HKSAR v. SILVA BARBA ALEXANDER ALBERTO

CACC 184/2017

[2019] HKCA 217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 184 OF 2017

(ON APPEAL FROM HCCC 397 OF 2016)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The applicant faced an Indictment containing a sole count of trafficking in a dangerous drug, namely, 6.50 kilogrammes of a powder containing 5.03 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant pleaded not guilty to the offence. On 6 June 2017, after a trial before High Court Judge Anthea Pang (“the judge”) and a jury, the applicant was convicted by the verdict of the jury and was sentenced on the same day to 29 years’ imprisonment.

2.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his conviction. 

3.  At the hearing of the applicant’s application for leave to appeal his conviction the applicant appeared in person.  After hearing from him, we refused his application and dismissed his appeal.  We said we would hand down our reasons for doing so at a later date.  These are our reasons.

The trial

The prosecution case

4.  The applicant was intercepted by a Customs Officer at the Customs Arrival Hall of the Hong Kong International Airport on 31 January 2013 at about 1515 hours.  The applicant was an incoming passenger on a flight from Dubai.  He was carrying a black computer bag (exhibit P 18) and pulling a black suitcase with wheels (exhibit P 14).  When he approached the Arrival Hall, he was requested by a Customs Officer to come to the clearance area for a routine check of his luggage, which included a ‘wipe’ test of the luggage and an x‑ray of them.  A piece of white cloth was used to wipe lightly on the zips and handles of the luggage after which it was placed in an ionizer and then discarded.  The wipe test indicated the presence of cocaine, and the x-ray image showed suspicious packages within the luggage.

5.  The applicant was then taken to a baggage examination counter where the Customs Officer confirmed with the applicantthat the luggage belonged to him.  The applicant was requested to open the luggage for examination after which the Customs Officer emptied each piece of luggage of their contents.  The luggage, with the contents removed, were taken for a further x-ray examination and this revealed suspicious lump-shaped objects in concealed compartments.  None of the x-ray images were captured and preserved.

6.  The applicant was then taken to an adjoining room where, in his presence, a “needle test” was performed on the luggage.  This involved using two needles to pierce the lining of each piece of luggage.  When this was done it was found that there was powder on each needle and this powder tested positive for cocaine.  Both needles were discarded after the test.  The applicant was then arrested and cautioned.

7.  At about 1815 hours the same day, the linings of the luggage were cut open in the presence of the applicant and the dangerous drug was found and removed.     The dangerous drug was subsequently taken to the Government Chemist where it was confirmed to be cocaine in the quantity as particularized in the Indictment.

8.  The estimated retail value of the cocaine was over HK$5 million.

9.  It was an admitted fact that “there is no identifiable DNA or fingerprint evidence connecting the Defendant or any other person to Exhibits (1)-(5) (ie the packets of cocaine) or (14) and (18)” (ie the luggage).

The defence case

10.  The applicant elected to testify in his defence but did not call any other witness.  Essentially, the defence case was that the applicant had been framed by the Customs Officers who had swapped his original luggage with exhibits P14 and P18 which contained the dangerous drug, the subject of the charge.

11.  The applicant said that he was a lawyer practising in Bolivia.  He had flown from Santa Cruz to Sao Paulo and then to Dubai before coming into Hong Kong.  He was intending to travel to the Mainland to conduct business. 

12.  The applicant said that when he was intercepted, he was carrying a black messenger bag and a black trolley bag which he had bought in Bolivia two days before his journey.  He claimed that he had packed each of the bags himself.  The messenger bag he had was similar to exhibit P18 in size, but the material was different and his bag had a flap cover.  He also said his trolley bag was bigger than exhibit P14.

13.  The applicant said that when he was at the Immigration counter, he saw the officer pressing a button under the counter. Having passed through immigration, the applicant said he then approached the Customs Officer and asked where he could exchange his US currency.  However, the Customs Officer did not reply, but instead asked the applicant where he came from, to which the applicant replied “Bolivia”.  Having checked the applicant’s passport, the Customs Officer then invited the applicant for a routine inspection.

14.  The applicant said the Customs Officer took out all the items from the luggage and put them in a plastic tray.  After that, the luggage was taken to be x-rayed.  He said he was unable to see what was happening and did not see the wiping of the luggage and the ionizer test being conducted. He accepted that a needle test was done in his presence, but he said he was unable to see it being done because a Customs Officer blocked his view.  He claimed he was not told the result of the needle test. 

