HKSAR v. YANG YULAN

[English Translation - 英譯本]
CACC 188/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 188 OF 2012

(ON APPEAL FROM HCCC 313 OF 2011)

_________________

_________________

Reasons for Judgment

Barnes J (giving the judgment of the Court):

Background

1.  On 9 May 2012, the applicant was found guilty of the charge of “trafficking in a dangerous drug” by a jury sitting with Madam Justice M Poon in the Court of First Instance and sentenced to a term of 20 years’ imprisonment.  The applicant sought leave to appeal both conviction and sentence.  She was represented by Mr Charles Chan of counsel in the application for leave to appeal against conviction and acted in person in her application for leave to appeal against sentence.

2.  At the conclusion of the hearing, we granted the applicant leave to appeal conviction and treated it as the appeal hearing, and we dismissed her appeal.

3.  We dismissed the applicant’s application for leave to appeal sentence.

4.  Here are our reasons.

Prosecution Case

5.  The prosecution case, in simple terms, was that on the day in question the applicant arrived at the Hong Kong International Airport on a flight from Kuala Lumpur and was then intercepted by Customs officers.  Customs officers inspected the rucksack that the applicant was carrying, cut open the back of the rucksack and found a bag of powder.  Subsequently, it was found to be 1 kg of a mixture containing 0.54 kg of heroin with a market value of about HK$680,000.

6.  The Customs officers arrested and cautioned the applicant.  She indicated that she understood and had “nothing to say”.

7.  Subsequently, the applicant voluntarily attended a video-recorded interview held by the police.  Under caution, she said that she had been asked by her boyfriend Terry (a black man) to go to Kuala Lumpur to get goods samples.  This was not the first time, but the third time, that she went to Kuala Lumpur to get goods samples.  Each time, the air tickets and accommodation were paid by Terry, and on each occasion, after arriving Kuala Lumpur, she contacted a black man called Paul.

8.  This time, Paul took her to buy brassieres as goods samples.  Afterwards, he put the samples into the rucksack in question.  The applicant did not thoroughly inspect the rucksack.  She said that she had absolutely no idea of the presence of the heroin inside the rucksack, nor did she have any suspicion.

Defence case

9.  The applicant elected not to testify, nor did she call any witness.

Grounds of appeal (against conviction)

10.  Mr Chan advanced the following two grounds to contend that the conviction was neither safe nor satisfactory.

          Ground (1)

11.  The trial judge, in her directions to the jury, erred in raising the matter of whether “[the defendant], in facing some conspicuous circumstances, had deliberately disregarded, turned a blind eye and chosen not to ascertain?  Was the defendant in fact tacitly aware of the presence of the dangerous drug?”  It was extremely likely that the jury were led to misunderstand in the following ways:

(1) that the fact that theapplicant did not inspect was equivalent to her having the knowledge;

(2) that the fact that the applicant knew having the rucksack containing the dangerous drug in question handed to her involved a crime meant that she was aware that the crime was trafficking in a dangerous drug; and

(3) that her reasonable suspicion was equivalent to knowledge.

12.  Mr Chan complained against the following directions the judge gave to the jury on the first day (appeal bundle pages 18U to 19D):

“ Mr Chan for the defence said in his submission that Terry, as a drug trafficker, would absolutely in no way want his courier to know that what was being delivered was dangerous drug, and therefore he might not have told the courier, ‘I give some dangerous drug to you for delivery.’ However, you may also exercise your common sense to think about this. Sometimes, it is not necessary to make everything clear verbally and people just understand each other tacitly. Things may be understood tacitly and simply does not need to be made clear verbally. You may consider whether the defendant, in facing some conspicuous circumstances, had deliberately disregarded, turned a blind eye and chosen not to ascertain? Was the defendant in fact tacitly aware of the presence of the dangerous drug? Are you satisfied that there is no reasonable doubt? No matter it is by common sense or on the facts, the only reasonable inference is that the defendant knew that there was dangerous drug inside the rucksack.” (emphasis added)

13.  Firstly, Mr Chan complained that after stating the defence position, the judge immediately refuted it and attacked what the defence had said, and on the contrary, did not give any comment on what the prosecution had said.

14.  Secondly, by saying “no matter it is by common sense or on the facts, the only reasonable inference is that the [applicant] knew that there was dangerous drug inside the rucksack” in form of a statement, the judge established that the observation in this regard was more important than other details or features in the case.

