HKSAR v. CHUA SHIRLEY MASIGLA AND OTHERS

CACC 254/2018

[2023] HKCA 227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 254 OF 2018

(ON APPEAL FROM HCCC NO 304 OF 2016)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court)

1.  Originally four defendants (D1 to D4) were on trial in the High Court before Campbell-Moffat J (“the judge”) and a jury. They faced a joint count of conspiracy to traffic in a dangerous drug on or about 25 September 2015, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance Cap 134, and sections 159A and 159C of the Crimes Ordinance Cap 200 (Count 1). D1 and D2 were each further and respectively charged, in what was particularized as an alternative to the first count, with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. It was alleged that, on 25 September 2015, at Hong Kong International Airport, in the case of D1, she trafficked in 1,225 grammes of a powder containing 944 grammes of cocaine (Count 2); and in the case of D2, she trafficked in 1,203 grammes of a powder containing 923 grammes of cocaine (Count 3).

2.  D2 was acquitted of both Count 1 and Count 3. The three appellants were accordingly D1, D3 and D4. D1 was acquitted of Count 1 but convicted of the alternative Count 2 and was sentenced to 20 years and 11 months’ imprisonment. D3 and D4 were both convicted of Count 1, and sentenced to 23 years and 11 months’ imprisonment and 24 years and 5 months’ imprisonment respectively.

3.  Leave was granted by the single judge[1] for D1 to argue ground 5 which concerned the judge’s “shut eye” direction. Leave was also given to D3 and D4 to pursue this ground as well if they so wished. The other ground which is common to all defendants concerns the sufficiency of the judge’s directions on the conspiracy charge in respect of some social media messages found in their telephones; more particularly, it was alleged that no full direction was given by the judge on the need to find independent evidence before the co-conspirator’s rule could be utilised.

4.  At the close of the hearing, we allowed the appeal against conviction by D1 and quashed her conviction on Count 2. We dismissed the appeals against conviction by D3 and D4. We indicated that we would give our reasons in due course. This we now do.

The prosecution case

5.  All four defendants were women from the Philippines. The prosecution alleged that, on or about 25 September 2015, D1, D2, D3 and D4 conspired to import cocaine into Hong Kong on the instructions of a woman named Nora Noora (“Nora”). Flight tickets for D1, D3 and D4 were issued on 22 September 2015, D2’s ticket for the same flight was issued a day later on 23 September 2015. All were scheduled to depart from Manila for Hong Kong on 25 September 2015 and to return to the Philippines on 27 September 2015.

6.  The prosecution’s case was that all four defendants met up at D3’s house on 25 September 2015 before going on to Manila airport. They were then driven by Nora to a van, in which were four identical trolley bags of different colours inside. D1 took the green bag, D2 the red, D3 the brown and D4 the black. After they transferred their personal belongings into these bags, they were driven to the airport. They hand-carried their respective bags on the flight to Hong Kong. The prosecution alleged that the plan was to deliver the bags to Chungking Mansions in Tsim Sha Tsui, Hong Kong.

7.  When the four of them arrived at Hong Kong airport that evening, they proceeded through the “nothing to declare” green channel. D3 and D4 went in front and passed through uneventfully. D1 and D2, who walked behind, were intercepted by Customs officers for examination. D1’s green bag and D2’s red bag were searched and the drugs particularized in the respective counts against them were found. D1 and D2 were duly arrested[2].

8.  Meanwhile, D3 and D4 proceeded to Tsim Sha Tsui with their brown and black bags, checked into a hostel in Chungking Mansions and continued to communicate with Nora by way of text messages (“the telecommunications”). Close circuit television (“CCTV”) captured D4 delivering the brown and black bags to two men inside Chungking Mansions in the early hours of 27 September 2015. D3 and D4 were arrested at 08:15 hours on 27 September 2015, on their return to the airport[3]. The brown and black bags were never seized. The basis of the case against D3 and D4 was that the bags they carried must have each contained a similar quantity of dangerous drugs to those contained in the bags being carried by D1 and D2[4].

