HKSAR v. INDRA AGUS SETIAWATI

CACC 329 /2018

[2019] HKCA 879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMININAL APPEAL NO 329 OF 2018

(ON APPEAL FROM HCCC NO 318 OF 2017)

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J U D G M E N T

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1.  On 30 October 2018, after a trial before Deputy Judge Saw (“the judge”) and a jury in the Court of First Instance, the applicant was convicted of a single charge of trafficking in a dangerous drug, namely 178.4 grammes of a solid containing 124.3 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the following day, she was sentenced to 9 years and 9 months’ imprisonment.

2.  By a Notice of Application for leave to appeal filed on 13 November 2018, the applicant seeks leave to appeal against her conviction only.

Prosecution case

3.  On 3 March 2017, Customs officers intercepted a parcel from Brazil upon its arrival in Hong Kong.  The parcel was declared on its manifest to contain “Beauty Creams, Tonic Lotions”, but gave a positive reaction to a subsequent test for cocaine. 

4.  Accordingly, at about 11 am on 8 March 2017, Customs officers conducted a controlled delivery^[1] of the parcel according to the recipient’s information, namely “Joe Willis” at “2/F, 21C, Block A, Tsui Yee Garden, Tai Wo Tsuen, Yuen Long, Hong Kong”^[2].  Upon reaching the ground floor of the building, they were approached by the applicant from the main gate and a Customs officer asked her whether she lived there.  The applicant said that she lived on the top floor.  When he said that he needed to go to the 2/F, the applicant immediately handed him a copy of a United States passport in the name of Joe Willis^[3] for verification and said that she would take the parcel on behalf of her friend.  The applicant then provided the officer with the waybill number of the parcel.  Having verified the details of the passport and the waybill particulars, the officer asked the applicant to sign on the waybill in order to acknowledge receipt of the parcel, which she did.  At about 11:10 am^[4], the applicant was arrested and cautioned, upon which she said she was receiving the parcel on behalf of the friend of a friend, and that she did not know what was in the parcel. 

5.  At that juncture, a mobile telephone in the applicant’s possession was seized by an Inspector Lam (“Inspector Lam”), who subsequently examined its contents and found, inter alia:

(a)  8 photographs, each showing what appear to be different bags of white powder being weighed on two different sets of electronic scales[5], apparently taken on 2 and 3 March[6]; and

(b)  a video recording, in a language other than the language of the court, showing a person dismantling a thermos flask, from which a white powder was removed[7], apparently recorded on 28 February[8],

I shall refer to (a) and (b) collectively as the “disputed contents of the mobile telephone”. 

6.  On 8 March 2017, between 9:46 pm and 11:45 pm, Inspector Lam conducted a video recorded interview with the applicant, who was questioned at length about the disputed contents of the mobile telephone.  In particular, she claimed that the white powder that was shown in the photographs was sugar^[9]; the male voice on the video recording was the voice of her boyfriend^[10]; and she had no idea about the nature of the white powder being taken out from the thermos flask, or “thermal glass”, as it was termed^[11]. 

7.  The prosecution alleged that the fact that the applicant had intentionally used her mobile telephone to record the actions of her boyfriend showed that she was knowingly participating in his act^[12].

8.  Also found in the applicant’s mobile telephone was a photograph of another passport in the name of “Jerry Moyor”, which passport bore exactly the same particulars and signature as those of the passport of Joe Willis.  Whilst the applicant explained in her video recorded interview that the passport of Jerry Moyor had been given to her for the intended purpose of collecting an earlier parcel^[13], the prosecution alleged that the existence of an obviously fake passport in the name of Joe Willis^[14] should have alerted the applicant to the fact that the delivery was in some way illicit^[15].

9.  The prosecution relied on circumstantial evidence to show that the applicant knowingly took possession of the parcel, the contents of which included the dangerous drug, cocaine.

Pre-trial issue on the admissibility of the contents of the mobile telephone

10.  Before empanelling the jury on 23 October 2018, which was the first day of trial, the judge heard argument in relation to the admissibility of the disputed contents of the mobile telephone.  It is relevant to note that the trial was in fact a re-trial, in which the respective counsel for both parties were the same as at the first trial.  In the first trial (where the jury were unable to reach a verdict), similar arguments had also been raised before another judge^[16], albeit on a slightly different legal basis, challenging the admissibility of not only the disputed contents of the mobile telephone, but also other photographs, WhatsApp messages and call records of the mobile telephone.    

11.  On the same day[17], the judge gave a verbal ruling refusing the defence application to exclude the disputed contents of the mobile telephone from the otherwise admissible evidence; with Reasons for Ruling being subsequently given on 7 November 2018.

12.  In his Reasons for Ruling, the judge summarised the grounds of objection against admissibility by the defence as follows^[18]:

“As I would understand the submissions it is said that the evidence of:

(1) the white powder on the scales; and

(2) the removal of the white powder from the thermos flask,

would indicate to the jury that the accused had at or about the dates of those photographs and video participated in other acts of drug trafficking in a manner almost identical to that alleged in the instant charge.  It was his submission that this evidence was, in effect, evidence of earlier uncharged criminal acts and should therefore be excluded.”

