HKSAR v. NANIK

CACC 114/2016

[2018] HKCA 500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 114 OF 2015

(ON APPEAL FROM HCCC 35 OF 2015)

_______________

_______________

_________________________________

REASONS FOR JUDGMENT

_________________________________

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

1.  The applicant and her co-accused, Sugiyanti, were jointly charged with one count of trafficking in 1,628.98 grammes of a solid containing 725.27 grammes of cocaine.  To that charge, Sugiyanti had pleaded guilty whereas the applicant was convicted after trial before Wong J and a jury and was sentenced to 20 years’ imprisonment.  Before us, the applicant had sought leave to appeal both her conviction and sentence.  We dismissed those applications.  These are our reasons.

RESPECTIVE CASES OF THE PARTIES

2.  As was pointed out by the trial judge, the prosecution case against the applicant was “simple and straightforward”.  It was one of “aiding and abetting” : [1]

“ On 17 July 2014, police officers stopped the defendant who was walking together with another woman called Sugiyanti inside the concourse of the Jordan MTR Station. Sugiyanti was also called ‘Yanti’ during the trial. For convenience sake I will also call her ‘Yanti’.

Inside the bag carried by Yanti, the dangerous drug, as stated in the indictment, was found. No dangerous drug was found on the [defendant][2]. She made statements to the police officer both at the scene and in a subsequent interview which the prosecution says supports the charge.

 This is the gist of the prosecution case.  The prosecution alleged that the defendant was aiding and abetting Yanti in trafficking in the dangerous drug found …”

3.  Regarding the defence position, the judge stated :[3]

“ The defendant testified before you. The main line of what she said is this. She was together with Yanti only because she was following her to Mong Kok to look for a job. She did not know the existence of a dangerous drug. It follows that she was not aiding or abetting Yanti in trafficking. She said she did not make the statement, which the police officer said she did, at the scene. She told you certain irregular conducts of the police officers concerned. She said it was under such irregular circumstances that she participated in the post-record exercise and the video-recorded interview.

She did not understand the purpose of the post-record exercise. Despite she had put down the declaration and her signature, she was not confirming her confessional statements as recorded as she did not understand the implication of the exercise.

 What she said during the recorded interview, in particular the confessional statements, are not true. …”

THE PROSECUTION EVIDENCE

4.  Insofar as the prosecution evidence is concerned, the testimonies of the following three officers are the most relevant for present purposes.

5.  The first of these officers is DPC 33947 (PW3). It was he who first detected the applicant and Sugiyanti when the two were emerging from a nearby building :[4]

“ PW3 … told you around 4.23 pm he saw two Indonesian females walking out from a building, which is 202 Nathan Road. He believed it was a domestic building and there was a Money Exchange shop on the ground floor. He followed the two females into the Jordan MTR Station. When the two of them were stopped, he was responsible for guarding Yanti.

At the end, it was him who took the exhibits to the Narcotics Bureau. …

 In cross-examination he confirmed that all the plastic bags, packets and wrapping [of the drugs] were sent for fingerprint examination, and the fingerprint of the defendant was not found on any of these items.”

6.  Second is DPC 34083 (PW1).  He was the officer who searched and arrested Sugiyanti :[5]

“ [PW1] told you he saw the defendant and Yanti walking together side by side when they were 15 metres away from him. He then with 53577 approached and stopped the two women. After the two women had travelled for about 20 steps, during that 20 steps of travel the two women had been nodding to each other and he saw movement of mouths.

Having stopped them, the police officer took them to the nearby of Exit E and he searched the bag of Yanti. Inside the bag he found the dangerous drugs concerned. He did refer you to the photographs in demonstrating how those items were like.

The dangerous drugs were either put inside a can or certain plastic bags, and there were vegetables and packets put on top of the dangerous drugs. In a way, the dangerous drugs were concealed.

Having found the dangerous drugs, he declared arrest on Yanti for the offence of trafficking in a dangerous drug. She was later charged with this offence and was taken to court to face the charge.

 In cross-examination he told you that the defendant was also carrying a bag, which is a handbag.  During the inquiry, the defendant and Yanti were separated and they were about five steps away from each other.  There was nothing to block the view of the two groups.  He had also searched the house Yanti which was not close to the Jordan MTR Station.”

7.  The third and final officer is DSPC 53577 (PW2).  He was the applicant’s arresting officer :[6]

“ … After reviewing his police identity [PW2] requested to search her. He searched her handbag, nothing unlawful was found. When he heard a police officer saying that he found something, he declared arrest of the defendant for trafficking together with the other girl.”

PW2 cautioned and obtained from the applicant a verbal admission to “collecting cocaine with a girl” for the reward of $1,000 :[7]

“ He cautioned the defendant by saying that, ‘You are not obliged to say anything unless you wish to do so, but whatever yousay may be put in writing and given in evidence’. In response, the defendant said, ‘It was Phillip who said she would be given $1,000 for taking something with a girl’. He then asked the defendant, ‘To collect what?’. The defendant said, ‘The female said it was cooked cocaine.’

