HKSAR v. CHEUNG MEI CHING, TINA

CACC 349/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 349 OF 2007

(ON APPEAL FROM HCCC NO. 90 of 2007)

----------------------

----------------------

---------------------------------------------------------

REASONS   FOR   JUDGMENT

---------------------------------------------------------

Stuart-Moore, VP (giving the reasons for judgment of the Court):

Background

1.  On 27 September 2007, Cheung Mei Ching, Tina (the appellant) was convicted by a jury of trafficking in 839.35 grammes of ketamine following a trial before Deputy High Court Judge Geiser.  She was sentenced on the following day to 7½ years’ imprisonment.  Later, she sought leave to appeal against her conviction.

2.  At the conclusion of the hearing on 22 April 2009, we gave leave and, treating the hearing as the appeal, we allowed the appeal.  We now give our reasons for so doing.

3.  The circumstances of the case are somewhat unusual and need close scrutiny to determine the precise nature of the evidence called by the prosecution to establish its allegation that the appellant was helping her boyfriend, Yip Wing-cheong (Yip), to bring this substantial quantity of ketamine, valued at $192,176, into Hong Kong at the end of a group package tour to the Mainland.

4.  The particulars of the count on the indictment alleged that the appellant, on 4 December 2006 at the Customs Arrival Hall at the Man Kam To Control Point unlawfully trafficked in a dangerous drugs, namely, 985.52 grammes of powder containing 839.35 grammes of ketamine.

5.  The ketamine was discovered inside a black shoulder bag (Exhibit P7) which the appellant had carried through the control point when she was intercepted in the Arrival Hall at about 9.00 pm.  The powder inside her bag was wrapped in a plastic bag.

6.  The appellant was amongst others in her tour group and was on the return journey to Hong Kong when this happened.  Yip was also in the group.  He had gone through a separate gate at the terminal at almost the same moment as the appellant.  He had nothing in his possession which incriminated him.  Some months later, however, he gave himself up and admitted that he had been wholly to blame for trafficking in these drugs which, he stated, he had given to the appellant to carry in a bag without telling her they were there.

7.  The central issue at trial for the jury’s determination, therefore, was whether the appellant was aware that she was carrying dangerous drugs in the bag she was carrying.  The prosecution alleged that she had agreed to carry the drugs for Yip as suspicion would be less likely to fall on her than on Yip.  As the judge said, when dealing with the issue of the appellant’s knowledge of the presence of drugs in her bag:

“You may think that it depends mostly upon whether the defendant and her witness were, or may have been, telling you the truth.”

8.  The defence witness to whom the judge was referring was Yip who was called on behalf of the defence to inform the jury not only about his plea of guilty and involvement in trafficking in this quantity of ketamine but also as to the appellant’s innocent possession of the ketamine.  We shall return to Yip’s involvement in the offence in due course but the prosecution suggested that both Yip and the appellant had utilised a short tour group package holiday as a comparatively safe cover for drug trafficking activities, particularly as this was a trip to the Mainland designed for travellers who were generally much older than them. 

Prosecution’s case

9.  Three witnesses were called for the prosecution.  They were the tour group leader, Tan Chun-chun (PW1), the Customs Officer who stopped the appellant, Lo Fu-sing (PW2) and a second Customs Officer (PW3).

10.  PW1 stated that the appellant and Yip had been late to enter the tour group, joining it only two days before it set off.  They arrived at the pick-up point carrying one small black shoulder bag (about the size of a normal lady’s handbag) and a blue shoulder bag (also sometimes referred to as a ‘rucksack’).  This had struck PW1 as very little baggage but Yip told her that as this was only a two-day tour there was no need for them to have any more luggage.

11.  Nothing remarkable occurred on the first day of the tour but, on the second day, Yip told PW1 that he might have to leave the tour and he wanted to know where the tour group would be having dinner that night.  However, as this was not yet known, PW1 said that Yip remained with the group during the day. 

12.  At one stage, when Yip needed to pay for something on board a pleasure boat cruise they were taking, PW1 noticed that he was holding a large wad of notes which he took out of his pocket.  The notes mainly consisted of $500 and $1,000 notes.  While on the boat, Yip again enquired where the tour party would be having dinner.  As this could not be decided until about 5.00 pm, Yip was informed that a location had not yet been arranged. 

