HKSAR v. LEE CHEUK HEI

CACC 331/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 331 OF 2016

(ON APPEAL FROM HCCC 299 OF 2015)

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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 was charged with a sole count of unlawfully trafficking in a dangerous drug, namely 4,992 grammes of a powder containing 3,787 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was tried before Wong J and a jury and on 6 October 2016 he was convicted of this charge, and on the same day was sentenced to 22 years 6 months’ imprisonment. On 25 October 2016, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his conviction.

2.  At the hearing of the application we refused it and said we would hand down our reasons for doing so at a later date.  These are our reasons.  

The prosecution case

3.  On 24 February 2015, at around 6:59 pm, the applicant was intercepted by Customs officers at the Arrival Hall of Lok Ma Chau Control Point.  At the time he was returning from Futian to Hong Kong and was carrying a backpack.  When Customs officers checked the backpack they found five packages, wrapped in towels and bandaged with adhesive tape.   The dangerous drugs the subject of the count were found inside each of the five packages.  

4.  The applicant was duly arrested and a mobile telephone and two SIM cards were found in his possession.  After being cautioned, the following questions and answers took place between a Customs officer and the applicant:

Q.  What are these few packets of stuff?

A.  I don’t know.

Q.  Whose is the backpack? 

A.  It is mine.

Q.  Whose are these few packets of stuff?  

A.  I was helping someone to take them through the customs.

5.  One of the packets was then opened and the Customs officers found a transparent tightly sealed plastic bag containing a crystalline substance.  The following exchange then took place:

Q.  Do you know what the transparent crystalline substance is?  

A.  I don’t know.

Q.  Who gave you the stuff?

A.  I don’t know him/her.  I took them at the Mainland port.

Q.  Where were you taking the stuff to?

A.  Mongkok.

Q.  To whom would you give them in Mongkok?  

A.  Someone would call me when I get there.

Q.  Do you get any reward for bringing this stuff? 

A.  $500.[1]

Q.  Why do you have to help people bring them?  

A.  I owe people money.  I owe people twenty thousand dollars.

6.  When detained in Lok Ma Chau, the applicant showed the Customs officers his mobile telephone displaying his Facebook and WhatsApp messages with a woman called Lau Ka Ki (“KK”) who had referred the “job” to him the previous day, 23 February.  It is clear from these messages that KK first offered the applicant a “job” to “go to Australia and acknowledge receipt of parcels”.  His reward would be $15,000 for receiving a parcel and there would be two to three parcels per week.  Thus, for this “job” he was to be paid up to $180,000 per month just to be available to receive parcels.  However, having noted that the applicant was not yet a Hong Kong permanent resident and did not have a passport, KK withdrew this job offer. 

7.  Then, the following conversation ensued between KK and the applicant in which KK offered another job to the applicant:

KK:  Dare you drag[2] from the mainland to Hong Kong in company with somebody?

The applicant:  It’s super risky to go to the Mainland.

KK:  So you would not run errands to the Mainland, would you?  $3,000 per errand, and only 1 errand per day.  Nothing risky in Futian control point.  But very strict in Lo Wu and Huanggang. 

The applicant:  How long would the imprisonment be if one is inspected and caught?  I would do it.

KK:  Basically you won’t be inspected unless you are cocky.  I have one who dresses decently to run the errands.

The applicant:  Humph, then I would take the risk.

KK:  It is ok if you don’t dress as M(ong) K(ok style, i.e. indecently).  There will be (errands) tomorrow.

8.  The applicant agreed to take up this job, but he was also warned by KK:

“My boss says don’t stand us up once you promise to do it.”

He was also required to provide the details of his home address and when he asked why that was needed he received the reply:

“In case you run away with the goods, the boss will need some assurances.”

Finally he was told to meet at Lo Wu at 5 pm the following day.  When the applicant agreed, KK responded with the threat:

“You’ll die if you stand us up.”

9.  He was given the telephone number of a person, whom he later came to know as the person “A”, and it was through this person that he subsequently collected the backpack.

10.  At 2:11 am the following day, another conversation took place between KK and the applicant in which KK offered him another high paying job simply for performing the task of posting parcels.  The conversation was as follows:

“KK: Post parcels from Hong Kong. 1000 for one parcel, will you do it.

Applicant: Yes.

KK: OK.

Applicant: How?

KK; Someone will contact you. And give you the parcel and the form. Take them to the post office and post them will do.

But that won’t be frequent.

2-3 times per week.

Applicant: OK.”

11.  The woman, KK, in fact tried to call the applicant after his arrest at 7:29 pm, 7:37 pm, 7:38 pm and 8:01 pm.  At the request of the Customs officers the applicant agreed to participate in a controlled delivery operation.  He made two calls at 9:01 pm and 9:02 pm and sent two WhatsApp messages to the woman, KK, at 9:04 and 9:05 pm, but she did not answer his calls or reply to his messages.  At 9:35 pm, the applicant was taken from Lok Ma Chau to carry out the controlled delivery at Mongkok.  At 10:15 pm, the applicant revealed that, in fact, he had been accompanied by a male (later known as “A”) when he crossed the border earlier that day[3]. The applicant, who was under Customs’ supervision, waited in Mongkok for about 30 minutes, but no person came to take delivery of the drugs and the person “A” did not answer the applicant’s phone calls.  The attempted controlled delivery operation was unsuccessful.