 At that time both PW2 and the defendant were talking in Punti. He said he had no difficulty understanding the Punti spoken by the defendant.  She spoke very fluently.”

8.  The above admission was later reduced into writing in the form of a post-record in PW2’s notebook, signed and declared to be accurate by the applicant.

9.  Later still, a video recorded interview was conducted with the applicant during which she confirmed her verbal admission at scene (counters 171 – 178) and stated that she could speak as well as understand Cantonese (counters 1206 – 1213).  The applicant further admitted that :

She came to know Phillip, a Pakistani (counter 185), through the introduction of his girlfriend (counters 229 – 235).  She had only met him twice (counter 266).  The second time was on the day before the offence (counter 274).  On that day, Phillip had asked the applicant to do “this”, “to deliver goods” (counters 292 and 296).  He said there would be a reward of $1,000 (counters 311 – 318), that is, $1,000 per day (counters 313 and 388).

On the day of the offence, Phillip called the applicant by phone (counter 408) and “taught [her] how to work” (counter 410).  He told the applicant to meet up with a girl (counters 478 and 482) at Jordan MTR Station (counter 500).  At the station, the girl called and the girl and the applicant located each other (counters 586 – 624).  The girl told the applicant to follow her home (counter 637).

There was a man in the girl’s flat who never came out of the room (counters 750, 778, 796 and 813).  The living room, on the other hand, was empty except for a refrigerator (counter 792).  The man called out from the room and asked the girl to “count the goods in the refrigerator” (counter 845), the goods that were “wanted” (counters 861 and 862).

The girl took the goods out from the refrigerator (counter 874), counted all of them (counter 876), put them in a bag and then left the flat with the bag and the applicant (counters 870 and 928 – 930).  Whilst the girl was packing the goods, the applicant asked what they were and was told they were “shabu” (‘ice’) or “cocaine” (counter 963).  The applicant was also told which drugs were “raw” and which drugs were “cooked” (counters 912 and 1335 – 1141).  She even got to see what they looked like (counter 1145), the “white ones like flour” (counter 924) and those in “granules” (counter 1149).  The applicant knew “shabu” and “cocaine” to be “forbidden drugs” (counter 967).

After leaving the flat, the girl and the applicant walked together to Mong Kok MTR station (counters 976 and 1063).  The applicant was aware that the girl was carrying drugs.  She was nevertheless prepared to walk with the girl because “she had no choice”: “she was in need of money” (counters 1047 – 1064).  For “accompanying the girl”, the applicant “would be given as much as $1,000” (counter 1068).  The girl was the same woman who was arrested together with the applicant (counters 418 and 1320).

10.  The taking of the said post-record and video recorded interview, we should add, was assisted by various interpreters and, together with the applicant’s verbal admission, these out of court statements were all held to be voluntary and admissible after a voir dire.

11.  It was an admitted fact that the cocaine in question was worth $1.7 million in street value.

EVIDENCE OF THE APPLICANT

12.  The applicant gave evidence but did not call any other witnesses. Describing herself to be someone from a rural background who was not overly sophisticated, she said :[8]

“ … [She] was born in Indonesia. She is now aged 33. She came to Hong Kong in 2009 to work as a domestic helper. She was brought up in a village in Indonesia … she was brought up by her grandmother who sells vegetables in the market.

She started to attend school at the age of 17, and learned to read and write Indonesian. She has received about 9 years of formal education. Therefore, the next four years she had assisted her grandmother in selling vegetables. She only started to learn Cantonese after she had arrived in Hong Kong in 2009.

 Before her arrest this time she had never been to a police station before.She had never heard of the words of a police caution, and she does not know the rights she had when the police officer suspect her of having committed an offence.”

13.  As regards Phillip’s identity and how she had ended up in Sugiyanti’s company, the applicant’s version was that she was following Sugiyanti around only because she thought Sugiyanti was taking her to a part-time job the exact nature of which was unexplained.  She confirmed, however, that she would be given $1,000 :[9]

“ She told you Phillip called her on 15 July, that is two days before the incident. Phillip said he wants to give her a job. Phillip was a Pakistani man whom the defendant met briefly once before. On that occasion they had just said, ‘Hello’ without exchange of any telephone number. There was no further contact between Phillip and her after the first meeting.

After the telephone call they met in Tsim Sha Tsui on the street outside McDonald’s restaurant. It was only a brief meeting. Phillip told her a job will be offered to her. She will be given $1,000 for the job. She had no idea who would be paying her. At that time, Phillip was in a hurry. She was told nothing more about the job. Phillip then left.

On the 17th, that is the day of the incident, a female gave her a telephone call. She said Phillip had given her her telephone number and asked her to call her, that is the defendant, to ask her if she needed a job. If she wants a job, they should meet. At that time she, that is the female on the phone, did not talk of the nature of the job. The defendant said she guessed it was about a part-time job, maybe only like cleaning or washing dishes. She had done similar jobs in the past. She said Yanti was a complete stranger to her. She did not know her before.