15.  Thereafter, the applicant was taken to another room where he saw the Customs Officers take away his two pieces of luggage.  He said he did not see his two pieces of luggage again and the luggage that were exhibited at trial were not his luggage.  He claimed that the first time he saw exhibits P14 and P18 was when they were produced in his trial. 

16.  The applicant denied having taken exhibits P14 and P18 into Hong Kong and denied having trafficked in the cocaine.  He also asserted that in the course of his journey his luggage had been opened, x-rayed and cleared on multiple occasions before he arrived Hong Kong.  The defence suggested that if exhibits P14 and P18 did in fact belong to the applicant, then the applicant’s DNA should have been found on them.

17.  It was the defence case that the absence of CCTV footage proving he was in possession of the exhibited luggage, the failure to capture and preserve the x-ray images and the failure to preserve the ionizer wipe cloth and the needles used to pierce his luggage, showed that the applicant was being framed. 

The applicant’s grounds of appeal

18.  The applicant submitted his grounds of appeal through his Form XI and letters to the court dated 2 January 2018, 17 January 2018 and 20 June 2018.  He also attached documents relating to his first trial, the present conviction in fact flowing from a retrial.  The applicant’s complaints can be summarised as follows:

(i)   there was no DNA or fingerprint evidence to link him with the two pieces of luggage, exhibits P14 and P18, and the wipe cloth and the needles used to test the dangerous drug were not preserved and produced as evidence;

(ii)   there was no airport CCTV footage seized and produced that showed him carrying exhibits P14 and P18;

(iii)   the x-ray images of exhibits P14 and P18 were not captured and produced;

(iv)   the evidence of the Customs Officers was not credible;

(v)   the translator at the trial made mistakes;

(vi)   the judge influenced the jury and helped the prosecutor, resulting in an unfair trial; and

(vii)   there was a lurking doubt as to whether exhibits P14 and P18 were his bags and whether the dangerous drug had been seized from his bags.

19.  At the hearing of his application for leave to appeal he repeated his claim that the judge was biased in favour of the prosecution and also asserted that his lawyer was not allowed to address the jury and that he did not agree to the Admitted Facts.

The respondent’s submissions

20.  In opposing the applicant’s leave to appeal against his conviction, Ms Christal Chan, for the respondent, submitted that the grounds pursued by the applicant are all factual matters and were all covered in the judge’s thorough and detailed summing-up. 

21.  In respect of Ground 1, Ms Chan pointed out that the judge had set out the forensic evidence in great depth and explained to the jury how that evidence, being neutral, did not assist the prosecution or the defence case.  She reminded the jury that there was no fingerprint or DNA evidence linking the applicant to exhibits P14 and P18, and that the prosecution relied on the evidence of the Customs Officers who testified that these exhibits were carried by the applicant.  The jury were told that they had to decide if they accepted the evidence of the Customs Officers. 

22.  Ms Chan relied on the jury being repeatedly reminded that determining whether the Customs Officers were telling the truth was the key to resolving the issues in the case in answer to the applicant’s complaint that is the subject of Ground 2, namely that the CCTV footage had not been seized and to his complaint that is the subject of Ground 3, namely the absence of x-ray images, the wipe cloth and the needles.

23.  In respect of Ground 4, Ms Chan submitted that the judge had summed up the evidence of all ten Customs Officers in great detail and her review of the evidence was detailed and fair.

24.  In respect of Ground 5, Ms Chan submitted that the applicant had been legally represented in the trial and could have made any complaint he had about inaccurate translation through his counsel but had never done so.

25.  In respect of Ground 6, Ms Chan submitted that the judge had thoroughly summed up the evidence for the jury to consider.  The summing-up was balanced and fair and the directions given to the jury were correct. 

26.  Finally, Ms Chan argued that the verdict was a conclusion on the facts by a properly directed jury based on the evidence presented before them.  The finding of the jury was properly reflected in the verdict and there was no irregularity that gave rise to any doubts as to the legitimacy of the verdict. 

