HKSAR v. KOWITATSAWANON RANNAPRAPHA

CACC 275/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 275 OF 2014

(ON APPEAL FROM HCCC NO. 438 OF 2013)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  The applicant sought leave to appeal against her conviction on 7 August 2014 after trial by Line J and a jury of one count of unlawful trafficking in a dangerous drug on 17 June 2013, namely 1.67 kilogrammes of methamphetamine hydrochloride (“ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing we refused the application and said that we would give our reasons in due course. That, we do now.

The trial

The prosecution case

2.  On the morning of 17 June 2013, the applicant was intercepted by Customs Officer Lee Pui-shan at Boarding Gate 523 of the Departure Hall of Hong Kong International Airport, where she was waiting to board a flight to Hanoi in Vietnam, as she was in transit from Johannesburg in South Africa.  Having produced her boarding pass and baggage tags for her check-in luggage, a grey suitcase, the latter was retrieved and inspected.  That inspection revealed a grey silver lining at the bottom of the suitcase, in the middle of which was a zipper.  There was a smell of glue.  When the zipper was undone, the black bottom of the suitcase was revealed.   When asked if there was anything inside, the applicant made no reply.

3.  The suitcase handle and the black plastic boards having been removed, a false compartment was revealed, inside which was a slab encompassed in black adhesive tape.  An incision having been made into the slab, a white crystalline substance spilt out, which gave a positive test for ice.

4.  Having been arrested for suspicion of having committed an offence under the Dangerous Drugs Ordinance and after the words of caution had been administered, the applicant indicated that she understood and said in English “Yes, my friend gave it to me at Johannesburg”.  After the white powder had been pointed out to her by the officer and in response to being asked if she knew what was hidden in the suitcase, the applicant said “I don’t know”.

5.  In a subsequent video-recorded interview under caution, the applicant explained her personal circumstances and how she came to be in possession of the suitcase in Hong Kong.  She said that she came from Thailand.  She had been married but had returned to live with her father.  She was in a business partnership.  In about May 2012, she became acquainted with a man called Eiphani on the internet.  He lived in South Africa.  In September 2012, she visited him in South Africa.  He sent her the airline tickets and provided her with 5,000 Baht.  She stayed with him at his home and they became lovers.  Eiphani having made the same arrangements, she visited him in South Africa again in November 2012 and February 2013.  On those occasions he provided her with more money, 20,000 Baht and 38,000 Baht respectively.  On each occasion he arranged for her to stay in Vietnam for several days on the return leg and provided her with expenses.

6.  By the same arrangement with him in June 2013 she flew to visit him in South Africa, arriving in Johannesburg on 8 June 2013.  However, on this occasion rather than staying at his home he had had a hotel room reserved for her between 8 and 25 June 2013.  However, she left prematurely.

7.  On the evening before her departure on 16 June 2013, without having raised the matter beforehand, Eiphani told her that he had bought her a new suitcase to replace the existing suitcase, which he described as worn out.  That evening, Eiphani took the applicant to a friend’s house, where she waited for him inside the car.   On his return he told her that the new suitcase was in the back of his car.  Then, he drove the applicant back to her hotel where he told her to take the suitcase, provided her with an airline ticket and 3,000 Baht and told her that she could return to Thailand the next day.

8.  The following morning she packed her possessions into the new suitcase in haste and travelled to the airport by herself after Eiphani had failed to come to the hotel and she had been unable to reach him on his mobile telephone number.  It had never occurred to her that there was anything unlawful in the suitcase.  She intended calling Eiphani on her arrival in Thailand.

9.  The retail price of 1.67 kilogrammes of ice, if bought and sold in quantities of 5 grammes was more than $1.3 million, whereas its wholesale price was almost $500,000.

The defence case

10.  The applicant availed herself of her right to give evidence.  It was an admitted fact that the applicant had “a clear criminal record in Hong Kong”.  Of the effect of her evidence, the judge reminded the jury that the applicant had given “…the same story to you as she told the Customs officers.”

Grounds of appeal against conviction

11.  Having regard to the fact that the prosecution case in support of the issue of the applicant’s knowledge was based entirely on circumstantial evidence, Mr Boey Chung submitted that the judge erred in failing to give the jury appropriate directions.  First, in failing to give the jury a special direction as to the nature of circumstantial evidence.  Secondly, in failing to direct the jury that they could only draw inferences from established facts.

12.  In support of the first submission Mr Chung contended that there were exceptional circumstances such that a special direction was necessary, namely that “no inference is to be drawn against the accused unless it is the only reasonable inference”.  (See the judgment of Bokhary PJ in the Court of Final Appeal in Tang Kwok Wah v HKSAR ^[1]).

