HKSAR v. SITI HANDAYANI

CACC 304/2018

[2019] HKCA 1380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 304 OF 2018

(ON APPEAL FROM HCCC NO. 426 OF 2017)

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REASONS FOR JUDGMENT

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Hon Anthea Pang J (giving the Reasons for Judgment of the Court):

Introduction

1.  Following a trial before D’Almada Remedios J (“the judge”) and a jury, the appellant was convicted by a majority of 5:2 on 28 September 2018 in respect of one count of trafficking in a dangerous drug, namely 519 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

2.  Upon conviction, the judge sentenced the appellant to a term of 18 years and 10 months. 

3.  On 8 October 2018, the appellant filed the Form XI, seeking leave to appeal against her conviction. 

4.  On 26 June 2019, leave was granted by the Single Judge, Zervos JA, for the appellant to appeal against conviction on the sole ground that the judge had failed to give a good character direction on the appellant’s credibility in respect of her out-of-court statements.[1]

5.  At the appeal hearing on 31 October 2019, this Court indicated to Mr Phillip Ross, counsel for the appellant, that we were troubled by the absence of a “lifestyle direction” given that the judge, in her summing-up, seemed to have questioned the appellant’s ability to pay for her rent with her limited financial means as a Form 8 holder.  Mr Ross replied that he would seek leave to amend the grounds of appeal to pursue this and Ms Christal Chan for the Respondent then indicated that she would need more time to consider the matter.  In the circumstances, we adjourned the hearing to 5 December 2019 so that the amended PGA and further written submissions could be filed with the Court. 

6.  On 5 December 2019, we granted leave to the appellant to amend her perfected grounds of appeal to include the “lifestyle direction” argument.  At the end of the hearing, we quashed the conviction and ordered a re-trial.  We said that we would give our reasons in due course which we now do. 

The prosecution case

7.  Briefly, on 24 April 2017, customs officers at the Hong Kong International Airport seized and examined a suspicious parcel from Brazil which was declared as “Of Cotton” and addressed to one “Loe Martins” at “19 Bor Ti Road, Kam Tin, Yuen Long”.  When the parcel was opened, there were five pieces of clothing.  However, there was a hidden compartment under which the officer found the cocaine particularised in the charge.  The estimated street value of the drugs was HK$472,967.  

8.  The parcel was then resealed to its original form, awaiting collection.  Thereafter, an English speaking male rang the post office hotline and requested the parcel to be delivered to Kam Tin Post Office.

9.  In the afternoon of 2 May 2017, the appellant went to Kam Tin Post Office to collect the parcel.  Upon request by the postal officer, she produced various documents at the counter including an authorisation letter purportedly signed by Loe Martins (Exhibit P8), a colour copy of the purported American passport of Loe Martins (Exhibit P9) and her own Form 8 Recognizance Form (Exhibit P11).  Afterwards, the parcel was given to her.  As soon as the appellant left the post office, she was intercepted and arrested by the customs officers.  Under caution at the scene, the appellant claimed that it was her friend, “Kings”, who asked her to collect the parcel on his behalf and she expected it to contain some cosmetics products[2]. 

10.  Shortly afterwards, the appellant, at the request of the officers, used her mobile phone to call Kings but no one answered. A few minutes later, she received a call from an unknown number.  That conversation was made audible on speakerphone.  The appellant said in English to the caller, whom she claimed to be Kings, that she had picked up the parcel and asked how it should be passed to him.  The male only indicated that he would call later and hung up. 

11.  About an hour later, the appellant received another call from an unknown number.  Similarly, their conversation was made audible on speakerphone.  The appellant said to the caller that she had to go back to take care of her son and asked to hand over the parcel as soon as possible.  The caller then indicated that he would further contact her and hung up. 

12.  It was an admitted fact that visits were subsequently made by the customs officers to No 19 Po Tei Road, Kam Tin, Yuen Long[3].  No “Loe Martins” resided at that address and the residents there had never heard of the appellant’s name. 

13.  Further, another admitted fact was put before the jury which related to one Nigerian-African male by the name of “Okafor Joek Kingsley” who was arrested in October 2017 for an unrelated drug parcel case and who was then remanded pending his trial.[4]  The appellant’s case was that this was the full name of Kings which only came to her knowledge after her arrest. 

