HKSAR v. SITI HANDAYANI

CACC 304/2018

[2019] HKCA 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 304 OF 2018

(ON APPEAL FROM HCCC NO 426 OF 2017)

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J U D G M E N T

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1.  On 10 August 2018, the applicant was convicted after trial before D’Almada Remedios J (the judge) and a jury of trafficking in 589 grammes of a solid containing 519 grammes of cocaine.  She was sentenced to 18 years and 10 months’ imprisonment.  She now applies for leave to appeal against her conviction.

2.  The prosecution case was that a parcel containing the drugs was addressed to “Loe Martins” at an address in Kam Tin, New Territories, Hong Kong.  Customs Officers tried to deliver the parcel but a resident at the address confirmed that no one by the name of “Loe Martins” lived there.

3.  On 2 May 2017, the applicant went to Kam Tin Post Office and collected the parcel.  She produced an authorisation letter, a passport page in the name of “Loe Martins”, a copy of her identity document and her Form 8 recognizance.  She was arrested by Customs Officers after she collected the parcel.  She stated that she expected the parcel to contain cosmetics.  She said that a male acquaintance by the name of “Kings” arranged for her to collect the parcel.  She knew “Kings” through a girlfriend called “Debbie”.  She stated that “Kings” had telephoned her the previous day and had asked her to collect the parcel which he said contained cosmetics.  He offered to go into business with her to sell the cosmetics.

4.  The prosecution case was that the applicant knew she was collecting drugs and that her claim that she thought she was collecting cosmetics was untrue.

5.  The defence case was that the applicant believed that she was collecting cosmetics for a business venture with “Kings”.  He had given her a paper to collect the parcel.  She received five WhatsApp calls from “Kings” to find out if she had collected the parcel.  She did not know who was the sender of the parcel.  After she had been arrested, she offered to participate in a controlled delivery operation.  She made a number of telephone calls to “Kings” but was unable to reach him.

6.  The applicant at trial did not give evidence or call evidence on her behalf.  She relied on her out-of-court statements. 

7.  The sole ground of appeal is that the summing-up was unfair and unbalanced because the judge emphasised and elaborated upon the submissions of the prosecuting counsel and failed to give a good character direction as to the credibility of the applicant in relation to her out-of-court statements.

8.  In her summing-up to the jury, the judge gave the following direction in relation to the applicant’s out-of-court statements and lack of a criminal record.

“So, although, the defendant chose not to give evidence in this trial, you have had the advantage of seeing and hearing in the video-recorded interviews how she explained what happened and how she came to collect the parcel. You have heard what she said in answer to the questions asked by Inspector Tang. It is for you to decide and assess her credibility what if any of the contents are true or might be true. You must assess the content of the statements in the video-recorded interviews as a whole. If you find what she says is true or may be true, then she did not know that there were drugs in the parcel, then you will return a verdict of not guilty.

So your main duty in this case is to assess credibility, reliability and accuracy of the witnesses and the evidence. ... Nevertheless, I must direct you that in the case of all witnesses, including the defendant in the video-recorded interviews, consider whether each of them has been accurate in the account they have given you.

...

It is an admitted fact that the defendant does not have a criminal record in Hong Kong. That in itself is not a defence to a criminal offence, but it is evidence that you should take into account in a defendant’s favour. Her clear record is evidence of her good character in that it may mean she is less likely than otherwise might be the case to commit the crime charged. You are entitled to take into account everything you have heard about the defendant, such as, she came to Hong Kong, firstly, and formally, as a domestic helper in 2012. Since 2015, when her contract was terminated, she remained in Hong Kong as a refugee or an asylum seeker. She is a single mother of a young child, aged about 1 or 2 in 2017. … But in the end, however, it is for you to decide what weight you should give to these matters I have just mentioned.”[1]

9.  Mr Phillip Ross, for the applicant, submits that the judge gave an unfair and unbalanced summing-up by not fully summarising the defence case as she did with the prosecution case.  He submits that the defence counsel had advanced a number of reasons as to why the applicant was unaware that the parcel contained drugs, and yet only some of these reasons were addressed by the judge in her summing-up.

10.  It is submitted by Ms Christal Chan, for the respondent, that the judge gave proper and appropriate comments on matters relevant to the prosecution and defence cases.  She further submits that the judge comprehensively explained the defence case to the jury and there is no substance to the complaint that she inappropriately emphasised and elaborated upon the prosecution case.  She points out that the judge addressed in some detail the defence case on the issue of the applicant’s lack of knowledge that the parcel contained drugs.