9.  Various mobile telephones were seized from D1 (Exhibits P123 and P124), D3 (Exhibit P77) and D4[5]. The telecommunications, consisting of various social media messages, were extracted from these telephones, referred to collectively as “the telecommunications evidence”, which were heavily relied upon by the prosecution. It was the prosecution case that the messages retrieved from D3 and D4’s mobile telephones in particular showed persistent communication between D3, D4 and Nora, the organizer of the expedition, and another person called Fei Fei, whose identity was unknown.

10.  The prosecution contended that virtually all the messages were about this particular trip and its logistics[6], which included matters such as: an expression of thanks by D3 for having been spared as she passed through Customs[7]; expressions of concern about D1 and D2 still being members of the various message groups and not being further messaged since they had been caught (D1 and D2 were also blocked from the groups)[8]; complaints by D3 and D4 about not being able to eat or sleep because of worry[9]; a message from Nora to D3 and D4 telling them to get in touch with D1 and D2 in order to bring back the bags or else they would “be killed”[10]; and a message warning them not to pass through immigration together and to keep their distance from one another[11].

11.  The prosecution relied on a message from Nora to D3 and D4 with instructions to meet certain persons in order to effect delivery of the bags, as a statement or declaration by one conspirator to another made in furtherance of the conspiracy[12]. A document entitled “Prosecution’s list of acts and declarations in furtherance of the conspiracy” was compiled by the prosecution to assist the jury (MFI-11). The judge summarized the telecommunications evidence in a series of tables with copies to the jury (MFI-20). No objection was made by any of the counsel representing the defendants to this course.

The video recorded interviews (VRIs)

12.  Upon arrest, each of the four defendants participated in a video recorded interview (VRI). Essentially, all of them denied knowing that the substance in the bags was a dangerous drug, and gave what are referred to as “mixed statements”[13]. The admissibility of all VRIs was not challenged.

13.  D1 said that she was invited by D3 and Nora on 23 September 2015 to join a trip to Hong Kong. She said she saw nothing suspicious inside the green bag, but felt it was heavy. She said she noticed the smell of menthol emanating from it and could hear noises when she knocked the bottom of the bag.

14.  D3 said that Nora instructed her to carry the bag. She trusted Nora and did not think about what was inside the bag. However, Nora did tell her the contents were illegal and she also noticed the smell of menthol emanating from the brown bag.

15.  D4 said that she was invited by D3 to join the trip to Hong Kong one week before their departure from the Philippines. D3 booked the tickets. She said she was given the black bag by Nora and told to use it for the trip to Hong Kong.

16.  Given the challenge now mounted to the judge’s “shut eye” direction (which was also referred to as a “blind eye direction”) we feel it necessary to also summarize what D2 said in her VRI. Unlike the other defendants, she said she had actually inquired of D3, the person who had asked her to go to Hong Kong, whether she was being asked to carry dangerous drugs, since that was risky. When D3 told her “no”, she trusted D3 and agreed to join the expedition[14]. However, D2 knew she was carrying something because the bag was heavy and she was being given 11,000 pesos for the trip[15].

Defence case

17.  All of the defendants were of good character[16] and none of them gave evidence. Their common defence was that they were tricked into bringing drugs into Hong Kong and were never part of any conspiracy. D1 contended that none of the telephone messages had anything to do with her. It was submitted on behalf of D3 and D4 that they both had a career in the Philippines and there was simply no incentive for them to traffic in dangerous drugs to Hong Kong. The fact that they proceeded to stay in Chungking Mansions having known that D1 and D2 had been intercepted was inconsistent with knowledge of the drugs in their bags. It was suggested that when D3 (and D4) gave the bags to the men in the early hours of the morning at Chungking Mansions, it was not because of the conspiracy to traffic in dangerous drugs but rather that they were scared of what the contents might be[17]. D4 stressed that Nora was her patient and she was only delivering the bag as a favour.

Grounds of Appeal

18.  We would summarize the two essential issues in this appeal as follows: (1) a misdirection as to the “shut-eye” direction; (2) an insufficient or erroneous in the direction as to the co-conspirator’s rule.

