HKSAR v. LEE WING YAN

CACC 218/2018

[2020] HKCA 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 218 OF 2018

(ON APPEAL FROM HCCC NO 320 OF 2017)

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court) :

1.  The applicant was convicted after trial of trafficking in 795 grammes of cocaine mixed in 1 kilogramme of solid.  She was sentenced to 22 years and 6 months’ imprisonment.  She sought leave to appeal her conviction and a potentially determinative issue having been spotted by this Court, Senior Counsel[1] was brought in to assist on what subsequently became Amended Ground 1.  This new ground was conceded by the respondent, as a result of which we allowed the applicant’s appeal.  These are our reasons.

The Facts of the Case

2.  At about 9:20 am on 20 March 2017, the applicant crossed into the Mainland via the Lok Ma Chau Control Point.  She returned to Hong Kong some 27 minutes later using the same route.  She was intercepted by customs officers who examined her rucksack and found inside it a packet.  This packet which contained cocaine worth $940,000 was wrapped in layers of cling film, plastic wrapping and adhesive tape.  When asked what it was inside the packet, the applicant initially said it was clothes.  When it tested positive for narcotics, the applicant changed tack and said under caution that the packet was not hers, that she was bringing it back for her friend Ah Tang, that she had no means of contacting Ah Tang who instead would contact her, and that she had not examined the packet and was unaware of what was inside.

3.  On the same evening, after an unsuccessful attempt at making a controlled delivery, the applicant took part in a full cautioned interview and stated the following: she was hired by Ah Tang as a “grey goods trader” (parallel imports courier in the Chinese original) through Facebook; on the day before the offence she was offered $5,000 for picking up and bringing back to Hong Kong a packet; at the appointed location in Shenzhen the person who handed her the packet was someone whom she had previously met; she did not try to find out and had no idea what was inside the packet.

Defence Position at Trial

4.  At trial, the applicant elected to give evidence and despite an earlier challenge as to voluntariness confirmed almost everything that she had said under caution.  She said grey goods were normal goods which included electronic products and luxury items.  She said she had not given any special thought to the content of the packet, only that it was something fairly expensive.  She denied knowing that she was carrying drugs.

The Problem Direction

5.  The problem which led to the overturning of the conviction in this case arose from the following passages in the summing up. There the Judge (Campbell-Moffat J) was dealing with the question of knowledge, and gave a version of what is called the shut-eye direction :^[2]

“ But the last one is the difficult one and you knew about that right from the beginning and that is that she has to know that she is in possession of dangerous drugs. She does not need to know it is cocaine, but she does need to know it is dangerous drugs of some sort. The defendant must know what she possessed was dangerous drugs, although, it is not necessary in law for her to know exactly what type of dangerous drug, whether it was ‘Ice’ or cocaine or heroin, for example. She must know, however, that it was a dangerous drug.

The prosecution say she knew full well that what she was doing was carrying dangerous drugs and that you can be sure of that from the facts, from the evidence. The defence say she did not know that she had dangerous drugs in her possession. She did not ask anyone what she was carrying and no one told her that they were dangerous drugs that she was carrying. Those are the two - I am putting it all the way out here - those are the two sides of the case. Those are two very simple states of mind, are they not? She did, she did not. But the law allows for different states of mind other than those two.

If you are sure that she was carrying dangerous drugs and that she knew she was carrying dangerous drugs, you do not need to go any further because you would convict her of this offence. If you come to the conclusion that she did not know she was carrying dangerous drugs or may not have known she was carrying dangerous drugs, then again it is a simple issue because you would acquit her of this offence. But there are other states of mind which on the facts of this case you may also consider.

Suspicion is not enough. Knowledge must be proved. But the defendant cannot ignore the obvious. She cannot rely upon deliberately shutting her eyes and her mind to the possibility that she was carrying dangerous drugs. That is not a defence. If you find she deliberately shut her eyes and her mind to something and deliberately avoided confirming it by checking or asking what she was carrying and if all of the surrounded facts, common sense told her it was the case that she was carrying dangerous drugs, then in common sense and in truth, she knew it in law. If you find that to be the case, then in law that is sufficient for knowledge.

