HKSAR v. Zen Xiulan

[English Translation – 英譯本]

CACC 88/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 88 OF 2014

(ON APPEAL FROM HCCC NO. 165 OF 2013)

________________

BETWEEN

________________

REASONS FOR JUDGMENT

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

Introduction

1.On 5 December 2012, the applicant (Zen Xiulan) came to Hong Kong on board Air Asia’s Flight AK1656 from Kuala Lumpur. Upon arrival, she only had with her hand baggage and no check-in ones.

2.At 10.35 hours on the same day, the applicant was intercepted by Customs Officers along the Green Channel. At that time, she was carrying a purple backpack on her back, a medium handbag with LV print on her shoulder, a plastic bag and a small reusable fabric bag in her hands.

3.The applicant underwent customs clearance inspection by Customs Officers in a Customs clearance cubicle. Customs Officers seized from the handbag with LV print carried by the applicant two plastic bags containing a total of 0.98 kg mixture containing 0.47 kg of heroin. The retail price of the heroin was approximately HK$880,000. The backpack, plastic bag and reusable fabric bag carried by the applicant contained her clothes and other personal belongings with no suspicious items.

4.Due to the above incident, the applicant was charged with a single count of unlawful trafficking in a dangerous drug to which she pleaded not guilty and was tried before Deputy High Court Judge Joseph Yau (the trial judge) sitting with a jury.

5.On 21 February 2014, the jury reached a verdict of guilty by a majority of 6 to 1 against the applicant. On 5 March 2014, the trial judge sentenced the applicant to a term of 17 years and 6 months of imprisonment.

6.The applicant, represented by Mr Chun-keung Leung of counsel and Mr Forest Fong of counsel, filed an application for leave to appeal against conviction. We dismissed the application after the hearing and here are our reasons.

Prosecution case & evidence

7.Apart from the undisputed facts mentioned above, evidence from the prosecution showed that at the scene after being arrested and cautioned, the applicant maintained that the items in the LV bag did not belong to her and that she did not know that dangerous drugs were hidden in the LV bag. However, when being asked if the LV bag in question belonged to her, the applicant said, “I bought (it) yesterday.”

8.After it had been confirmed that dangerous drugs were hidden in the LV bag, the applicant was cautioned again and she said, “I understand, but the handbag and the things inside it do not belong to me. I am helping my friend bring (them) back to someone in Guangzhou.  I opened it this morning at Kuala Lumpur Airport and saw that there were only clothes inside. I therefore agreed to help him bring them back. I’m doing it for free.”

9.The Customs Officer post-recorded what the applicant had said under caution, and the applicant also wrote a declaration to confirm that the content of the post-record was correct. The prosecution also produced the applicant’s record of interview as evidence.

Defence case and evidence

10.The defence basically accepted the prosecution case and admitted that the heroin in question was hidden between the linings of the handbag with LV print carried by the applicant on her shoulder when she entered Hong Kong. However, the defence denied the prosecution’s allegation that the applicant knew that dangerous drugs were hidden inside the LV handbag carried by her and knowingly brought the dangerous drugs into Hong Kong. The defence accepted that the applicant had told the Customs Officer that “I bought (it) yesterday.” However, it came as a casual reply to what the applicant thought was a routine question from the Customs Officer. The defence case was that the applicant was cheated by a black friend called Ka Ka. Without knowing the truth, she followed the instruction of his second elder brother Joe and brought the LV bag in question to Guangzhou for passing it to a friend of Ka Ka.

11.The applicant indicated that she came to know Ka Ka in May 2011 via a social communication platform QQ on the internet. Ka Ka said that his brother would bring her to have fun at Malaysia. She therefore went to Malaysia on 1 December 2012 and then came to Hong Kong on 5 December 2012, from where she intended to take a coach back to Guangzhou via Foshan.

12.The applicant stated that she came to know Ka Ka on Mother’s Day in 2011. Ka Ka told her that he was an African, but he also mentioned that he was a Cuban. He later clarified that his father was a Cuban while his mother was a Nigerian, a furniture manufacturer.