13.  In the course of a bus journey later on, Yip told PW1 that a friend of his would “bring over the stuff” so that he would be able to go back with the group on their return to Hong Kong that night.  Later, when the group went into a restaurant for dinner, PW1 said that Yip did not do so.  He explained to her that he was waiting for his friend who had something to give him.  Eventually, PW1 saw Yip return to the restaurant carrying a department store type of bag but she did not see what he did with this.  There was no dispute at trial that Yip took delivery of the ketamine at the restaurant.

14.  After dinner, the group duly travelled to the border control point.  PW1 saw the appellant carrying the black shoulder bag in which it is clear that Yip had, by this stage, inserted the ketamine.  Yip, for his part, was carrying the blue shoulder bag containing clothing belonging to both himself and the appellant and he was also holding a carrier bag containing a bottle of wine.  PW1 saw the appellant taking her identity card from her purse which, she stated, had been inside the black shoulder bag.  Then, after clearance through Customs, PW1 noticed that the appellant was missing.  She was duly informed by a Customs Officer that “contraband” had been found in the appellant’s luggage.  PW1 saw that Yip looked surprised when he heard this saying something to the effect: “She has contraband?”.

15.  In summary, the judge described PW1 as:

“… an important witness for the prosecution and one upon whom they rely heavily, particularly because of what she saw in the restaurant”.

However, whilst no doubt the evidence of what occured in the restaurant was important as showing that Yip had collected a package which, by clear inference in the light of all the evidence the jury had heard, was the consignment of ketamine, it is difficult to see that it contributed greatly, if at all, to the case against the appellant.

16.  PW2 was on duty in the Arrival Hall when he noticed the appellant.  His reason for stopping her was that she was not carrying much luggage.  She had with her two bags, the black shoulder bag (Exhibit P7) and a red and white bag (Exhibit D3) containing potato chips, a miniature tea set and some tea.  The two bags were taken to the X-ray machine where PW3 was on duty.  It was then discovered that there was a white plastic bag bearing Chinese characters inside the black shoulder bag.  PW3 asked the appellant what this was and she answered by saying that she did not know.  PW3 then asked the appellant why she did not know as the item was inside her bag.  She said that she did not know the item was in her bag.  She went on to say that she had put her bag in the vehicle [that had brought her to the control point] and had no idea the white plastic bag was inside it.  After she had provided the name of the person with whom she had been travelling, Yip was then located.

17.  The appellant was arrested and, when told of this, she asked if she could have a lawyer.  PW3 agreed that the appellant had been cooperative and that her answers were spontaneous.  Yip was released unconditionally as there was no evidence at that time to connect him at that time to the offence.

18.  Other evidence called by the prosecution was contained in the facts admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221.  These facts took the matter very little further against the appellant although it is right to add that the other items admittedly found in the black shoulder bag (Exhibit P7) were an HSBC card in the appellant’s name and a deposit slip for a $1,000 payment into her account on 30 November 2006.  Based on this, the prosecution argued that the difference in the weight of the bag with nearly a kilogramme of drugs inside compared to a practically empty bag containing the two small items referred to in the admitted facts, along with other small items visible in the photographs such as a soft toy, must have been obvious to the appellant. 

19.  The weight difference in the black shoulder bag, coupled with the somewhat bulky nature of the parcel of drugs inside it, provided what was effectively the high point of the case for the prosecution and it was also suggested that, from the appearance of the bag itself, it was the sort more likely to be used by a woman than by a man.  This being said, it was accepted that it might be described as a “unisex” bag.

20.  Other admitted facts dealt with the absence of any useful fingermarks on the plastic bag containing the drugs and the fact that the appellant went through gate 8233 at 20.58.15 hours whilst Yip went through gate 8231 at 20.58.20 hours.  Both these gates were in E Terminal, whereas PW1, the group leader, went through the manned terminal, at gate 4509 at 20.58.31 hours, 16 seconds after the appellant.  It was also an admitted fact that when Yip was arrested, he had on him, amongst other things, $8,000, three mobile telephones (one of which was the appellant’s) and a blue rucksack containing male and female clothing. 

Defence case

21.  The appellant gave evidence supported by Yip.  As the judge reminded the jury:

“If you think that the defendant and her witness may be telling the truth, that would mean that you would necessarily have a doubt about the truth or accuracy of the prosecution case and, in those circumstances, it is your duty to return a verdict of not guilty against the defendant.”

