HKSAR v. Li Yanhong
Read the full judgment text of CACC 134/2014 on BabelCite. This Court of Appeal judgment was delivered on 12 February 2015.
1. This is an appeal arising out of a retrial. [1]
Cited by 1 case · Cites 6 cases
|
[ENGLISH TRANSLATION - 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 134 OF 2014 (ON APPEAL FROM HCCC 271 OF 2013) _______________
_______________
JUDGMENT Hon Poon J (giving Judgment of the Court): INTRODUCTION 1.This is an appeal arising out of a retrial.[1] 2.The applicant Li Yan-hong was charged with a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. It was alleged that the applicant had trafficked in 1.44 kilogrammes of a mixture containing 0.96 kilogrammes of heroin hydrochloride on 17 January 2011 at the Hong Kong International Airport, Chek Lap Kok, New Territories, Hong Kong. In brief, the prosecution case was that four packets of dangerous drugs, which are the subject of the present case, had been seized by the customs from the suitcase being carried by the applicant who knowingly brought the suitcase to enter Hong Kong. The applicant pleaded not guilty to the charge with the defence that she was deceived into bringing the suitcase to Hong Kong and that she was in total ignorance of the fact that the dangerous drugs in question had been concealed in the suitcase. 3.On 4 April 2014, the applicant was convicted unanimously after trial before A Chan J (“the trial judge”) and a jury. On 7 April 2014, the trial judge sentenced her to 23 years and 6 months’ imprisonment. Mr Leung Chun-keung, counsel for the applicant, made an application on her behalf, seeking leave to appeal against conviction. PROSECUTION’S CASE 4.The prosecution called six witnesses. Their evidence can be summarized as follows: 5.On 17 January 2011 around 8:15 pm, the applicant arrived at the Hong Kong International Airport on AirAsia from Kuala Lumpur, Malaysia. At the arrival hall of the airport, Chief Customs Officer Ngan Wai-lan (PW1) stopped the applicant for inspection. The applicant was carrying a red suitcase at that time. After the applicant was brought into a “clearance room”, Customs Officer Ng Yuk-cheung (PW2) directed her to open the suitcase. He saw the applicant turn the dial of a combination lock, open the suitcase and take out her personal belongings. PW2 held the suitcase in his hand and found it to be very heavy, he therefore inspected the rim of the suitcase and spotted a piece of cardboard. PW2 lifted the cardboard and saw something in silver colour on the four corners of the suitcase. He pierced one of the packets with a bamboo skewer, and the skewer was stained with white powder, which tested positive for heroin in a quick drug test. PW2 then notified Customs Officer Lau Wing-chi (PW3) to arrest the applicant. 6.The dangerous drug seized from the suitcase was 1.44 kilogrammes of mixture containing 0.96 kilogramme of heroin hydrochloride, of a street value of HK$1,046,880.00 in January 2011. Video recorded interview 7.On 18 January 2011, the applicant voluntarily participated under caution in a video recorded interview conducted by Inspector Chan Wai-kam (PW6). The applicant’s testimony in court was by and large consistent with the account she gave in the interview[2]. Defence case 8.The applicant elected to give evidence but called no defence witnesses. 9.It was the applicant’s testimony that she was from Sichuan with no criminal records. In February 2010, she got acquainted with an African male called David who ran a business of electronic components and since then there were occasions they met and talked. The applicant looked for David at his shop by visiting the address on the business card provided by him. She found that it was a shop selling clothes. In June 2010, David arranged to meet the applicant, asking her if she had got a passport and requesting her to take some clothing samples back to the mainland. David said that he tried to deliver clothing samples to the mainland in vain and hoped that the applicant could help him. As the applicant had just broken up with her boyfriend, she wanted to get away for a break and to broaden her horizons, she acceded to David’s request. The applicant did ask David whether the trip to Malaysia was for doing something illegal, and by ‘illegal’ she meant in mind being a “hostess”. David replied in denial. Subsequently, the applicant handed her passport to David for him to make visa arrangements for her. 10.From June 2010 to January 2011, the applicant made a total of five trips to Malaysia for each of which David gave her several hundred US dollars. On the first trip to Malaysia, the applicant followed David’s instructions to contact a black male called CY alias William by phone. CY gave the applicant a suitcase containing some clothing samples. The applicant took the suitcase back to the mainland and handed it to David. In August 2010, David asked the applicant to make a trip to the Philippines, but the applicant did not take any clothing samples back to the mainland on that occasion as she failed to get in touch with the local contact person. The arrangements made for the second and the third trips to Malaysia were similar to those on the first one, and David gave the applicant a reward of Renmenbi 10,000 in total for these two trips. Subsequently, David asked the applicant to introduce a friend of hers to take clothing samples from Southeast Asia. She therefore introduced a friend called Tang Dan-dan [transliteration] to David. In November 2010, the applicant made the fourth trip to Malaysia where happenings were similar to those of the three preceding trips. 