13.After the applicant had known Ka Ka, the two of them developed close relationship, dated frequently and also saw each other at Ka Ka’s residence. On 13 May 2011, Ka Ka expressed that he would like to invite the applicant to Malaysia for travelling and meeting his family members. However, being tied up by his business, he would not be able to travel with her. Ka Ka claimed that his two elder brothers were living in Malaysia. As a result, the applicant went to Malaysia in May 2011 for the first time.

14.The applicant indicated that Ka Ka had made the arrangement for her trip to Malaysia in May 2011 and she did not carry anything on the return journey. She said that Ka Ka had paid for the air tickets and even given her RMB200 for buying gifts for his elder brothers. She paid for the expenses of the trip. Upon arrival at Kuala Lumpur, Ka Ka’s elder brother did not pick her up at the airport. Instead, she was told to take a taxi to his residence. In Malaysia, Ka Ka’s elder brother was the one receiving her. There were five or six other men living there. The applicant stated that during her stay in Kuala Lumpur, Ka Ka’s elder brother only brought her to a church on the first day, saying that going to church was very good for one’s mind. For the rest of the stay, the applicant just watched television in the residence of Ka Ka’s elder brother. The applicant indicated that originally she wanted to develop a relationship with Ka Ka but ceased to do so because (she) felt that Ka Ka had another girlfriend. The two of them had stopped seeing each other since 2012.

15.The applicant continued and said that she was dating a man surnamed Cheung from April to August 2012 but subsequently broke up after a row. In September 2012, Ka Ka approached her and invited her to go to Malaysia again for visiting his elder brothers. Ka Ka indicated that the applicant would be a suitable wife for him, and that the elder brother whom she had met in Kuala Lumpur also approved of her. Ka Ka would like the applicant to go to Kuala Lumpur again for visiting his second elder brother Joe and he indicated that Joe would show her around in Malaysia. At the same time, Ka Ka indicated that he was out of town and therefore could not accompany her. The applicant indicated that she accepted the proposed revisit to Malaysia because her business performance was poor and she was in a bad mood. The applicant alleged that a friend of Ka Ka at Guangzhou had arranged the air ticket to Malaysia which had been paid for by Ka Ka. She was responsible for the expenses along the trip and for food.

16.The applicant alleged that having arrived at Malaysia on the 10 October 2012, again, (she) went to the residence of Ka Ka’s eldest brother and came to know Joe and two of his friends who were black (namely,) Sam and Michael. The applicant indicated that during that entire trip, (she) just stayed inside the house for watching television and having meals without going out at all. She did not visit any tourist attraction. On 13 October 2012, the applicant returned to Guangzhou via Guilin without carrying any items for anyone.

17.The applicant continued to allege that in October 2012, she made up with Mr Cheung and planned to marry him at Christmas in that year. However, on 24 October 2012, Ka Ka contacted the applicant again via QQ and indicated that he wanted to marry the applicant. He would like her to go to Kuala Lumpur again to meet with his elder brothers. However, the applicant refused to do so. Between October and November 2012, via QQ, Ka Ka invited the applicant to visit Nigeria but the applicant hesitated. Ka Ka sweet-talked her and told her not to be scared. In the end, the applicant gave her passport to Ka Ka’s friend for getting a visa that would allow the applicant to go to Nigeria for visiting Ka Ka. Later, Ka Ka once again invited the applicant to go to Malaysia for meeting Joe and claimed that Joe would arrange for their wedding and show her around. Knowing that she would go to Malaysia via Hong Kong, a place where she had not visited, the applicant finally accepted Ka Ka’s proposal of going to Malaysia for meeting Joe first before proceeding to Nigeria. The applicant alleged that having arrived at Malaysia, she was instructed by Joe to go to the same residence. At that time, Joe was not there and she was received by Sam. The applicant went on to allege that in her presence, Michael had sex with a Vietnamese woman and even discarded a condom on the applicant’s belongings. The applicant indicated that she had telephoned Ka Ka to ask how come Joe was not there. Ka Ka said that Joe would return later.