15.  Mr Chan cited the case of The Queen v Law Wai Choi & Another [1997] HKLRD 555 and said that deliberate disregard merely “may” be inferred as, but was not an alternative to, a defendant’s knowledge of the content of the packet in his possession.  The phrase “only reasonable” used by the judge suggested that failure to inspect must be tantamount to knowing, which was a misdirection to the jury.

16.  Mr Chan also pointed out that in the present case, the applicant had not disregarded, and that although she did not see how Paul put the brassieres into the rucksack, she did see that there were samples of brassieres inside.  It was extremely likely that the directions given by the judge would have caused the jury to miss out some reasonable grounds on which the applicant had not inspected the rucksack and to treat the applicant’s failure to inspect the rucksack with reasonable time and opportunities directly as the rationale of her having knowledge of the presence of dangerous drug inside the rucksack.

17.  Mr Chan also complained that the judge had failed to point out to the jury that it might be due to the following reasons that the applicant had not checked thoroughly:

(1) the applicant and Terry were in a boyfriend and girlfriend relationship and so would not ask too much;

(2) this was the third time that the applicant had contact with Paul, and a rucksack and brassieres had been involved previously;

(3) the applicant saw the brassieres inside the rucksack;

(4) the applicant was not good in English and did not really understand what Paul said when dealing with the rucksack; and

(5) there were specific background and reasons for which the applicant did not thoroughly check or ask, and it was not that she simply disregarded without any basis.

18.  Mr Chan also submitted that it was extremely likely that the judge’s directions would have caused the jury to misunderstand that “if the applicant should have had reasonable doubt on the presence of dangerous drug inside the rucksack, it means that the applicant was in fact aware of the presence of the dangerous drug”.  He said that the judge should have explained to the jury that even if they accepted the applicant had disregarded this matter, they still had to be sure of the relation between such “disregard” and “knowledge”.

Our consideration

19.  Firstly, with respect, we do not agree that the judge had, as alleged by the applicant, refuted or attacked the defence immediately after referring to the defence counsel’s submissions.  The judge just pointed out that generally speaking, sometimes there was “tacit understanding” and it might not be necessary to make things clear verbally.  The judge said that the jury might consider whether the applicant had deliberately, in facing some conspicuous circumstances, disregarded and chosen not to ascertain, and whether the applicant was tacitly aware of the presence of the dangerous drug.  These are findings of facts for the jury to decide.

20.  In respect of Mr Chan’s contention that the judge had said in the form of a statement that the only reasonable inference was that the applicant was aware of the presence of the dangerous drugs in the rucksack, with respect, we do not accept.  When the passage is read in context, it should not be a question mark after “are you satisfied that there is no reasonable doubt” because the sentence has yet come to an end.  The whole sentence was that the judge was pointing out to the jury whether they could be satisfied beyond reasonable doubt that, as a matter of common sense or on the facts, the only reasonable inference was that the applicant knew that there was dangerous drug in the rucksack.  The judge was not saying that the only reasonable inference must be that the applicant had the knowledge.

21.  Having considered that the judge had already given directions to the jury on the onus and standard of proof and pointed out clearly to the jury that the prosecution must prove the applicant knew of the presence of dangerous drug inside the rucksack, and that “mere suspicion is not enough”, she in fact did not direct the jury that failure to inspect under reasonable circumstances was equivalent to having knowledge.  In our view, the jury would not misunderstand that the applicant’s failure to inspect was tantamount to having the knowledge.

22.  Furthermore, although the judge did not sum up the reasons for the applicant’s failure to inspect, as what Mr Chan has done, viewing the summing up as a whole, the judge had summarized the defence case (including the facts favourable to the defence) to the jury concisely.  She was not biased towards the prosecution and did state the cases of both sides clearly to the jury.

23.  We would like to take this opportunity to say that although in cases involving dangerous drugs, proof of “constructive knowledge” on the part of the defendant by the prosecution is sufficient to show the defendant’s knowledge, as Bokhary JA (as he then was) pointed out in the above case of Law Wai Choi (at page 561D), such knowledge of a material circumstance is rarely relevant and its relevance is confined to rare cases.

24.  If all the circumstances faced by a defendant were very suspicious and he deliberately shut his eyes to the circumstances at the material time, it might be construed that he had the knowledge but this is not necessarily the only finding (see R v Griffiths (Leslie George) (1974) 60 Cr App R 14).

