HKSAR v. Bian Zhenju

HCCC 131/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 131 OF 2015

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R U L I N G

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THE APPLICATION

1.At the PTR, Mr Khattak, appearing together with Mr Anthony Lai, for the accused indicated that the defence would like to call an acquitted accused (Madam Zhang) in another High Court drug trafficking case to testify on the accused’s behalf.

2.It is said that the evidence to be adduced falls within the ambit of “similar fact evidence” as both Madam Zhang and this accused will say that they were lured by their respective boyfriends into going abroad and were then deceived by a lady called Abby who received them in Malaysia to bring the concealed drug to Hong Kong.  Both will say that they actually had no knowledge whatsoever about the presence of the drug and that it was this Abby and her boyfriend who gave to each of them the suitcase containing the concealed drug.

THE ARGUMENTS

3.Mr Khattak submits that the evidence of Madam Zhang is relevant to an issue in this case, that is, there was in place at the material time a scheme to lure innocent Mainland ladies to bring drug from overseas and that Abby was a character central to this scheme.

4.In the written submissions filed on behalf of the accused, it is said that, “Given all the similarities and proximity in time in the two ladies’ experiences, it would be an affront to common sense to suggest that Madam Zhang’s evidence cannot support an inference that the Defendant was similarly deceived through a Designed Setup by persons including Abby.”^[1]

5.In gist, the defence’s position is that Madam Zhang’s evidence is relevant to the issue of whether such a Designed Setup existed at the material time, which issue, it is submitted, will ultimately have a bearing on whether the accused was deceived to carry the drug unknowingly.

6.Pausing here and judging from the above submission, one would readily note the defence’s acceptance that Madam Zhang’s evidence has no direct relevance to the issues in this case but just that if there might be such a Designed Setup, then it would be relevant to whether the accused was so deceived because of such a Setup.

MY RULING

7.Both parties have referred to a number of authorities in their written submissions.^[2]  Suffice for me to say that, having considered the submissions, the authorities and the witness statements of Madam Zhang and the accused, I do not consider Madam Zhang’s evidence to be relevant to the issues in this case and the evidence should not be adduced at trial.  The following are my brief reasons for arriving at this decision.

THE CENTRAL ISSUE

8.Here, the prosecution relies on circumstantial evidence, including the possession of the drug, to say that the accused knew she had the drug with her and was trafficking in it at the time.  Therefore, the primary issue is the knowledge of the accused as to the presence of the drug.

9.In this case, only the accused can give direct evidence on this matter of knowledge, not any other person, and certainly not Madam Zhang for, at the time when the trafficking activity in question was said to take place, she did not even know the accused and she did not claim to have any knowledge about how the drug came to be concealed in the accused’s suitcase.  All that Madam Zhang can offer is what she claims to have happened to her in her own case.

10.Once the issue in this case is correctly identified, it is clear that Madam Zhang’s evidence is not at all relevant to the central issue in question.

THE DESIGNED SETUP

11.Turning now to the suggestion of a Designed Setup in respect of which it is submitted that Madam Zhang’s evidence is relevant, I have these observations to make.

12.Firstly, even assuming that there were indeed such a Designed Setup and that Madam Zhang were deceived, these would have no direct relationship as to whether the accused was also so deceived.  In the extreme, it might be that, and I am not suggesting for a moment that it was indeed so, the accused was working with other persons to set things up to lure others, including Madam Zhang, to bring the concealed drug while the accused herself, on this occasion, knowingly participated in carrying the drug back to the Mainland from abroad.  In other words, knowledge of the accused is the key issue in the present case, not any behaviour or conduct of another person.

13.Further, amongst other things, I note that in Madam Zhang’s statement, she averred to having complete trust in her boyfriend Bishop and she considered Bishop to be the master-mind.  On the contrary, the accused did not make any such reference to Bishop in her statement.  The accused’s trust, it is said, was placed on her own boyfriend Dai Hai.  Moreover, according to Madam Zhang, she was asked by her boyfriend even before her departure from the Mainland to bring certain samples (which turned out to contain the concealed drug) back to Guangzhou whereas for the accused, she said she was only persuaded in Malaysia to bring the stuff back because she felt that Abby treated her well, the books were important to the children, and that she was in a hurry to catch the plane.

14.Of course, these differences are just illustrations and are not exhaustive. I should also say that even without these differences, the fact that one person has fallen prey to a trap does not necessarily mean that the accused was equally tricked.

15.In any event, the fact that Madam Zhang was acquitted is not evidence that she did not have any knowledge about the drug concealed in her suitcase.  Therefore, if Madam Zhang were to be called to establish that there might be such a Designed Setup to deceive innocent persons and if this issue about her lack of knowledge were to be raised, the prosecution would be entitled to cross-examine Madam Zhang as to the particular matters relevant to her case and to cross-examine her as to her claim of having no knowledge.

16.In other words, the jury would be asked, at the end of the trial, not only to determine whether they are sure that the accused indeed knew of the drug in her suitcase but would also be asked to determine, in effect, in a separate trial as to whether Madam Zhang’s claim of no knowledge might be true.  Needless to say, a reminder would also need to be issued to the jurors to the effect that even if they were sure that Madam Zhang knew about the presence of the drug in her own suitcase, such knowledge would have no application in the case of the accused and that they would still need to consider the accused’s own case separately.

17.Such derailing of the trial is not only undesirable but unnecessary.  Parties should not forget that the central issue in this case is not whether another person knew that there was drug concealed in the suitcase seized on another occasion or whether that person was a victim in a scam but whether the prosecution can succeed in proving that this accused knew of the presence of the concealed drug in the present case and was trafficking in the same at the material time.

CONCLUSION

18.In short, I consider Madam Zhang’s evidence not relevant to, and not probative of, the matter in issue.  The introduction of the evidence will certainly bring about unjustified complexity to the trial; will distract the jury from the central and primary issue; and will derail the proceedings, taking the process outside its proper limits and causing detriment to the fairness of the trial. 

Mr Y M Liu, counsel on fiat for HKSAR

Mr Shahmim K Khattak and Mr Anthony Lai instructed by Annie Leung & Co, solicitor for the Accused