18.The applicant alleged that Joe did not show up until 9 p.m. on 4 December 2012. The applicant therefore told Ka Ka that she was discontented about it and that she would never believe him again. However, at that time Ka Ka sweet-talked the applicant into helping Joe bring some clothes back to Guangzhou for a friend of Ka Ka.

19.At about 3 a.m. in the following morning, Joe woke the applicant up and asked her to pack for the return trip to China. Joe stuffed the applicant’s handbag and personal belongings into her backpack and the applicant also put some personal belongings into a reusable bag. Before leaving, the applicant saw Joe putting some clothing into the LV bag in question. Joe escorted the applicant to a taxi and handed the LV bag in question to the applicant on the way to the airport. Joe indicated that the LV bag was to be handed over to Ka Ka’s friend in Guangzhou.

20.The applicant indicated that she had inspected the LV bag at the airport and only items of clothing were found. She therefore put those items of clothing back into the bag. The applicant alleged that she had been told that items of clothing were very cheap in Malaysia, so she did not find the incident to be suspicious. The applicant emphasized that she did not receive any remuneration for carrying the LV bag for others. She admitted that the LV bag was particularly heavy but she thought that it was so because of the clothes. She also admitted that she had some suspicions, but it had never occurred to her that the LV bag would contain dangerous drugs. The applicant indicated that she had thought about putting the clothes in the LV bag into a plastic bag, so as to avoid carrying the LV bag. However, the idea was dropped because she was unable to communicate with Joe.

21.The applicant admitted that she did not know the full names of Ka Ka and his friends. However, she had their phone (numbers) and that of Ka Ka’s brothers. The applicant insisted that she was innocent and had been set up. Moreover, she did not receive any remuneration in the incident. The applicant said that she felt regretful about the incident.

22.The applicant further alleged that she came to Hong Kong for the first time on 5 December 2012. As she did not know how to take the transport for returning to Guangzhou, she planned to telephone Ka Ka’s friend for assistance.

23.The passport of the applicant confirmed that she had left China for Malaysia from the 13^th to the 17^th of May in 2011 and from the 10^th to the 13^th of October in 2012. She entered Malaysia again on 1 December 2012. She travelled overseas to Dubai from 21^st to 25^th of July in 2011. She indicated that the travelling expenses of the Dubai trip were paid by the insurance company she was working for.

24.When she was testifying for her own case, apart from referring to her record of interview for telling the background and giving an account of the incident, the applicant also gave further explanation about the incident.

25.The applicant produced the QQ communication records between her and Ka Ka to the court. The applicant indicated that she had told Ka Ka that she had to bring him to meet her family members. Although Ka Ka said that he did not have the time, he, at the same time, expressed his wish of marrying the applicant in January 2012 and having a son together.

26.The applicant also produced other QQ communication records between her and Ka Ka to the court. Her case was that Ka Ka had cheated her by pretending that he would marry her, so that the applicant handed her passport to his friend for getting a visa. The applicant indicated that Ka Ka’s full name was Rubin Kaka.

27.The applicant admitted that she had indicated to the Customs Officer that the LV bag in question was hers and she did casually reply by saying, “Bought (it) yesterday” which was, however, not true.

28.Later, she did explain to the Customs Officer that neither the LV bag nor the items inside the bag were hers and that she was carrying them for others. However, the Customs Officer responded, “What kind of people? Friends? Are they black, too?” The applicant replied in the affirmative, and the Customs Officer further asked her whether she had received money, and the applicant indicated that no money had been received.

29.The applicant alleged that the Customs Officer put on record some words that she had not uttered. However, she did not ask the Customs Officer for amendment because she thought that those were the Customs Officer’s personal record and she did not need to give much weight.

30.The applicant also gave an explanation about what she had said in the video-recorded interview. The applicant indicated that some of the contents in the record of interview were untrue and incorrect, which was caused by misunderstandings in the conversation with the Customs Officer. She emphasized that she knew that delivering dangerous drugs into China would lead to execution by a firing squad, and therefore she would never be a drugs mule for money or for getting married.