13.  With regard to those objections, the judge said:

“24. …this evidence is incapable of being described as evidence of uncharged earlier criminal acts. The evidence falls far short of that which could support any charge let alone a charge of trafficking in a dangerous drug either in isolation or collectively.

25. To begin with whilst it might be said that a video recording of other persons demonstrating how to remove a substance from a thermos flask is suspicious, to say the very least this could not be the basis of a criminal charge. Whilst the accused accepted in the video recorded interview that she filmed this demonstration, the audio description which formed part of the video was in a language other than English or Indonesian (I am advised that it was Igbo). There is no evidence that she understood any of the commentary. A jury would however have to be carefully directed that they could not possibly infer that this was a depiction of a criminal act which she was a witness to.

26. In similar vein the photographs of white powder on sets of scales could not, in isolation, possibly be the basis of any criminal charge.

27. Even if the jury rejected the account given by the accused in the video recorded interview that this was sugar to be used to make sweets they could not possible conclude that it was a dangerous drug.

28. I ruled that this was not a situation where there were uncharged offences alleged or demonstrated by this evidence.”

14.  In the result, the judge ruled that all the disputed contents of the mobile telephone were admissible.

Defence case

15.  The applicant did not testify or call any witness on her own behalf.  Her defence was that there was a lack of direct evidence to show that she knowingly took possession of a parcel which contained cocaine.  In particular, she relied on her innocent explanations given under caution.

The judge’s summing-up

16.  In respect of the relevance (or irrelevance) of the disputed contents of the mobile telephone, the judge gave the jury a special direction, which he emphasised was “a very important warning”[19], in the following terms^[20]:

“Under no circumstances could you properly conclude from the video on the defendant's mobile telephone or the photographs that were contained in the defendant's mobile telephone that she had herself been involved in any previous drug-related activities or offences. You simply could not do that on the basis of that material as it is. It is entirely insufficient for you to draw that conclusion. If you were to draw that conclusion, you would be speculating. You would be guessing. Let me just give you a perfect example. There is no evidence whatsoever that what was seen in the bottom of those vacuum flasks was a dangerous drug. Before you could use that evidence in any matter or form against the defendant, you would have to be able to conclude that was in fact, the case. Now I can tell you there now (sic) there is no evidence to that effect and the same applies in respect of the evidence of the photographs of white substances on a scale.” (Emphasis supplied)

17.  The judge further reminded the jury that the disputed contents of the mobile telephone would only carry limited evidential value.  He said^[21]:

“They might be relevant to show in the case of the vacuum flasks that she was aware that her boyfriend and his friends were party to a process of concealing substances in packaging. That would be the extent of it.”

18.  In light of the applicant’s admission that the video recording was recorded by her boyfriend, the judge told the jury that^[22]:

“Taken together with the video of her boyfriend and the vacuum flask, it might suggest to you that her boyfriend was a person of some dubious character but you may not be able to take the evidence any further than that.”

Grounds of appeal

19.  Mr Richard Donald, counsel for the applicant here and below, has advanced two grounds of appeal.  By Ground 1, it was submitted that the judge wrongly allowed the disputed contents of the mobile telephone to be admitted into evidence.  He argued that not only were the disputed contents of the mobile telephone wholly irrelevant to the issue of whether the applicant had knowledge of the contents of the parcel, but the minds of the jury might have been unfairly lured into equating the white powder displayed in her mobile telephone with the cocaine inside the parcel, thereby concluding that the applicant knew the parcel contained a dangerous drug.

20.  I should say here that the terms of Ground 1 of counsel’s Perfected Grounds of Appeal went rather further than the objection mounted before the judge, which had been confined to the 8 photographs of the white powder being weighed on a set of scales and the video of the removal of white powder from the thermos flask.  I pointed out that some of the other material, such as the photograph of a passport with exactly the same details as the copy of the passport which she produced to the Customs officer, was plainly admissible as to her knowledge of the falsity of that copy, while the WhatsApp messages from someone asking her to help collect a parcel containing “cream samples” to be taken to the Mainland, were actually in the applicant’s favour.  Mr Donald accepted the force of both points and confirmed that he was only taking issue with the 8 photographs and the video.

21.  By Ground 2, it was submitted that since the disputed contents of the mobile telephone were evidence of “uncharged acts”, the judge failed properly to direct the jury on their approach to, and the use they could make of, such evidence.  Counsel relied on HKSAR v Kwok Hing Tony^[23]for the proper directions that should be given to the jury where there was evidence of “uncharged acts”.  He contended that the directions on the standard of proof applicable to such evidence was absent from the judge’s summing-up. 

Respondent’s submissions

22.  Mr Raymond Cheng, on behalf of the respondent, submitted that the disputed contents of the mobile telephone were correctly admitted since they were relevant to two matters in issue.  Firstly, the disputed contents of the mobile telephone, when looked at together and taken together with the conduct of the applicant and the circumstances in which she received the parcel, could lead a jury to infer that she was part of an organised plan or scheme to receive or retrieve the parcel in Hong Kong; secondly, if she was part of an organised plan to receive the parcel, she must have known that it contained dangerous drugs. 