22.  The appellant’s evidence can be taken quite shortly.

23.  She had no previous convictions and said that she had been working as a clerk in a property management company for about six months earning a monthly salary of $8,000 although she agreed in cross-examination that she had no explanation for having said in a statement to Customs and Excise that she was “unemployed”.  The appellant maintained that the black shoulder bag (Exhibit P7) was Yip’s property and that the soft toy inside it was bought by Yip.  The appellant said that although Yip had bought the bag, she sometimes used it and she agreed that the bag had been in her possession when she paid money into her bank account on 30 November 2006 and was given the deposit slip found in the bag as a receipt. 

24.  The appellant’s case was that it was Yip who had got her into this trouble and she was “very, very angry” with him.  The appellant agreed that the black bag, without the weight of the drugs inside it, had weighed very little but she said that she had not paid attention to anything heavy and bulky placed inside it and that she did not notice this because she had not carried the bag for long.  She had carried it from the bus through the Mainland control point and again through the Hong Kong control point.  The appellant explained that her mobile telephone was in the bag being carried by Yip because she was in the habit of losing her telephone.  She denied that it had been removed from the bag she was carrying to make room for the drugs.  The appellant said that at no stage after her arrest, while she and Yip were on bail, had she asked Yip how the drugs came to be in the bag and she denied that this omission was because she had no need to do so as she had known this all along.

25.  Yip’s evidence amounted to a full confession to trafficking in these drugs.  A plumber by occupation, he had a variety of convictions for offences which were not connected to drugs.  He said that following his arrest on 4 December 2006, he was released unconditionally.  However, almost three months later, on 1 March 2007, he said he surrendered to Customs and Excise and gave them a statement informing them about his role.  In this, he exonerated the appellant from all blame. 

26.  There was one important discrepancy in the account Yip gave to the Customs and Excise when compared to the account he gave in court.  This was described by the judge as going “directly to the credibility of Yip”.  The judge said:

“… [Yip’s] evidence was that he told the Customs and Excise Department in that statement that the reason that he gave the bag to the defendant at the border was that she had noticed that the things that he was carrying were heavy, so he asked her to carry the bag [Exhibit P7] for him. He also said that the ‘K chai’ was supplied to him by Fat Hung and that he would receive $5,000 as ‘tea money’ once the drugs were successfully brought through Customs. He said, members of the jury, that this statement that he made to Customs on 1 March was true.

  The truth of this statement was challenged by Mr Laskey in cross-examination, because the witness had accepted in cross-examination that the reason that he had given the bag, Exhibit P7, to the defendant at the Chinese side of the border was simply that it would pose less of a risk to him, as the defendant was a woman.”

27.  Yip went into detail about how he had arranged to take possession of the ketamine and none of these arrangements, he said, involved the appellant.  ‘Fat Hung’, the person he had named as his supplier, had suggested that he should use his girlfriend to carry the drugs across the border as she would attract less suspicion.  When he put the drugs into the black shoulder bag (Exhibit P7), he said that he removed the appellant’s telephone in order to make room for the drugs.  Yip also gave an account of what had happened inside the restaurant just before the tour group went to the border control point which differed from the version given by PW1.  He said that he had gone inside with all the other tour group members and had only left the restaurant when he received a call on his mobile telephone that Fat Hung had arrived with the drugs.

Summing up

28.  The judge summed up the main issue for the jury to determine, in the light of all the evidence which he had set out, in these words:

“… What you make of the evidence of the defendant and that of Yip, these are matters that are entirely for you to decide. You must use your common sense and pooled experience of life.

  I repeat that the defendant is a woman of unblemished character. She has no prior criminal convictions. You must take this into account in deciding whether she is likely to involve herself in drug trafficking, and also take it into account in deciding whether you believe her evidence.

  As far as Yip is concerned, you may have little difficulty in concluding that he is a rogue and a scoundrel; a convicted drug trafficker [from his guilty plea at the start of the trial], and someone who is perfectly capable of setting up the defendant. You may, on the other hand, take the view that his evidence is a desperate and dishonest attempt to protect his girlfriend.

  There are a number of inconsistencies in this case, members of the jury, but you may think that there is a glaring one that stands out like a beacon over the rest, and that is the account given by Miss Tan [PW1], on the one hand, that she saw Yip remain outside the restaurant when the whole party had gone inside. She had a conversation with him, in the course of which Yip said that he was waiting for someone who was going to bring him something. She saw him re-enter shortly thereafter, carrying this bag 11 cm by 18 cm and going straight to the table where the defendant was sitting.

  On the other hand, you have the account of Yip, who said that he entered the restaurant with the whole group initially, but after a number of telephone calls went outside and re-entered with Fat Hung, and they both went into the toilet, where the drugs were handed over.