The defence case

14.  The appellant was of a clear record.  She did not testify nor did she call any defence witnesses.  She relied on the content of her two video-taped cautioned interviews (collectively “VRIs”)[5] made shortly after her arrest. 

15.  Briefly, the appellant, of Indonesian origin, arrived in Hong Kong as a domestic helper in 2012.  Her employment contract was terminated in 2015 but she was then pregnant.  The appellant said that she decided to stay in Hong Kong by seeking asylum as she was the guarantor of her father’s debt and so she did not want to return to Indonesia for fear that the loan sharks might go after her. 

16.  At the time of the offence, the appellant was unemployed and was living in Jordan^[6] with her child. She said that the father of her child would only come to Hong Kong for business and would give them some money on an irregular basis.  She primarily relied on the very limited subsidies given by the International Social Service, the ISS, and some money from the friends of her child’s father for her daily expenses and her rent.  At the time of her arrest, she had no savings except the HK$200 cash found on her. 

17.  In respect of this person Kings, the appellant said she came to know him in about 2016 through one of her girlfriends.  She said that Kings would buy snacks for her child and would sometimes give him about HK$200 or HK$300.  The appellant said she had met Kings three times prior to her arrest and she did not know what his job was. 

18.  According to the appellant, she had never helped Kings with the collection of parcels before the offence.  On 1 May 2017, Kings called to ask if she could collect a parcel for him which contained some cosmetics.  He added that if the quality of the cosmetics was good, she could tell her friends and start a little business with it.  Before she hung up, Kings told the appellant that he would give her a paper for the collection of the parcel. 

19.  The appellant said that she then coincidentally bumped into Kings in Tsim Sha Tsui when she was hanging out with her child.  Kings asked her to stay around, which she did, while he went to get the documents required for the parcel collection.  Kings did not mention if she was going to get any reward from him.  He only told her that she could go to the post office on the following day and that he himself was busy with other work and could not go himself.  He also told her that the parcel contained cosmetics from the USA and he was offering her a business venture.  She did not look at the documents given to her by Kings.  She did not know who Loe Martins was nor had she ever heard of the address “19 Bor Ti Road, Kam Tin”. 

20.  The appellant admitted that she received 5 telephone calls from Kings on 2 May 2017.  In those calls, Kings appeared to be eager to know if the appellant had gone out to retrieve the parcel.  The appellant said that she did not want to go at that time because she wanted to stay with her child but she eventually left her child with her friend and went to the post office. 

The issue at trial

21.  The issue at trial was one of knowledge.  While the prosecution invited the jury to draw the irresistible inference that the appellant knowingly went to collect the parcel containing the drugs, the defence contended that she was lured by Kings to go to the post office, thinking that the parcel contained cosmetics and that she would be given an opportunity for future business. 

The grounds of appeal

22.  The grounds of appeal relied on at the hearing were:

(1)  The judge failed to give the credibility limb of the good character direction in respect of the appellant’s out-of-court statements; and

(2)  The judge failed to give any direction to the jury as to how they should approach the evidence concerning the appellant’s ability to pay her rent of $4,500 which far exceeded the monthly housing subsidy of $2,800 she got from the ISS (lifestyle evidence) which failure might lead the jury to draw the impermissible inference that because the appellant had engaged in unlawful drug trafficking in the past which enabled her to pay the rent, she would therefore be guilty of the trafficking offence under consideration. 

Discussion

Ground (1) : the credibility limb of the good character direction

23.  As it was an admitted fact that the appellant “had a clear criminal record in Hong Kong”[7], the judge had discussed the good character direction with the parties prior to the summing-up.  In the course of that discussion, the judge told defence counsel (not Mr Ross) that, “there’s only one limb of that I can give, because she did not give evidence.” In reply, defence counsel said, “I appreciate that.  Appreciate that, my Lady.”[8]  

24.  Following that discussion, the judge directed the jury in respect of the VRIs in the following terms[9]:

“The defendant has chosen not to give evidence or call any witnesses. That is her right not to give evidence or to call any evidence. ... The prosecution has, however, adduced into evidence what the defendant said in reply to the customs officer at the post office and what she said in the video-recorded interviews. That does not mean that the prosecution accepts the account and explanations given by the defendant were true.

