HKSAR v. Wiwik Lestari

CACC 227/2016

[2018] HKCA 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 227 OF 2016

(ON APPEAL FROM HCCC NO. 227 OF 2015)

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REASONS FOR JUDGMENT

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

1.The applicant sought leave to appeal against his conviction after trial by Deputy High Court Judge Beeson and a jury, of a count of trafficking unlawfully in a dangerous drug, namely 572 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. At the conclusion of the hearing, we allowed the application for leave to appeal against conviction, allowed the appeal and quashed the conviction. Now, we give our reasons for that judgment.

The trial

2.It was an admitted fact that the applicant, an Indonesian citizen, was found to be carrying a white plastic bag in which there were three transparent plastic bags containing the cocaine the subject of the count, when intercepted by police officers at the junction of Mody Road and Nathan Road, Tsim Sha Tsui, Kowloon at 9:47 p.m. on 14 January 2015.

3.As the judge directed the jury, the single issue in the case was whether or not the applicant knew that she was carrying dangerous drugs.[1]

Prosecution case

4.The judge reminded the jury that the prosecution invited them to conclude from all the circumstances that “…the only reasonable inference to draw is that the accused was trafficking in a dangerous drug and that she knew what she had in her bag.” [2]

5.Also, the prosecution relied on what the judge said they described as being “admissions” [3] made by the applicant in a video recorded interview conducted of her under caution in the early hours of the morning of 15 January 2015 by DPC 810.  At an early stage of the interview, the applicant said that she had “picked up stuff ”, but that she “did not know what the content was.” [4]  She explained that she had been contacted by her friend Irul and agreed to her invitation that she deliver them for a monetary reward.  Then, she was contacted by telephone by a man on the afternoon of 14 January 2015 and on his instructions went to the 14^th floor of a building, which she subsequently identified as being Chungking Mansions.  On the 14^th floor of that building, next to a garbage bin, she picked up a plastic bag which contained something “…like powder, something like that” [5]. She said “(I) did not know what it was.”  Then, she went downstairs where she waited for a phone call from the man whilst she looked for a taxi.[6]  The applicant said that at that point she had been intercepted by police officers who had arrested her.

6.The applicant said that she had been promised the payment of $1,500.[7]  In a telephone call the man had “Asked (me) to go to MTR.  The money would be given to me.  He said so.” [8]  The applicant agreed with the suggestion that the offer of payment of that money was the reason that she had taken the job [9] and with the suggestion that the promised payment was “for doing one delivery”.[10]  Although the applicant answered in the affirmative the suggestion that the promised payment of $1,500 was “high” for “working one day or once” [11], she answered in the negative the question of whether, when she picked up the powder she felt there was anything “suspicious or unusual”.[12]  The applicant repeated the effect of that answer on a number of occasions.

7.Then, the applicant said that in her conversation with Irul about the delivery job, Irul had told her “be careful” when making the delivery [13].  Irul did not elaborate.  Having said that in the past some of her friends whom she described as “naughty” had discussed with her the abuse of dangerous drugs, saying that the dangerous drug “only (looks) like powder”, when asked if she had “ever thought” that the powder that she picked up on the 14^th floor of the building might be a dangerous drug, the applicant said “Yes, it occurred to me sometimes.  But the point is I got the money, that’s all.[14]  However, the applicant went on to assert “But I did not know what the stuff is.” [15]  Finally, the applicant answered in the affirmative the question translated to her as “The problem is earlier you have mentioned that when you picked up the stuff, you also thought that it might be narcotics.” [16]

The defence case

8.The applicant testified in the defence case.  The judge reminded the jury that it was the effect of her evidence in respect of the video recorded interview conducted of her by DPC 810 that “any incriminating admissions were not true, but were the result of extensive coaching by the police, in particular, DPC 810 who conducted the interview.” [17]

