HKSAR v. GARCIA BERNARD KEE

CACC 383/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 383 OF 2012

(ON APPEAL FROM HCCC NO. 15 OF 2012)

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.  On 30 August 2012, the applicant was convicted, after trial before Pang J and a jury, of one count of trafficking in a dangerous drug, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134), namely 19.67 kilogrammes of a mixture containing 7.95 kilogrammes of heroin hydrochloride and 1.05 kilogrammes of monoacetylmorphine hydrochloride. He was sentenced to a term of 30 years’ imprisonment.

2.  By notice of application dated 26 September 2012, the applicant applies for leave to appeal against his conviction.

The prosecution case

3.  The applicant arrived in Hong Kong by air from Hanoi on the morning of 28 July 2011.  At about 11.50 am, having collected his luggage, the applicant was stopped by Customs officers when he approached the Green Channel at the Airport Customs Hall.  He was travelling with his wife and two young children.  One of his children was sitting on the luggage trolley he was pushing and his wife was following with the other child in a stroller.  The family were also accompanied by the applicant’s nephew.

4.  An X-ray check of the luggage was conducted and suspicious images were seen.  There were four pieces of luggage, two suitcases (one grey and one white) and two travelling bags (one blue and one red and black), which the applicant admitted were his and which he then unlocked and opened for examination.  As a result, a total of 27 packets containing the dangerous drugs the subject of the charge were found.  These had been variously concealed in the luggage: two packets of drugs were concealed in false compartments in the grey suitcase, 3 packets of drugs were concealed in false compartments in the white suitcase, 11 packets of drugs were concealed in gaskets placed inside the blue travelling bag and 11 packets of drugs were concealed in gaskets placed inside the red and black travelling bag.  The street value of the drugs was estimated to be just over HK$13.13 million.

5.  After being arrested and cautioned, the applicant was questioned and said that the suitcases had been given to him by “a Filipino guy” in Hanoi for him to give to someone in “Chung King”.  This was post-recorded in an officer’s notebook, which the applicant counter-signed. The departure cards for the applicant, his wife and nephew all stated Chung King Mansions as their address in Hong Kong.

6.  The applicant also stated to another Customs inspector that he was in Hong Kong to transit to Guangzhou and that the “Filipino guy” in Hanoi was going to text him on his phone with the details of how to pass on the luggage to the contact person in China.  The applicant agreed to co-operate in a controlled delivery but this was not proceeded with because the final destination was outside Hong Kong and no fresh text instructions were received on the applicant’s phone.

7.  The day after his arrest, the applicant was video interviewed and said that he met a Filipino couple, named Dennis and Marie, who were both strangers to him at a restaurant in Hanoi.  Dennis asked him to help return the white suitcase to a friend in Guangzhou.  Dennis took away the applicant’s two travelling bags and offered to drive him and his family to the airport the next day.  However, Dennis did not turn up to give him a lift and the applicant only saw Dennis the next morning at the airport. By then the padlocks on his travelling bags had both been changed when they were returned to him.  He was given keys for these and told the bags contained gasket samples which he should also give to Dennis’ friend in Guangzhou.  The applicant was also given another suitcase, the grey one, as a gift.  He said it did not occur to him that there were drugs in the luggage and that he was helping as part of a favour system amongst Filipinos.  He corrected his post-recorded note that the suitcases were not to be passed to someone in Chung King but were for someone in Guangzhou.  He said he had written Chung King Mansions in the departure card because he was told he had to give a Hong Kong address even if he was only in transit here.

8.  On these facts, the prosecution case was a simple one.  As the Judge put it in his summing up:

“… the prosecution criticises the defence version of events as completely ridiculous and incredible. It is impossible for the defendant to be so naïve and trusting. It is impossible for him not to have noticed the extra weight that the drugs had added to his luggage. There is nothing to show that the defendant had done any business in Hanoi. The picture of a travelling family, the evenly-distributed clothes, the gaskets, they were nothing but cover, decoys. It defies belief that a drug syndicate would have [$13][1] million worth of heroin ready at the airport just to look for the next innocent courier.”

The defence case

9.  As will be apparent, the only issue at trial was whether the applicant knew that the luggage contained dangerous drugs.

10.  The applicant gave evidence at his trial but no other defence witnesses were called.  The defence he maintained at trial was the same as that foreshadowed in his video-recorded interview, namely that he did not know he was carrying drugs in his luggage and that he had been tricked by the man, Dennis.

11.  The jury did not believe him and accepted the prosecution case that he knew he was in possession of dangerous drugs, returning a verdict of guilty by a majority of 6 to 1.

The grounds of appeal

12.  The applicant was represented by counsel and solicitors at trial but the legal aid certificate in respect of his appeal was discharged on the merits and so he appears before us in person.  In his self-drafted perfected grounds of appeal dated 29 June 2013, the applicant has advanced four grounds of appeal, which may be summarised as follows:

(1)   First, that when he was arrested he told the Customs officers that China was his final destination and this therefore negated the prosecution case that he came to Hong Kong to traffic in dangerous drugs.