Mr Hingorani for the prosecution’s stance, as you have heard, is that although the prosecution accept that some of the information said by the defendant was true, the defendant was not telling the whole truth. More particularly, she was not telling the truth when she said she did not know that there were drugs in the parcel, but that they were cosmetics. As you know, it is the prosecution case that the defendant did know there were drugs in the parcel.

...

It is for you to decide and assess her credibility what if any of the contents are true or might be true. You must assess the content of the statements in the video-recorded interviews as a whole. If you find what she says is true or may be true, then she did not know that they were drugs in the parcel, then you will return a verdict of not guilty.

So your main duty in this case is to assess credibility, the reliability and accuracy of the witnesses and the evidence.

...

It is an admitted fact that the defendant does not have a criminal record in Hong Kong. That in itself is not a defence to any criminal offence, but it is evidence that you should take into account in a defendant’s favour. Her clear record is evidence of her good character in that it may mean she is less likely than otherwise might be the case to commit the crime charged.” (emphasis added)

25.  This direction was in line with the judge’s discussion with the parties and as she had indicated, the judge only gave the propensity limb of the good character direction. 

26.  Before us, Mr Ross argued that the judge ought to have given the credibility limb direction as well which would then serve to inform the jury that, because the appellant was a person of good character, they were entitled to find her more likely to be believed than it would otherwise be the case when, in the VRIs, she denied knowing that there were drugs in the parcel. 

27.  To buttress this argument, Mr Ross submitted that as the prosecution case was largely unchallenged, the central issue for the jury was to determine whether the explanations given by the appellant in the VRIs as to her lack of knowledge were credible or not. 

28.  In the context of the present case, the absence of the credibility direction, argued Mr Ross, amounted to a material irregularity rendering the appellant’s conviction unsafe and unsatisfactory. 

29.  The good character direction was examined and discussed in detail in the judgment of the Court of Final Appeal in Tang Siu Man v HKSAR (No 2)[10]. Later, in HKSAR v Soo Chun Sou, Dominic[11] where the applicant, who was of good character, did not give or call evidence but relied on exculpatory out-of-court statements which he had made to the police and which were adduced by the prosecution, McMahon J, when giving the judgment of the Court, said this in respect of the judge’s failure to give the credibility direction:

“11. We think that the credibility limb of the direction should also have been given. The applicant, while not giving evidence, had in his interview with the police, provided a detailed account of what he said had occurred on the afternoon and night of the murder. That account, while it formed part of the prosecution’s case, also set out the applicant’s defence to the effect that while he had been with the deceased on the night the prosecution said she had been killed, she had left his car at Lau Fau Shan.

...

14. It is therefore a matter for the judges’ discretion, but it goes without saying that the discretion must be exercised judicially. In the present case there was no sound reason why both limbs of the direction should not have been given. Insofar as the judge was apparently of the view that credibility limb was unnecessary simply because the applicant had not given evidence, she fell into error. Where a defendant’s case is encapsulated wholly within a “mixed” statement given to the police, and he or she is of good character then, unless there is reason not to do so, a credibility direction should be given: see, for example, R v Aziz [1995] 2 Cr.App.R. 478 at p.487F. ... The failure to give that direction amounted to a non-direction and was an irregularity.”

30.  In HKSAR v Hsu Ming Mei[12] where a complaint was made on appeal against the trial judge in respect of her failure to give the credibility limb of the good character direction, Lunn JA, as he then was, when giving the judgment of the Court, also observed that:

“62. Clearly, the applicant’s credibility in respect of her out-of-court exculpatory statements was of great importance. As Mr David Leung pointed out in his written submissions, Specimen Direction 37.3 of the Judicial Studies Board’s Specimen Directions sets out a direction that may be appropriate in circumstances where a defendant at trial has not given evidence, but has given an out-of-court account of relevant events which has been adduced into evidence at the trial:

“In the first place, although the defendant has chosen not to give evidence before you, he did, as you know give [an explanation to the police].  In considering [that explanation] and what weight you should give it, you should bear in mind that it was made by a person of good character and take that into account when deciding whether you can believe it.” 