31.The applicant summoned her second elder sister to testify in court on matters relating to applicant’s work, character and so on. The second elder sister of the applicant believed that the applicant had multiple characters and was fun loving, rebellious and stubborn. However, she was retarded and naïve when it came to romance. She trusted others easily and could not differentiate between the truth and a lie. She had low self-esteem and always let her guard down.

Directions given to the Jury by the Trial Judge

32.The trial judge did explain the point of laws and give a summing-up of the evidence presented by both parties to the jury. The prosecution’s evidence was largely undisputed by the defence. Nevertheless, the trial judge still gave a very detailed summing up of the evidence presented by both parties to the jury. The trial judge pointed out to the jury three issues in this case for their deliberation. Firstly, whether the LV bag carried by the defendant when she was intercepted by the Customs Officer did have hidden in it the dangerous drug alleged by the prosecution, namely the heroin set out in the offence. Secondly, whether the defendant knew that dangerous drugs were hidden inside the LV bag. Thirdly, whether the defendant unlawfully trafficked the dangerous drug in question.

33.The trail judge pointed out clearly at the beginning of the directions to the jury:

“…By now, you must have known the prosecution’s allegation against the defendant Miss Zen Xiulan. To put it in very simple terms, (the allegation) is that at about 10:15 a.m. on 5 December 2012, the defendant arrived at Hong Kong International Airport on board a plane from Kuala Lumpur, Malaysia. Having intercepted and checked the defendant, Customs Officers discovered that inside the linings of a handbag with LV pattern carried by the defendant at that time, two packets of heroin hydrochloride, or what we commonly refer to as “white powder”, were hidden. In this case, I’ll simply refer to it as heroin and that handbag with LV pattern, I’ll simply refer to it as the “LV bag”. The prosecution’s allegation is that the defendant, knowing that dangerous drugs were hidden inside the LV bag, imported the dangerous drugs into Hong Kong, brought them into Hong Kong.

The defence case is that she came to know a black man called Ka Ka via QQ who told her to go to Malaysia for fun and for visiting Ka Ka’s elder brother and talking with him about getting married to Ka Ka. The air ticket was arranged by a friend of Ka Ka in Guangzhou and paid for by Ka Ka. On the way back, Ka Ka’s second elder brother Joe gave this LV bag to her and asked her to hand it over to Ka Ka’s friend in Guangzhou, namely the one who had arranged her air ticket to Malaysia. The defendant said that after opening the LV bag in the airport in Kuala Lumpur, she only saw clothes inside the bag. She checked the clothes and did not find anything unusual although she felt that the LV bag was a bit heavy. However, she did not know that dangerous drugs were hidden inside the LV bag and she brought the LV bag to Hong Kong.”

34.The trial judge pointed out to the jury that there was no direct evidence proving that the applicant knew there were dangerous drugs inside the LV bag or that she knew the dangerous drug inside the LV bag was heroin. The prosecution only relied on the inference which could be drawn from the circumstantial evidence to prove the applicant’s knowledge of hidden dangerous drug inside the LV bag.

35.On the issue of inference, the trial judge gave the jury the following directions:

“ ‘To draw an inference’ means making consideration and assessment on the basis of some confirmed facts to see whether another set of facts can be inferred. However, when you are drawing an inference, you must ensure that the inference is drawn from some facts that have already been proven, or facts that you are sure about having assessed the evidence. In other words, inference can be drawn from facts admitted by the parties, or from facts that you are satisfied after careful consideration and analysis. You must confirm that the inference is the only reasonable inference that can be drawn from these proven facts.

…

In this case, if you are going to make any deduction or draw any inference against the defendant, you may only do so if you are sure that it is the only reasonable inference. So, if on the basis of the relevant facts, there is an inference to be drawn against the defendant as well as one in his favour, or there are more than one inference, then you must not draw the adverse inference, because it is not the only reasonable inference.