Submissions in respect of the “shut-eye” directions

19.  Mr Bullett argued that D1’s case was that she had checked the bag and had no knowledge of the drugs or anything concealed in the bags. The prosecution’s case against D1 was never premised on her turning a blind eye, therefore a blind eye direction was totally unnecessary. The judge’s directions could have created a risk that the jury in equating turning a blind eye with knowledge, or created an impression that suspicion would be sufficient for trafficking in dangerous drugs. The risk was exacerbated by the direction given in relation to D2, suggesting there were three states of mind, “direct knowledge, mere suspicion, turning a blind eye”[18], and that “in the substantive offence you can carry out an act even though you are only suspicious of the contents of the bag”[19], which went directly against the dicta in HKSAR v Lee Wing Yan[20].

20.  Furthermore, nowhere in the oral or written directions did the judge direct the jury that wilful blindness was only one factor to be taken into account and ultimately, the jury would have to be satisfied that knowledge was the only rational inference available: HKSAR v Harjani Haresh Murlidhar[21].

21.  Ms Nisha Mohamed and Ms Zoe McCoy, for D3, and Mr Victor Lee for D4 raised in effect the same complaints as D1 in relation to the “shut-eye” direction.

Reply to the shut-eye direction

22.  Mr Man for the respondent argued that it was incumbent upon the judge to give a shut eye direction as both D1 and D2 said in their VRIs that they were suspicious. The directions had sufficiently brought home to the jury that mere suspicion was insufficient mens rea for drug trafficking. Mr Man sought to distinguish Lee Wing Yan from the present case on the basis that the judge never mentioned shut-eye as a third state of mind explicitly, nor did she suggest shut-eye would suffice for knowledge. Mr Man further submitted that in respect of the conspiracy charge the judge directed in no uncertain terms that “mere suspicion” and “turning a blind eye” were out of consideration[22].

Submissions in respect of the co-conspirator’s rule

23.  Ms Mohamed argued that considerable time was spent on the telecommunication messages in the summing-up which, lacking sufficient warning, could have caused the jury to place undue weight on the statements of D4 made in the absence of D3. The jury should have been directed in the terms of Specimen Directions 12.4 and 12.5 to act with caution in respect of the messages to which D3 was not a party. She further complained that the jury were not given a full direction in finding independent evidence before utilizing the co-conspirator’s rule. Mere reference to the delivery of the suitcase, the CCTV footage, the government chemist certificate and the booking documents was insufficient.

24.  Mr Lee for D4 also argued that there were insufficient directions to the jury as to how to approach the statements in furtherance of the conspiracy. He further contended that since there was a possibility there existed two separate conspiracies the jury should have been directed they could only convict if they were satisfied of the existence of only one single conspiracy.

Reply to the co-conspirator’s rule

25.  Mr Man submitted that MFI-25, a written handout titled “Conspiracy” which was read out to the jury, specifically directed that knowledge of what had been agreed must be proved in respect of the offence of conspiracy in Count 1. The judge also explained to the jury that the offence of conspiracy was an “agreement to commit the offence in the future” and not “carrying it out”[23]. It was further submitted that the prosecution case was clearly based on there being only one conspiracy and that there was no basis for D4 to suggest that she was convicted on other “separate albeit similar conspiracies”.

Discussion

26.  As stated above, this appeal turns on two main issues: (1) the shut-eye direction; and (2) the directions in relation to the conspiracy charge against D3 and D4, in particular, whether the directions in respect of the telecommunications under the co-conspirator’s rule were sufficient, given that no full direction asking the jury to find independent evidence before utilising the co-conspirator’s rule was given.

The shut-eye direction

27.  Although the shut-eye point was also raised by counsel for D3 and D4, we indicated during the hearing that this argument could only apply to D1, who was convicted of the second count of trafficking in dangerous drugs, and not D3 and D4, who were convicted of the first count of conspiracy to traffic in dangerous drugs. The judge made it clear in both her summing-up and MFI-25 that “suspicion and turning a blind eye do not apply to Count 1, only to Count 2 and 3”[24].