At that time she did not know what kind of job it would be. The woman only said they should meet at the MTR station. At the MTR station she met Yanti. Yanti asked her to follow her to her home. The defendant thought the reason was that Yanti was carrying the thing, she needed to put it down in her home. At that time Yanti was carrying a white plastic bag. She followed Yanti to a flat which was about a 10-minute walk from the MTR station. The flat was empty. There was only one refrigerator inside. As there was no chair, the defendant has to sit on the floor. Then Yanti went into a room inside the flat. There was a male voice coming from the room.

She stayed in the flat for about 5 to 10 minutes. At some stage,Yanti went out of the room and opened the refrigerator. At that time the defendant was sitting on the floor, a few feet away from the refrigerator, but she could see nothing because the door of the refrigerator blocked her view.

Yanti then went back to the room. In the course it seems that she was making a telephone call with Phillip. After a few minutes, Yanti came out and put something like vegetables into the refrigerator. Yanti told her, ‘Now we go to Mong Kok to look for a job’.

 She saw Yanti got something from the refrigerator and put it inside the bag - it is an Eco bag.  She saw Yanti put vegetables into the bag.  She did not really pay much attention as to whether other things were put inside.  Before they left the flat, Yanti had not asked her to carry any of the stuff.  In the flat, she did offer to Yanti to carry something for her.  Yanti said, ‘There’s no need’. Her understanding of the purpose of going to Mong Kok was because she needed a job, Yanti will introduce her to the job.”

14.  From what we can gather, it was not disputed that the applicant could at least understand the gist of what the standard police caution said but,whether or not she fully appreciated her rights, the applicant denied making any verbal admission to PW2.  In other words, it was a fabrication :[10]

“ When stopped by police officers at the MTR station, initially she thought it was for checking of identity. She produced her identify card to the police officer.

 She has told PW2, ‘I do not know anything, you can check my bag’.  Her bag was checked, nothing inside was found.  She said the police officer did caution her, but at that time she did not understand.  Maybe the police officer was telling her she need not say anything unless she wanted to do so.  But I do not understand.  She said she did not say anything in reply to the police caution.”

15.  Specific allegations were also made against the police in connection with their taking of the post-record and video recorded interview.  Moreover, the suggestion seemed to be that, because she was confused, tired and frightened, the applicant was incapable of safeguarding her own interests.  Below is a summary of what the applicant said :

Whilst waiting for an interpreter, PW2 had asked the applicant to “cooperate” or “they would put her in jail for a long time”.  The officer also remarked, “You knew Yanti, you knew what Yanti was carrying.”[11]

PW2 did not explain to the applicant the purpose of making the post-record.  When done, the post-record was not read back to her in detail;[12] neither was she given the opportunity to read it herself.[13] The applicant did not understand the ‘declaration’.  In copying it onto the notebook, she was simply following instructions.[14]

The applicant was not served the Notice to Persons under Detention until after the post-record was completed.  Neither did the police explain to her the entire document.[15]  She knew she had the right to a lawyer but nobody told her how or where to get one.[16]  She knew she could contact a friend but it was too late in the evening to alert anyone.[17]

During the taking of photographs of the drug exhibits, an unnamed officer had said to her, “It is impossible you don’t know.”[18]

During the video recorded interview, the applicant was tired, hungry and “could not think”.  PW2 had asked her to cooperate “like a family” and it was unknown to her if she could refuse to take part in the interview.  She was recorded to say she was willing only because she was “so afraid” and did not think she had a choice.[19]

The applicant gave various answers or responses in the interview because “she did not understand what or how to say”.[20]

16.  On the last point, it is worth repeating the judge’s observation that there was no allegation of police coaching.  As was noted by the judge, the defence case in relation to the content of the video recorded interview was that what the applicant said in the interview was untrue :[21]

“ You will have noted that the defendant did make various allegations against the police officers, but she did not say any policeofficers had told her what to say in the interview. On the other hand, the submission of [defence counsel] is that it is not necessarily the case that the statements she made are true.”

17.  It was agreed that the applicant did not have any previous conviction in Hong Kong.

THE JUDGE’S DIRECTIONS

18.  As will be seen from her grounds of appeal against conviction, all the applicant’s complaints were concerned with the trial judge’s directions on aiding and abetting.  These directions the judge had proffered immediately after explaining to the jury what the requirement was for establishing the offence of unlawful drug trafficking (the ‘1^st directions’) :[22]

“ So what amounts to aiding and abetting? Now in the circumstances of the present case, if you find that the defendant hadtaken some part of the trafficking by assisting or encouraging Yanti in the trafficking of dangerous drugs, the defendant was aiding and abetting Yanti in trafficking.

You therefore must be sure about all the following matters before you can find the defendant guilty of aiding and abetting Yanti in trafficking :

(1) Yanti was trafficking in dangerous drugs, since otherwise it is not possible that the defendant was aiding and abetting her.