11.Regarding the trip in question, David contacted Tang Dan-dan first. On 29 December 2010, the applicant received a text message from a black man called Prince, telling her that someone would contact her. Subsequently, another black man called Best contacted the applicant, asking for the passports of the applicant and Tang Dan-dan. On 13 January 2011, Best called the applicant, saying that he had already bought air tickets for the applicant and Tang Dan-dan for them to travel to Malaysia in the afternoon. Best handed the passports, air tickets and US dollar banknotes to them. After their arrival in Malaysia, Best called the applicant, telling her that another black man called Mike would contact her on that occasion. On 17 January, Mike met the applicant at the hotel she stayed. Mike handed to her a suitcase containing some clothing samples. The applicant opened the suitcase in which she saw some folded clothes, and she also put her own clothes into it. The applicant did not notice if the suitcase had a combination lock. On the same day, the applicant took the suitcase back to Hong Kong. Issue at trial 12.As stated above, the issue in the present case was whether or not the applicant knew that the dangerous drug, the subject matter of the charge, was concealed in the suitcase she brought into Hong Kong on 17 January 2011. Grounds of appeal 13.Mr Leung, counsel for the applicant, advanced three grounds of appeal on her behalf:
Discussion (1) Ground of appeal (1) 14.The applicant said in the video recorded interview that Tang Dan-dan and she were both hired by David to perform the duties of taking clothing samples from Malaysia to China via Hong Kong, and that Tang Dan-dan’s return trip was scheduled for two days after hers. At trial, the trial judge asked Inspector Chan Wai-kam (PW6) whether he followed up on the information provided by the applicant in relation to Tang Dan-dan. PW6 replied that Tang Dan-dan did not come to Hong Kong on or after the 19th day. Mr Leung then cross-examined PW6 on this point, to which PW6 repeated the same answer. On the following day, Mr Leung made an application to discharge the jury on the basis that PW6’s evidence had done grave injustice to the applicant. The trial judge refused the application on the ground that it would suffice, if sufficient directions were given to the jury. Upon the jury returning to the court, the trial judge directed them to forget PW6’s evidence given in regard to Tang Dan-dan. The foreman of the jury indicated that it was understood. The trial judge repeated the same direction to the jury in his summing up. 15.Mr Leung contended before this court that after the jury had heard that Tang Dan-dan did not come to Hong Kong on the 19th day as scheduled, they would readily infer that Tang Dan-dan knew that the applicant had been arrested in Hong Kong. If Tang Dan-dan was also manipulated as was the applicant, she should have arrived at Hong Kong as scheduled. She did not come though, which showed that she also knew about the drug trafficking. Given the fact that Tang Dan-dan was introduced by the applicant, if Tang Dan-dan knew about the drug trafficking, how could the applicant be innocent? Mr Leung also argued that PW6’s evidence given in regard to Tang Dan-dan would have caused serious bias against the applicant among the jury. It was insufficient for the trial judge to simply direct the jury to “forget”. The failure of the trial judge to discharge the jury had done grave injustice to the applicant. 16.The applicable legal principle is that whether or not to discharge a jury is a matter for the discretion of the court in the light of the actual circumstances of a particular case, and the court of appeal will not readily interfere with the court’s approach to the exercise of that discretion, see HKSAR v Nee Man Tik，CACV 220/2003, unreported, 28 October 2004, per Stock VP at paragraph 8. What the court of appeal is to be concerned is that under the actual circumstances of that particular case, whether injustice would have been caused to the defendant by not discharging the jury. 17.In the present case, any contentions suggesting the mere fact that Tang Dan-dan did not to come to Hong Kong on the 19th day as scheduled has caused bias against the applicant must fail because the reasons leading to that fact could be manifold, and it does not mean or make one think that she was a drug-trafficker in the know. Furthermore, the way that the trial judge gave directions to the jury for twice that they had to forget PW6’s evidence on Tang Dan-dan, according to which the jury must have acted, was sufficient to cast away any doubts or concerns that the jury might have about the evidence in question. We consider that, in light of all the surrounding circumstances, the trial judge’s approach to PW6’s evidence on Tang Dan-dan was correct and the decision of not discharging the jury would not have caused injustice to the applicant. We would not interfere with this decision. 