12.  At 10:50 pm, the applicant was taken to his home for a house search, but nothing suspicious was found there.

13.  On the following day, 25 February, between 2:32 and 3:18 pm, the applicant participated in a video record of interview, in which he said that he had not seen what was inside the backpack until it was opened by Customs officers, and had no knowledge of drug packages.  The applicant admitted in the interview that when he was given the backpack he found it heavy.  When asked whether he found the “job” strange, the applicant answered in the affirmative and said:

“Interviewer: Well, did you think it was very strange? Er, how come (you) would be given three, three thousand dollars as a reward just by making a trip up and carrying a rucksack for someone? Did you find it very strange?

Applicant: I did.

Interviewer:  What did (you) find strange? [rustling sound of paper]

Applicant: Such a high reward, [A: Mm.] it probably isn’t something proper, legitimate; it was not a legitimate job.

…

Interviewer: So, why did you do something you felt, as you said it was not a, as (you) believed was not legitimate?

Applicant: No, I have been sleeping overnight in an internet café since New Year. (I) had no idea, no idea what (I) can do. Because (I) don’t have a home, (I) can’t shower. I couldn’t even go to work. So I would do anything, anything, even though, even do such a thing, I have no other way out.”[4]

The defence case

14.  The applicant elected to give evidence but called no other defence witnesses.  He testified that he was 21 years of age and had come to Hong Kong at the age of 13 and received education up to Form 4 level.  At the time of his arrest, he had quit his last employment as a decoration worker because he was not paid his wages.  He was seeking employment from various sources, including a “Job seekers Group” on Facebook where he got to know KK.  When cross-examined about his relationship with KK, he claimed that despite having only communicated with her briefly on 23 February, they had become close friends. Since KK was a girl, he thought that she would not harm him by getting him involved in drug-related activity.  He said the possibility that dangerous drugs were involved “never came to his mind.”[5]

15.  The applicant said that on 24 February, he met “A” at Sheung Shui MTR station and asked him what he was to collect. “A” said “It’s okay, just follow me”.  His first impression of “A” was not favourable. To the applicant, “A” looked offensive and his tone was kind of cheeky, so the applicant did not further engage him in conversation.  About 10 minutes after the two had arrived at Lo Wu another man, “B”, appeared, and he passed a backpack to the applicantand then left.  Then, “A” and the applicantproceeded to Futian Control point by taxi.  During the taxi journey, which only took 2 to 4 minutes, he placed the backpack in the middle of the rear seat between “A” and himself.  There was no conversation between them.  He did not think of opening the backpack because he regarded his job as only requiring him to deliver things, and as these things did not belong to him it would be strange if he opened it to look inside.  When questioned why he did not ask “A” what was inside he said:

“I did not care about this.”[6]

16.  On arriving at Futian Control point, he went through the Mainland immigration together with “A” and neither of them was stopped by anyone.  When passing Hong Kong Immigration, “A” walked about 2 metres in front of him, so the applicantwas alone when he was subsequently intercepted by Customs officers.  

17.  Whilst denying knowing that any dangerous drug was involved, the applicant said “it occurred to him” and “he thought” he was carrying something illegal[7]. In particular, he thought he was carrying “jade, antique and there’s a possibility that they might be gold bricks or imitation guns”[8].  He accepted that he had been told by both KK and “A” that it was smuggling, which he understood meant “something which could not be exposed delivered from here to another place” and the purpose of which was to evade tax liability[9].

18.  As to the prosecution allegation that it was not until 10:15 pm that he revealed to Customs officers that he was accompanied by “A” when crossing the border, the applicant explained that upon arrest he was handcuffed and his mind was blank, he was unable to think of anything and it was like he was in a dream.  He was also frightened.  Nevertheless, he had told Customs officers of the fact that he was accompanied by someone sometime before 9 pm.  He denied having any intention to conceal “A’s” involvement, and denied disclosing the involvement of “A” only after realizing that he had been abandoned by KK and “A”. 

The issue of “blind eye” knowledge

19.  In the course of the trial, the prosecutor referred to the applicant “turning a blind eye” to the presence of drugs in the backpack.  The first reference to “turning a blind eye” was by the prosecutor, Mr Richard Donald, in his opening address to the jury when he was informing them of the issue of whether the applicant was in possession of the drugs.  He said:

“Now it’s very important in a situation where a person deliberately turns a blind eye, you’ve probably heard that phrase before, deliberately turning a blind eye, in other words pretending not to notice, turn a blind eye, pretend not to notice and you deliberately did not inspect the contents of the package in a situation where it would appear a reasonable person should inspect that package and that is a factor that you can take into consideration in determining whether or not that person had actually possession of the dangerous drugs. So it may be a case where in this situation where the defendant was turning a blind eye or pretending not to notice that what he was carrying was in fact a dangerous drug.”

20.  It next arose in the course of Mr Donald’s cross-examination of the applicant.  This prompted an intervention by the judge who was concerned that the effect of Mr Donald’s reference to “turning a blind eye” might be to suggest to the jury that they could convict the applicant even though not satisfied beyond reasonable doubt that he knew that there were drugs in the backpack.  There then followed discussion on this issue between the judge and counsel, in the absence of the jury, which was resolved by the judge ruling that he would direct the jury that they had to be sure that the applicant knew there were drugs in the backpack. 

21.  The judge’s ruling caused the prosecutor to adopt a different tack in his closing address and, though Mr Donald still referred to the applicant turning a blind eye, he emphasised to the jury that “the issue” in the case was whether the applicant knew there were drugs in the backpack. 

The summing-up and further directions

22.  At the outset of his summing-up, the judge directed the jury on the elements of the offence and highlighted the key issue in the case as being whether the applicant knew what he was carrying in the backpack was a kind of dangerous drug.  On this issue which the judge emphasized was “the most important issue”, he said:

“… The prosecution has to prove that defendant knew what he was carrying was a kind of dangerous drug.