63. It is to be noted that the accompanying text advises (37.3):

“Whenever there is any doubt as to whether both limbs of the character direction apply, or wherever it is thought it may be necessary in the particular circumstances to modify a ‘character direction’ it is desirable to canvass the proposed direction with counsel before their closing speeches.””

31.  The current Specimen Directions, updated and issued by the Hong Kong Judicial Institute in September 2013, are in the following terms:

“Credibility

If a defendant does not give evidence and he has not made any statement to the police, or other authority or person which is admitted in evidence, ignore 1 below. (emphasis added)

1. ...

(If a defendant has not given evidence, but has eg made a statement to the police or has answered questions in an interview). In the first place, although the defendant has chosen not to give evidence before you, he did, as you know give [an explanation to the police]. In considering [that explanation] and what weight you should give it, you should bear in mind that it was made by a person of good character, and take that into account when deciding whether you can believe it.

The direction as to propensity may be given whether or not the defendant has testified and whether or not he has made out-of-court statements adduced in evidence.”

32.  Like the previous edition, there is an advice in the present Specimen Directions regarding the desirability of discussing the direction with counsel prior to their closing speeches.  That was what the judge did in the present case.  However, instead of inviting the judge’s attention to the above cases, defence counsel simply agreed with the judge that there was no need to give the credibility direction.  Upon hearing that, prosecuting counsel also did not refer to any of the relevant cases, nor stressed that the matter could not simply be approached on the sole basis that the appellant had not testified.  If the judge had received helpful assistance from counsel during that discussion, the matter might have been resolved quite differently.  This illustrates the importance of providing the judge with a considered response based on established legal principles and rules rather than reacting with conjectures when a topic is raised for discussion. 

33.  Clearly, the mere fact that the appellant did not testify is not a matter which could be determinative of the need for the credibility direction.  Much would depend on the facts of the case and the issues before the jury. 

34.  On the other hand, even if there was the absence of a full character direction when such should be given, that, in itself, might not necessarily render the conviction unsafe, the ultimate test is whether the summing-up as a whole is fair and balanced. 

35.  In the present appeal, we agreed with Mr Ross that the judge’s failure to give the credibility direction amounted to a material irregularity, firstly, because the defence case of the appellant innocently going to collect the parcel upon Kings’ request was encapsulated in the appellant’s VRIs but the truthfulness of her answers was subject to much criticism by the prosecution, and secondly, because there was nothing which suggested that it would be inappropriate to give the credibility direction. 

Ground (2): lifestyle evidence

36.  Mr Ross, with the leave granted by this Court, also sought to argue that the absence of a lifestyle direction was fatal in the present case. 

37.  While the prosecution did not suggest in their closing speech that the appellant was able to make ends meet because she had engaged in earlier unproven trafficking[13], Mr Ross contended that the appellants’ financial means was, nevertheless, highlighted for the jury’s consideration. 

38.  In the circumstances and in order to guard against any impermissible reasoning, the jury should have been told how they should approach such evidence. 

39.  In our view, this danger was compounded when the judge, in her summing-up, suggested that it was questionable whether the appellant did receive donations to pay for her rent.  She also reminded the jury that the prosecution’s suggestion was that the appellant was able to pay for the high rent through working[14].

40.  The judge then went on to say:

“It is the prosecution case that she on this occasion when she went to collect the parcel worked for Kings as his courier. This was not a favour for a friend. She was paid for this. You have heard the defendant say in the video-recorded interview, this is the first time she was asked by Kings to collect a parcel ever. Consider if it is so unfortunate or so coincidental that on her very first time she is asked by Kings ever to collect a parcel she gets stopped and caught by customs officers with drugs.

Mr Hingorani has said the undisputed facts (sic) is that the defendant is the main carer and mother of her young child who is 1 to 2 years old. Look at these circumstances. Would a mother leave her child under somebody else’s care to collect a parcel from a post office far away from her home? If the post office was around the corner or a short distance away, yes, that is more viable. But why take that long journey away from home and baby just in case there might be the prospect of doing business? Would you, members of the jury, leave your child for this long journey with a friend to do a favour for someone who is not a close friend and for the first time at a place so far away?”[15] (emphasis added)

41.  This repeated reference to “first time” by the judge was, with respect, unnecessary and might have caused the jury to think that the appellant had engaged in similar drug trafficking activities in the past. 