(2) The defendant contemplated or realised that there was a real risk that Yanti was trafficking in dangerous drugs. Now the risk which the defendant contemplated or realised has to be one of trafficking in dangerous drugs. It is not sufficient to prove that the defendant contemplated or realised that Yanti was trafficking in some unlawful items. It must be proved that the defendant contemplated or realised that there was a real risk that Yanti was trafficking in a type of dangerous drug.

Now for this purpose, it is sufficient to prove that the defendant contemplated or realised that there was a real risk that Yanti was trafficking in a type of dangerous drug. A type of dangerous drug is sufficient. It is not necessary to prove that the defendant contemplated or realised that there was a real risk that Yanti was trafficking specifically in cocaine, the dangerous drug actually found. It is sufficient to prove that she contemplated or realised that there was a risk that Yanti was trafficking in a type of dangerous drug.

(3) The defendant intended to do the acts which she knew to be capable of helping or encouraging Yanti in the trafficking.

(4) She did acts, no matter great or small, she did acts which helps or encourage Yanti in the trafficking.

 Now ‘help’ and ‘encouragement’ are simple words, and you must apply the ordinary meaning of the words in deciding whether there was conduct of the defendant which did help or encourage Yanti.

 Now mere voluntary presence during commission of the offence, or doing nothing to prevent commission of the offence, or turning a blind eye to the commission of the offence, none of these amount to helping or encouraging.  There must be either aid or some conduct of the defendant which in fact helped or encouraged Yanti in trafficking.

 As for ‘encouragement’, it involved some form of transmission of encouragement by words or conduct.  Mere presence of a defendant or a secret intention of a defendant to encourage is not sufficient. You must not simply equate knowing and voluntary presence or no intervention during commission of the offence with encouragement.

 However, you are entitled to take into account the fact, if you so find, the defendant knew that Yanti was trafficking, and the fact that having that knowledge the defendant still accompanied Yanti, you are entitled to take those facts into account in deciding whetherthere was encouragement.  If you find the defendant contemplated or realised that there was a real risk that Yanti was trafficking in a type of dangerous drug, you are entitled to ask yourself, why was the defendant walking together with Yanti?  Did she have some conduct which helped or encouraged Yanti in trafficking, and did she intend to do so?  Was she acting in concert with Yanti in the trafficking?  Now timing is important.  What you are to decide is whether or not the defendant was aiding and abetting Yanti at the time they were stopped at the MTR station by police officers, not at other times.

 If you are sure of all the four matters I have just mentioned, you must find the defendant guilty of the offence.  If you are not sure about any of these matters, you must find her not guilty.”

19.  Then having gone through the main body of his summing up, which included repeating the evidence of both the prosecution and the defence, the judge adjourned the rest of his directions to the following day when he revisited the “four matters” in point form for the jury (the ‘2^nd directions’) :[23]

“ So what the prosecution has to prove are these four matters I have told you yesterday and I will remind you now :

(1) Yanti was trafficking in a dangerous drug.

(2) The defendant contemplated or realised that there was a real risk that Yanti was trafficking in a type of dangerous drug.

(3) The defendant intended to do the acts which she knew to be capable of helping or encouraging Yanti in the trafficking.

(4) She did acts - that is the defendant did acts - whether the acts was great or small she did acts which helped or encouraged Yanti in the trafficking.

 These are the four matters the prosecution has to prove. …”

20.  Finally, towards to the end of the summing up, when the importance as well as the parties’ competing submissions on the applicant’s out of court statements had been highlighted, the jury was provided with the following guidance or assistance.  The emphasis was on taking a broad overview of all the circumstances in the case, plus carefully considering what the applicant had to say under caution (the ‘3^rd directions’) :[24]

“ What weight should be attached to the [out of court statements] which you found have been made by the defendant is a matter for you. You are to consider the whole of the evidence and to decide whether the four matters which the prosecution has to prove against a defendant are proved.

If you are not sure about any of the four matters, you must find the defendant not guilty. However, if you are sure that all the four matters are proved, you are also under a duty to find the defendant guilty.

Now the four matters. Firstly, was Yanti trafficking in a dangerous drug? …

…

The second matter. Did the defendant contemplate or realisethat there was a real risk that Yanti was trafficking in dangerous drugs.

You will note that the only evidence to prove this matter is what the defendant said to the police officer. If you find that the defendant had made a statement at the scene, you will note that she talked about a reward of $1,000 collecting stuff with the female, and the female said it was cooked cocaine. Now whether you find she did say so is a matter for you.

In the interview, the defendant said, amongst other things, that she saw Yanti taking out the stuff from the refrigerator, and Yanti had told her what the items were, then they left the premises and going down together to the MTR station from Mong Kok.

Now you can only rely on statements made by the defendant in your consideration if, and only if, you are sure that the confession in the statement, which is sufficient to prove this matter, is true.

Now whether or not you find the defendant did contemplate or realise that there was a real risk that Yanti was trafficking in dangerous drugs is a matter for you. Unless you are sure about this, you need not consider further and must find the defendant not guilty.