Now you are entitled to take into account the whole of the evidence in deciding this issue, the issue of knowledge.  Now evidence includes the whole circumstances surrounding the incident.  It includes evidence of the background of the defendant, which includes his age, his education level and all the jobs he had engaged in.  It includes evidence of the circumstances of how the defendant came to engage in this exercise.  It includes evidence of what was said between the defendant and other persons involved.  It also includes whether or not the defendant had checked what he was carrying.  Now turning a blind eye does not equate to knowledge.  But if your finding is that the defendant reasonably had a chance to check the items and he did not check them, you are entitled to take this finding and the defendant’s explanation, if any, into account.” 

23.  Despite the judge’s directions, the issue was the subject of two questions posed by the jury after they had commenced their deliberations.  The jury’s two questions were:

“(1) Please define and elaborate the meaning of ‘turn of blind eye’ in detail and (2) what if [the applicant] once thought of the object might be dangerous drug but he deliberately ignored and refused to check the item, is he guilty for deliberately ignore the fact.”

24.  In response to these two questions, the judge gave the following further directions:

“… ‘turning a blind eye’ is not a legal term, it is just ordinary English expression. Counsel had used this expression. I adopted it and one of the main reasons was that I needed to direct you ‘turning a blind eye’, as mentioned by counsel, is not sufficient. The prosecution must prove that the defendant knew that he was carrying was a kind of dangerous drugs. This is the most important point. Perhaps you don’t need to be distracted by this term ‘turning a blind eye’.

In the context of the present case, it is most important that you focus on the issue you have to decide, that is whether or not the defendant had the required knowledge and you must remember only knowledge is sufficient, nothing less than that is sufficient.

And I have told you, you should give the word ‘knowledge’ its ordinary meaning, I think we all know what knowledge is meant.

Now, when ‘turning a blind eye’ was mentioned it was in the context that, well probably counsel for the prosecution was asking you to consider the whole circumstances of the case as evidence reveals which includes background of the defendant, circumstances leading to this incident, the circumstances surrounding the happenings of the events, what had been said and done by the defendant and the other persons involved and what had not been said and had not been done. What you should do is to consider the whole circumstances and decide whether or not the defendant had the required knowledge…

The second point… Now first of all, thinking that the object ‘might be’ is not sufficient. It is about the defendant knowing that it was dangerous drugs, so “might be” is not sufficient.

Now secondly, you must not find the defendant guilty just because you find he had ‘deliberately ignored’. Now, it is not sufficient. It is only unless you find him have the required knowledge that you can find him guilty. So ‘deliberately ignoring’ does not by itself equate to knowledge. ‘Not checking’ does not by itself equate to knowledge but if it is your finding that the defendant had deliberately ignored or that he in the circumstances had not checked, you are entitled to take this into account and if you think appropriate you may ask yourself ‘Why did he ignore, why he did not check’ and in your consideration you must take into account the explanation the defendant had told you.

Now what you have to do is to consider the whole of the evidence and if ‘deliberately ignoring’ or ‘not checking’ is a finding of yours then it is a matter you are entitled to take into account but don’t jump to the conclusion just simply because you have that finding to jump to the conclusion that the defendant is guilty. You must consider the whole circumstances.

Whether you find ‘deliberately ignoring’ and the finding of ‘not checking’ supports the prosecution case is a matter for you to decide.”

25.  These further directions to the jury in answer to their questions put to rest once and for all any doubt that the jury might have laboured under about what they had to find in order to convict the applicant.  Mr Phillip Ross, who appears for the applicant, does not challenge that the jury were adequately directed that they had to find the applicant knew there were drugs in the backpack.  His complaint is the adequacy of the directions on how the jury were to determine this issue through the process of inferential reasoning. 

26.  Nevertheless, all that transpired in respect of the “turning a blind eye” issue still has relevance in reflecting the fact that knowledge of the presence of the drugs in the backpack was the key issue at trial and of lending emphasis to this fact. 

The Amended Perfected Grounds of Appeal

27.  In his Amended Perfected Grounds of Appeal Against Conviction, Mr Ross raises only the following ground of appeal:

“The learned judge directed that if jury found that the applicant had (1) deliberately ignored what was in his rucksack or found that (2) he had not checked what was in his rucksack the jury could take (1) or (2) into account and (3) any explanation the applicant has given as well as the whole of the evidence to infer whether the applicant knew he was carrying a kind of dangerous drugs. However, the learned judge erred by not directing the jury on inferential reasoning by reference to the evidence and the arguments thereon in determining whether or not the applicant knew he was carrying a kind of dangerous drug.”

28.  In his written submission, Mr Ross submitted that nowhere in the summing-up did the judge give an example to the jury of how an inference could be drawn by reference to the evidence in the applicant’s trial.  Mr Ross relied on Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149 for the proposition that there must be at least one instance when directions on inferential reasoning are given where the directions are specifically set in the context of the evidence and arguments of counsel. 

29.  By their questions, the jury revealed what issue was of concern to them.  Indeed, as Mr Ross noted, the judge’s direction to the jury in response to their question was given at 1:06 pm and by 2:30 pm the jury had reached a majority verdict of guilty.  Mr Ross submitted that this would suggest that this last direction influenced the jury’s verdict. 