25.  Since “constructive knowledge” is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to the suspicious circumstances, it is not appropriate for judges to give general directions to the jury on “constructive knowledge”.

26.  This ground of appeal fails.

          Ground (2)

27.  The trial judge erred in saying that in the present case, “the record of interview contains parts incriminating (the applicant)”, which is extremely likely to have caused the jury to misunderstand that:

(1) the content of the record of interview (exhibit P33) really suggested that the applicant had admitted her guilt or reflected she was guilty;

(2) the incriminatingpart in the mixed statement has definitely represented or included all elements of the offence; and

(3) taking the whole directions together into the consideration, the jury were actually only required to consider if the explanations in exhibit P33 were credible or might be credible and were not required to consider if there was any doubt in the prosecution case.

28.  Mr Chan complained that the judge had failed to point out to the jury that the applicant simply exercised her right when she had “nothing to say” under arrest and caution at the airport.  Since the judge had on the first day of the directions criticized the applicant for “disregarding”, the jury might view the applicant’s not responding upon being arrested unfavourably against her.

29.  Mr Chan in particular criticized the judge for saying that the record of interview “contained parts incriminating her”. He submitted that it was extremely likely that such remark would cause the jury to misunderstand that the applicant had admitted her guilt during the interview or that the content of the interview reflected that she was guilty.  It is an undisputed fact that dangerous drug was found inside the rucksack carried by the applicant.  The content of the record of interview, apart from the undisputed facts, did not contain anything showing the applicant’s knowledge of the drug. Such misdirection given by the judge was extremely likely to have caused the jury to misunderstand that the parts of the record the judge had pointed out to them must support the inference of the applicant’s knowledge of the dangerous drug, or that the contents of the interview must contain parts representing the applicant’s “guilt”.

30.  Mr Chan also complained that the judge had failed to point out the applicant’s good character would tend to enhance the credibility of what the applicant had said in the record of interview.

31.  Finally, Mr Chan submitted that the judge, in directing the jury, stated that if they thought that what the applicant had said was true, or might be true, or cast doubt on the prosecution case, they should find the applicant not guilty.  As a result of this statement, the jury might misunderstand that they were only required to consider if what the applicant had said in the record of interview was credible or might be credible and not required to consider if there was any doubt in the prosecution case.

Our considerations

32.  The judge gave directions as follows (pages 21S to 22G in the appeal bundle):

“ You would remember that the defendant has not committed any offence, and has no criminal record and no conviction before this incident. Of course, good character cannot by itself provide a defence to a criminal charge, but it is evidence which you should take into account in her favour in the following ways. In the first place, although the defendant has elected not to give evidence before you, she did, as you know, give an explanation to the Customs in the interview. The defendant’s statement to the Customs officers, namely the record of interview, contains incriminating parts and explanations and excuses. You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are more likely to be true – for why else would she have made them[?] Or you may feel that there is less weight to be attached to her excuses and explanations, for they were not made on oath, or have not been repeated under oath, and have not been tested by cross-examination. The final question is your assessment on the whole of the record of interview. You ought to have a very comprehensive consideration of the contents before deciding which part is credible, which part is not credible, or all are credible, or all are not credible.

In considering the weight to be attached to the excuses, namely the explanations, you should bear in mindthat these explanations were made by a person of good character, meaning that she had not committed any crime before, and take that into account when decidingwhether you can believe them. In the second place, the fact that the defendant is of good character may mean that she, as a person who has not committed any crime, is less likely than otherwise might be the case to commit this crime, however, I have to emphasize that for these matters which are in the defendant’s favour, it is entirely up to you to decide how much regard you should have and what weight you should give.” (Emphasis added)

33.  It is true that the directions that the judge gave to the jury on the record of interview are similar to the specimen directions issued by the Judicial Studies Board, however, in respect of the facts in the present case, the phrase “contains incriminating parts” adopted by the judge may not be absolutely suitable and appropriate.  It is to be noted that the applicant in the present case did not dispute that a pack of dangerous drug had been found from the rucksack carried by her, and her defence was that she had absolutely no knowledge of the presence of that pack of dangerous drug inside the rucksack.  The applicant did not, in the record of interview, admit that she knew the presence of that pack of stuff or of a pack of dangerous drug inside the rucksack.  The judge was only required to give directions on the exculpatory explanations given by the applicant.