Do you want me to repeat that? If she deliberately shut her eyes and her mind to something and deliberately avoided confirming it by checking or by asking what she was carrying and all of the surrounding facts and common sense told her that it was the case that she was carrying dangerous drugs, then in common sense and in truth she knew she was carrying dangerous drugs. If you find that to be the case, then in law that is sufficient for knowledge.” (emphasis added)

Amended Ground 1

6.  Amended Ground 1 was meticulously crafted as a multi-faceted attack on the above direction.  But it was strictly unnecessary to have gone to that level of complexity.  It is clear that having identified the mental states of knowing, or being unaware, which give rise to different results, the Judge was wrong to suggest that there was a third state of mind that could ground a charge of drug trafficking.  The jury was in effect told that if the circumstances were sufficiently suspicious, the deliberate avoidance of confirming one’s possible involvement in drug couriering activities would “in law” be “sufficient for knowledge”.  This displaces knowledge as the required mens rea and is plainly a misdirection.  See the Notes to Specimen Direction 61.3 under the section of “shut-eye, or constructive, knowledge” :

“ Where there is an issue about knowledge of the contents of a container, the jury must be told that suspicion does not suffice and that knowledge must be proved. In such cases, judges must be very careful not to suggest that, by itself, failure to take an opportunity to inspect is to be, or may be, equated with knowledge of the contents. In appropriate cases, it is a fact that may be taken into account and from which, with all the other circumstances, guilty knowledge may be inferred.”

See also the case of Griffiths[3] from which the oft-quoted but slightly modified expression, “in common sense and in truth, the defendant knew”, took root.  Even there a line was drawn between telling the jury :

“ the offence (of handling) is committed if the defendant, suspecting that the goods were stolen, deliberately shut his eyes to the circumstances as an alternative to knowing or believing the goods were stolen”,

which is a misdirection, and :

“ in common sense and in law, (the jury) may find that the defendant knew or believed the goods to be stolen because he deliberately closed his eyes to the circumstances”,

which is not.^[4]  The distinction is that in the latter direction, the jury is not exempt from making an actual finding on mens rea – a task that is perhaps less onerous where belief alone is a sufficient mental state.  Compared to knowledge, belief is arguably more readily inferable from a deliberate avoidance to confirm the obvious.

General Advisability of the Shut-eye Direction

7.  In Griffiths, the stolen goods were a pair of candlesticks.  The defendant admitted to have bought them off “a man he could not describe in the High Street of Cheltenham”.  When asked if he had asked the man where those candlesticks came from, he told the police, “You don’t ask questions like that, do you?”  These admissions point to an objective suspicion surrounding the circumstances of the sale on the one hand, and a subjective suspicion on the part of the defendant as regards the provenance of the candlesticks on the other.  It was against that background, given the sufficiency of belief as a form of mens rea in a handling charge, that the Recorder was upheld in proffering directions which, as a whole, were regarded as inference-based.  We are not sure that, without more, the alleged failure of a courier to query the content of a fully wrapped package can be said to have the same cogency as a piece of circumstantial evidence that would justify a shut-eye direction as a tool for the jury to infer knowledge.  In this regard we will repeat what Bokhary JA[5] said in Law Wai Choi,[6] namely “constructive knowledge is rarely relevant” in dangerous drug cases,[7] and we would remind everyone seized of these cases that this topic is fraught with potential pitfalls not least in explaining subtle concepts and nuanced ideas to the jury.  It is not an exercise to be entered into lightly.  In the present case, the prosecution did try to confine their attack to the incredibility of the defence – would anyone agree to be a courier without first ascertaining what they have to carry was how they put it.  What they failed to do in the end was to resist going along with the court’s decision to give a shut-eye direction,[8] and they failed to assist the court when the direction went off at a tangent.

Conclusion

8.  For the above reasons, we granted the applicant leave to appeal, treated the hearing of the leave application as her appeal and allowed the appeal.  With no resistance from her counsel, and given the seriousness of the allegation, we also ordered her to be retried on a fresh indictment before another judge.

[1]  The late Mr Gerald McCoy SC, later to be taken over by Mr Andrew Bruce SC.

[2]  AB 32K – 33O.

[3]  R v Griffiths (1974) 60 Cr App R 14.

[4]  Two-thirds down p 18 of the judgment.

[5]  As Bokhary PJ and NPJ then was.

[6]  The Queen v Law Wai Choi [1997] HKLRD 555, at 561D.

[7]  In the context of the Law case, we take “constructive knowledge” to mean exactly the same thing as a shut-eye direction when correctly given.

[8]  AB 162T – 174J: Discussion between court and counsel as to what directions should be included in the summing up.