30.  But the judge did not assist the jury on how to draw an inference of knowledge of the contents of a bag in the situation where the person in possession of the bag may have been deliberately refraining from checking the contents of the bag because, knowing the bag may contain something illegal, he wished to remain ignorant of its contents.  Mr Ross submitted that on an issue like this the judge should have directed the jury on how an inference can be drawn against or in favour of the applicant had the jury found the applicant had deliberately ignored or simply not checked the rucksack.  He asserted that the judge should have directed the jury that in resolving this issue they should have regard to the following primary facts:

(i)  the high reward for delivering the contents of the backpack;

(ii)  the weight of the backpack;

(iii)  the disputed fact that the applicant considered the backpack might have contained many illegitimate items but did not consider it would contain dangerous drugs;

(iv)  the financial difficulties that the applicant was facing;

(v)  the disputed fact that he had trusted KK; and

(vi)  the disputed facts as to the applicant’s explanations on why he did not think he was carrying dangerous drugs.

31.  Whilst accepting that in her closing speech Ms Cindy Lee, who appeared for the applicant at his trial, had commented on how to apply inferential reasoning to the evidence, Mr Ross submitted that, as a matter of law, this could not be a substitute for the judge giving his own direction on this crucial issue of the applicant’s knowledge that the jury had to determine.

The respondent’s submissions

32.  Ms Peggy Lo, Senior Public Prosecutor, for the respondent, submitted that the Court of Final Appeal in Nguyen Anh Nga did not lay down any new legal principle on, or approach to, the directions to be given on the drawing of inferences. 

33.  Ms Lo submitted that in Nguyen Anh Nga it was the failure of the trial judge to direct the jury on the evidence that was relevant to the inference they were being invited to draw which rendered the verdict unsafe in the particular circumstances of that case.  In the present case, the judge had not only given the jury general directions on the issue of knowledge but specifically summarized the factors which the prosecution and the defence expressly invited the jury to consider, as well as other factors which the jury might further consider in relation to the same issue.  The judge also specifically set his directions on the drawing of inferences in the context of the evidence and the arguments of the parties.  Consequently, there was no basis for disturbing the conviction.

Discussion

34.  Before addressing Mr Ross’s arguments, it is necessary to refer to the impact of the Court of Final Appeal’s decision in the Nguyen Anh Nga case on a trial judge’s directions on circumstantial evidence and inferential reasoning.  The first point to note is that the judgment did not change the law on the legal content of the directions that are required.  The true impact of the court’s judgment is in its decision that, on the particular facts of the case before it, the failure of the judge to tailor her directions to the evidence was a departure from accepted norms that was so seriously to the defendant’s disadvantage as to constitute a substantial and grave injustice.

35.  There is nothing new in saying that legal directions should be tailored to the evidence of the case in which they are being given.  Placing the directions in their factual context helps the jury to understand what the directions mean, why they are relevant and how they should be applied.  The Specimen Directions in Jury Trials issued by the Judicial Institute do just that in respect of inferential reasoning at page 21.3 and the Court of Final Appeal approved what is said there.  

36.  Thus, the issue for us is whether the judge tailored his directions to the evidence in the case and, if he did not do so, or did not adequately do so, whether his failure amounted to an error of law that led to a miscarriage of justice. 

37.  In Nguyen Anh Nga the issue was the same as in this applicant’s case, namely whether the defendant knew that drugs were contained in her suitcase.  Although Nguyen did not testify in her defence, there were out of court statements before the jury which contained denials by her of knowledge of the presence of the drugs.  The Court of Final Appeal said the trial judge was right to conclude that these circumstances called for a special direction on inferential reasoning.  The question then became one of whether the direction given was adequate in the circumstances.

38.  As a prelude to answering that question, the court addressed the issue of the approach that any judge should take when directing a jury.  Bokhary NPJ in giving the judgment of the court said:

“Summing-up should relate the law that the jurors have to apply to the context in which they have to apply it

24. In the course of a summing-up, jurors receive many directions on the law. They must be assisted to see those directions in the context of the evidence and the arguments thereon. Where inferential reasoning is involved, the summing-up is likely to contain repeated directions on the approach to inferential reasoning. It is to be expected that at least once in the course of the summing-up, the directions on inferential reasoning would be specifically set in the context of the evidence and the arguments thereon. A summing-up should relate the law that the jurors have to apply to the context in which they have to apply it. How that is to be done in regard to inferential reasoning is addressed in the specimen direction on the drawing of inferences to be found at p 21.3 of the Specimen Directions in Jury Trials issued by the Judicial Institute in September 2013.

25. That specimen direction, after indicating that no inference is to be drawn against the accused unless it is the only reasonable one, immediately continues as follows:

  [In this particular case, the prosecution says that there is direct evidence that (specify one or a number of primary facts which the prosecution say are clearly shown) and the prosecution says that the only reasonable inference to draw from those facts is that …. On the other hand the defence says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw; and that another inference one might reasonably draw is that ….] (Italics in the original.)”

39.  Bokhary NPJ made clear that what will be required of the judge will always be a fact sensitive matter and does not mean that the judge necessarily has to do any more than deal with all the evidence on the basis of which an inference of knowledge could be drawn.  Depending on the circumstances of the case, there may be no need to go further and tell the jury what evidence they could, and could not rely on for the purpose of drawing that inference.[10]  

40.  However, where a special direction is needed, and where the inferential reasoning direction is not “specifically set in the context of the evidence and the arguments thereon”, then the omission by the judge to provide this contextual relevance for the direction is not immaterial.  It is “an omission to give a correct direction on inferential reasoning.”[11]

41.  In terms of general principle Bokhary NPJ provided the following guidance to trial judges at paragraphs 56 and 57 of his judgment:

“Jury directions must be tailored to the circumstances of the case

56. To be helpful to a jury, the directions to them must be tailored to the circumstances of the case. For the purposes of the task which jurors have to perform, the circumstances of a case consist of the evidence and the arguments thereon. In Plomp v R (1963) 110 CLR 234, a case decided by the High Court of Australia, Mr Justice Menzies spoke (at p 252) of the ‘customary direction where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw’. It is always a matter of the circumstances.