If you are sure that the defendant did contemplate, or realise this, you will have to go on to consider the other two matters. Now the two other matters are: Did the defendant intend to do the acts which she knew to be capable of helping or encouraging Yanti in the trafficking? And did she do acts which helped or encouraged Yanti in the trafficking?

Now there is no dispute that Yanti was carrying dangerous drugs. There is no dispute that the defendant was walking together with Yanti. When you come to this state of consideration, you are already sure that the defendant contemplated or realised that there was a real risk that Yanti was trafficking in a dangerous drug.

Now this by itself is not sufficient to prove the other matters you are to decide now. The prosecution, in effect, is asking you to consider the whole circumstances bearing in mind the statements which you have found to be true, and make a finding that the only reasonable inference supported by the whole of the evidence is that the defendant intended to do the acts which she knew to be capable of helping or encouraging Yanti in the trafficking, and she did the acts which helped or encouraged Yanti in the trafficking.

Now, on the other hand, Mr Percy, counsel for the defence, asks you to accept the possibility that the defendant was only going along with Yanti to look for a job. Even if you are not going to accept this assertion, Mr Percy stressed to you that there is no evidence on what the defendant had actually done, and the evidence does not support the inference that the defendant had done something to help or encourage Yanti in her trafficking, let alone that she had the necessary intent.

Counsel for the prosecution, Mr Donald, asked you to bear in mind that the defendant had talked of a reward of $1,000, which is a substantial reward for an Indonesian working as a domestic helper in Hong Kong. The offer was from Phillip whom the defendant knew little about. She met Yanti only for the first time. Yanti appeared after the telephone call from Phillip. If you consider it appropriate, you may ask yourself this question: Why was the defendant walking together with Yanti when she contemplated or realised that there was a real risk that Yanti was trafficking in dangerous drugs? Was the defendant simply walking along with Yanti with nothing to do with Yanti’s trafficking activity? Or was it, in any case, for an innocent purpose? Or was the defendant accompanying Yanti as a conduct of helping or encouragement, and the two of them were acting in concert?

Now, if having considered the whole of the evidence you are sure that the conclusion is that the defendant was aiding and abetting Yanti in trafficking in dangerous drugs, and this conclusion is the only reasonable inference to draw, you must find the defendant guilty.

 If for whatever reason you are not sure for any of the four matters the prosecution has to prove, you must find the defendant not guilty.”

21.  That was the sum total of the judge’s directions on aiding and abetting.  Applications to the instant case aside, those directions were, to say the least, completely consistent with the Specimen Directions approved by the Judicial Institute.[25]

22.  A couple of jury questions asked not long after their retirement did, however, give rise to further directions from the court.[26]  This time, the judge sought to elaborate on the same point of whether in walking together with Sugiyanti and knowing she had drugs on her person, the applicant could be said to have the intention of aiding and abetting (question 1); and if the view was taken that the applicant knew what Sugiyanti was carrying was drugs but kept this knowledge to herself, whether that would constitute her aiding and abetting Sugiyanti in trafficking those drugs (question 2)(the ‘supplementary directions’) :[27]

“ Now, you only need to consider further if your finding is that, one, Yanti was trafficking in dangerous drugs; and two, the defendant contemplated or realised that there was a real risk that Yanti was trafficking in a type of dangerous drugs.

Now, you will notice the wordings on these two matters. In that sense, it is not sufficient if the defendant only knew that Yanti was carrying dangerous drugs. All right. She has to contemplate or realise that there was a real risk that Yanti was trafficking, not merely carrying, trafficking in a type of dangerous drug.

Now, if you are sure of these two matters, then you are to consider the other two matters. That is, firstly, did the defendant intend to do the acts which she knew to be capable of helping or encouraging Yanti in the trafficking; and secondly, did the defendant do acts, however great or small it is, which helped or encouraged Yanti in the trafficking. What you are to do is to consider the whole of the evidence, which includes the statements of the defendant. If you found she had made statements and the statements are true, and decide whether you can draw the inference that the defendant had the required intention, and had done the acts of helping and/or encouragement. To draw such inference, it has to be the only reasonable inference to draw upon the whole of the evidence.

Now, having contemplated or realised that there was a real risk Yanti was trafficking in a type of dangerous drugs, and with that state of mind, the defendant still walked together with Yanti, are matters which you can take into account in your decision.

What you should not do is to jump to the conclusion, that is, to equate walking together with aiding and abetting, and having the necessary intention, even if you find that the defendant had the necessary contemplation or realisation, you must not equate the two things at once. But you are entitled to take into account these matters in deciding whether the defendant had the necessary intent, and had done acts to help or encourage Yanti.

Now, walking together, by itself, is not enough. You have tolook at all the evidence to make up your mind, and a secret intent of the defendant to help is not sufficient. Yanti has to know that the defendant was aiding and abetting her, so there must be some sort of communication between the two of them. The communication could be by word, and it could be by conduct.

You should also note that doing nothing, not making a report, or turning a blind eye, none of these, by itself, is sufficient. You have to be sure that the defendant and Yanti was acting in concert. So Yanti -- sorry, the defendant was helping or encouraging Yanti, and she intended, by her conduct, to help or encourage Yanti, and Yanti knew this.