28.  We note that the shut-eye direction was first mentioned in the closing speech of prosecuting counsel[25]:

“…it’s our case that she (D2) knew. Or at the very least, she had an idea, a very good idea it was dangerous drugs, but she turned a blind eye to it being drugs. In any event we say she must have known that what she was carrying was highly secret, secreted away in the sides of this bag, it was highly illegal and the only thing it could have been was dangerous drugs.”

29.  Counsel for D3, Mr Adams, responded to this by saying that there was no evidence that D3 had checked the bag and “turned a blind eye” and then gave the history of how this expression came about[26].

30.  This is the impugned direction in the summing-up[27]:

“In this case, counsel ask you to find that the 1^st defendant and the 2^nd defendant did not know what it was they were carrying and that they may have been suspicious about what was in the bags, but no more than that. You must consider whether they were simply suspicious and no more, or whether the defendant who you are considering deliberately closed her eyes to her suspicion. If you found that to be the case, you would then have to be sure that she did deliberately close her eyes to her suspicions because in fact and in truth she already knew what was in the bag and was simply avoiding obtaining the confirmation, which she neither wanted or needed in order to do what she had been asked to do and had agreed to do.”

31.  The judge then followed up with the example given by Mr Adams[28]:

“I am going to use the example that Mr Adams gave you, even though it was a historical one and you may or may not have heard of Admiral Nelson. But Admiral Nelson, in England, was in a naval battle, so large ships on the water. He wanted to be part of that battle and he did not want to retreat. He knew, because he had been told by his subordinate, his assistant, that the commander of the fleet had told him to disengage. His boss had said, ‘No, we’re not going to take them on right now’, all right, not to fight the enemy.

But he deliberately put a telescope to his blind eye so he could not read the message because the message is in flags. In the navy, all of these different colours mean different things, those days and he deliberately could not see it in order that he could not obey the order. Because he had not got the order, because he had looked at it with an eye he could not see. That is, as Mr Adams quite rightly said, where we get this phrase from “turning a blind eye”. If that was the case here, that would be no defence of any sort, would it not? Because it will be deliberate, yes? It is not something you may do in law.

If that is the case, and it is for you to decide whether that is the case. So with the substantive offence only, because suspicion and turning a blind eye do not apply to Count 1, only to Count 2 and 3, all right. You must, on the evidence as you find it as the sole judges of facts, be sure that the defendant you are considering, whether it is the 1^st defendant and separately, the 2^nd defendant, whether that defendant knew of the existence of the drugs or deliberately turned a blind eye to it, when she in fact and in truth knew that she was being asked -- what she was being asked to carry were dangerous drugs of some sort. And unless you are sure, you must acquit the accused. So that was the third element, that is the most difficult element for you because there is clearly an issue there for you to consider.”

32.  When the judge delivered her summing-up, the judgment in HKSAR v Lee Wing Yan, which concerned the following shut-eye direction not dissimilar to the present impugned direction and given by the same judge, had yet to be handed down[29]:

“…if you find [D] deliberately shut her eyes and her mind to something and deliberately avoided confirming it by checking or asking what she was carrying and if all of the surround[ing] facts, common sense told her it was the case that she was carrying dangerous drugs, then in common sense and in truth, she knew it in law. If you find that to be the case, then in law that is sufficient for knowledge.”

33.  That direction was criticized by the Court of Appeal as seeming to suggest that there was a third state of mind that could ground a charge of drug trafficking[30]. This was directly contrary to the Specimen Directions in Jury Trials issued by the Hong Kong Judicial Institute in September 2013, which provides in Specimen Direction 61.3 the following guidance on “‘shut-eye’, or constructive knowledge” in drug trafficking cases:

“Where there is an issue about knowledge of the contents of a container, the jury must be told that suspicion does not suffice and that knowledge must be proved. In such cases, judges must be very careful not to suggest that, by itself, failure to take an opportunity to inspect is to be, or may be, equated with knowledge of the contents. In appropriate cases, it is a fact that may be taken into account and from which, with all the other circumstances, guilty knowledge may be inferred. In essence, guilty knowledge may be inferred where the custodian has evidently ‘avoided getting confirmation which he neither wanted nor indeed needed’ and where ‘in common sense and in truth, he knew.’ (See Law Wai Choi (1996) Criminal Appeal No. 279). Directions about means and opportunity to inspect are not to be imported into all drugs cases, but only where the issue so warrants (see R v Cheung Kwok Kuen CACC 51/1996). See also Law Wai-choi, FAMC 24/1998.”

