HKSAR v. YAYU MASIH

CACC 181/2021

[2022] HKCA 1175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 181 OF 2021

(ON APPEAL FROM HCCC NO 339 OF 2020)

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J U D G M E N T

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1.  The applicant was indicted on a single count of trafficking unlawfully in 1,480 grammes of a solid containing 914 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, to which count she pleaded not guilty. On 29 July 2021, following a trial in the High Court before Deputy Judge Bruce (“the judge”) and a jury, the applicant was unanimously convicted of the offence. On 2 August 2021, she was sentenced to 20 years and 3 months’ imprisonment. She now appeals against her conviction only.

The prosecution case

2.  On 26 November 2019, Customs officers intercepted a parcel from Kenya at the Inbound Cargo Examination Building of Lok Ma Chau Control Point, and found it to contain cocaine in the quantity particularised in the Indictment, concealed inside three metal oil filters. The name of the recipient of the parcel was written as “Nur Janatin”, with an address at 28A, 2/F, Kam Tin Shi Street, Kam Tin in Yuen Long[1]. Customs officers attempted to deliver the parcel to the recipient’s address on 27 November 2019, and further tried calling the telephone number provided on the waybill, but without success.

3.  At about 2:06 pm on 28 November 2019, the applicant presented a photograph of the waybill number in her mobile telephone at Ever Gain Centre Branch of UPS in Sha Tin in order to collect the parcel. Upon request, she also produced an image of the identity document of Nur Janatin and duly acknowledged receipt of the parcel by providing her own identity card number and signing on the delivery record[2].

4.  Having received the parcel, the applicant was intercepted and arrested by Customs officers in the lift lobby of the 6^th floor of the Ever Gain Centre. Under caution, the applicant said she was collecting the parcel for her friend, Nur Janatin, since the latter was in hospital. She had been instructed to give the parcel to her friend’s boyfriend. She did not know what was inside the parcel and had not received any reward[3]. The applicant stated that her friend’s telephone number was the number shown on the waybill. She also provided to Customs officers the telephone number of her friend’s boyfriend, which was saved in her telephone under the name of “Boss”. When asked why the number was saved under Boss, the applicant said that was the name passed to her by her friend.

5.  The applicant subsequently participated in a controlled delivery operation, during which she returned three missed calls from Boss. Having arranged a time and place for the delivery with Boss, nobody ultimately showed up and the controlled delivery operation was called off.

6.  The prosecution relied on the telephone records of the applicant at the material time, in which there were no call records between the applicant and anyone called Nur Janatin, nor with the contact number shown on the waybill; indeed, there was no such name saved in the applicant’s telephone book and no records of WhatsApp calls or messages between the applicant and Nur Janatin[4].

7.  Ms Nur Janatin was called to give evidence for the prosecution. She said that she had lost her identity card in 2018 and had never created an image of that identity card[5]. The address written on the waybill was not hers, nor had the contact telephone number ever belonged to her[6]. She confirmed that she had never ordered anything from Kenya, nor did she know the applicant or a person called Boss with his telephone number[7].

The defence case

8.  The issue at trial focused on whether the applicant knew that the parcel she collected from the UPS office contained a dangerous drug. On this matter, the applicant elected to give evidence. Apart from repeating what was said under caution, the applicant testified that the contact number shown on the waybill was in fact her friend’s former telephone number. She explained that this was why the telephone number did not appear in her call records[8].

9.  The applicant said she had met her friend and the boyfriend about 5 or 6 times and accepted that they were not close friends of hers and did not see each other often[9]. The applicant then communicated with Nur Janatin’s via the boyfriend, Boss, because her friend once told her that her boyfriend would become jealous and wanted to keep an eye on what was being communicated to his girlfriend[10]. The applicant believed that her friend’s actual name was Nur Janatin, and the photograph on the identity card was of her, which also matched with the picture on Nur Janatin’s Facebook account. However, Ms Nur Janatin denied having a Facebook account and claimed that the photograph purporting to be of herself on Facebook, which was shown to her in cross-examination, was not her.

10.  The defence contended that the applicant’s behaviour in using her own name and telephone number to retrieve the parcel, as well as her willingness to reveal her telephone password, cooperate in the controlled delivery and provide her real address for a house search, did not fit with the suggestion that she knew there was a dangerous drug inside the parcel.

Grounds of appeal

11.  The applicant acted in person at this application. She has not filed any submissions in support of her application but simply stated in her Form XI that the verdict was “wrong”. Before me this morning, she applied for a lawyer to examine her papers. However, not only has legal aid already been refused but the Bar Free Legal Service Scheme have also declined to act on her behalf. Accordingly, I decided to continue with this application, which does not of course prevent the applicant from exploring other avenues of legal representation, even if leave to appeal is refused.

The respondent’s submissions

12.  Ms Chan, on behalf of the respondent, submitted that the issue at trial turned upon the jury’s assessment of the credibility and reliability of the evidence. The judge had given a comprehensive summing-up, and his legal directions were clear and adequate. The respondent submitted that the overall summing-up was accurate, fair and balanced.

13.  The jury were entitled to come to their verdict on the facts, following a fair and comprehensive summing-up. The verdict was neither perverse or unfair nor could it be said to be unsafe or unsatisfactory.

Discussion

14.  Although there are no grounds of appeal before me, I have examined the summing-up for any potentially appealable error. However, I would agree that the summing-up is fair and comprehensive throughout. The judge was at pains to ensure that, even if the jury did not believe the applicant’s account, which, it must be said, contained some very strange features, that was not the end of the matter. He told the jury that they were not allowed to say to themselves, “‘I don’t believe you, therefore you’re guilty’. That is not the way the law permits you to think in this case”[11]. Again towards the end of his summing-up, he repeated[12]:

“The law is that the accused has got nothing to prove, but she has offered her version. If that version is true or might be true, then the only conclusion open to you is to acquit the accused. If, on the other hand, you reject her version as unworthy of belief, as I have said already, that is not the end of the matter. It is fundamental that even if you reject her testimony, the prosecution must still prove its case. If you came to the conclusion you could not believe a word she said, just put her evidence aside and ask the fundamental question that I have already referred to.”

15.  Although, as the judge made clear, it was for the prosecution to prove its case, the applicant had decided to give her explanation; realistically, therefore, much depended on how the jury would assess her credibility. Plainly they did not believe her account. In these circumstances, the judge’s repeated directions were very fair statements of the law.

16.  I do not see any errors in the judge’s directions of law which would warrant me giving the applicant leave to appeal her conviction. In the circumstances, the application must be refused.

17.  The applicant is advised that she has the right to renew her application for leave to appeal against conviction to the Court of Appeal. However, she is also warned that, should she do so, the Court of Appeal has the power to order the loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.