18.For this reason, Ground (1) must fail. (2) Ground of appeal (2) 19.Mr Leung submitted that the trial judge put questions to the applicant in both examination-in-chief and cross-examination, including:
20.Mr Leung of Counsel citedThe Queen v Yeung Mau Lam [1991] 2 HKLR 468 in support of his argument that the trial judge had by his questions entered the arena and it would have caused an informed bystander listening to the case to say that the applicant had not had a fair trial. 21.Although Mr Edmond Lee, Senior Assistant Director of Public Prosecutions for the Respondent agreed with the legal principle on which Mr Leung relied, he contended that the trial judge only sought to ensure effective case management, he gave the applicant the opportunity to explain or clarify her evidence, and that his questions would have facilitated the jury’s consideration of the evidence in its entirety, it followed that an informed bystander listening to the case would not find the trial judge to be biased against the applicant or the applicant had not had a fair trial. Mr Lee further contended that the applicant had testified for an extended period of three and a half days, whereas the judge’s questions formed only a very small part and that its impact on the evidence as a whole was insignificant. 22.We have carefully read through all the transcripts of the applicant’s evidence, with particular attention drawn to the relevant parts on which Mr Leung relied. We have got the general impression that the trial judge put questions to the applicant not merely for the sake of case management or allowing the applicant to clarify her evidence, we instead find that quite a number of his questions for the applicant were put in a challenging tone, virtually sounding like cross-examination. Although the trial judge’s questions were only a small portion of the applicant’s oral evidence as a whole, we must not overlook the potential impact that the tone and fashion in which his questions were put might have on the jury. From an objective point of view, we consider that it would have caused an informed bystander listening to the case to find that the trial judge had bias against the applicant, and that the applicant had not had a fair trial. 23.For this reason, Ground (2) is sustained. (3) Ground of appeal (3) 24.The Judge’s summing up against which Mr Leung attacked is :[29]
25.In support of his view that either of the “shutting eyes” or “constructive knowledge” directions are not applicable to any drug-trafficking case, Mr Leung cited the case HKSAR v Yang Yulan [2013] 4 HKLRD 162, in which this court (differently constituted) said:
26.Mr Leung submitted that it was true that the applicant failed to ask David questions in many respects, to which she gave the explanation that those questions did not occur to her at that time, and it was mostly for the same reason, as suggested by the defence, that she ended up being manipulated. However, the trial judge gave the direction to the jury that they should return a verdict of not guilty if they believed that the applicant’s version was or could be true on the one hand, and on the other, the judge also directed the jury that the applicant having refrained from inquiry as to the obvious could be construed to mean that she tacitly knew it. In the circumstances where the jury accepted the applicant’s evidence but had reservations about whether she had the knowledge, the jury might have drawn the inference due to “constructive knowledge” direction given to them, that the applicant did have the knowledge. 27.Mr Leung submitted that the only issue in dispute in the present case was whether the applicant had been deceived, whereas the prosecution took the view that there had been no deception whatsoever as alleged by the applicant. Mr Leung argued that on the facts of the present case, the applicant’s explanation could not be said to be “absurd”, nor was there evidence to show that she was highly suspicious of the circumstances. Therefore, it was uncertain as to whether it simply did not occur to her to inquire, she was deceived by David, or the circumstances at the material time were not obvious to the applicant as an involved party in this matter. Mr Leung argued that these issues were actually not very clear in the present case and would therefore be a matter for the jury. He submitted that, for these reasons, the present case was not a manifest case of “refraining from inquiry”, and that under these circumstances, it was not appropriate for the judge to give the said direction to the jury, causing them to wrongly believe that they might infer, on the mere fact that the applicant did not inquire in many respects, that the applicant “had the knowledge”. 