34.  It is a fundamental principle that suspicion does not equate with knowledge. This specimen direction stresses that only when the issue is warranted should a wilful blindness direction be given but does not provide any clear guidance as to the form of such a direction and the circumstances in which it would be appropriate.

35.  As noted by the Court of Final Appeal in HKSAR v Harjani [31], the doctrine of wilful blindness has been the subject of academic and judicial criticism as it attributes actual knowledge of the crime to a defendant because he or she has failed to make inquiries in appropriate circumstances. It was held in HKSAR v Lee Wing Yan [32] that the direction is fraught with difficulties and care needs to be taken when it is employed.

36.  It is said that the doctrine of wilful blindness applies where the defendant intentionally chooses not to inquire whether something is true because he or she has no real doubt what the answer is going to be. The Court of Final Appeal in Harjani adopted the summary of the doctrine as set out in Simester and Sullivan’s Criminal Law: Theory and Doctrine[33], in which it was noted that the doctrine should not be invoked just because the defendant “should have enquired into the facts, or even if he suspected the truth”. It was explained that there were two situations that may constitute wilful blindness. The first is where the defendant “shuts his eyes and fails to enquire because he is virtually certain what the answer will be”. The second is where the means of knowledge are easily to hand, and the defendant “realises the likely truth of a matter but refrains from enquiry in order not to know.” It was further emphasised that the doctrine of wilful blindness “imputes knowledge to the defendant for legal purposes where there is not, in fact, such knowledge.” However, even if the doctrine does not apply, there remains the possibility of treating the question on an evidential basis by inferring knowledge from evidence that the defendant recognised the likely circumstances and made no further enquiry.

37.  In its judgment, the Court of Final Appeal in Harjani cited with approval two decisions of the High Court of Australia that summarized the relevant principles regarding the doctrine of wilful blindness:

“67. … In The Queen v Crabbe,[34] the High Court of Australia approved the following statement by Professor Glanville Williams:

A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice.[35]

68. In Pereira v Director of Public Prosecutions, the High Court of Australia sounded some warnings, namely, that the concept does not detract from the requirement to prove actual knowledge; that it is the knowledge of the accused person that must be proved and not that of a hypothetical person in the position of the accused; and that where knowledge is to be inferred, it must be the only rational inference available:

Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge … It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt.[36]

38.  The above reference to “the only rational inference” is equivalent to the test employed in Hong Kong of “the only reasonable inference” on the question of inferential reasoning.

39.  Unfortunately, the impugned direction in the present case failed to get that message across to the jury. In dealing with the case of D2, the following directions further compounded the confusion[37]:

“…you must ask yourself … did she know that what she possessed was dangerous drugs or was it mere suspicion. And if it was suspicion, you say, was it suspicion or was it turning a blind eye? So you have got three really: direct knowledge, mere suspicion, turning a blind eye, in the same way.”

40.  Whilst MFI-25 correctly stated that mere suspicion is not sufficient mens rea for the conspiracy charge, the last paragraph raised the same concern in respect of considering the actual trafficking charges against D1 or D2:

“However, if you come to consider either D1 or D2 in respect of Cts 2 or 3, you will need to consider whether the defendant had only a mere suspicion or whether that defendant in fact deliberately turned a blind eye.

…but in the substantive offence you can carry out an act even though you are only suspicious of the contents of the bag and not knowing what the contents are, or you can turn a blind eye to it where in fact and in truth, you know what is in the bag but you do not obtain confirmation of what is in the bag because you neither need or require confirmation. If you are sure that a defendant has deliberately turned a blind eye to what was in the bag she was asked to carry and leave in Hong Kong, then that would amount to knowledge for the purpose of this offence. But mere suspicion is not enough.”