Now, at the end, if you find that the only reasonable inferenceto draw, on the whole of the evidence, is that firstly, in doing so the defendant was helping or encouraging Yanti in Yanti’s trafficking; and two, by walking together with Yanti, the defendant intended to help or encourage Yanti in her trafficking, then you are to find the defendant guilty.

If you are not sure that either or both of the above conclusion is the only reasonable inference to draw, or that you are not sure why the defendant was walking together with Yanti, then you must find the defendant not guilty.

 That is the further direction I give you ….”

AS AGAINST CONVICTION

23.  As against conviction, Mr Arthur, who did not have conduct of the defence at trial, advanced three perfected grounds of appeal on behalf of the applicant.

24.  Ground 1 argued that there was insufficient evidence to establish that the applicant had aided or abetted Sugiyanti.

25.  The argument was essentially this :

The prosecution case was based entirely on the fact that the applicant was walking with Sugiyanti. Without more, that constituted “mere voluntary presence”.

The authorities were clear that mere voluntary presence did not amount to aiding and abetting, even if there was a secret intention to help or encourage.

Correctly, the judge did give directions to that effect.  Erroneously, he had not withdrawn the charge from the jury, thus leaving them to speculate as to whether the applicant had intended to and did in fact help or encourage Sugiyanti.

26.  Ground 2 criticised the judge for failing to direct the jury that there must necessarily be an awareness on the part of (a) the applicant, that herconduct might amount to helping or encouraging Sugiyanti and (b) Sugiyanti, that she was receiving help or encouragement from the applicant, should it be considered that the applicant’s conduct did in fact amount to help or encouragement.

27.  Put simply, it was argued that :

Walking with another person was, in itself, a neutral act.  The applicant had never admitted to anything more than that neutral act.

Unless the requisite awareness on the part of the applicant was specifically mentioned, however, the jury might well be misled into equating that subjectively neutral act with having the intention to help or encourage Sugiyanti.

There was no evidence of Sugiyanti being aware that she was receiving help or encouragement from the applicant.  In law, however, the principal must be so aware for the accessory to be liable for aiding and abetting.

28.  Ground 2A[28] complained that an exchange by way of question and answer was wrongly allowed to remain in the video recorded interview to the prejudice of the applicant.

29.  The impugned exchange which was said to have irreparably coloured the mind of the jury is to be found at counters 1090 to 1093 of that interview.  There, PW2, the Indonesian interpreter and the applicant were respectively denoted as ‘A’, ‘B’ and ‘C’ :

“ A : A moment ago, I wanted to say, as you were fully aware that the stuff was illicit drug, but you still kept her company and even went to Mong Kok. Did you know that it was a breach of law?

…

C : [inaudible]

B : Yes, (I) did, (I) did!”

30.  It was submitted that, in law, being in the company of someone whom one knew to be carrying drugs was not, in or of itself, an offence.

Discussion

31.  Mr Arthur was correct that, without more, voluntary presence is insufficient to ground liability as an aider and abettor.  The cases to which he drew our attention are clear on this.  See R v Coney (1882) 8 QBD 534; Wilcox v Jeffery [1951] 1 All ER 464; R v Allan [1965] 1 QB 130; R v Clarkson [1971] 1 WLR 1402; R v Jones and Mirrless (1977) 65 Cr App R 250; and Allen v Ireland (1984) 79 Cr App R 206.

32.  Amongst the above cases, Clarkson, in which the named defendant and his co-accused were charged with aiding and abetting the rape of a young woman, is the most helpful with its discussion of the relevant principles. Setting the scene, the English Court of Appeal gave the following description of the stark factual scenario before it (at 1405C – D) :

“ As has been said, there was no evidence on which the prosecution sought to rely that either of the defendants Clarkson or Carroll had done any physical act or uttered any word which involved direct physical participation or verbal encouragement. There was no evidence that they had touched the girl, helped to hold her down, done anything to her, done anything to prevent others from assisting her or to prevent her from escaping, or from trying to ward off her attackers, or that they had said anything which gave encouragement to the others to commit crime or to participate in committing crime.”

Hence its conclusion that (at 1405E) :

“ … if there was here aiding and abetting by the defendants Clarkson and Carroll it could only have been on the basis of inferences to be drawn that, by their very presence they, each of them separately as concerns himself, encouraged those who were committing rape.”

33.  The Court, however, was quick to warn against jumping to conclusions particularly where the defendant’s presence at the scene was voluntary or “non-accidental”.  Such presence, the Court recognised, may, even without the defendant realising its potential effect, provide encouragement to the principal; accordingly, it is the intention of the defendant that must define his or her liability (at 1405E – 1406C) :

“ Let it be accepted, and there was evidence to justify this assumption, that the presence of those two defendants in the room where the offence was taking place was not accidental in any sense and that it was not by chance, unconnected with the crime, that theywere there.Let it be accepted that they entered the room when the crime was committed because of what they had had heard, which indicated that a woman was being raped, and remained there.