28.As said in HKSAR v Mohammed Saleem [2009] 1 HKLRD 369 per Stuart-Moore VP at paragraphs 36-39: It is for the prosecution to prove its case beyond all reasonable doubt that a defendant being charged with trafficking in dangerous drugs had the knowledge that what he was carrying were dangerous drugs. In respect of the defendant’s knowledge, a test is to be applied to the defendant’s actual subjective knowledge. 29.In cases where there is no direct evidence to prove that the defendant had the knowledge that what he was carrying were dangerous drugs, the prosecution can still rely on circumstantial evidence to invite the tribunal to draw the only irresistible inference that the defendant had the knowledge that what he was carrying were dangerous drugs. Under these circumstances, it was necessary for the judge to give the jury the proper direction. What it is meant by “proper” depends on the actual circumstances of each case, but at least it has to be pointed out that any inference must be drawn from the proved facts.[31] 30.The judge also needs to point out to the jury that suspicion does not equate to knowledge. Even if the defendant suspected that what he was carrying to be something illegal or even dangerous drugs, the judge still has to direct the jury that the defendant’s suspicion is not to be equated to his having subjective knowledge of what he was carrying were dangerous drugs. When the dangerous drugs were concealed in another object, the judge must cautiously refrain from suggesting to the jury that the defendant’s failure to avail himself/herself of the opportunity to inspect the contents of that object means, or be construed to mean that the defendant had the subjective knowledge of its contents, although in some cases, the judge may direct the jury that, along with the other evidence, an inference of subjective knowledge might be drawn against the defendant from his/her failure to do so. See Liu JA’s judgment in The Queen v Law Wai Choi & Another[1997] HKLRD 555, at page 558 lines G-H. We must however reiterate that such direction is not relevant in every drug-trafficking case. Whether such direction is required is dependent on the actual circumstances of the case. As said by Bokhary JA (as he then was) in the same judgment at page 561 lines C-E, it is only rarely that such a direction is warranted.[32] 31.We have carefully perused the trial judge’s summing-up to the jury in its entirety and noted that the trial judge categorically gave the jury the “shut-eye” or “constructive knowledge” directions, as mentioned hereinabove at para 24, when he dealt with the issues of “suspicion”, circumstantial factors and circumstantial evidence. In our judgment, which is agreed by Mr Lee for the Respondent, on the facts of the present case, the trial judge was not required to give such a direction. We are of the view that such unwarranted direction given by the trial judge would have probably misled the jury into believing that they might find, on the mere fact that the applicant found the circumstances suspicious but have refrained from inquiry or shut her eyes to those circumstances, that the applicant knew that the dangerous drugs in question had been concealed in the suitcase she was carrying. 32.For this reason, Ground (3) is sustained. 33.It may be mentioned in passing that, the application of the concept of “constructive knowledge” should be approached with great care in drug-trafficking cases. Such concept must not be confused with that in Civil Law.[33] In Civil Law, under some specific circumstances, even a person lacking in actual knowledge may still be presumed to have knowledge in respect of specific issues under the concept of constructive knowledge. But this approach is strictly disallowed in drug-trafficking cases. “Constructive knowledge” in drug trafficking cases means that, in fact, it is only very rarely that, the tribunal may draw an inference of the defendant’s subjective knowledge from the actual circumstances of the case, but it definitely does not mean that the defendant may be presumed to have the knowledge when he/she actually does not. Conclusion 34.For the above reasons, we grant the applicant’s application for leave to appeal against her conviction and, treating her application as the appeal proper, the appeal is allowed. The conviction is quashed and sentence set aside. 35.In view of the seriousness of the offence in the present case, we need to consider whether a retrial should be ordered. It is hereby directed that both parties shall submit to this court their written submissions on this issue within 14 days, subsequent to which we would deal with it in writing. The applicant shall continue to be remanded in jail custody pending further order of this court.