41.  D1, in her VRI, said that she did have suspicions about the noise, the smell and the weight of the bag. However, the danger of inviting the jury to treat any deliberate disregard on the defendant’s part of the suspicious circumstances as an alternative to direct evidence of knowledge of the contents of the bag was made clear in R v Law Wai Choi[38], where Bokhary JA (as Bokhary NPJ then was) said that by not instructing the jury in the same direction that it would be a matter of inference, “the judge in effect withdrew from the jury’s deliberation the need to find or infer guilty knowledge of the applicants”[39].

42.  The Court or Appeal, in Lee Wing Yan, said[40]:

“7. …We are not sure that, without more, the alleged failure of a courier to query the content of a fully wrapped package can be said to have the same cogency as a piece of circumstantial evidence that would justify a shut-eye direction as a tool for the jury to infer knowledge. In this regard we will repeat what Bokhary JA said in R v Law Wai Choi, namely “constructive knowledge is rarely relevant” in dangerous drugs cases, and we would remind everyone seized of these cases that this topic is fraught with potential pitfalls not least in explaining subtle concepts and nuanced ideas to the jury. It is not an exercise to be entered into lightly.”

43.  The impugned direction was likely to confuse in the jury’s mind the mental state which the appellant was required to have before she could be found guilty of trafficking. This was plainly a misdirection on the law and this ground alone is sufficient to allow the appeal of D1.

The co-conspirator’s rule

44.  The prosecution relied on the contents of the telecommunications extracted from the mobile telephones of D3 and D4, which were admitted into evidence by way of Admitted Facts. These consisted of the Viajeros chat group from Facebook (D1, D3, D4); Viber communications (D3, D4, Fei Fei/Madam), private messaging and the Apple SMS (Nora, D3, D4) starting as early as 23 September through to 27 September. The judge compiled MFI-20, described as a “Table of some of Telecoms - Chronology”, to assist the jury, and went through them extensively in her summing-up, so much so that counsel for D3 and D4 complained that such an exercise might have caused the jury to place undue emphasis on the statements made by a defendant in the absence of another, without complying with Specimen Direction 12.5, which warned them to treat those contents with caution. It was further submitted that the judge failed to properly direct the jury which of those contents could be relied upon as acts and declarations in furtherance of, or in the course of, the alleged conspiracy, nor was the jury properly directed of the necessity to look for “reasonable and independent evidence”.

45.  The judge gave detailed directions on the co-conspirator’s rule[41]:

“When we talk about things said or done in furtherance of conspiracy, we are really talking about actually carrying it out, actually doing what I have agreed to do criminally. Actually doing something that is trafficking in dangerous drugs. A typical example of it and the most every overwhelming example, if you found it to be the case, would be the delivery of two more bags in Chungking Mansions. …

… But if you were to find something like the CCTV evidence was evidence in furtherance of the conspiracy you have found, that evidence, even though the other defendants are not present, D3 is maybe in a corridor, D1 and D2 have been arrested, that would be evidence against them as well. That is a very special rule of evidence that we have. That when you make an agreement, you become part of conspiracy because you are in a team together. Any one of that team who carries out the conspiracy, his acts or her acts are evidence against everybody else.”

46.  The judge went through the telecommunications evidence and identified those messages which were capable of being evidence of acts in furtherance of the conspiracy and those which were not. For example, in respect of their concern as to the whereabouts of D1 and D2[42]:

“…an awful lot of this is just trying to set up some form of telecommunications and worrying already about where D1 and D2 are. So this is not really so much in furtherance of the conspiracy, this is just them trying to get themselves properly organised because something is not right. …”

47.  In relation to the delivery of the bags[43]:

“… At the same time D4 is having communication with Fei Fei, ‘what time will they get in, Madam? Would be checking out from the other room by 11:30’.