9.In her evidence, the applicant said that at the request by telephone at 6 p.m. on 14 January 2015 of Usman, a Pakistani man, she had gone to the 14^th floor of Chungking Mansions at 8 p.m. that evening.  She did so having agreed to his request “to collect his order, the box of food.” [18]  In the telephone conversation he had said “Help me to collect the food.  Later I give you money, 1,500.” [19]  On his instructions, she had exited the Tsim Sha Tsui MTR station by exit A1 and waited outside a medicine shop to receive a telephone call with further instructions.  Having received instructions in a telephone call that she then received from a man, the applicant went to Chungking Mansions.  There, she received another telephone call from the man and on his instructions she went to the 14^th floor of the building.  There she met a black man who handed her a plastic bag which she believed to contain rice.  On the ground floor of Chungking Mansions, she received a telephone call from Usman, who instructed her to take a taxi to the vicinity of the market in Sham Shui Po, where he said that he would meet her.  As she was waiting for a taxi, police officers arrested her. [20]

10.Having noted that in the video recorded interview, the applicant had said “…on numerous occasions, she did not know what she was carrying was dangerous drugs” [21], the judge reminded the jury that in the “…later part of the video interview, she made admissions which indicate that she did know what she was carrying.”  Then, the judge said “…she gave another account of events that day, and in cross‑examination, she gave quite a lot of details about what she was doing, and what she had been asked to do.” [22]  Of the differences between the two accounts, the judge said:[23]

“ You might wonder why, if things had happened as she claimed they did, why she did not give those details to the police on the night she was arrested. She explained everything in relation to her silence by saying that what she had been told by the police, was that she had been told by the police, not to say anything about the rice boxes that she claimed were in the bag, and that she should go ahead and plead guilty in court.”

11.The judge went on to remind the jury of the applicant’s testimony:[24]

“ She says that she could not mention the black man, or the details about Usman, or the other details about how she was to collect the food, because she had been told by the police not to mention the rice boxes.”

12.Of the applicant’s evidence in respect of the video recorded interview, the judge said that she testified that “any incriminating admissions were not true, but were the result of extensive coaching by the police”.[25]  Subsequently, the judge said of her evidence “…there were many instances where she alleged that what she said was a result of police coaching.” [26]

13.Of the circumstances in which the applicant testified that she had come to make statements in the video recorded interview, the judge said:[27]

“ She had been asked if she wanted a lawyer, but had been told she did not need one. In any event she would have a free lawyer in court. According to her, she was told not to mention the rice boxes, and she was told to be good, and the sooner she pleaded guilty, the sooner she could return to her family in Indonesia.”

Grounds of appeal against conviction

14.By grounds 1 and 2 of the grounds of appeal against conviction, Mr Khattak submitted that the judge’s summing up was “unfair and unbalanced”, so that the applicant’s conviction was unsafe.  That criticism was levied at comments that the judge made in respect of submissions made by counsel for the applicant at trial and in respect of aspects of the applicant’s evidence.  Complaint was made of the judge’s directions in respect of a response of the applicant in the video record of interview in which she said “The thing (you said) earlier which needs to be paid, isn’t it Sir?” [28] The applicant made that response immediately after she had confirmed that the rights set out in the Notice to Persons in Custody had been interpreted to her and that she was “clear” about them, and after she had been asked whether or not she needed “legal advice to represent you”.  The judge had failed to remind the jury that the issue of payment in respect of legal advice was not mentioned at all in the Notice.

15.Further, complaint was made that having reminded the jury that counsel for the applicant had observed in his closing speech that the plastic bag carried by the applicant, in which the cocaine was contained, was “semi-transparent”, so that the cocaine was not well concealed, the judge had described the bag as of a very common type which would not attract attention.  The judge’s observation unfairly detracted from the point made by counsel.

16.Then, complaint was made that, having reminded the jury of the differences in the details of the account provided by the applicant in the video record of interview and in her evidence, the judge had posed the rhetorical question of why the more detailed account had not been given “to the police on the night she was arrested”.[29]  That was unfair.

17.Next, complaint was made that, having reminded the jury of the applicant’s evidence that account that she had given to the police was one made in consequence of having been told by a police officer not to mention anything about the rice boxes she had collected, and which were contained in the plastic bag she was carrying when she was arrested, the judge had asked the jury to consider whether or not they “might be sure that the defendant was creating a story, and that things took place as the prosecution alleges, not in the manner claimed by the defendant.” [30]  That was unfair.