11.  I am of the view that this aspect of the ground of appeal is not reasonably arguable.  The judge appropriately presented the defence case to the jury and there is no apparent unfair emphasis on the prosecution case.  One of the reasons it is argued that the judge had failed to highlight to the jury was the fact that the applicant’s fingerprints and DNA were not found on the contents of the parcel.  It was an admitted fact that the applicant’s fingerprints were not found on the contents of the parcel and it was also an admitted fact that the parcel had arrived in Hong Kong from Brazil.  It was not in dispute that the applicant was collecting parcel, so there was little if any forensic significance of the fact that the applicant’s fingerprints and DNA were not found on the contents of the parcel.  In any event, the judge did highlight to the jury the fingerprint evidence.[2]

12.  Mr Ross further supports his submission by illustrating that the judge did not emphasised to the jury that when the applicant was arrested her first reaction was to tell the Customs Officers that she believed the parcel contained cosmetics, and that she had said in her video-recorded interview that she was not keen to collect the parcel as she had to look after her child.  The judge did stress to the jury that there was no admission that the applicant knew that the parcel contained drugs and went on to point out to them that the applicant said, after her arrest and in more detail in her video-recorded interview, that she collected the parcel for a friend and that she believed the parcel contained cosmetics.[3]

13.  In my view, the judge fairly reflected the defence case which was that the applicant believed she was collecting a parcel containing cosmetics, and not one that contained drugs.  She addressed in detail the issue of the applicant’s lack of knowledge of the drugs in the parcel as well as other arguments advanced on her behalf.  She also took the jury through the contents of the applicant’s video-recorded interview.[4]  She also reminded the jury that if it appeared that she had expressed a view in relation to the facts in the course of the summing-up, it was a matter for them as to whether they agreed with it or not, and if she did not mention something that they considered important they should have regard to it and to give it whatever weight they thought necessary.  She made a similar statement in relation to the closing addresses by both counsel.[5] When she took the jury through the video-recorded interview she explained that she would be paraphrasing parts of it and that they could look at the precise details by reviewing the transcript of it.

14.  In respect of the good character direction as to the applicant’s credibility, Ms Chan submits that what the judge told the jury about the applicant’s good character was fair and balanced.  She contends that the ultimate issue is not whether a direction should be given but whether its absence rendered the summing-up unfair and unbalanced.  This requires making an assessment of what was said in the context of the case as a whole, and accordingly the judge’s comments dealt with the issue of credibility appropriately in the circumstances of the case. 

15.  The relevant principles in relation to a good character direction were addressed in Tang Siu Man v HKSAR (No 2) (1997-98) 1 HKCFAR 107 which has been followed by a number of the cases addressing the necessity and appropriateness of either or both limbs of a good character direction.  In HKSAR v Soo Chun Sou Dominic, CACC 262/2008, 20 January 2010, unreported, the Court of Appeal noted that it is a matter for the trial judge’s discretion as to the scope and terms of any direction on good character to a jury, although such a discretion must be exercised judicially.  The Court also pointed out that in the circumstances of that case, where the applicant’s defence was wholly contained in an out-of-court statement, the failure to give a credibility direction amounted to a non-direction and was an irregularity.  The Court went on to consider in the circumstances of that case whether to invoke the proviso and explained that the effect of the non-direction had to be weighed in the context of the case as a whole.

16.  In HKSAR v PEREZ OSORIO LUIS FERNANDO CACC 284/2016, 4 September 2018, unreported, the Court of Appeal noted that from the authorities, a trial judge had a wide margin of assessment when considering whether a defendant should receive the benefit of a good character direction, but added that:  

“61. … Once the judge has made that assessment the decision of whether to give a good character direction will be an exercise of judicial discretion by the judge. The ultimate issue is not whether a direction should be given but whether its absence rendered the judge’s summing up unbalanced and unfair.”

17.  I am of the view that this aspect of the ground of appeal is reasonably arguable, and raises for argument the question as to whether a credibility direction should have been given to the jury by the judge in addition to what she had said in her summing-up, and to what extent, if any, did the failure to give such a direction in the circumstances of this case render the summing-up to the jury unfair and unbalanced.  I therefore grant leave to the applicant on this aspect of the ground of appeal but refuse leave on the other aspect in relation to the inappropriate emphasis and elaboration of the prosecution case.