Discussion

27.  As the applicantwas unrepresented, we carefully examined the judge’s summing-up for any erroneous direction, unfairness in the recitation of the evidence or bias in favour of the prosecution as alleged by the applicant.  We could detect none.  The summing up correctly directed the jury on the law and accurately directed them on the evidence.  The judge’s description of the evidence was detailed and balanced.  There is absolutely no indication whatsoever of any bias towards the prosecution by the judge.  We unequivocally reject the allegation of the applicant.

28.  This case was quite a straightforward one. There was nothing unusual in this prosecution which was a typical airport drug courier case, uncovered through a random check by Customs Officers.

29.  The applicant’s defence did not transform the trial into a complicated one.  The issues remained straightforward factual ones whose resolution by the jury turned upon their determination of the credibility of the prosecution witnesses and the credibility of the applicant.

30.  Early in her summing-up the judge outlined briefly the respective cases of the prosecution and the defence, and then highlighted the central issue to be determined by the jury[1]:

“Members of the jury, by now it must have been apparent to all of you that the central issue in this case is twofold. Firstly, are you sure that P14 and P18, with the drugs inside the concealed compartments, were brought into Hong Kong by the accused as described to you by the customs officers? If you are not sure then you must acquit the accused. Secondly, even if you are sure that the accused indeed took P14 and P18 into Hong Kong, are you sure the accused knew that there were the drugs concealed inside the compartments of P14 and P18 at the time when he brought those into Hong Kong? If you are not sure, then again you must acquit the defendant, or the accused.”

At different times in her summing-up she reminded the jury of these two issues. 

31.  Given the importance the applicant attached to the lack of forensic evidence, we shall quote what the judge said to the jury[2]:

“Now, in other words, the forensic evidence here is a neutral piece of evidence. It does not assist the prosecution nor the defence. However, as I have told you, it is for the prosecution to prove its case against the accused. The accused does not need to prove anything and on this aspect the accused does not need to prove that there was not any of his fingerprints or DNA found on P14 and P18. He does not need to prove that there was not any of his fingerprints or DNA found on P14 and P18. It is for the prosecution to prove so that you are sure that P14 and P18 belonged to the accused.

Now, since in this case there was no identifiable fingerprint or DNA linking the accused to P14 and P18, so this piece of evidence does not assist the prosecution in proving its case against the accused.  But before you, what the prosecution relies on to prove its case is primarily the evidence they adduced from the Customs officers who told you that the accused was seen carrying with him P14 and P18 from the time when he was intercepted in the green channel and how P14 and P18 were subsequently handled.  That is what the prosecution relies on in this case to prove that P14 and P18 indeed belonged to the accused.”

32.  These are perfectly proper directions and have the beneficial effect of reminding the jury that the prosecution case is based upon the testimonial evidence of the Customs Officers.  The applicant appeared to labour under the misapprehension that the prosecution is required to produce the CCTV footage, the wipe cloth from the ionizer test, the x-ray images and the needles that were used to pierce the luggage and that without such evidence he, the applicant, could not receive a fair trial.  The unavailability of this evidence was an issue in the applicant’s first trial and the decision of the Court of Appeal[3] in respect of the applicant’s conviction flowing from that trial addressed that issue, concluding that the absence of that evidence did not deprive the applicant of a fair trial.  We have nothing to add to that judgment.

33.  There is nothing in any of the applicant’s grounds of appeal.  This was very much a jury case to whom fell the task of assessing the credibility of the Customs Officers and the applicant.  They were properly directed in how they should perform that task.  We could find no basis for impugning the verdict of the jury.  

34.  The claim that there was inaccurate translation was not particularised by the applicant. However, as Ms Chan pointed out had there been serious problems with the interpretation this would no doubt have been raised by the applicant’s counsel with the judge.  This was not done.

35.  In respect of the Admitted Facts we are aware that there was an unsuccessful application to withdraw them on the first day of the trial, they having been admitted by the applicant at his first trial.  This was refused.  The following day his counsel repeated his application but confined it to paragraphs 6 and 10 of the Admitted Facts.  Before the judge gave her ruling the applicant’s counsel withdrew his objection to paragraph 10.  The judge then refused the application in respect of paragraph 6.  Paragraph 6 simply admitted the chain of the drug exhibits but only from the time they were delivered to the Government Chemist Laboratory.  There is no merit in this complaint.

Disposition

36.  For these reasons we refused the applicant’s application for leave to appeal his conviction and dismissed his appeal.