57.  Where inferential reasoning is concerned, by far the most helpful reference to the circumstances of the case would be one made in the course of, and as part of, the directions on such reasoning. Whatever the form or forms in which a judge sees fit to direct the jury on inferential reasoning, and however many times such directions are repeated in the course of the summing-up, it always remains important that there be at least one instance in which the directions on such reasoning are specifically set in the context of the evidence and the arguments thereon.”

42.  With this understanding of what is required of trial judges, it is necessary to examine how the judge in the present case dealt with the issue of circumstantial evidence and inferential reasoning.  In the present case, as Mr Ross points out, the jury had to assess the credibility of a defendant who was testifying that he was knowingly smuggling illicit items into Hong Kong but did not believe them to be drugs, and did not take any measures to determine what they might be.  The prosecution case was that the applicant’s evidence should not be believed but, if the jury thought his evidence that he never actually saw the drugs in the backpack might be true, then, given all the circumstances, the jury should nevertheless infer that he knew that what was in the backpack were drugs.

43.  An important part of the evidence in the case was that the defendant admitted he knew he was carrying something illegal, but denied knowing it was a dangerous drug.  The judge said:

“ Now, the third matter, and it is an important issue you have to decide in this case, whether or not at the time the defendant was bringing the items from the Mainland to Hong Kong he knew what he was carrying was a dangerous drug. Now, it is not sufficient to prove that the defendant knew that the items he brought into Hong Kong were something illegal. The prosecution must prove that the defendant knew that the item was a dangerous drug. Now for this purpose it is sufficient to prove that the defendant knew it was a kind of dangerous drug; it is not necessary to prove that he knew what exactly the type of dangerous drug it was.”

44.  A little further in his summing-up the judge said:

“… Now you may appreciate that whether or not the defendant knew that he was carrying dangerous drug is the most important issue you have to decide in this case. Indeed, if you cannot be sure that the defendant knew that he was carrying a kind of dangerous drug you need not consider further and must find the defendant not guilty.”

45.  The judge went on to refer to the fact that the applicant had given evidence and directed the jury that if they found the exculpatory part of his evidence was or might be true then they must acquit him.

46.  However, if the jury rejected all or part of the applicant’s evidence then they had to assess the prosecution evidence.  The judge said:

“… Even if you do not believe the defendant, you still have to assess whether the evidence as a whole supports the prosecution case so that you are sure of the guilt of the defendant.

   It may be that you do not reject entirely the evidence from the defence.  As I have said -- as I will tell you, you are entitled to reject part of a witness’s evidence and accept other part of his evidence.  In considering whether the prosecution has made you sure of the defendant’s guilt, if there is anything in the defendant’s evidence which is true or may be true, you must take it into account and consider whether or not it points to the defendant’s innocence, or in any case, whether or not it raise a reasonable doubt in respect of his guilt.  At the end, it is only when you are sure that the defendant had committed the offence that you can find him guilty.”

47.  The judge referred to the applicant’s video record of interview and directed them on how they could find that the applicant had given a consistent account, and that the consistency of his account could be used by the jury in assessing his credibility.

48.  Then, he explained how the jury could reach a conclusion on the issue of whether the applicant had knowledge of the drugs in the backpack by employing inferential reasoning.  He said: 

“… Now, but for matters such as intention or knowledge of a person, unless that person states what his intention or knowledge was, there is seldom direct evidence to prove such matters.

In the present case, for the issue whether or not the defendant knew what he brought into Hong Kong was dangerous drug, what the prosecution said is that there is sufficient circumstantial evidence for you to make the finding that he knew what he was carrying was dangerous drug.

   Now, you are entitled to make relevant findings on circumstantial evidence.  This, sometimes we call drawing of inference.  That simply means that the prosecution is relying on evidence of various circumstances relating to the crime and circumstances relating to the defendant and the prosecution said when all these circumstances were taken together, it will lead to the sure conclusion that the defendant had committed the offence.”

49.  This was followed by a direction from the judge to the jury on the use they could make of circumstantial evidence. He gave the general direction on circumstantial evidence, which is not the subject of any complaint as to its content, as follows:

“Now, circumstantial evidence can be powerful evidence. Indeed, it can be as powerful as or even more powerful than direct evidence. But it is important that you must examine circumstantial evidence with care as with all other evidence and consider whether the evidence which the prosecution relied upon to prove its case is reliable and whether or not it does prove guilt, or whether or not on the other hand it reveals other circumstances which are, or may be, of sufficient reliability and strength to cast doubt on the prosecution case or even destroy the prosecution case. You must be careful to distinguish between reaching a conclusion based on reliable circumstantial evidence and mere speculation. Speculation amounts to no more than guessing or making up theories without good evidence to support them. You must not speculate.”

