HKSAR v. ZHU JINNI

[English Translation – 英譯本]
CACC 31/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 31 OF 2011

(ON APPEAL FROM HCCC NO. 287 OF 2010)

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the reasons for judgment of the Court):

Introduction

1. The applicant (Zhu Jinni) is a PRC citizen.  On 20 March 2010 she arrived at the Hong Kong International Airport via an AirAsia flight from Kuala Lumpur, Malaysia.  She was stopped and searched by customs officers, who found a bag in the yellow backpack which she was carrying.  The bag contained 1,200.60 grammes of a mixture containing 864.07 grammes of heroin, the monetary value of which exceeded one million dollars.

2. Under caution, the applicant said she understood and went on to say, “A black man asked me to take this pack to Guangzhou to give it to a man.  I did not know there was drug inside!”

3. As a result of this incident, the applicant was indicted for unlawful trafficking in a dangerous drug.  She pleaded not guilty and stood trial in the Court of First instance.

4. On 17 January 2011, the applicant was found guilty by the jury and was sentenced by the court to imprisonment for 22 years and two months.

5. The applicant, represented by Mr. Khattak, sought leave to appeal her conviction.  After hearing, we granted her leave to appeal and allowed her appeal.  We quashed her conviction and set aside the sentence, but ordered that she be retried for the same charge.  The reasons for our judgment are set out below.

Prosecution case and evidence

6. The prosecution case was straightforward and by and large undisputed.  In his testimony, Customs Officer 99135 confirmed that after he stopped the applicant, he examined the backpack which she was carrying with an ionic narcotic detector.  Then a customs officer cut open the backpack and found the dangerous drug in a concealed compartment.  Other items were also found from various compartments in the backpack.

7. The applicant explained at once that a blackman asked her to take the backpack to Guangzhou and give it to another man and that she did not know it contained dangerous drug.  Subsequently, a customs inspector asked the applicant to take part in a monitored delivery operation, but she refused.  The inspector admitted that the monitored delivery operation which he proposed was actually unworkable, because the person with whom the applicant was supposed to get in touch was in Guangzhou and not in Hong Kong.

8. The applicant provided the inspector with two telephone numbers, one for contacting the blackman in Guangzhou and the other for contacting a blackman in Malaysia called IK.  The applicant asked the inspector to telephone the black man in Guangzhou but the inspector refused, for the reason that it was not appropriate at that time to contact another suspect.

9. During the interview with the customs officers, the applicant insisted that she neither knew there was a concealed compartment in the backpack she was carrying nor hadany idea that there was dangerous drug in the concealed compartment.  Her case was that she had been framed up.  She said that someone asked her to take the backpack from Kuala Lumpur to Guangzhou.  She gave a detailed account of her background.  She claimed that she was engaged in foreign trade and the provision of translation services on a self-employed basis, through which she came to know many African black people and helped them purchase various kinds of goods.

10. The applicant stated that she came to know a blackman called Michael, who worked for one Meijing [transliteration of美靜] Company (“Guangzhou black man”), but that she only had the telephone number of the Guangzhou black man and knew nothing about his background.

11. According to the applicant, the Guangzhou black man had dated her.  They had had meal(s) together but she did not like him, so they seldom met.  However, the Guangzhou black man would occasionally telephone the applicant.

12. In 2010, shortly after the Chinese New Year, the Guangzhou black man telephoned the applicant and told her that he had a wealthy friend in Malaysia called IK. He said he hoped she could bring some motor vehicle battery price lists and brochures about sample products to Malaysia and give them to IK, as IK did not want to go to China.

13. The applicant said that she could not get in touch with IK after she arrived in Malaysia, because he had switched off his phone.  She could only hand the documents to those working at the front desk of the hotel and ask them to forward the documents to him.

14. After she returned to Guangzhou, the Guangzhou blackman told her that IK had gone to Singapore to see his boss, and that actually IK had already got the money ready.  He asked the applicant to go to Malaysia again to collect the deposit to show her sincerity.

15. The applicant stated that after she met IK, he accompanied her to the airport and on the way handed a backpack to her.  He said that the backpack contained children’s clothing, for the purpose of making it easier for the Guangzhou blackman to give him a quotation.

16. The applicant maintained that she thought that the backpack contained only three items of children’s clothing, and that it had never occurred to her that there was dangerous drug in it.

17. The applicant further said that she went to Malaysia in such a hurry that she even forgot to bring along her underclothes.

18. She stressed that the Guangzhou blackman had told her that he would refer a lot of business to her, and that was the reason why she trusted him and was used by him.

19. The applicant’s testimony at trial was essentially a reiteration of the explanations she had given during the video-recorded interview.  She also produced some documents to show that her trip to Malaysia had to do with battery business.