23.  One of the particularly telling circumstances relevant to her participation in, and knowledge of, the plan was the possession in her mobile telephone of the details of a passport together with a signature, which were identical to those on the copy of the passport she produced to a Customs officer, albeit in another name.  Mr Cheng submitted that this was plainly admissible evidence to show that she must have known the passport, a copy of which she used to retrieve the parcel, was fake.

Consideration

24.  The judge, in his Reasons for Ruling on this matter, was not satisfied that the disputed contents of the mobile telephone amounted to evidence of “uncharged acts”; in other words, he did not think that what was depicted could have formed the basis of a criminal charge.  He also made clear that the jury would “have to be carefully directed that they could not possibly infer that this was a depiction of a criminal act which she was witness to”[24].

25.  In my judgment, it is not reasonably arguable that the judge erred in his analysis.  The disputed contents of the mobile telephone, whilst they were certainly prejudicial, as circumstantial evidence adduced by the prosecution often is, were not evidence of “uncharged acts”.  As to what is encompassed by the term “uncharged acts”, it has been held by the Court in HKSAR v Ma Sin Chi & Anor, at para 128:

“The decision of this court in HKSAR v Kwok Hing Tony, on which the 1^st appellant solely relies, does not contain any definition of uncharged acts evidence, but by its very nature such evidence must be composed of acts which could themselves be the subject of charges.”[25]

26.  Since the disputed contents of the mobile telephone did not reveal any “uncharged acts”, it seems to me, therefore, that the real basis of the applicant’s complaint must be: firstly, that the evidence, whilst certainly prejudicial, was more prejudicial than probative and should not, therefore, have been admitted; secondly, having admitted the evidence, the judge did not in fact direct as he promised he would, so as to ensure that the jury did not embark on an impermissible line of reasoning.

27.  Although the evidence giving rise to the argument before me is certainly unusual, the real issues for me as a Single Judge are whether it is reasonably arguable that the disputed contents of the mobile telephone should not have been admitted; and/or whether it is reasonably arguable that the judge’s directions as to how to treat the evidence were insufficient to prevent the jury from adopting an impermissible line of reasoning.

28.  On the first issue, it does not seem to me that the argument that the disputed contents of the mobile telephone were inadmissible is reasonably arguable for the very reasons articulated by the judge.  Such evidence looked at cumulatively was both relevant and admissible on the issue of the applicant’s participation in a plan or scheme with others to receive or retrieve a parcel containing a powdery substance that had been hidden in that parcel, in which she was to play, and did play, an essential, pre-arranged and proactive part.  It was also relevant and admissible on the specific question of whether she would have knowledge of the secreting of white powder in an otherwise innocuous article or articles, such as cosmetic containers.  The removal of the white powdery substance (whatever it was) from the thermos flask, which the applicant’s boyfriend had demonstrated to her and which she had stored in her mobile telephone, was, as the judge remarked to the jury, “very similar to the process whereby the white powder was removed from the jars that were examined by the Customs officer”[26].

29.  On the second issue, in the passage which follows what he characterised as a “very important warning” to the jury, at paragraph 16 (supra), the judge gave emphatic directions (as italicised) that under no circumstances were the jury to conclude from the disputed contents of the mobile telephone that the applicant had been involved in any previous drug-related activities or offences; and further, that there was no evidence that the white powder in either the 8 photographs or the video was in fact dangerous drugs.  To make such an assumption would be speculative, and they must not speculate.  He then gave the jury directions as to the proper limits of this evidence.

30.  Later he told the jury that even if the jury rejected the applicant’s explanation in her record of interview that the substance on the scales was sugar, they could still not conclude “that the contents of the parcels were dangerous drugs”[27]. Finally, the judge gave this direction[28]:

“Let me say this: what is apparent from all of the evidence is that the defendant’s boyfriend and his friends you might think are involved in some form of illicit activities. The danger in this case is to say because of that, that she knew what they were doing and that she had agreed to help them in that knowledge and that she knew what was in the parcel. You cannot determine whether she knew what was in the parcel by reason of the circumstance (of) her friends and her boyfriend’s friends. Let me say this: even if she suspected that they were involved in some form of illicit activity, that itself, would not be enough to satisfy you (that) she knew that the parcel contained dangerous drugs.”

31.  It can be seen that the judge was at pains to ensure that the jury did not assume that the white powder in the disputed contents of the mobile telephone was a dangerous drug, or that the applicant had any prior association with dangerous drugs.  Appellate courts must assume that juries have faithfully followed such judicial instructions: see, for example, Montgomery v HM Advocate[29]. As Mr Cheng put it in argument, the judge made clear that the impugned evidence was concerned solely with the present case, not with some other or previous case. 

32.  In my judgment, neither of the grounds advanced are reasonably arguable and I refuse leave to appeal.

33.  Having done so, I should advise the applicant that she has the right to renew her application for leave to the Court of Appeal, but I should also warn her that one of the consequences of doing so is that the Court may make an order for loss of any time which the applicant has already spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of the application.