by Customs officer, being a crucial piece of evidence to the defence case, had not been put before the jury and this had resulted in serious unfairness to the appellant.  The conviction was unsafe and unsatisfactory and it could not be cured by applying the proviso.

23.  Having taken into consideration the strength of the prosecution case as a whole, the background of the appellant and the fact that she had been incarcerated for more than 3 years and 3 months, the respondent conceded that it is not in the interests of justice to apply for a re-trial. 

Discussion

24.  Having heard of the catalogue of errors and failures that occurred in this case, by all concerned, we had no doubt that the appellant had not received a fair trial and that her conviction was unsafe.  Counsel for the respondent very properly and responsibly recognized this and did not seek to persuade us otherwise. 

25.  There can be no doubt, and it is not disputed, that the prosecution served the Customs Officer’s forensic report on the appellant’s trial solicitor.  There is simply no explanation for what happened to it thereafter.  To say that this is unsatisfactory is something of an understatement.  The gross negligence, by persons unknown, that led to this report not being brought to the attention of the appellant’s trial counsel was compounded by the failure of both the trial solicitor and trial counsel to make any effort to engage a defence expert to examine the appellant’s phone. 

26.  The trial solicitor’s advice to the appellant, as set out in her, the trial solicitor’s affirmation, that she, the appellant, should consider engaging an appropriate expert is, to us, quite astonishing.  How the appellant, who was in custody and on legal aid, could be expected to obtain access to her phone and afford the cost of an expert, was not explained.  

27.  At the very least the legal representatives could have enquired of the Director of Legal Aid or, indeed even of colleagues within their respective professions, of the availability of techniques for recovering deleted data and of experts that could be engaged for this purpose. If all else failed, they could have written to the Department of Justice and enquired what could be done with the phone since it was in their custody.  Had such an approach been made, they would have been notified by the Department of Justice of the existence of the Customs’ forensic report well before the trial commenced. 

28.  We cannot understand how they could sit back and do nothing in respect of a matter that on her instructions was so vitally important to their client’s case.  It seems to us that their inaction was a complete abdication by both of them of their professional duty.

29.  Suffice it to say, for the purpose of the present appeal, their inaction amounts to flagrant incompetence on their part.

30.  We are satisfied that the cumulative effect of the errors and the unjustified inaction on the part of the appellant’s trial solicitor and counsel in ascertaining what practical steps could be taken in respect of the deleted data caused the appellant to receive less than a fair trial and renders the conviction unsafe.   

31.  There were, of course, also failures by the prosecution but they would have had no impact on the trial if the trial solicitor, and this includes the members of her firm, and the trial counsel had properly discharged their professional duties to the appellant. 

32.  Failures in the criminal justice process do happen but they are, fortunately, quite rare.  Each time that they do happen efforts must be made to understand why they happened.  We can only hope that this has been done here and that lessons have been learnt from this disturbing experience which will enable measures to be implemented which will prevent anything like this happening again.

Ancillary Matters

33.  After the announcement of the judgment of the court the appellant made two applications.  The first was an application for costs of $8,000 which she incurred when she engaged private legal representation for her second appearance in the magistracy, after which she was provided with legal representation by the Director of Legal Aid.

34.  The second application was for the return of her mobile phone which had been ordered to be forfeited by the judge after her conviction.  

35.  We granted the latter application as we could see no legitimate reason why she should be deprived of her phone but not the former.  In respect of the former we noted that at the time she engaged private legal representation the forensic report was not available but it was known that the appellant had deleted messages from her phone.  This resulted in an absence of evidence that would support her case and the presence of evidence, namely her conduct in destroying her communications with her handler, which enabled an inference of knowledge that what she was transporting was a dangerous drug, to be more readily drawn.  By her conduct she brought suspicion on herself and misled the prosecution into thinking that the case against her was stronger than it was.   

Disposition

36.  For these reasons we allowed the appeal, quashed the conviction and set aside the sentence.