…

You have to consider all the evidence in this case to see if the evidence can help you determine whether the defendant knew full well that there was a dangerous drug in the LV bag or she had no idea at all.  You have to consider this: can you or can you not draw the only reasonable inference without any reasonable doubt that the defendant knew that dangerous drugs were hidden in the LV bag. The prosecution case is that all the evidence in this case enables you to draw the only reasonable inference that the defendant did know that dangerous drugs were hidden inside the LV bag. This is the concept of ‘inference’ that I have just explained to you. It means that you have to consider all the evidence in this case in order to decide whether or not you can draw the only reasonable inference that the defendant knew that dangerous drugs were hidden inside the LV bag. Here I am not going to repeat the meaning of the legal principle of ‘inference’, as it has already been explained earlier. ”

36.The trial judge used several examples to explain the meaning of an inference. The trial judge also emphasized several times that when making an inference against the applicant, that inference must be the only reasonable inference.

37.The trial judge pointed out to the jury that both parties had agreed that the heroin in question was hidden inside the LV bag and the applicant had also admitted to having brought the LV bag from Kuala Lumpur to Hong Kong by plane. However, the prosecution still had to prove that the applicant knew that dangerous drugs were hidden in the LV bag. The trial judge emphasized to the jury that they had to consider whether they could draw the only reasonable inference without any reasonable doubt that the applicant knew that dangerous drugs were hidden inside the LV bag. They could not convict the applicant unless they were sure that the applicant knew that dangerous drugs were hidden inside the LV bag and knowingly brought the dangerous drug from Kuala Lumpur to Hong Kong.

Grounds of appeal

38.Mr Chun Keung Leung and Mr Forest Fong, counsel for the applicant contend that the trial judge has failed to point out to the jury the evidence from which inference can be drawn that the applicant had “knowledge”, and has failed to properly point out to the jury if the prosecution evidence could form the basis on which the only reasonable inference of “knowledge” could be drawn. Mr Leung asserts that although the trial judge has told the jury that they had to consider all the evidence in this case, he has failed to point out which evidence may or may not be used against the applicant and for drawing an adverse inference against her. Mr Leung’s stance is that the judge has erred in handling it, rendering the conviction unsafe and unsatisfactory. He cites, as support, HKSAR v Li Yan Hong (CACC114/2012).

Discussion

39.In the present case, majority of objective facts are not disputed. The undisputed evidence shows that on 5 December 2012, the applicant flew to Hong Kong from Kuala Lumpur carrying a LV bag with the heroin in question hidden inside.

40.As pointed out correctly by the trial judge to the jury, the only issue before them was whether the applicant was aware that the dangerous drug in question was hidden inside the LV bag when she brought the LV bag into Hong Kong.

41.When considering the issue mentioned above, the jury should of course consider all of the evidence in the case. This is the directions given to them by the trial judge who has also summed up the case and all of the evidence presented by both parties to the jury. The trial judge emphasized to the jury that:

“You have to consider all the evidence in this case to see if the evidence can help you determine whether the defendant knew full well that there were dangerous drugs in the LV bag or she had no idea at all.

…

All in all, in the present case, if you are sure that the defendant was aware that dangerous drugs were hidden inside the LV bag, or was even aware that the dangerous drug was heroin, and that under such circumstances, the defendant knowingly brought the dangerous drug to Hong Kong from Kuala Lumpur, then the defendant was unlawfully trafficking in the dangerous drug and you have to find her guilty. However, if you cannot be sure if the defendant was aware that dangerous drugs were hidden inside the LV bag, then you have to find the defendant not guilty.

However, as I’ve mentioned just now, the prosecution case is that all the evidence in the case can enable you to draw the only reasonable inference that the defendant has knowingly brought the dangerous drug to Hong Kong from Kuala Lumpur. Members of the jury, you, therefore, have to consider all of the evidence in the present case in order to decide if you are able to draw an only reasonable inference as such. You remember that the defendant has all along maintained that she was not aware that dangerous drugs were hidden in the LV bag, let alone knowing that the dangerous drug was heroin. Naturally, the defendant also denies that she was in possession of the dangerous drug, or has knowingly brought the dangerous drug into Hong Kong. Please remember, if you believe in the words of the defendant, or if you think that there may be some truth in her words, you must find her not guilty. Even if you do not believe or accept the words of the defendant, you must not find her guilty because of that. You still have to consider all the evidence in the case to decide whether the prosecution is able to prove beyond reasonable doubt that the defendant has committed the offence as charged.”