(2)   Secondly, despite his counsel having agreed with the prosecution that his movements would not be used as evidence against him, prosecuting counsel used that evidence at trial and the jury based its verdict on it.

(3)   Thirdly, no palm prints or fingerprints of his or his family members were found on the drugs.

(4)   Fourthly, his passport, a copy of which he enclosed, showed that whenever he travelled to Hong Kong he departed on the same day to China.

13.  At the hearing before us today, the applicant has repeated his assertion he did not know about the drugs.

Discussion of the grounds of appeal

14.  In our judgment, there is no merit in the first ground of appeal.  The fact that the applicant’s final destination was to have been Guangzhou in China does not negate the fact that he was importing dangerous drugs into Hong Kong in order to carry them to his final destination in China.  That activity plainly constitutes a relevant act of trafficking in dangerous drugs.

15.  Likewise, we do not consider there is any merit in the third ground of appeal.  The absence of finger or palm prints of the applicant or his family members on the drugs, despite a total of 23 sets of such prints being found on them, was a matter recorded in the Further Admitted and Agreed Facts dated 27 August 2012.  Defence counsel emphasised this fact in his closing speech to the jury and the Judge also reminded the jury of this fact in his summing up.  The jury must have considered the absence of evidence that the applicant and his family handled the drugs in reaching their verdict.

16.  We turn to the second and fourth grounds of appeal, which can conveniently be taken together.

17.  The thrust of the second ground of appeal is not particularly clear.  We have not been taken to any formal written agreement between counsel either in respect of the exclusion from evidence of the applicant’s movement records in general or the specific movements of the applicant and his family in respect of the journey he was undertaking when arrested.  Nor were we shown any transcript references which supported any agreement to this effect.

18.  However, the closing speech of prosecuting counsel does contain a reference to:

“A family of five travelling all the way from Manila via Kuala Lumpur, to Hanoi, then on to Hong Kong, and then on to China …”;

and the context of this reference seems to have been to question the veracity of the applicant’s defence since, on his case, the family only had the two relatively small travelling bags for all their belongings.

19.  But the fact that this was the family’s itinerary was a matter voluntarily described by the applicant in his video-recorded interview, the admissibility of which was agreed pursuant to s. 65C of the Criminal Procedure Ordinance (Cap. 221), and summarised by the Judge in his summing up.  There is no indication that defence counsel objected either to prosecuting counsel’s description of the itinerary or the Judge’s summary of the applicant’s description of it in his video-recorded interview.

20.  In the circumstances of the case, since it was not in dispute that the applicant was in possession of the luggage in which the dangerous drugs were found and that he had brought them into Hong Kong, the only issue was whether he knew he was importing the drugs and we are satisfied that no prejudice could have been caused by prosecuting counsel or the Judge repeating the applicant’s own description of the itinerary of his journey which led him to Hong Kong.  It was in any event necessary, for the purposes of the defence case, to describe the visit to Hanoi in order to explain how the applicant allegedly came by the two suitcases and how the drugs allegedly came to be placed in the two travelling bags.

21.  Nor do we see how the provision of the applicant’s passport, to support the fact that he was in the habit of arriving in Hong Kong and departing for China on the same day, demonstrates the truthfulness of the defendant’s story that he was an innocent dupe of Dennis.

22.  We therefore do not consider that there is any substance in either the second or fourth grounds of appeal.

23.  In his summing up, the Judge properly directed the jury on the burden and standard of proof.  He also gave a number of other appropriate directions favourable to the applicant including: that law enforcement officers have no special status; that the applicant was of clear record; that the applicant was consistent in his defence in denying knowledge of the drugs; that the jury was not to hold the applicant’s silence at the initial stage against him; that the applicant was not to be prejudiced by reason of not calling his wife and nephew as witnesses; that the jury should disregard the evidence of the officer (PW3) who said there was a sour smell coming from the applicant’s suitcases; and that the inconsistency between the post-recorded note and the video-recorded interview about Chung King could be a matter of mis-communication.

24.  The only issue being one of knowledge, the contest was between, on the one hand, the prosecution case that the defence was plainly incredible and that the objective facts pointed to the applicant knowing that the luggage contained dangerous drugs and, on the other hand, the defence case that the prosecution case was nothing but theory.  The Judge fairly put the competing cases before the jury and reminded them of the need to be sure before convicting the applicant.

25.  In the circumstances, we are satisfied that the jury’s verdict was one which was open to it and that the applicant’s conviction was neither unsafe nor unsatisfactory.

Result

26.  For these reasons, we dismiss the application for leave to appeal against conviction.

[1] Although the typed transcript of the summing up here reads “$30”, it is tolerably clear that this is either a mistaken transcription and that the Judge must have said “$13” since that was the actual value of the drugs or, alternatively, it was a slip of the tongue on the part of the Judge since it was an agreed fact that the value of the drugs was HK$13 million and this value was referred to by defence counsel in his closing speech.