HKSAR v. PUNSALANG ELMER UMALI

CAC C 116/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 116 OF 2010

(ON APPEAL FROM HCCC NO. 341 OF 2009)

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Hon Stock VP:

Introduction

1.  On 15 March 2010 the applicant was convicted after trial before Deputy High Court Judge Li and a jury on an indictment which charged that on 16 June 2009, at the Customs Arrival Hall at the International Airport, he unlawfully trafficked in a dangerous drug, namely, 997.94 grammes of a mixture containing 718.14 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  He was sentenced to 22 years and one month’s imprisonment.  He sought leave to appeal the conviction.  On 15 March 2011, we granted him leave to appeal, treated the hearing of the application as the appeal, allowed the appeal, quashed the conviction and ordered a retrial.

2.  These are our reasons for that decision.

The evidence

3.  The bulk of the prosecution case was agreed.  The applicant was intercepted by Customs Officers at a Customs and Excise checkpoint upon his arrival in Hong Kong on a flight from Manila.  Two packets of heroin wrapped in tape and placed in cardboard sleeves were concealed inside the interior lining of the suitcase which the applicant was carrying.  The suitcase was filled with clothes.

4.  On the morning of 17 June 2009, the applicant was interviewed by Customs Officers.  The interview was video-recorded.  In the course of that interview he said that he had come to Hong Kong to buy some counterfeit design-label clothing for his mother’s business and also to buy some items for his child.  His plan, he said, was to stay at Chung King Mansions but when he was shown a voucher which had been found on him disclosing a booking at the Royal View Hotel, he said that he had only discovered that day that a friend of his in Manila, Maureen, had booked him into that hotel, contrary to his understanding that she would arrange accommodation for him in Chung King Mansions.  He said that her telephone number could be found on a piece of paper which had been taken from him.  Maureen had arranged the air ticket as well as the accommodation.  This was because he had a child to look after and had had no time to make these arrangements himself.

5.  He only had US$400 on him and no credit card.  The plan was to stay in Hong Kong for three days.  The money would be enough because what he intended to buy was not expensive and could be purchased cheaply at the night market in Jordan.

6.  The suitcase was his and it was the first time he had used it.  He had set the combination lock, and he had purchased the case from a friend, Freddy, whom he had come to know recently.  When he had purchased it he had checked it and noticed nothing amiss.  Freddy is someone who had in the past sold clothes for him.  He had no idea that the suitcase contained drugs.

7.  In the suitcase were T-shirts and some clothes which he had purchased for his wife when he left the Philippines, intending to take them back to her.

8.  The applicant testified at trial and with certain variations, some of them material, his account was much the same as in his interview.  One of the differences was that he said that the reason he had so little money on him was that his mother intended to send him funds by Western Union.  He produced a Western Union card to show that he had an account with them.  Another difference was that whereas he had said in his interview that he allowed somebody else to get the air ticket because he was busy looking after his child, he said in his oral testimony that he had used Maureen to arrange the ticket because she worked in a travel agency.  Another apparent difference was that whereas in his interview, Freddy was represented as a relatively casual acquaintance, he said in his oral testimony that he had known Freddy for some time and that Freddy had been a middle man for the purchase of clothing from him.

9.  He had originally intended to travel, he said, on 20 June 2009 from Manila but Maureen had persuaded him to travel on 16 June and had only arrived with the ticket at his home that morning.  Maureen told him that when he was in Hong Kong he would be contacted by a friend of hers named Cathy.  The suitcase had been delivered to him by Maureen on Freddy’s request.  The implication of the defence was that either Freddy or Maureen had planted the drugs in the suitcase using the applicant as an innocent conveyor of them to Hong Kong for collection by a third party.

10.  Cross-examination was extensive and he was pressed about some of the differences between his interview and his oral testimony and the lack of some of the details in his interview.  He said that in the course of the interview he was tired and confused.

The complaint of imbalance

11.  The main ground of appeal is summarised in the written submissions.  It is that the summing-up was largely “the stuff of advocacy” and that in this case “there was not the substance of a fair trial in that not only was there judicial intervention to reopen the Prosecution closing speech, [but also that] the learned Trial Judge’s summing-up raised and presented points in such number and manner as to amount to both a further construction of the Prosecution case and a destruction of the Defence case, giving the overall feel of being in substance a closing speech for the Prosecution.”