Reg v Coney (1882) 8 QBD 534 decided that non-accidental presence at the scene of the crime is not conclusive of aiding and abetting. The jury has to be told by the judge … in clear terms what it is that has to be proved before they can convict of aiding and abetting; what it is of which the jury … must be sure as matters of inference before they can convict of aiding and abetting in such a case where the evidence adduced by the prosecution is limited to non-accidental presence.

What has to be proved is stated in Reg v Coney (1882) 8 QBD 534 by Hawkins J in a well-known passage in his judgment, at p 557 :

‘ In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, or gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of murder. Non‑interference to prevent a crime is not itself a crime. But the fact that a person is voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he willfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.’

 It is not enough then, that the presence of the accused has, in fact, given encouragement.  It must be proved that the accused intended to give encouragement; that he willfully encouraged. …”

34.  Then picking up from the reference to “taking some active steps” in Coney, the Court proceeded to identify the second but equally important requirement before someone can be convicted of aiding and abetting, and explained why.  The key was on not convicting someone on his or her thoughts where there is no reflection in his or her actions (at 1406E – 1407A) :

“ A further point is emphasized in passages in the judgment of the Court of Criminal Appeal in Reg v Allan [1965] 1 QB 130, 135, 138. That was a case concerned with participation in an affray. The court said, at p 135 :

‘ In effect, it amounts to this: that the judge thereby directed the jury that they were duty bound to convict an accused who was proved to have been present and witnessing an affray if it was also proved that he nursed an intention to join in if help was needed by the side he favoured and this notwithstanding that he did nothing by words or deeds to evince his intention and outwardly played the role of a purely passive spectator. It was said that, if that direction is right, where A and B behaved themselves to all outward appearances in an exactly similar manner, if it be proved that A had the intention to participate if need be, whereas B had no such intention, then A must be convicted of being a principal in the second degree to the affray, whereas B should be acquitted. To do that, it is objected, would be to convict A on his thought, even though they found no reflection in his actions.’

 The other passage in the judgment is at p 138 :

‘ In our judgment, before a jury can properly convict an accused person of being a principal in the second degree to an affray, they must be convicted by the evidence that, at the very least, he by some means or other encouraged the participants. To hold otherwise would be, in effect, as the appellants’ counsel rightly expressed it, to convict a man on his thoughts, unaccompanied by any physical act other than the fact of his mere presence.’

 From that it follows that mere intention is not in itself enough.  There must be an intention to encourage; and there must also be encouragement in fact, in cases such as the present case.”

35.  As said, we have no difficulty with any of the above principles, and it seems obvious that the trial judge’s directions were influenced by how those principles are articulated in the English cases.  They are in substance no different from what is stated in the leading authority in Hong Kong on joint enterprise and accessorial liability: HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640 (see in particular paragraphs 10 and 11 of the Court of Final Appeal’s judgment).[29] What Mr Arthur failed to acknowledge in his submissions, however, is that, unlike Clarkson and many of the authorities he cited, there was much more to the prosecution case here than the mere fact that the applicant was caught walking with Sugiyanti.

36.  We have in mind the applicant’s out of court statements, the core admissions of which were as follows :[30] the applicant was recruited by Phillip to either “collect” things[31] or make “deliveries”;[32] for her trouble, the applicant was to be handsomely rewarded by a daily fee of $1,000; at the material time, the applicant was out on the street in relation to this work at least in the sense that she was instructed to meet Sugiyanti; a complete stranger, Sugiyanti had made no attempt to conceal the drugs she was retrieving; instead, Sugiyanti had explained the drugs to the applicant in some detail; back on the street, the applicant had allowed herself to walk Sugiyanti to Mong Kok MTR Station because, for “accompanying” Sugiyanti, she would get $1,000 (counter 1068).

37.  Despite her many protestations in the interview that she knew nothing, we are satisifed that the thrust of what is stated above was clear, and that it does not sit comfortably with the notion that the applicant’s act of walking together with Sugiyanti was neutral.  These admissions allowed the jury to draw the irresistible and only reasonable inference that the applicant was employed to accompany Sugiyanti in her drug trafficking activities.

38.  Whether it be to provide a cover as two domestic helpers returning innocently from the market, or to provide another pair of eyes as a lookout, or simply to afford Sugiyanti the comfort of numbers, such accompaniment must as a matter of common sense amount to helping and encouraging, hence aiding and abetting.  It is wholly unrealistic to suggest that, as a paid agent, the applicant had neither the intention nor the awareness for her conduct to have that character.  If one were to ask the question ‘to what end was the applicant paid by her recruiter?’, the inevitable answer would be ‘to help Sugiyanti’.  For similar reasons, the assertion that Sugiyanti may not be aware of the applicant’s helping role is unrealistic. That assertion is also academic because the same point (“and Yanti knew this”) was posted as a prerequisite to conviction in the ‘supplementary directions’.[33]

39.  Coming to the applicant’s third and final ground of appeal, Ms Lam, for the respondent, fairly conceded that the impugned remark by PW2 was a misstatement in law, and that it was nothing short of telling the reader of the interview that mere voluntary presence is enough to ground accessorial liability, the precise point that is under contention.