50.  The judge went on to direct the jury in respect of drawing inferences, giving the special direction on inferences.  He said:

“Now, reaching a conclusion based on circumstantial evidence involves drawing of inference. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which the prosecution says when taken together will lead to the sure conclusion of guilt. You are entitled to infer the existence of another fact from the facts which you find have been proved. You are entitled to draw inference if: (1) such inference is based on clear finding of primary facts based on evidence; and (2) such inference is a logical consequence of those facts. You can draw inference both in favour of or against the defendant, but this is very important: you can only draw an inference against the defendant if and only if the inference is the only inference can reasonably be drawn on the basis of those facts. It simply means this. If, from a set of facts which you find proved, there is a reasonable inference to draw against the defendant, but at the same time there is also a reasonable inference to draw in the defendant’s favour, then you must not draw the inference against the defendant. You are not only entitled to do so if the inference is the only reasonable inference against the defendant.”

Again, no complaint is made about the content of this direction.

51.  The judge then gave two examples to illustrate what an inference was and how it could be drawn from proven primary facts, but neither of the examples related to the facts of this case.

52.  After that, the judge summarized the testimony of the five prosecution witnesses and of the applicant.  This concluded the first day of his summing-up.

53.  At the beginning the second day of his summing-up, the judge reminded the jury of the elements of the offence which the prosecution had to prove by repeating what he had told them the previous day.  He said:

“The third matter, did the defendant know what he was carrying was a kind of dangerous drug? You may think this is the most important issue you have to decide in this case. When you reach this point, you will have found that the defendant knew he was carrying something in the backpack, otherwise you need not consider further and must find the defendant not guilty. If you find that the defendant was knowingly carrying something inside the backpack, the question you now need to ask yourself is, can I be sure that the defendant knew the items he was carrying was a kind of dangerous drug?

Now, if someone says that when a person is consciously holding something he knows what he was holding, this is wrong as a matter of law. You must not think so. You have to consider the whole of the evidence to decide whether or not you are sure that the defendant knew he was carrying a kind of dangerous drug. There is no direct evidence to prove this matter. What the prosecution ask you to do is to find that the evidence as a whole supports the only reasonable inference that the defendant had the required knowledge.” (Emphasis added.)

54.  The judge then turned to how the prosecution was presenting its case; that is that they were inviting the jury to disbelieve the applicant and then determine whether, on the totality of the evidence, they could draw the inference of knowledge.  He said:

“In his closing speech and cross-examination of the defendant, Mr Donald raised certain matters for your consideration. In his submission to you, these matters not only show that the innocent story of the defendant is not credible, but also provide sufficient proof that the defendant knew the items he was carrying was a kind of dangerous drug.”

55.  From all of this it is abundantly clear that the jury could not have been in any doubt that:

1)  the key issue in the case was whether the applicant knew there were drugs in the backpack;

2)  they could not convict the applicant unless they were sure he knew and anything less than knowledge would be insufficient for conviction;

3)  the applicant was admitting to smuggling illegal goods but denying knowledge of the presence of drugs;

4)  they could believe some parts of the applicant’s evidence whilst disbelieving other parts of his evidence;

5)  if they concluded that the applicant’s denial of knowledge was or might be true then they had to return a verdict of not guilty;

6)  if they rejected the applicant’s evidence in respect of his denial of knowledge they had to look at the totality of the evidence, including all the other parts of the applicant’s evidence, to reach a conclusion on the question of whether the applicant knew there were drugs in the backpack;

7)  once they rejected the applicant’s evidence on this issue there was no direct evidence on it and they had to reach a conclusion by a process of inferential reasoning; and

8)  in examining the evidence they had to consider whether it allowed of an inference to be drawn, and if they concluded that it did, and that inference was adverse to the applicant, they could draw that inference only if they further concluded that it was the only reasonable inference that could be drawn from the whole of the evidence.

56.  This was the position the jury was in when the judge turned to the evidence in the case in order to put these legal directions within the trial’s factual context.  He had already summarized the evidence and now he had set out for the jury the task they had to perform.  The approach he took was to refer to the evidence on which each counsel relied when addressing the jury in their respective closing speeches.

57.  He summarised the matters on which Mr Donald relied in his closing address as being:

(i) the applicantwas in financial difficulties.  To this the judge added:

“Now, of course you may think that not every man who is in financial difficulties will engage in a crime. But if you consider appropriate, you may take this into account and give it whatever weight you consider appropriate.”

(ii) according to the applicant, KK, who introduced the job to the applicant was a stranger to him and there was no reason for the applicantto trust KK as he had claimed.  To which the judge commented:

“You have seen all of their Facebook and WhatsApp messages and have heard that they had talked over the phone for a total of seven minutes. If you consider appropriate you may ask yourself is it believable? You may also ask yourself would there be reason for the defendant to trust K K as he had told you?”

(iii) the first job KK introduced to the applicantwas a lucrative one, involving a reward of $15,000 for every parcel he received in Australia.  This was a large amount of money for what would appear to be a simple task.  When this job fell through, because the applicantdid not have a passport, another job was at once offered to him by KK.  The reward was not as lucrative as the first one, but Mr Donald submitted the reward was still high.  It was $3,000 for bringing something from the Mainland to Hong Kong, indeed from Shenzhen to Hong Kong and then delivering it to a person at Mongkok.  On this evidence the judge commented:

“Now, you may wish to take out Exhibit D1. D1, item 21, K K asked the defendant whether he had a criminal record. Item 53 shows the defendant himself saying it is super risky to the go to the Mainland. Item 57, the defendant asked K K for how long would the imprisonment be if one is inspected and caught? Now, when the defendant testified he told you he believed what he was to smuggle was something like jade, jewellery, gold bricks, antiques or imitation firearm. And he told you he had never contemplated dangerous drug. Mr Donald submitted to you that it is unreasonable and asked you not to believe the defendant.”