18.Furthermore, Mr Khattak submitted that the judge’s invitation to the jury to watch the video recorded interview to determine whether or not the applicant was seen to be crying [31] was an invitation to reject the submission of counsel for the applicant made in his closing speech to that effect.

19.Finally, although he acknowledged that it was a slip of the tongue, Mr Khattak submitted that the judge erred to the prejudice of the applicant in directing the jury that if “the account given by the defendant is true or may be true, then the defendant must be acquitted, because of what she says may be true, it would mean you have a doubt about her evidence.” [32] [Italics added.]

20.By ground 3, Mr Khattak submitted that the judge had erred in failing to direct the jury that if they found the applicant’s participation in the video recorded interview to be involuntary, they should proceed on the basis that the applicant had maintained her right of silence, so that no adverse inferences could be drawn against the applicant.  Further, it was submitted that the judge had erred in failing to direct the jury that if they believed that the applicant’s answers and admissions in the video recorded interview were or may have been obtained as a result of pressure or improper behaviour by the police, the jury “must” disregard such answers and admissions.  In his written submissions he contended that, having invited the jury to have regard to the account given by the applicant in the video recorded interview, the judge had erred in suggesting to the jury that in her evidence the applicant had given “another account of events” and in suggesting that the jury consider “why she did not give those details to the police on the night she was arrested.” [33]

21.By ground 4, it was contended that the failure to provide the applicant with free legal advice, before a video recorded interview was conducted with her, was in breach of the applicant’s rights under article 35 of the Basic Law and article 11(2) of the Bill of Rights Ordinance, Cap 383.  By ground 5, it was contended that the same failure infringed the applicant’s right to equality before the law has provided by article 25 of the Basic Law and article 22 of the Bill of Rights Ordinance.

22.By ground 6, it was contended that the judge had provided insufficient reasons for her ruling in the voir dire that the applicant’s admissions were voluntarily made and in declining to exercise her discretion to exclude that evidence.

23.By ground 7, it was submitted that in ruling the video recorded interview admissible in evidence the judge had failed to give sufficient regard to the “oppressive questioning” of the applicant by DPC 810 and that the judge ought to have ruled the material inadmissible or excluded it by the exercise of her discretion.

24.By ground 8 it was submitted that the judge ought to have taken it upon herself to order that the references in the video recorded interview by the applicant to her “naughty friend” be edited out.  It was irrelevant, but even if relevant its prejudicial effect outweighed any probative value.  Further, the judge failed to direct the jury how to approach that evidence.

25.By ground 9, it was submitted that the judge erred in failing to give the jury a ‘lies’ direction.

26.The Court granted leave to the applicant to add ground 10 to the grounds of appeal against conviction in response to an application made late on the afternoon of the first day of the hearing.  By ground 10, it was submitted that the judge had failed to direct the jury “…that even if the applicant had suspicion that she was carrying dangerous drugs, they could not convict, because they must be sure that she knew what she was carrying was dangerous drugs.  Nothing short of knowledge was sufficient for conviction.”

The respondent’s submissions

27.In his written submissions, Mr Lai invited the Court to reject the submission that the judge’s comments and invitations to the jury to have regard to particular pieces of evidence rendered the summing up unfair and unbalanced.  In delivering a balanced summing up the judge was entitled to point to evidence both in favour of and against the applicant and to make appropriate comments.  Whilst he acknowledged that the judge had made a slip of the tongue in directing the jury as to the proper approach to the evidence of the applicant, it was nevertheless made clear to the jury that if they were to find that the applicant’s evidence was or might be true, they were to acquit the applicant.

28.Mr Lai submitted that the judge’s direction in respect of the consideration of the issue of whether or not the applicant was subjected to oppression prior to or in the video recorded interview and her direction if they believed that the answers “were, or may have been, obtained as a result of that behavior, you would disregard the admission or answers” was to be considered in context.  In particular, the judge had directed the jury shortly before that if they were not satisfied so that they were sure of DPC 810 “that he is a credible witness, the evidence of the video interview could not be relied upon, and you would have to acquit.”  When considered overall, there was no error.

29.Of the contended right to free legal assistance to a person before he was questioned by a police officer, Mr Lai submitted that no such right was conferred by article 35 of the Basic Law or by article 10 and article 11(2)(d) of the Hong Kong Bill of Rights Ordinance.  In any event, he submitted that the applicant had “effectively waived her right to legal assistance.”