13.  In his submissions, Mr Chung pointed out that in his Opening speech to the jury counsel for the prosecution at trial, Mr Laskey, had specifically addressed the jury on the issue of circumstantial evidence pointing to the guilt of the applicant.^[2] Further, in his closing speech counsel for the prosecution had suggested to the jury that “there are all kinds of indicators that she did know that there were drugs in the suitcase when she travelled from South Africa and arrived in Hong Kong.” ^[3]  Counsel pointed to a number of pieces of evidence, including: the weight of the empty suitcase; the smell of glue emanating from the suitcase when opened by the Customs officers; the circuitous route by which the applicant returned to Thailand via Vietnam; the issue of whether the applicant would be trusted as an innocent carrier with dangerous drugs of such great value; the circumstances in which she had been provided with the new suitcase.

A consideration of the submissions

Summing-up

14.  In his summing-up, the judge identified to the jury the issue in the case as being whether or not the applicant knew of the presence of the dangerous drugs in the suitcase:^[4]

“ The issue in the case is whether the defendant knew she was carrying dangerous drugs. The defendant said in interview after her arrest and in her evidence to you in this court that she did not know she carried any dangerous drugs in the suitcase. If that was or may have been true, then she is not guilty. The prosecution say you can be sure it is not true.

…Knowledge is the issue for you to decide. If you are sure she did know she was carrying dangerous drugs, then your verdict will be guilty. If you are not sure, then your verdict will be not guilty.”

15.  Needless to say, the judge gave the jury the standard directions as to the burden and standard of proof:[5]

“ …the prosecution must prove the defendant is guilty of the offence charged. A defendant does not have to prove his or her innocence. In a criminal trial, the burden of proving the defendant’s guilt is always on the prosecution.

The second direction concerns what the prosecution must do to succeed in proving a defendant’s guilt. The answer to that is by making you sure of it. That is the same thing as being satisfied beyond a reasonable doubt of guilt, and nothing less than that will do. So if after considering all of the evidence you are sure the defendant is guilty of the charge, your verdict must be guilty. If you are not sure, your verdict must be not guilty.”

16.  In the context of the issue in the trial being proof of the applicant’s knowledge that the suitcase contained dangerous drugs, the judge said:^[6]

“ The defendant’s case is that she knew nothing of the presence of any dangerous drugs. The prosecution must make you sure that it is not so if you are to convict. They must make you sure she knew. Proof only that the defendant suspected that she was carrying dangerous drugs is not enough for knowledge must be proved.”

17.  Of the fact that the applicant had given evidence, the judge said:^[7]

“ It is for you to decide how much weight, if any, to give to the defendant’s evidence. You must always remember that even if you were to decide that you did not believe what the defendant told you, that would not relieve the prosecution of its burden of satisfying you by evidence so that you are sure that the defendant is guilty of the charge she faces. If you think the defendant may be telling the truth, that would mean that you have a doubt about the prosecution’s case. In those circumstances, it would be your duty of course to return a verdict of not guilty.”

18.  Having completed his review of the evidence, the judge reminded the jury yet again of the effect of his directions as to the burden and standard of proof:^[8]

“ So if after considering all of the evidence and my directions on the law you come to the conclusion the prosecution has proved to your satisfaction beyond a reasonable doubt that the defendant committed the offence, then it is your duty to find her guilty of that offence. If you are not sure, it is your duty to acquit her.”

19.  In the judgment of Sir Anthony Mason NPJ, with whom Li CJ, Chan and Ribeiro PJJ agreed, in Tang Kwok Wah v HKSAR the issue of whether or not there was a legal requirement that, where there was evidence on which a jury could draw inferences adverse to the accused, the jury must be directed that no inference can be drawn adverse to the accused unless it was the only inference was addressed and rejected.  Sir Anthony Mason noted that in the advice of the Privy Council in Kwan Ping Bong & Another v The Queen ^[9] Lord Diplock had said:^[10]

“ The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling – one (and the only one) that no reasonable man could fail to draw from the direct facts proved.”

20.  Of that statement, Sir Anthony Mason said:^[11]

“ The correctness of this statement is incontrovertible. But it goes to the standard of proof in relation to the drawing of an inference of a fact constituting an essential element in the offence charged, not to what the law requires by way of instructions to the jury in a case in which the prosecution depends upon circumstantial evidence or the drawing of inferences.

In an earlier decision, McGreevy v. Director of Public Prosecutions (1973) 57 Cr App R 424, the House of Lords rejected the broad proposition for which the appellant contends. The headnote, which accurately states the effect of the decision, is in these terms:

“ In a trial in which the case for the prosecution, or any essential ingredient thereof, depends as to the commission of the act wholly on circumstantial evidence, no duty rests upon the judge, in addition to giving the usual direction that the prosecution must prove the case beyond reasonable doubt, to give a further direction in express terms that this means that they must not convict on circumstantial evidence unless they are satisfied that the facts proved are (a) consistent with the guilt of the defendant and (b) exclude every possible explanation other than the guilt of the defendant.”

Lord Morris of Borth-y-Gest, with whom the other members of the House of Lords agreed in McGreevy, considered that the existing law did not require the giving of such a direction. Further, his Lordship said (at 437):

“ To introduce a rule as suggested … would, in my view, not only be unnecessary but would be undesirable. In very many criminal cases it becomes necessary to draw conclusions from some accepted evidence. The mental element in a crime can rarely be proved by direct evidence. I see no advantage in seeking for the purposes of a summing-up to classify evidence into direct or circumstantial, with the result that, if the case for the prosecution depends (as to the commission of the act) entirely on circumstantial evidence (a term which would need to be defined), the Judge becomes under obligation to comply with a special requirement when summing up.”

