HKSAR v. Feng Haiyan

[English Translation - 英譯本]
CACC 266/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 266 OF 2013

(ON APPEAL FROM HCCC 14 OF 2013)

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REASONS FOR JUDGMENT

Hon Poon J (giving the reasons for judgment of the Court):

Introduction

1.The applicant was indicted of one count of trafficking in a dangerous drug contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 of the Laws of Hong Kong. The applicant denied the charge and was convicted on 7 June 2013 by a majority of 5 to 2 after a jury trial before Deputy High Court Judge Yau (as he then was) (the trial judge) in the Court of First Instance. On 26 July 2013, she was sentenced by the trial judge to 19 years and 9 months’ imprisonment.

2.On 1 August 2013, the applicant filed an application for leave to appeal against conviction. This Court refused the application after a hearing on 28 January 2015. The reasons for judgment are as follows.

Prosecution Case

3.The Prosecution alleged that on 10 July 2012, at the Hong Kong International Airport, Chek Lap Kok, the New Territories, Hong Kong, the applicant unlawfully trafficked in 1,377.40 grammes of a mixture containing 543.94 grammes of heroin hydrochloride. The Prosecution further alleged that the applicant knowingly brought a piece of luggage concealing 7 packets of dangerous drugs into the territory. The Prosecution called nine prosecution witnesses to testify at trial and the prosecution case can be summarized as follows.

4.On 10 July 2012, the applicant arrived at the Hong Kong International Airport onboard Dragonair Flight KA111 from Dhaka, the capital city of Bangladesh. She was going to take a connecting Dragonair Flight KA864 to fly on to Pudong, Shanghai the same day. Upon reaching transfer area E2 on Level 5 of the airport at around 8:45 am the same day, the applicant was intercepted for investigation by Customs Officer 6275 Choi Yee Man, the 1^st Prosecution Witness (PW1). At that time, the applicant was carrying a snake skin pattern handbag and the suitcase she checked-in at Dhaka was retrieved from baggage conveyor belt no. 6 in the Customs Immigration Hall in the presence of PW1 and Senior Customs Officer 8928 Shum Tse Keung.

5.Thereafter, PW1 and Senior Customs Officer 8928 took the applicant and the suitcase to a search room. After enquiries, PW1 learnt that the applicant went to Dhaka for travelling. The snake skin pattern handbag was bought in there. The clothes insides her suitcase was also bought in there. PW1 then examined the applicant’s snake skin pattern handbag and her suitcase with an X-ray detector and found them suspicious. She opened the compartments of the snake skin pattern handbag and found a brown coloured bag inside. She cut the bag open with a cutter for about 1.5 cm, white powder could be seen therein. PW1 then ran a rapid drug test on the white powder and the result was positive for heroin hydrochloride. The applicant was therefore arrested. The applicant said under caution that “these things are not mine, a friend asked me to bring them back there for him.” PW1 then handed the snake skin pattern handbag and the suitcase to another Customs Officer 99104 Lau Yiu Ming, the 3^rd Prosecution Witness (PW3).

6.At 1:30 pm the same day, PW3 handed the snake skin pattern handbag and the suitcase to Customs Officer 9908 Wong Yiu Kwong, the 2^nd Prosecution Witness (PW2), for handling. PW2 found that there were two compartments in the snake skin pattern handbag. In each compartment, there was a packet of powdery substance wrapped in carbon paper that was fastened with adhesive tapes. When he examined the suitcase, he found 3 books inside. He then cut open the front and back covers of the books with a cutter exposing in each book a bag of black carbon paper wrapped with plastic sheet containing powder therein. PW3 also found two handbags inside the suitcase. Inside each handbag, there was a packet of suspected dangerous drug wrapped in black carbon paper. PW2 then ran a rapid drug test on the powder found inside the snake skin pattern handbag and the 3 books and the suspected dangerous drugs found inside the suitcase. The test result was positive for cocaine.