That, if you accept there is a conspiracy, and this is something to do with the delivery of the bags, this is a comment that could be considered by you, it is for you to decide, in furtherance of the conspiracy because it is to do with the delivery of the bags. …”[44]

…

“Fei Fei to D4, ‘Just keep calm as usual, don’t be scared.’ D4, ‘Yes, we’re okay, Madam. We’re only thinking about them. What time would it be taken? Maybe they’ll be calling when we’re outside, that’s the problem.’ So that again is something that is talking about trying to arrange - if you think that is what happening - the delivery, and could be in furtherance of the conspiracy. …”

48.  With that exercise in relation to the vast majority of the telecommunication messages, it must have been obvious to the jury that they should treat the evidence of things said and done in the course or in furtherance of, the conspiracy with caution, although the judge did not give such a warning, which is suggested in Specimen Direction 12.5 to be desirable:

“…For that reason you should treat this evidence with caution when you come to consider its effect on the case against B. Before you hold this evidence or any part of it against B you should consider all of the evidence on which the prosecution relies…” (our emphasis)

49.  We note that Specimen Direction 102-5, which replaced 12.5, uses “other evidence that implicates” the co-conspirator instead of “all of the evidence on which the prosecution relies”.

50.  Evidence of acts and declarations by a co-conspirator in furtherance of the conspiracy can provide proof of an agreement. Such evidence can also be used to prove participation of each of the alleged conspirators. Mason CJ, in delivering the judgment of the High Court of Australia in Ahern v The Queen[45], held at page 444:

“In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.”

51.  In R v Au Shui Yuen Alick[46], the Court of Appeal preferred the “prima facie case” test to the “reasonable evidence” test[47]:

“In applying the prima facie case test, we would state the co-conspirator’s rule thus - before the evidence of the words and acts of the accused’s co-conspirators, done in furtherance of the conspiracy, is admissible against the accused, a foundation for its reception must be laid. This takes the form of independent evidence which links the accused to the conspiracy charged. This evidence must be independent in the sense that it is evidence other than that admissible only pursuant to the co-conspirator’s rule (ie evidence of the co-conspirator’s doings relied on for its hearsay value). … This requirement that the evidence must be independent is logical and needs no judicial authority to support it. As the words and acts of a co-conspirator may be hearsay evidence, some other evidence must be adduced to ‘shore up’ the hearsay evidence, otherwise the hearsay evidence ‘would lift itself up by its own bootstraps to the level of competent evidence’…”

52.  Whilst it is true that the jury were not told in so many words that they had to find independent evidence before utilizing the co-conspirator’s rule, there was an abundance of independent evidence in this case.

53.  As against D3, there was a photograph found in D3’s telephone of her having lunch together with D1; a photograph of D1, D3 and D4 having lunch together with Nora around 19 or 20 September[48]; what D3 said in her VRI gave a pretty conclusive description of how she came to meet the others, the collection of the suitcases and the travelling together[49]; and upon arrest and caution, when asked how many people she travelled with to Hong Kong, she answered “3”[50].

54.  As against D4, there was the CCTV evidence of her delivering the two bags in the lobby of the Chungking Mansion[51]; she was a friend of D3[52]; she was at the dinner with D1 and D3 on 19 or 20 September[53]; all four of them met up and travelled to the airport together[54]; and she was part of the Viajeros group[55].

55.  We find no merit in this ground.

56.  The prosecution case was clearly premised on only one conspiracy. We fail to see on what basis could D4 be said to have been convicted on other “separate albeit similar conspiracies”. There was simply no evidence to support that contention.

Proviso

57.  Mr Man invites us to apply the proviso and dismiss the appeal if we are not with him on the shut-eye direction, on the basis that the evidence against D1 is overwhelming. We decline to do so. D2 was acquitted on more or less the same evidence, although she claimed to have made enquiries to which she got an answer while D1 did not. We are not sure that a jury properly directed would inevitably have come to the same conclusion in convicting D1.

Retrial

58.  D1 was sentenced to 20 years and 11 months. She has served 7 years and 2 months by the time of the hearing of the appeal, an equivalent of about half of her sentence assuming good behaviour. Although we have said that a properly directed jury would not inevitably have convicted D1, they could have. What D1 faced was a very serious offence with a maximum term of life imprisonment. The error which caused this Court to allow the appeal is not concerned with the quality of the evidence but rather an error in law in the direction given by the judge. It is, in our view, in the interests of justice, to order a retrial. Accordingly, we order a retrial of the same charge on a fresh indictment before another judge.