  Does Miss Tan's evidence have the ring of truth about it, or was she telling lies, as suggested by the defendant, or simply mistaken in what she saw? Does the defence suggestion that Yip's evidence is to be preferred as, amongst other things, drug trafficking is more likely to take place in a secret place - does that appeal to you? These are matters for you.

  The prosecution say that the defendant was part of a joint enterprise with Yip to traffic in these drugs. The defence say quite simply that this is not the case; the defendant had no idea what was in Exhibit P7, and Yip was on a frolic of his own and set the defendant up.”

Grounds of appeal

29.  Mr David Ma, on whom we did not call, advanced two grounds of appeal on the appellant’s behalf.

30.  In the 1^st ground, it was submitted that the judge was wrong to have directed the jury that they could compare the evidence of PW1 with Yip’s account in the passage we have just cited because, it was contended, this had the effect of inviting the jury to misapply the burden and standard of proof.

31.  We agree with Mr Lee’s written response to this ground, that it was misconceived.  The judge had explained the evidence fairly and had reminded the jury time and again that there was no burden on the appellant to prove her innocence.

32.  The 2^nd ground of appeal was that the judge had failed to direct the jury properly with regard to their approach to the value of ‘demeanour’ when assessing credibility and had failed to deal with issues of credibility in the account given by PW1.

33.  Again, we have to say that there was no merit in these arguments.  Nothing said by the judge about demeanour was inappropriate.  In fact, all he had said was:

  “When a witness gives evidence from the witness-box, you have an opportunity to watch them and listen to them and observe their demeanour while they are giving their evidence. This demeanour can help you, and it is a factor that can help you decide how much weight to put on the witness’ evidence.

  When you are trying to assess the credibility of a witness, you are entitled, and indeed you are expected, to make use of your own experience of life, especially life here in Hong Kong. You are also expected to use your common sense.”

34.  There is no rule of law which requires a judge to go further and warn the jury of the “limited value” of a witness’ demeanour in assessing credibility.  Apart from anything else, demeanour may not have limited value and, to the contrary, it may provide a valuable guide to the truth.  That will be for the jury to assess making use, as the judge explained, of their own experience of life.

35.  Both grounds, therefore, must fail.

Can this verdict safely stand?

36.  This is not, however, the end of the matter.

37.  In assessing this case as a whole, we have been greatly concerned as to whether there was in fact sufficient evidence against the appellant to provide a safe and sound basis for her conviction.  There is no doubt that a prima facie case was established and that she was caught in highly suspicious circumstances.  Nevertheless, when put at its highest, there was, in our opinion, no single point, standing alone or in combination with others, which could be said to establish an irresistible inference of guilt.

38.  We have come to the conclusion, in spite of the jury’s verdict, that this was one of those rare and exceptional cases in which, although properly left to the jury, a distinct feeling of unease is left behind as to the correctness of this verdict.  The position in which we now find ourselves was also encountered in R v Cooper [1969] 53 Cr App R 82 at 85-86 where the English Court of Appeal was faced with a similar situation.  Lord Widgery LJ, when giving judgment, said:

  “The important thing about this case is that all the material to which I have referred was put before the jury. No one criticises the summing-up, and, indeed, Mr. Frisby for the appellant has gone to some lengths to indicate that the summing-up was entirely fair and that everything which could possibly have been said in order to alert the jury to the difficulties of the case was clearly said by the presiding judge. It is, therefore, a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this Court would be very reluctant indeed to intervene. It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 - provisions which are now to be found in section 2 of the Criminal Appeal Act 1968 - it was almost unheard of for this Court to interfere in such a case. 

  However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it.”

39.  Similarly in Hong Kong, pursuant to section 83 of the Criminal Procedure Ordinance, this court is duty-bound to allow an appeal against conviction if it thinks that “the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. …”  In a highly unusual development in this case, Yip had not only given himself up as the guilty culprit, he had also pleaded guilty and provided positive evidence that he had not told the appellant what he had done.  There was nothing in any of the evidence called by the prosecution, other than the bare fact that the appellant was carrying the drugs, which gave rise to any suspicion against her or which pointed to her knowledge that she was in possession of the ketamine.  The appellant had a perfectly valid reason for travelling to the Mainland and back and there is no doubt that she had been in the company of Yip as to whom there was no reason for her to have known or suspected, after living with him for four years, that he would embark on a drug trafficking venture.

Conclusion

40.  We were unable for the reasons we have given, to say that the verdict was one which could be regarded as safe.  Accordingly, we quashed the conviction and the sentence imposed in respect of it.