7.PW2 put the 7 packets of suspected dangerous drugs found upon search into exhibit bags and sealed them respectively, assigning them with Customs exhibit serial number and signed. However, he did not ask the applicant to countersign on the exhibit bags.

8.Between 1 and 2 am on 11 July 2012, PW2 handed the aforementioned 7 exhibit bags to Customs Officer 6125 Tsang Wai Yin, the 6^th Prosecution Witness (PW6) for custody. At 7:15 am the same day, PW6 handed the 7 exhibit bags to Customs Officer 89119 Cheung Wai Kwong, the 7^th Prosecution Witness (PW7). On the same day, PW7 handed the exhibits to Customs Officer 599 Tsang Koon Hei, the 8^th Prosecution Witness (PW8) at the car park of Ho Man Tin Government Offices. PW8 then submitted the exhibits to the Government Chemist Chan Tai Wai, the 9^th Prosecution Witness (PW9) for analysis. According to the findings of PW9, the suspected dangerous drugs were the dangerous drugs particularized in the charge sheet.

9.All prosecution witnesses testified that in the course of handling the dangerous drugs in question, the exhibits had not been unlawfully tampered with.

10.No fingerprint of the applicant was found on the packaging of the dangerous drugs in question.

11.The retail price of the dangerous drugs in question was about HK$1,016,000.00 as at July 2012.

Video Recorded Interview

12.From 11:07 pm on 10 July 2012 to 1:09 am the next day, the applicant voluntarily took part in a video recorded interview under caution conducted by the Customs Officers with the assistance of a Putonghua interpreter. The video recorded interview was produced in court as prosecution exhibit P59. The applicant’s case can be summarized as follows.

13.The applicant resided in Gangjiawan, De’an County, Jiujiang City, Jiangxi Province. She was single. She studied pharmaceutical marketing in a post-secondary school and had worked as a clerk. She arrived in Dhaka on 2 July 2012 and had stayed there for 9 days. She went to Dhaka to collect samples for a black friend “Prince”. According to the applicant, Prince was engaged in foreign trade exporting merchandises such as clothes, shoes and accessories. She agreed to go to Bangladesh on condition that Prince would pay the expenditures incurred in the trip. She asked Prince to pay her RMB3,000.00 as wages but Prince deposited USD3,984.00 in her account. The applicant sent her passport to Prince so that Prince could apply for a Bangladesh Visa on her behalf. Prince also gave her USD200.00 and RMB400.00 for the trip. When she arrived in Bangladesh, no one came to the airport to pick her up. She could only rent a room in a guesthouse. On the next day, she received a phone call from a female called “Moon” whom Prince told her was the girlfriend of his elder brother.

14.At about 9 pm on 10 July 2012, Moon brought over a snake skin pattern handbag and a suitcase to help the applicant pack her personal belongings together with the samples. Subsequently, Moon led the applicant to hail a taxi for the airport. The applicant had checked the suitcase in the toilet of the airport. She had also flipped the books inside the suitcase and touched the snake skin pattern handbag. She did not find anything. The applicant insisted that she did not know the snake skin pattern handbag and the suitcase were concealed with the dangerous drugs in question.

Chain of evidence of the dangerous drugs in question

15.There were discrepancies in the evidence of PW1 and PW2 in two regards. First, PW1 said she had cut open the brown plastic bag found inside the snake skin pattern handbag and took out the powder for a rapid drug test. However, PW2 said that his recollection was that the brown plastic bag was not cut open. Second, the rapid drug test run by PW1 on the dangerous drugs found in the snake skin pattern handbag showed a positive result for heroin. But the result of the rapid drug test run by PW2 was positive for cocaine. Mr Lau, counsel for the applicant at trial, therefore objected to the production of the drugs in court on the grounds that the course of seizing the dangerous drugs, that is the chain of evidence, and the nature of the dangerous drugs were in dispute. As the Prosecution had failed to prove that the dangerous drugs in question were seized from the applicant’s luggage, the defence objected to the production of the dangerous drugs in court. Mr. Lau further contended that the trial judge should make a ruling on the admissibility of the dangerous drugs. Instead, the trial judge formed the view that the issue was one of fact-finding rather than legal ruling and hence should be left for the jury to decide. As such, the drugs in question and relevant evidence were marked as provisional exhibits by the trial judge.