(iv) the failure of the applicant to: (a) ask KK what he was to carry; (b) ask “A”, what he was to carry; (c) ask the man who gave him the backpack what he was to carry; and (d) open the backpack, which was not locked, and check its contents.  On this the judge commented:

“Now, it is for you to decide whether or not to believe what the defendant had told you. In this regard, you will note that in relation to these matters the only evidence came from the defendant himself. There is no evidence to prove that the defendant did ask and he did check. If you accept that the defendant had not asked and had not checked, then if you consider appropriate you are entitled to ask yourself why he did not do so. In your consideration, you are to take into account the explanation the defendant had told you.”

(v) the failure of the applicant, if he truly was not willing to traffic in dangerous drugs, to say so to KK.  He had not asked KK, “A” or the person who gave him the backpack whether dangerous drugs were involved to make sure that he would not be involved in something he desperately wanted to avoid.  To this the judge added the following comment:

“Now, the defendant told you he found the backpack heavy. Mr Donald asked you to consider would it be consistent with what the defendant said he believed the content in the backpack to be. Why didn’t he ask or check when he received such a heavy pack? Does it indicate the defendant knew it was dangerous drug or is it consistent with his version of having a belief that it was something illegal but not dangerous drug? Or would there at least be an innocent reason? It is a matter for you.”

(vi) the applicant was turning a ‘blind eye’ to the obvious and on this point the judge said:

“Now, Mr Donald stressed the defendant was turning a blind eye to the obvious. You will recall that I had directed you yesterday that turning a blind eye by itself does not equate to knowledge. However, if you find there was a turning of blind eye on the part of the defendant, it is a matter you are entitled to take into account in deciding whether or not, on the whole of the evidence, you can be sure that the defendant had the required knowledge.”

(vii) notwithstanding that the applicant had taken part in a controlled delivery operation the applicant had not been that cooperative with the Customs officers, for example he only told them of the involvement of “A” at a very late stage.  To this submission the judge responded:

“Now, in this regard the defendant had told you he had informed the officers at a much earlier time. Now, it is for you to decide who to believe and it is for you to decide whether, and if so, to what extent your finding on this matter affects your consideration.

Now, as regards controlled delivery, if you consider appropriate you may ask yourself these questions.  Is the ready participation of the defendant indicative of his innocence?  Is it the case that only an innocent person will participate in a controlled delivery?  Will a trafficker, who had knowingly trafficked in dangerous drug, also participate in a controlled delivery since he had been caught anyway?  Now, it is a matter for you.”

58.  The judge then addressed the closing speech of the applicant’s trial counsel, Miss Lee, and referred to the following points that she had made:

(i) there is no direct evidence to prove that the applicant had the required knowledge;

(ii) the applicantwas a young man without much education, he had not engaged in stable employment and had no place to live;

(iii) the applicant had financial difficulties and was eager to earn quick money.  He was prepared to engage in smuggling but he would not participate if he was told dangerous drug was involved because he was aware of the serious consequences;

(iv) there is nothing strange for youngsters nowadays to look for a job on the internet through media like Facebook;

(v) the reward for this job was much lower than the one for Australia.  The judge then added this direction in respect of what Miss Lee had said:

“Now, in this regard you may take this into account if you consider appropriate. The offer of the Australia job was part of a discussion between the defendant and K K. The defendant had testified on how he perceived these two offers. It is up to you to decide whether, and if so to what extent, the offer of the Australia job affect your consideration of the case.”

(vi) if the applicantwas aware he was to carry dangerous drugs he would not have left traces of his communications with KK in his mobile phone.  He could have deleted the messages easily or communicated by telephone calls so the content of the calls would not be recorded.  To this the judge added the following direction:

“Now, in your consideration if you consider appropriate, you may take into account that in all the Facebook and WhatsApp communication, despite there were passages which you may think would have caused concern, such as mentioning of high reward, imprisonment and risk, there was no express mentioning of dangerous drug by other side, not even smuggling. According to the defendant, smuggling was only mentioned in one of the telephone calls between KK and him.”

(vii) the demeanour of the applicantbefore and when he was stopped, as well as when dangerous drug was first found and later when the defendant was arrested.  To this the judge added his own direction:

“Now, all the officers said there was nothing suspicious about the defendant’s behaviour and demeanour. If you consider appropriate you may ask yourself whether or not the behaviour and demeanour of the defendant are consistent with that of an innocent courier. You will note that according to the defendant himself he was smuggling some illegal items, that was his belief. Whether and if so to what extent this matter help you in your decision is a matter for you.”

(viii) as soon as the applicantwas arrested he said he did not know he was carrying dangerous drugs and he had little time to think before he was asked questions by the Customs officers.  The judge added:

“You will note the defendant maintained a consistent version all along. In this regard, you must bear in mind the direction I gave you yesterday on this matter.”

(ix) the applicantwas cooperative all along and had voluntarily and willingly participated in a controlled delivery which failed, not through any fault of the applicant, but because the others involved would have known that the applicanthad run into trouble and therefore did not appear.  This was particularly so in respect of “A” who had been accompanying the applicant throughout the trip;

(x) the applicanthad provided good reasons for not disclosing the existence of “A” at the time of his arrest.  He said he was handcuffed, his mind was blank and it was like being in a dream.  Later, he made four telephone calls to “A” but as it was already about two hours after the applicanthad been stopped it was natural that “A” did not answer the applicant’s calls;

(xi) as to why the applicantdid not check the contents of the backpack or ask about its contents Miss Lee invited the jury to take into account the presence of “A” during the trip and stressed that it was not a situation whether the applicantwas left alone so that he would be free to do anything.  To this the judge added his direction:

“Now, in this regard you must focus on the evidence. The defendant did give you reasons for his not asking and not checking. He did not say he felt ‘A’ was there to supervise -- sorry, I repeat, I say again. He did say he felt ‘A’ was there to supervise him, but he did not say it was because of the presence of ‘A’ that he did not check the content of the backpack. Now, whether you are to accept the view of counsel is a matter for you.”