Directions to jury

20. In his directions to jury, the trial judge set out the relevant legal principles and described at great length the explanations given by the applicant during the video-recorded interview.  He pointed out many unreasonable features in her explanations and urged the jury to consider them and judge by their common sense.

21. The trial judge summed up his speech in the following terms:

“I have drawn your attention to many features or matters in the transcript of the interview which are unreasonable or which warrant your careful consideration. If you come to the conclusion that the defendant is not credible, you will still have to consider the prosecution evidence to see whether you can infer from such evidence that the defendant knew that there was drug in the backpack. On the other hand, even if you think that the battery transaction may be genuine —— you think that the emails appear to be in order and may be real, and it is sufficient that they may be real —— you still have to consider whether the defendant knew that there was drug in the backpack. That’s because these two matters are not mutually exclusive. It is possible that she was indeed carrying on battery business and at the same time also knew that there was drug in the backpack. You understand, right? It is not the case that if you believe that the battery business did exist, then she would certainly have had no knowledge of the drug. These two matters are not mutually exclusive. Please pay attention to this, understand? Of course, if you believe that the defendant’s battery business did exist, then would you also believe, would it become easier for you to believe, that in fact she did not know that there was dangerous drug in the backpack? As I have said, it is open to you to believe part or all of the evidence of a witness. You can choose which part of the evidence to believe, but if you do believe a certain part, then the balance of credibility may tip in favour of that witness. Please think about that. Alright, if you consider that there are many unreasonable features in this battery business, that the defendant’s purpose of going to Malaysia is also fraught with illogicalities, that the emails are suspect, and that the defendant’s testimony is contradictory, will all these lead you to the inference that the defendant did know that there was dangerous drug in the backpack? Please remember, if you were to draw an inference, this would be the only reasonable inference.

Right, ladies and gentlemen, even if you firmly hold the view that the defendant should have harboured doubt or thoroughly checked the contents of the backpack, or if you consider that the defendant should not have carried something onto a flight for a stranger, this by itself does not support a conviction, because you still have to draw an inference, namely that the defendant knew that the stuff was in the backpack, understand?  In short, if you conclude that what the defendant said is true or may be true, then she is not guilty, understand?  Well, if you do not accept the defendant’s testimony, then on the question of whether the defendant possessed or knew about the drug, there is the following evidence:  The backpack was all along in the custody of the defendant; she carried the backpack into Hong Kong; and there was a concealed compartment in the backpack.  You do not accept the defendant’s explanations?  And there can be no other possibility.  The monetary value of the drug was $1,100,000.  This is the evidence from which you can infer whether or not the defendant had the requisite knowledge.”

Grounds of appeal

22. The sole ground of appeal put forward by Mr. Khattak, Counsel for the applicant, is that in analyzing the applicant’s evidence and her explanationsgiven during the video-recorded interview, the trial judge repeatedly pointed out unreasonable features in her case and her explanations, thereby adversely affecting the independent judgment of the jury and rendering the conviction unsafe.  Mr. Khattak also complained that in directing the jury the trial judge made errors of fact and failed to refer the jury to any evidence favourable to the applicant.

Discussion

23. On the undisputed evidence, when the applicant entered Hong Kong, her backpack contained the heroin in question, the market value of which exceeded one million dollars.  If the applicant was aware of the existence of the drug, it would not be difficult to infer that she had knowledge of the nature of the drug.  In view of the large quantity of the drug and the fact that it was brought into Hong Kong by her, if she knew the existence and nature of the drug, then the importation of such a large quantity of heroin into Hong Kong would no doubt have constituted unlawful trafficking in this batch of drug.  Therefore, the only issue in the present case was whether the jury could be satisfied beyond doubt that the applicant knew that there was such a large quantity of heroin in the backpack which she was carrying.

24. The trial judge started his directions to the jury by coming straight to the point:

“The main issue between the prosecution and the defence is simply whether the defendant knew that there was dangerous drug in the backpack. It is as simple as that.”

25. The trial judge did emphasize to the jury that even though the undisputed evidence showed that the drug was contained in the backpack which the applicant was carrying on her back when she entered Hong Kong, such evidence might not be sufficient to prove that she knew there was drug in the concealed compartment of the backpack, and that the jury had to draw an inference on the basis of circumstantial evidence and consider whether they could arrive at the only reasonable conclusion that the applicant had knowledge of the drug being hidden in the backpack.  The trial judge made it clear to the jury that they could find the applicant guilty only after they reached the only reasonable conclusion that she did know that the heroin involved in the present case was concealed in the backpack which she was carrying.

26. The trial judge explained to the jury the relevant concepts by way of the following example: a person who was carrying a briefcase but did not know that there was a pen inside the briefcase should not be taken to be in possession of that pen.

27. In our view, in relation to the issue involved in the present case, the directions given by the trial judge to the jury concerning the elements of the offence were correct and sufficient.