16.When the court admitted all provisional exhibits into evidence, Mr Lau made an application for no case to answer. In his ruling, the trial judge pointed out that although the handling of the dangerous drugs in question and their nature might have been questioned, the evidence in these regards was not so flimsy that no reasonable jury would convict the applicant. The court therefore ruled that a prima facie case was established. As regards the finding of facts, the court would leave them for the jury to consider and decide.

Defence Case

17.The applicant elected not to give evidence nor call any defence witness. The stance of the applicant was that the explanation she had given in the record of interview already showed that she had no knowledge that dangerous drugs were concealed in the luggage.

Grounds of Appeal

18.Mr Philip Wong, counsel for the applicant, has advanced four grounds of appeal. The first and the second grounds assert that the trial judge was in error in declining to rule on the admissibility of the dangerous drugs in question despite having recognized the chain of evidence concerning the course of seizing the dangerous drugs in question was in dispute. The trial judge was further erred in mistaking that the issue was only concerned with a finding of facts and hence a civil standard of proof was used and he ruled that there was a prima facie case upon conclusion of the prosecution case.

19.The third ground of appeal asserts that the trial judge had erred in asking the jury to resolve the discrepancies between PW1 and PW2’s evidence by speculation without directing or pointing out to the jury that the dangerous drugs in question might have been tampered with in the course of seizure.

20.The fourth ground of appeal asserts that the trial judge had failed to follow the case of HKSAR v Lai Wing Huen [2014] CHKEC 40 in that sufficient directions must be given to the jury on the issue of knowledge on the part of the defendant of the dangerous drugs in question.

Discussion

21.This Court shall first deal with the first and second grounds of appeal.

22.In his submission, Mr Wong said that the trial judge should have adopted the special procedure to decide whether the dangerous drugs in question could be admitted as prosecution exhibits in view of the serious discrepancies between PW1 and PW2’s evidence. And they could only be admitted as exhibits if the court was satisfied of the chain of evidence beyond a reasonable doubt. However, the trial judge only ruled on a balance of probability in mid-way submission that a prima facie case was established, leaving to the jury to decide whether the dangerous drugs in question could be accepted as evidence. Mr. Wong contended that the trial judge was in error since whether the dangerous drugs in question could be admitted as prosecution evidence was a legal issue rather than a factual one.

23.This Court is of the view that the trial judge was correct in dealing with the admissibility of the dangerous drugs in question. The chain of evidence on the course of seizure of the dangerous drugs in question and the nature of the dangerous drugs in question were both factual issues. Once the trial judge was satisfied that a prima facie case was established, the issues should be left for the jury to decide. It was utterly wrong for Mr. Wong to package a factual issue that should be decided by the jury in the guise of a legal one that should be dealt with by the trial judge to support the first and second grounds of appeal. They are rejected by this Court.

24.The third and fourth grounds of appeal are effectively complaints against the trial judge for unfairly directing the jury. This Court does not intend to repeat Mr Wong’s submissions. Having thoroughly read the directions given by the trial judge to the jury, this Court is of the view that the directions were just, fair and balanced. There was nothing in the directions that could possibly be criticised by Mr Wong.

Conclusion

25.For the above reasons, this Court considers that none of the applicant’s grounds of appeal are substantiated. This Court finds that there is nothing unsafe about the conviction imposed against the applicant. This Court therefore refuses her application for leave to appeal.

Philip Wong, instructed by Shea & Co., Damien Solicitors, for the Applicant.

David Leung, Deputy Director of Public Prosecutions of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law