(xii) the dangerous drugs were put in five packages wrapped by towels and bandaged tightly with adhesive tape, and so the applicantwould not be able to know what the packages were even if he were to open the backpack.  To this the judge added the direction:

“Now, for this, you will note that the defendant told you he had not checked the content inside the backpack. Whether or not you are to believe in the defendant is a matter for you. If you find the defendant had not checked the backpack, then you are to examine the whole circumstances, taking into account the non-checking and the reasons the defendant provided in deciding the issue of knowledge. In this connection, whether or not you think a person will have knowledge of the content only when he has seen it is a matter for you. Would it be that since he did not see it he did not have the knowledge or would it be that he did not check because he already had the knowledge, or would it be that he did not check since he had an innocent belief of what the item was, in the sense that he believed it was something else, not dangerous drug? It is a matter for you.”

59.  The complaint of Mr Ross is that other than referring to what counsel said in their closing address the judge did not direct the jury how to apply inferential reasoning to the issue of the applicant’s knowledge by reference to the evidence in the case.  He submitted that merely referring to what counsel said is not sufficient as it does not carry with it the authority of the judge.  In this respect he relied on the comments of Bokhary NPJ in Nguyen Anh Nga when he said at paragraphs 43-45 of his judgment:

“43.   No reference to prosecuting counsel’s speech could begin to cure, or contribute to the curing of, the disadvantage to the appellant resulting from the omission.

44. As for reference to defence counsel’s speech, that speech was not calculated to provide that which the judge eventually omitted to provide.  And even if it was so calculated, it would not have been enough. Delivering the advice of the Privy Council in Lawrence v R [1933] AC 699, an appeal against conviction which succeeded on the ‘substantial and grave injustice’ ground, Lord Atkin famously observed (at p 707) that ‘[j]urors are apt to be suspicious of law as propounded by the defence; they look to the judge for authoritative statement of it’.  That was said in the context of a judge’s failure to direct the jury on the onus of proof.  But the same thing can be said in the present context. The point goes to the respective roles of the judge and of the jury.  What jurors infer is a matter of fact for them, but the proper approach to inferential reasoning is something which they are to take from the judge as a matter of law.

45. There can be situations in which a judge’s reference to counsel’s speeches will cure, or contribute to curing, a summing-up that would otherwise have been unacceptable. But the present situation is not such a situation.”

60.  We have set out in some detail how the judge explained to the jury through the speeches of counsel the process of inferential reasoning in order to determine the issue of whether the applicant knew there were drugs in the backpack.  In our view, it is implicit in the judge’s approach that he was accepting that the evidence described by both counsel was the evidence that was relevant to the issue the jury had to determine.  We are in no doubt that the jury would have realized that this was what the judge was doing.  They could not have understood the judge’s approach in any other way.    

61.  Consequently, the fact that the judge referred to what counsel said in their closing speeches in order to identify the relevant evidence is not to the point.  That fact, alone, does not mean that there was nothing from the judge or that the jury might ever have been in any doubt that the evidence referred to by counsel was relevant evidence to the issue they had to determine.  By his frequent and regular directions on the points counsel were making, the judge lent his authority to the evidence referred to by counsel as being relevant evidence and in this way all of the matters which Mr Ross submitted should have come from the judge did, in fact, come from him, supplemented by specific guidance to the jury on how they could make use of them.  In this way, the judge provided context to his directions and tailored them to the evidence in the case. 

62.  This is not a Nguyen Anh Nga situation where there was no direction from the judge on how the facts relied on by counsel could be used by the jury in their inferential reasoning process.  It is clear in the present case, that the judge addressed the jury on the issue of drawing an inference of knowledge in the context of the evidence and the arguments thereon.  By the time the judge finished his summing-up, the jury would have had a clear understanding as to how they should go about their task and on what evidence they could rely in applying inferential reasoning to the issue they had to decide.  

Conclusion

63.  For these reasons we refused the application for leave to appeal against conviction.

[1] The promised reward was in fact $3,000 but, in his video record of interview, the applicant said $500 was to be given to him in advance but he had not yet received it by the time he was arrested.

[2] The applicant testified that he understood the term “drag” to mean to “carry goods”.

[3] PW3, CO0893 Tsang Chung Chi, disagreed with the suggestion put to him in cross-examination that whilst at Lok Ma Chau, the applicant had told him that he was accompanied by a man to cross the border.

[4] Video recorded interview transcript, #257-261.

[5] Appeal Bundle p224E

[6] Examination in chief; Appeal Bundle p 219T.

[7] Examination in chief; Appeal Bundle p 218O; Cross examination: Appeal Bundle pp 222R–S, 227D–E.

[8] Examination in chief; Appeal Bundle p 218N.

[9] Examination in chief; Appeal Bundle pp 221E-G; 223T; 197P; p 211H.

[10] These comments were made in the course of discussing the Court of Appeal’s decision in HKSAR v Zen Xiulan [2016] 4 HKLRD 237 which Bokhary NPJ concluded at paragraph 38 of his judgment “does not undermine, nor does it even seek to undermine, the specimen direction on the drawing of inferences of the Judicial Institute.” 

[11] Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149 at 163, paragraphs 48 and 49.