Mr Leung Chun Keung, instructed by Wong & Co., Solicitors and assigned by the Legal Aid Department, for the applicant Mr Edmund Lee, SADPP, of the Department of Justice, for the respondent Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law [1] The trial of the present case first started before Macrae J on 27 February 2012. On 5 March 2012, the applicant was sentenced to 23 years and 6 months’ imprisonment. She appealed the conviction. On 3 July 2013, the appeal was allowed and the case remitted for retrial. [2] The record of interview was produced as prosecution exhibit P37. [3] Line T on Page 242 of the Appeal Bundle [4] Line N on Page 244 of the Appeal Bundle [5] Line U on Page 247 to Line A on Page 248 of the Appeal Bundle [6] Line F on Page 251 of the Appeal Bundle [7] Lines Q-S on Page 252 of the Appeal Bundle [8] Line I on Page 256 of the Appeal Bundle [9] Lines S-U on Page 262 of the Appeal Bundle [10] Line F on Page 264 of the Appeal Bundle [11] Lines J-S on Page 266 of the Appeal Bundle [12] Lines D-J on Page 267 of the Appeal Bundle [13] Line A on Page 270 of the Appeal Bundle [14] Line G on Page 272 of the Appeal Bundle [15] Line J on Page 273 of the Appeal Bundle [16] Line T on Page 292 of the Appeal Bundle [17] Lines K-L on Page 315 of the Appeal Bundle [18] Lines F-H on Page 317 of the Appeal Bundle [19] Line N on Page 318 of the Appeal Bundle [20] Line D on Page 324 of the Appeal Bundle [21] Lines L-N on Page 325 of the Appeal Bundle [22] Lines D-K on Page 331 of the Appeal Bundle [23] Line U on Page 343 of the Appeal Bundle [24] Line N on Page 352 of the Appeal Bundle [25] Line J-P on Page 355 of the Appeal Bundle [26] Line V on Page 362 – Line F on Page 363 of the Appeal Bundle [27] Lines N-P on Page 363 of the Appeal Bundle [28] Lines P-T on Page 372 of the Appeal Bundle [29] Line H-J on Page 17 of the Appeal Bundle [30] The same legal principle has been endorsed by the Court of Appeal (of a different composition) in HKSAR v BIAN Zhenju (卞真菊) CACC 471/2012 (unreported), 23 December 2013 [31] Specimen Direction 21.4 has been referred to [32] This point made by Bokhary JA was referred to with approval inHKSAR v Yang Yulan (楊玉蘭) [2013] 4 HKLRD 162，paras 23-25；and HKSAR v Bain Zhenju，CACV 471/2012(unreported), 23 December 2013, para 28 [33] Mr Leung of counsel made exactly the same mistake in his oral submission. |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under CACC 134/2014