34.  The specimen directions issued by the Judicial Studies Boardare intended to assist judges, and judges are required to adapt them suitably with reference to the facts and evidence of the individual case. Very often, using “parts incriminating the defendant” is not suitable and “parts unfavourable to the defendant” would be more appropriate.

35.  Nevertheless, viewing the case as a whole, the judge had clearly pointed out to the jury the cases of both sides and the explanations given by the applicant in the record of interview.  She had also correctly directed the jury as to how to deal with the answers given by the applicant in the record of interview.  In our view, although the phrase “parts incriminating [the applicant]” was used in the directions, the impact was not significant as far as the present case is concerned.

36.  As to the judge’s failure to point out to the jury specifically that the applicant had the right to remain silent in respect of her saying having “nothing to say” at the time of arrest, we are of the view that in all circumstances of the present case – in particular that the applicant had attended the video-recorded interview and answered questions voluntarily, the fact that the judge did not specifically point out that it was the applicant’s right to remain silent is not essential here.

37.  Finally, with respect, we do not agree with Mr Chan that the judge misdirected the jury in respect of the applicant’s clear record.

38.  The judge, after pointing out that the applicant had a clear record and no previous conviction, stated that although the applicant had not testified in court, she had given answers in the record of interview.  In directing the jury on considering the applicant’s explanations and how much weight should be attached, the judge told them to bear in mind that the explanations came from the applicant who was of good character, and that they should take that into account in deciding whether to believe the applicant’s explanations.  So obviously, the judge had given directions on the positive effect of the applicant’s good character on the credibility of her explanations in the record of interview.

39.  Mr Chan complained that the judge misdirected the jury by suggesting that the applicant’s explanations had to cast doubt on the prosecution case.  With respect, we do not agree.  The judge directed as follows (page 26N-Q in the appeal bundle):

“ Even if you are sure that the defendant’s explanations are not true, you cannot find her guilty right away, and you are required to consider the prosecution evidence carefully so that you are sure the defendant had knowledge of the dangerous drug before you can find her guilty. If, having considered all the evidence in the present case, you are of the view that what the defendant has said is true, or may be true, or what she has said cast doubt on the prosecution case, then you have to return a verdict of not guilty. You must be sure that the prosecution has proved beyond reasonable doubt that the defendant had the knowledge before you can find her guilty. If there is any reasonable doubt, the defendant must be given the benefit of such doubt and found not guilty.”

40.  Obviously, the judge had correctly pointed out that the prosecution has to prove beyond reasonable doubt that the applicant had knowledge of the presence of the dangerous drug before she could be found guilty.  We do not think that the jury would have misunderstood that they were only required to consider if the applicant’s explanations in the record of interview raised any doubt instead of whether there was any doubt in the prosecution case.

41.  This ground of appeal also fails.

Ruling

42.  Since the grounds of appeal advanced by the applicant are not totally unarguable, in particular of the judge having told the jury the applicant’s record of interview contained “parts incriminating [the applicant]”, we granted the applicant leave to appeal against conviction.  Nevertheless, we do not agree that the grounds are substantiated.  In view of the above reasons, the appeal is dismissed.

Ground of appeal against sentence

43.  The applicant, acting in person, submitted that the sentence was excessive and reiterated she had been wrongly accused.

Applicant’s background and submission in mitigation

44.  The applicant is aged 41, married, has a 15-year-old daughter with her husband.  In mitigation, the defence submitted this was the first time that she broke the law and asked the judge for a lenient sentence.

Reasons for sentence

45.  Having recounted the facts of the case, the applicant’s background and submission in mitigation, the judge said that she adopted a starting point of 18½ years’ imprisonment after considering the type and nature of the dangerous drug, the facts of the case and the sentencing guidelines, and that since the case involved cross-border criminal activity which was an aggravating factor, the term had to be raised to 20 years.  The applicant was convicted after trial and hence could not enjoy any discount on sentence.  Therefore, the applicant was sentenced to a term of 20 years’ imprisonment.

46.  We have considered all the facts in the case and the applicant’s background and come to the view that although the sentence imposed by the judge can be said to be severe, it is not manifestly excessive.  Therefore we dismiss the applicant’s application for leave to appeal her sentence.