42.We disagree with Mr Leung’s allegation that the trial judge has failed to point out to the jury the relevant evidence from which the applicant’s “knowledge” could be inferred. The trial judge did sum up all the evidence from both parties in detail to the jury. The only matter before the jury was whether they could draw the inference that the applicant had “the knowledge” on the basis of the evidence they had accepted. In the present case, the trial judge needed not and should not point out to the jury which evidence they could or could not rely on when drawing the inference. The jury must have been able to tell which type of evidence was for and which type was against the applicant. It takes nothing more than common sense. A trial judge should give the jury a free hand for them to reach a verdict based on their common sense, social experience and observations. Had a trial judge explicitly indicated to a jury that they were only allowed to draw an inference from or act upon certain evidence, the trial judge would have deprived the jury of the function that they should perform.

43.If during the trial, some evidence that should not be considered by jury had been revealed to them, for example, hearsay evidence, evidence whose prejudicial effect has outweighed its probative value, or some irrelevant or unconfirmed evidence, the trial judge should tell the jury that they must not use that evidence as the basis for drawing any inference. If the prosecution has emphasized that certain evidence is sufficient to lead to an inference against the defendant, whereas in fact it is not, the trial judge should also remind the jury so that they would not draw any improper inference against the defendant.

44.In Li Yan Hong cited by Mr Leung, the prosecution emphasized that the defendant had torn away the tag on the suitcase, so as to allege that the defendant was trying to distance herself from the suitcase in question, making use of it to support the prosecution case against the defendant. In fact, the defendant had not concealed her connection with the suitcase in question, and she even told the Customs Officer explicitly that the suitcase in question was hers. However, the trial judge not only failed to make it clear to the jury that they should not act upon the prosecution’s allegation, but even directed the jury that they might use such evidence to draw the inference that the applicant was aware of the hidden dangerous drugs in the luggage.

45.Under the above circumstances, the Court of Appeal held that the conviction was unsafe and unsatisfactory. However, in the present case, there is no information showing that the trial judge has asked or allowed the jury to consider any evidence that they should not take into account. Neither has Mr Leung so alleged. The decision in Li Yan Hong cited by Mr Leung does not support his stance.

46.In a criminal case, a trial judge, when directing the jury on the issue of “inference”, does not have to adopt any fixed expression or form. A trial judge only has to bring out three main points:

i) the jury can only draw any inference based on facts. Facts include agreed facts or proven facts accepted by the jury. A jury can only act upon facts, not guesses or speculations;

ii) if any adverse or inculpatory inference is to be drawn against a defendant, such inference must not only be logical and in line with common sense, it must also be the only reasonable and irresistible inference; and

iii) Based on the relevant facts, if both favourable and adverse inferences can be drawn, the jury has to draw the inference for but not against the defendant. The reason is that under such circumstances, the adverse inference against the defendant is not the only reasonable inference.

47.The trial judge, when directing the jury, did explicitly explain the above principle to them. The trial judge has given sufficient, fair and reasonable directions to the jury. The issues in question are all issues of facts and should be left to the jury to determine.

48.We have already considered the details of the case and the arguments from both parties. The jury definitely has sufficient basis to be sure that the applicant was aware that dangerous drugs were hidden inside the LV bag that she brought into the territories. The applicant has been convicted of unlawful trafficking in a dangerous drug, which we do not find to be unsafe or unsatisfactory. We therefore dismiss the applicant’s application of leave to appeal against conviction.

Raymond Cheng, Senior Public Prosecutor, for the respondent

Chun-Keung Leung and Forest Leung, counsel assigned by Bar Free Legal Service Scheme, for the applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung,Barrister-at-law.