40.  That said, Ms Lam had also reminded us that the judge had directed the jury to ignore that misstatement.  This took place at an early stage of the summing up when the judge was going over what, in broad terms, were the types and categories of evidence in this case :[34]

“ Now one more point about the video record of interview, counter 1091. PW2 asked the defendant whether she knew it was against the law. The statement which PW2 made during the asked question is not accurate as a matter of law. So in the circumstances the response of the defendant is meaningless. I direct you to disregard counter 1091 to 1093 as recorded.”

41.  Mr Arthur’s point was that, by not redacting it from the interview in the first place, the judge may have allowed the misstatement to sway on the minds of the jury for too long.  However, the judge’s direction was clear and the jury were directed to disregard this passage in the summing up.  There is no reason for us to believe that this direction was not faithfully followed.  Moreover, given the careful and detailed directions that were eventually proffered not once but four times over what constituted aiding and abetting (the ‘1^st’, ‘2^nd’, ‘3^rd’ and ‘supplementary directions’), we are sure that Mr Arthur’s concern was rather more imagined than real.

AS AGAINST SENTENCE

42.  As against sentence, the only ground that was put forward was that the judge erred in sentencing the applicant on the amount of drugs in Sugiyanti’s possession, for the following reasons :

The applicant was only told about the drugs in Sugiyanti’s apartment.

Although the applicant saw Sugiyanti remove some packages from the refrigerator, there was no evidence of her knowing the exact number of packages that were in Sugiyanti’s possession.

Discussion

43.  It was described in the applicant’s interview that Sugiyanti had “counted all the goods” (counter 876).  Those goods, in truth drugs, were then put in a bag which Sugiyanti carried to Mong Kok MTR Station.  Whilst packing, Sugiyanti had explained to her the two different kinds of cocaine (“cooked” versus “raw”).  We do not see how it can be argued that the applicant was ignorant of the quantity of drugs that Sugiyanti was trafficking.  She saw it with her own eyes.

44.  HKSAR v Kayani Hamid Iiyas CACC 521/2004 (unreported, 13 June 2005), on which Mr Arthur relied, is of no assistance.  There, the charge was one of ‘conspiracy’ and, not having been privy to the discussions on the amount of drugs to be trafficked, the defendant was said to be deserving of a lesser sentence than would otherwise be warranted for the quantity of heroin actually involved. Factually, therefore, the Kayani case is completely different.

45.  We should add that the sentence the applicant received is, in itself, unimpeachable.  In fact, it is lighter by seven months than if a strictly arithmetic approach were to be adopted.

DISPOSAL

46.  For the reasons already stated, we refused to give leave to the applicant and we dismissed her appeal against both conviction and sentence.

[1] Appeal Bundle, page 19I – P.  (Unless otherwise indicated, all the quoted passages in this judgment are taken from the trial judge’s summing up.)

[2] Here the transcript has the word ‘direction’, but it obviously means ‘defendant’.

[3] Appeal Bundle, pages 19Q – 20G.

[4] Appeal Bundle, pages 49O – 50C.

[5] Appeal Bundle, pages 44I – 45B.

[6] Appeal Bundle, page 45D – F.

[7] Appeal Bundle, page 45G – L.

[8] Appeal Bundle, page 52G – O.

[9] Appeal Bundle, pages 52P – 54D.

[10] Appeal Bundle, page 54E – J.

[11] Appeal Bundle, page 54L – R.

[12] Appeal Bundle, page 57U.

[13] Appeal Bundle, page 55C.

[14] Appeal Bundle, page 55E.

[15] Appeal Bundle, page 55I.

[16] Appeal Bundle, page 58E.

[17] Appeal Bundle, page 55K.

[18] Appeal Bundle, page 55O.

[19] Appeal Bundle, pages 55Q – 56E.

[20] Appeal Bundle, page 56O.

[21] Appeal Bundle, page 63C – F.

[22] Appeal Bundle, pages 23I – 25M.

[23] Appeal Bundle, pages 60O – 61H.

[24] Appeal Bundle, pages 63N – 67N.

[25] Section 8.13.

[26] Appeal Bundle, page 70.4E – K.

[27] Appeal Bundle, pages 70.4O – 70.6C.

[28] This is how this ground had been numbered in Mr Arthur’s Amended Perfected Grounds of Appeal.  It was not intended to mean that it was related to Ground 2.

[29] Somewhat surprisingly, neither party had referred us to this authority.

[30] Twice, the jury was told that the prosecution was “relying heavily” on those statements to prove their case: Appeal Bundle, pages 33B and 62S.

[31] Vide the applicant’s verbal admission.

[32] Vide the applicant’s video recorded interview.

[33] See the quoted passages under paragraph 22 above; also Appeal Bundle, page 70.5P.

[34] Appeal Bundle, page 27N – Q.