28. However, we feel uneasy about the judge’s directions to jury regarding the applicant’s explanations.

29. As this Court has repeatedly stressed, in a criminal trial conducted in the High Court, the judge and the jury play different roles.  The judge is the sole arbiter of law, whereas the jury is the sole arbiter of facts.  The jury must regard the judge’s directions on matters of law as inviolable rules and strictly follow them.  On the other hand, the judge should as far as possible leave it to the jury to make such decisions on factual issues as they consider appropriate.

30. When the judge sums up the facts of the case for the jury, he is certainly entitled to express his views on the facts, but in doing so he must exercise caution and restraint.  He must keep what he says in check as far as possible and avoid expressing too vigorously his own inclinations on factual issues.

31. By reason of his function and position, the jury will very likely attach great importance to the views expressed by the judge.  If the judge expresses his strong inclinations on the factual issues, the effect on the jury is obvious.

32. The merit of the jury system is that in a criminal trial, a certain number of laymen citizens are able to make such collective decisions on factual issues as they consider appropriate, by drawing on their common sense and social experience.

33. If the judge expresses to the jury his strong views and inclinations on factual issues, then he is not only usurping the function of the jury, but may also cause a reasonable bystander to think that the defendant is not receiving a fair trial.

34. The only issue in the present case was whether the applicant’s explanations to the effect that she did not know there was dangerous drug in the backpack she was carrying were credible.  The applicant offered detailed explanations during her interview with the customs officers, and when she gave evidence at trial she provided further information about her explanations.

35. The main questions placed before the jury were whether the applicant’s explanations were credible and whether she was able to raise any reasonable doubt in respect of the prosecution’s allegations against her.

36. In his directions to jury, the trial judge analyzed the applicant’s explanations in great detail.

37. We need not repeat the relevant directions to jury.  Suffice it to say that the trial judge highlighted the unreasonable features in almost every explanation given by the applicant.  He gave strong indications about his inclinations on the applicant’s explanations.  He stated in no unclear terms, “I have drawn your attention to many features or matters in the transcript of the interview which are unreasonable or which warrant your careful consideration.”  The views expressed by the trial judge were obviously unfavourable to the applicant.

38. It is true that whenever the trial judge expressed his inclinations on the applicant’s explanations, he reminded the jury that they should “make your own assessment”, “think about that yourselves”, “consider it yourselves” and so on.  However, the inclinations which he expressed were definite and furthermore, overwhelmingly one-sided.

39. In HKSAR v Yeung Chor-ming [2004] 1 HKLRD 136 at 145 A-C, the Court of Appeal summarized the judge’s powers and duties in relation to summing-up as follows:

“(1) The judge should never take away the jury’s function as the sole arbiter of facts. Hence, the wording and comments made in the course of the summing-up should not give the impression that the judge was directing the jury to accept his opinions or views on the facts;

(2) The wording and comments made in the course of the summing-up should not give the impression that the judge was making another speech for the prosecution;

(3) Subject to (1) and (2) above, the judge was entitled to provide reasonable, impartial and fair explanation, analysis and comments on the parties’ cases and evidence, which would help the jury reach a conclusion;

(4)    Where (1) or (2) above was contravened, the unbalance of the summing-up would not be saved by the usual reminder or direction that the jury were the sole arbiter of facts, or that it was a matter for the jury to draw a conclusion or verdict on the facts, or that the jury were free to reject any of the judge’s comments with which they disagreed.”

40. We cannot emphasize too strongly that however cogent and convincing the prosecution evidence against the defendant may be and however flimsy and incredible the defence case may be, the defendant is entitled to a fair trial.  The jury should make their own independent judgment on factual issues and should not be subject to excessive influence from the judge, nor should they act pursuant to directions or opinions and views expressed by him on those issues.  It all boils down to this fundamental principle: justice must not only be done but must be seen to be done (see The Queen v Cheung Ping-kei [1985] HKLR 57).  The judge’s summing-up must be fair and impartial. It must not be tantamount to a closing speech for the prosecution (see HKSAR v Umali [2011] 3 HKLRD 55).

41. In our judgment, the directions given by the trial judge to the jury on the applicant’s explanations were, as a whole, unbalanced and unfair.  The way in which the trial judge expressed those directions not only showed that he had his own views on the applicant’s explanations, but also gave the impression that he was directing the jury to accept his views on the facts.  The views expressed by him were plainly unfavourable to the applicant.

42. We consider that the approach taken by the trial judge would cause a reasonable bystander to feel that the trial was unfair.  This renders the conviction of the applicant unsafe and accordingly the conviction cannot be upheld.

43. We have therefore granted the applicant leave to appeal against conviction, allowed the appeal and quashed her conviction and sentence.

44. Given the background of the present case and the issue involved, we ought to order a retrial, and Mr. Khattak had no objection thereto.

45. We have therefore ordered that the applicant be remanded pending retrial.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.