His Lordship considered that the form of any particular direction stems from the requirement that proof must be beyond reasonable doubt and that the form in which this general requirement is emphasised is best left to the discretion of the trial judge whose paramount responsibility is to tailor the directions to the particular circumstances of the case. His Lordship did, however, acknowledge that a trial judge might, in particular cases, consider it appropriate to assist the jury by giving a special direction in the form contended for (at 435).”

21.  In the result, Sir Anthony Mason concluded:[12]

“ There is no rule of law or rule of practice that requires the giving of a direction to the jury in terms of Lord Diplock’s statement in Kwan Ping-bong in cases in which the prosecution is relying on circumstantial or inferential evidence to establish the accused’s guilt or an essential element in the offence charged. No distinction in principle can be drawn in this respect between cases in which the prosecution is wholly circumstantial and cases in which the prosecution seeks by inference to establish an essential element in the offence.”

22.  Of the circumstances calling for the giving of a special direction, Sir Anthony Mason said :^[13]

“ The giving of such a direction is, of course, initially a matter within the discretion of the trial judge. A trial judge should give careful consideration to giving such a special direction in cases where the jury is asked to draw inferences from primary facts and the giving of the direction involves no risk of confusing the jury having regard to the nature of the issues and to the directions otherwise to be given to the jury.”

23.  Mr Chung accepted that towards the conclusion of the evidence, in the absence of the jury, at the commencement of proceedings in the afternoon of 6 August 2014, the judge raised with counsel generally and specifically the issue of the directions in law to be given to the jury in the summing-up.  He provided them with a draft of the written directions given subsequently to the jury in respect of the issue of knowledge.  The issue of a special direction in respect of the drawing of inferences adverse to the applicant was not addressed by the judge or counsel.  Similarly, although there was discussion between the judge and counsel, in the absence of the jury after their retirement, at the conclusion of the summing-up no request was made by counsel representing the applicant of the judge to give the jury a special direction in respect of the drawing of inferences adverse to the applicant.

24.  Although in his opening speech counsel for the prosecution had invited the jury to be satisfied that the only inference to be drawn from the circumstantial evidence was that the applicant knew that she had dangerous drugs in the suitcase, in his closing speech he described that evidence as being merely “indicators” of that knowledge.  It is clear from the way the prosecution put its case that the evidence to which the prosecution pointed was evidence that it was said undermined the applicant’s case that she did not know of the presence of dangerous drugs.  It was evidence relevant to her credibility.  Her account was not to be believed.  The prosecution was not seeking to establish any relevant fact by inference.  That left the jury with the undisputed evidence of the applicant’s possession of the suitcase in which the ice was concealed.

25.  We are satisfied that this was not a case in which the judge was required to give a special direction in respect of the drawing of inferences adverse to the applicant.  All that was required was that the jury be directed that it was for the prosecution to prove its case and to do so beyond reasonable doubt.  As noted earlier, the judge gave that direction to the jury.  Indeed, it was a matter that he repeated in the context of the single issue in the case, namely whether or not the prosecution had proved that the applicant knew that the suitcase contained dangerous drugs.

Conclusion

26.  In the result, we were satisfied that there was no merit in the application for leave to appeal against conviction, which application was refused.

[1] Tang Kwok Wah v HKSAR(2002) 5 HKCFAR 209, page 219 B.

[2] Appeal Bundle, pages 397 S - 398 C : “Now, in many ways the evidence against her is circumstantial evidence; it is evidence of the circumstances surrounding her having that suitcase with the drugs in it.  And some of you may have heard the references to, in other situations, “Oh well, it’s only circumstantial evidence.”  Well, members of the jury, let me put you right on that.  Circumstantial evidence can be extremely strong evidence.  It can be completely overwhelming evidence if the circumstances point in one direction and one direction only.  And the prosecution say that when you have heard all the evidence in the case you will be satisfied that the only inference from that circumstantial evidence is that she knew that she had drugs in the suitcase.”

[3] Appeal Bundle, page 404 B.

[4] Appeal Bundle, pages 8 and 9.

[5] Appeal Bundle, page 11 H-O.

[6] Appeal Bundle, page 12 R-U.

[7] Appeal Bundle, page 16 O-T.

[8] Appeal Bundle, page 24 B-E.

[9] Kwan Ping Bong & Another v The Queen [1979] 1 HKLR 1, page 5.

[10] Tang Kwok Wah v HKSAR; page 227 A-D, paragraph 61.

[11] Tang Kwok Wah v HKSAR; pages 227 D - 228 D, paragraphs 61-63.

[12] Tang Kwok Wah v HKSAR; pages 228 J - 229 B, paragraph 66.

[13] Tang Kwok Wah v HKSAR; page 229 D-F, paragraph 68.