42.  We found this a real concern because the judge had, earlier on, also worked out for the jury the annual shortfall of $20,400 in respect of the rent[16] which would suggest that it was a long-term matter rather than a one-off incident.  Further, there was an admitted fact before the jury that Kings was involved in another drug parcel case which would also suggest that Kings was not a one-time drug trafficker. 

43.  The question of lifestyle evidence was discussed in HKSAR v Chu Pak-cheong[17] where the Court observed that:

“The need for the judge to have given directions to the jury of the approach to be taken to such part of the evidence about the appellant’s ‘lifestyle’ that was admissible was adverted to in the judgment of the Court of Appeal of England and Wales in R v Morris [1995] 2 Cr App R 69. There, the appellant was convicted after trial of possession of dangerous drugs with intent to supply. On her arrest she was found to be in possession of over 6,000 sterling in banknotes. Of the need for the judge to give a direction to the jury of how they were to approach that evidence, Morland J in the judgment of the court said (p 76C- D):

‘If such evidence is admitted, it is incumbent on the judge to spell out to the jury what its probative significance can be while making it clear to the jury that it is for them to decide whether it has or has not that probative significance.

The judge must then warn the jury that, if they reach the conclusion that the defendant is a drug dealer, this is not of itself either evidence of possession of drugs on a particular occasion or a basis for disbelieving a defendant.’” 

44.  Similarly, in HKSAR v Muramova Anna[18], this Court, when examining the evidence of the applicant’s travel record which was adduced at trial, considered that:

“55. Accordingly, with respect, the judge ought to have directed the jury that the evidence of her past travels around Southeast Asia had been introduced for the purpose of challenging the applicant’s credibility in respect of her evidence as to character and background; and to show that she was a seasoned traveller who would be familiar with Customs requirements, restrictions and routines in the region and on entering Hong Kong. Further, it was incumbent on the judge to bring home to the jury that the evidence of her extensive travelling prior to the trip in question, whether or not she was working in the mainland in some capacity other than a university student, was not, and could not be used as, evidence to show that the applicant had trafficked in dangerous drugs before, or that she had in fact trafficked in dangerous drugs on the occasion on which she was arrested.”

45.  Specimen Direction 36.1 issued by the Hong Kong Judicial Institute in September 2013 reads:

“The prosecution has called evidence that the defendant [eg was found to be in possession of $..] (and/or to the effect that he) [was living to a standard which they suggest was much higher than that which might be expected of a man of his means].

That evidence, if you accept it, does not by itself prove anything against the defendant. However, if you are sure that:

(a) the defendant was indeed [in possession of this money and/or living to a standard much higher than might be expected in all the circumstances of the case];

(b) the defendant's explanation for the [money] [standard of living] is untrue; and

(c) the [money] [standard of living] can only be explained by continuing unlawful trafficking in drugs as opposed to unlawfully trafficking in drugs in the past,

you may, if you think fit, take that evidence into account when deciding whether the defendant was unlawfully trafficking in drugs as alleged in the indictment.”

46.  Having considered the way the judge summed up the case to the jury, in particular, the emphasis on the questionable donations the appellant claimed she had been receiving for the payment of her rent; the repeated references to “first time” incidents; and the admitted fact that Kings was involved in another drug parcel case, we took the view that the jury should have been told how to approach the evidence of the appellant’s limited means to pay her rent. 

47.  In the absence of such a direction, the jury might have adopted the impermissible line of reasoning that because the appellant could afford renting the premises which was far beyond her means, she must have engaged in previous drug trafficking activities and, for that reason alone, she must have also trafficked in the parcel of drugs in question. 

48.  If this danger had been alerted to at an early stage, the parties might have agreed to deal with the matter by editing the VRIs. Alternatively, they would probably have invited the judge to give a direction along the line suggested in Specimen Direction 36.1. 

49.  Since the matter was just left as it was, we considered that the conviction reached by the jury was not a safe conviction. 

Conclusion

50.  For the reasons given above, we allowed the appeal and quashed the conviction.  We considered that it would be in the interests of justice to order a re-trial and Mr Ross did not suggest otherwise.  Accordingly, we ordered the case to be re-tried.