12.  With respect to the learned judge, we agree with the essence of the complaint.

The principles

13.  It is sufficiently established that it is open to a judge to comment upon the evidence and, if the circumstances so warrant, he may do so in forceful terms.  The respondent’s contention was that the trial judge in this case did no more than comment forcefully upon the weaknesses of the defence case and counsel pointed to a passage from the judgment of the Court of Final Appeal in Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52 at para 25 where Chan PJ said :

“Where a defence is less than convincing or credible, the judge is often tempted to comment on it with the intention of assisting the jury. This is permissible. See Simon Brown LJ in R v Nelson [1997] Crim L R 234:

‘Of course, the judge must remain impartial.  But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities, there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis.  Why should pointing out those matters be thought to smack of partiality?’”

14.  We would make the following comments in response:

(1) The Court of Final Appeal nonetheless went on to emphasise, at paragraph 26, that what a judge says to a jury is very often the last word they hear before they retire and carries more weight than what defence counsel says in a closing address and what the judge says must be fair and balanced.

(2) Whether a summing-up is fair and balanced is always case and context specific.

(3) R v Nelson [1996] EWCA Crim 707, to which the Court of Final Appeal referred, was a case of a defence verging on the risible, a “truly remarkable defence” as the Court of Appeal categorized it and the summing-up, and one or two phrases in the summing-up flagged the implausibility of certain suggested coincidences; a far cry from a summing-up almost entirely devoted to a demolition seriatim of the defence case in all its detail.  It is noticeable that the judgment of the Court included the following statements of basic principle:

“The guiding principles are not in doubt. Paramount amongst them is of course the cardinal rule that each and every defendant in a criminal Court is entitled to a fair trial and to have his defence, however apparently threadbare, fairly elicited in evidence and accurately put to the jury for its consideration. Integral to such a fair trial is the principle that the judge should hold the ring as umpire, rather than descend into the arena as counsel.

…

Another balance, often difficult to strike, is between, on the one hand, a robust and reasoned indication of the judge’s own view of the merits or demerits of the defence case properly offered for the jury's consideration with the legitimate view of assisting them, and, on the other hand, so vigourous and partial a summing-up as effectively, despite the conventional direction to the contrary, to substitute the judge’s own view for that of the jury.”

(4) It is fundamental that what a judge must not do is “to comment in such a way as to make the summing-up as a whole unbalanced … it cannot be said too often and too strongly that a summing-up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.”: see Gilbey unreported 26 January 1990 referred to in Mears v R. (1993) 97 Cr App R 239 at 243 where their Lordships added:

“Their Lordships realise that the judge’s task in this type of trial is never an easy one. He must of course remain impartial, but at the same time the evidence may point strongly to the guilt of the defendant; the judge may often feel that he has to supplement deficiencies in the performance of the prosecution and defence, in order to maintain a proper balance between the two sides in the adversarial proceedings. It is all too easy for a court thereafter to criticise a judge who may have fallen into error for this reason. However, if the system is trial by jury then the decision must be that of the jury and not of the judge using the jury as something akin to a vehicle for his own views. Whether that is what has happened in any particular case is not likely to be an easy decision.”

(5) Ultimately, it is a question of context, degree and “feel” of the summing-up as a whole.  It is one thing for a judge to offer for the consideration of the jury key apparent illogicalities and implausibilities so as to assist them in their analysis but quite another to devote almost the entire summing-up to a topic by topic destruction of details of the defence case so as to render almost otiose the reminder that the decision is that of the jury’s.

This case

15.  As we have earlier pointed out, the applicant was cross-examined at considerable length and in much detail and that cross-examination traversed some of the inconsistencies between that which the applicant had said in his interview and, on the other hand, in his oral testimony.  When the applicant said to prosecuting counsel that he was confused at the time of the interview, the judge asked him, in the middle of the cross-examination, whether there was anything preventing him from asking for a break and the judge immediately directed prosecuting counsel to parts of the interview at which the applicant had specifically been asked whether he was “in good condition to continue the interview.”  “Mr Lau” said the judge “I propose you direct him to counters 36 to 39.”  After counsel expressed his gratitude for the idea, the judge read out a specific question in the interview whether the applicant was in good condition and invited prosecuting counsel to continue.

16.  Counsel for the prosecution made a closing speech.  It was a relatively brief closing speech in which, as one would expect, prosecuting counsel pointed to suggested indica of guilt.  Counsel then closed his speech and invited the jury to convict.  Then there followed this exchange:

“COURT: Yes, Mr Lau, would you like to also comment on the video interview?

MR LAU: I don’t think it’s necessary now. As I said, the real issue is that.

COURT: I’m in your hands but I just raise it for you.

MR LAU:   Yes, maybe, at the invitation of his Lordship.”

17.  Counsel then drew the jury’s attention to a number of inconsistencies between the applicant’s interview and his oral testimony and to interview comments undermining the suggestion that he had been confused and tired at the time of interview.

18.  Although we think that as a general rule it is not desirable for a judge to prompt prosecuting counsel to cover ground in his closing speech that he has failed to cover, we do not think that this event on its own in this case rendered the trial as a whole unfair.  There is nothing to stop a judge in his summing-up pointing out an obvious deficiency in the defence case, even if not alluded to in the closing speech of the prosecutor.  That would have been the preferable course.  But the significance of the prompt in this case is that it adds to the impression of imbalance evidenced by the summing-up.

19.  There can be little doubt but that by the end of the prosecutor’s closing speech, the main material points adverse to the applicant had been made.

20.  The summing-up was relatively brief, which is not surprising since the issues of fact were not complicated.  The entire summing-up is some 22 pages in length.  The first seven pages were delivered on a Friday before lunch dealing with standard directions as to law.  The summing-up was adjourned over the weekend and resumed on the Monday morning.  Pages 8, 9 and 10 were devoted to the prosecution case but not without comments undermining the defence offered.

21.  There are two passages from that phase of the summing-up to which we draw attention:

(1) The judge had this to say about the failure of the defendant to respond to the caution immediately after his arrest:

“ …according to the defendant himself, he understood English and he said he could communicate with others in English…. He was cautioned and in the caution he was told he was not obliged to say anything. His silence or no response could have been his exercising his right of silence.

Counsel for the defendant, Mr. Wong, said in his final submission that if the defendant knew there was a dangerous drug would you not expect him to give a tailored explanation.  The fact that the defendant appeared perplexed after caution means he was caught by surprise.  Now, members of the jury, is this a reasonable explanation of his science, given that he could have been exercising his right of silence.  I leave this matter to you.”

What the judge did not do was to give a proper direction as to the exercise of the right to silence, in that he failed to tell the jury that they were not to hold against the applicant his silence and that the exercise of the right cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.  Whilst we understand that the judge was drawing a distinction between two possible reasons for silence, he nonetheless failed to give the standard required direction and by the use of the word “could” in “could have been exercising his right of silence”, he left open the possibility of an adverse inference to be drawn.

(2) The judge commented on the amount of clothing in the suitcase saying that he, the judge, had counted the number of T-shirts belonging to the defendant (seven) and the number of pants and asked why, given that the applicant was only to stay in Hong Kong  for three days, he needed so many T-shirts and pants?  The question as posed by the judge carried the implication that the only reason why there was so much clothing was to hide the drugs.  But the problem with this comment was that this had never been put to the applicant for his consideration; so one knows not what his answer might have been.  No one had hitherto suggested that in June it was implausible to have that amount of clothing for a three-day visit.

22.  Pages 10 to 19 constituted an examination of the defence evidence.  But rather than a distillation of the essence of the defence case, with perhaps a few judicially phrased passages drawing attention to indicia of incredibility, if the judge felt that that was called for in the interests of justice, what we have is a list of assertions made by the defendant, each one undermined in turn by a lengthy exposition of contra-indications; to such an extent that, we regret to say, the summing-up was in the nature of a speech for the prosecution and was, therefore, unfair.

23.  We will take but a few examples.

24.  The first is the judge’s reminder to the jury that the applicant had said that during the interview he was tired and confused because he had not slept well the night before:

“Now, the defendant indicated in the trial that he was tired and confused during the interview. The video interview was his first explanation after his arrest. The video tape was played in court. You have watched the tape. You have watched the behaviour of the defendant during the interview carefully. Did he appear to be confused or tired? You should be able to decide for yourself.

In this regard, I would also like to refer you back to the transcript. Members of the jury, the transcript, you have this, P36A. Now, please go to paragraph 36 or counter 36. Now, “A” represent the voice of the officer; “C” is the defendant, right. Now, 36A, the officer asked, “Mr Elmer, are you in a good condition to conduct this interview?” Let us go to 39, the defendant answer, “Okay.” Right, this is a simple confirmation from the defendant that his condition was good and had no objection to interview. Let us go to again paragraph 52, item 52, the officer asked, “Do you agree to conduct this video interview in the absence of your legal representative?” Can you see that? Go to paragraph 55, the defendant answered, “Yes, that’s okay. I will stood by it.” Right, and then go to 62, “All by myself and it is my own view.”

Right, now from 52 to 62 please read it later on in the jury room? I just point out the salient answers. The defendant indicated that he did not need a lawyer and also stressed that it is his own view. Right, now later on from 62 onwards there was an explanation of the recording system, the equipment. And then, let us go to paragraph 75, that was the officer’s voice, “Okay, so do you have any requests?” And 76 – that is the answer in Tagalog – it should be 78, “Nothing else, I just want this to be finished immediately so that I can go back to my child.” Right, there was no request from the defendant.

Let us go to 79, the officer again asked, “My colleague has given a notice to persons in custody to you last night which tells you your right as a detainee.  Do you have already given a copy of the notice earlier today at about 10 past 9 and Miss Din had already translated them into Tagalog to you.”

Right, let us go to 81. The officer asked, “So you understand the content of the 10 points in the notice to the person in custody and have no further requests?” 84 the defendant said, “Nothing else.” Now, his rights were mentioned again, the defendant had no further request. Let us go to 85, it is spoken by another officer, “B” – yes. I understand that – please counter-check because I am reading from my working copy if there is any difference.

(Discussion with counsel regarding video interview transcript).

Now, members of the jury we are now at 85 another officer asked, “And remind you that the 10 points stated in the notice is just like here stated in – in the – on the wall, 10 points, total.” Can you read that? Right, then let us go to 90, the defendant said, “For other others I didn’t understand it well but then, “ah, the others.” Right, let us go to 93, the officer again asked, “Do you need me to read once more again to you?” Can you read that? Right, 97 defendant requested, “One more time.” 128, in between the officer read one by one, the ten points. Now, 125 first, the officer asked, “So do you understand?” Right and then 128, “Yes.” 129, “Do you have any requests in respect of this 10 point?” 132, “Ah, just that I want to speak to my sibling because he – she is the one looking after my child now.” 133, “Okay, at the conclusion of the interview I promise I will give you chance to call back your family.”

Right, now the officer B, remind the defendant of the 10 points in the notice. He indicated that – the defendant indicated he did not quite understand. The officer, at the defendant’s request, read the 10 points to him again. The defendant requested to speak to his sibling and the officer agreed to arrange for that – that it what we have been reading just now. Did his conduct so far in the interview indicate a man who was confused and tired? You must read the transcript carefully and decide for yourself.” (Summing-up pp.17T to 19S)

25.  The very next paragraph reads as follows:

“During his evidence in court the defendant told you that he did not request for a break as he did not know it was possible. He even said in his evidence that the interpreter told him the interview would be fast. Well, we do not have a copy of the notice to the person in custody here produced. There is no evidence whether there was such a right but members of the jury, the defendant had made a request to contact his sibling. Did this not support that he was the type of person who would make a request if necessary?”

26.  “Now,” said the judge “let us go to another topic.” which he did, and the next topic was but another point made by the defendant only to be contradicted by his not mentioning it in his videoed-interview.

27.  So it went from topic to topic, including the following, notable for the explicit expression of the judge’s personal view:

“Members of the jury, if Maureen was the trafficker there was no need for her to book the hotel room for the defendant, fully knowing that he prefer to stay at Chung King Mansion. Maureen could have sent a friend no matter where the defendant stayed. Why take this trouble? Certainly, that’s my view but you should consider counsel’s hypothesis.” (emphasis added).

28.  This was most unusual.  What the judge was saying to the jury, expressly, was that he did not believe the applicant on a central feature of his defence.

29.  Such, unfortunately, was the flavour of the bulk of the summing-up, moving from one detail to the next in such a way as, in our judgment, to cross the boundary from analytical and measured assistance to the appearance of a prosecution speech.  

30.  At the end of the day, it is always a matter of impression gathered from the summing-up as a whole but, giving due latitude to the judge to make a point here and a point there to suggest where lack of credibility on a material issue may be thought to be illustrated, the summing-up as a whole was not in our judgment fair; in other words, we took the view that because of its tenor and imbalance, the applicant was not accorded a fair trial.  

31.  There was no question in such circumstances of applying the proviso and we decided that the conviction must be quashed and a retrial be ordered.

32.  We would add that in relation to his direction on lies, there was an error.  What the judge said was this:

“Please, bear in mind that if the defendant tells a lie, that is not necessarily evidence of guilt”

The unfortunate implication was that there may be circumstances in which a lie was evidence of guilt, whereas that is contrary to established authority.