30.Mr Lai submitted that the issues arising in the voir dire were “straightforward” such that a reasoned ruling was not required.  He said that the questions posed of the applicant in the video record of interview were not oppressive.  He contended that it was clear that the officer had merely pursued statements made by the applicant with further questions that were obviously relevant.  He invited the Court to note that in cross‑examination in the voir dire, the applicant had acknowledged she was free to give any answers to questions she wanted to give and she had repeatedly said she did not know that the contents of the plastic bag which he carried contained dangerous drugs.[34]

31.Mr Lai submitted that the applicant’s references in the video recorded interview to having a “naughty friend” did not imply that either that person or the applicant abused dangerous drugs.  There were no dangers that the jury would use that evidence to pursue the impermissible line of logic that the applicant had a propensity to dealing in dangerous drugs.  Indeed, the judge had given the jury the full character direction in respect of the applicant.

32.Then, Mr Lai submitted that, although the applicant had admitted in cross‑examination that she had told lies in the video recorded interview and counsel had referred to her lies in his closing speech, it had not been suggested that the jury might use those lies to infer the applicant’s guilt.  Rather, it was directed to the issue of the applicant’s credibility only.

33.Of the submission that the judge had failed to direct the jury that a finding that the applicant was suspicious that the contents of the plastic bag were dangerous drugs was an insufficient basis to convict the applicant and that they were required to be satisfied that the applicant knew that, Mr Lai submitted that such a direction was not required.  It was the applicant’s evidence that she neither knew nor suspected that there were dangerous drugs in the plastic bag she was carrying when she was arrested.

A consideration of the submissions

The admissibility of the video recorded interview of the applicant

34.There is available to this Court a copy of the “Grounds of objection” to the admissibility of the video recorded interview, the transcript of all the evidence adduced in the voir dire and the submissions made on behalf of the applicant.

35.DPC 810, who by the time he gave evidence was a sergeant, together with his colleague DPC 51516 gave evidence for the prosecution.  The applicant testified in the defence case.  The proceedings were concluded in less than one day.

36.In her ruling, the judge said of the video recorded interview that she was satisfied beyond reasonable doubt that it was “taken properly”.  Further, she went on to say that she saw no reason to exercise her discretion to exclude that evidence.[35]

37.The judge had the advantage not only of receiving the oral testimony of the three witnesses in the voir dire but also of having viewed the entire video recording, which was played in court during the voir dire.

38.DPC 810 denied the suggestion made to him in cross-examination that the bag the applicant was carrying contained two rice boxes and when he had intercepted the applicant he had asked her in English “What are you carrying?” and she had replied “Food FOOD, food”; following which the applicant had said “I don’t know” in response to the question “you really don’t know what is inside?”.  DPC 51516 also denied that the applicant was carrying a bag which contained two rice boxes.

39.Similarly, DPC 810 denied the suggestion that in his presence an unidentified police officer had asked the applicant in English “Do you want a lawyer? ”, to which the applicant had said “No money” and that he had said “No need to have a lawyer.  Free lawyer in court.” [36] Further, DPC 810 denied that at the police station he had said to the applicant “Listen to me.  Be good but you are not allowed to mention rice box in court.”  Similarly, he denied that he had told the applicant “You have to plead guilty.  Case will end quickly.  Will go back to Indonesia to see parents quickly” and that the applicant had cried.

40.Having acknowledged that the applicant had repeatedly denied that she knew the contents of what it was that she had been carrying when he intercepted her, DPC 810 denied that in ensuing questioning he had pressed the applicant to admit that she thought it was dangerous drugs.

41.The applicant testified that while she was in the police station, having been asked by an unidentified police officer “Do you want a lawyer?”, the police officer had gone on to say “If you want a lawyer you have to pay3,000.”  She said that it was in those circumstances that DPC 810 had said “No need for a lawyer because the court will be free”.  DPC 810 had told her not to mention in court that there was a lunchbox.  So, she had not done so.

42.In HKSAR v Okafor [37] this Court considered the circumstances in which it might be appropriate for a judge to give reasons for his determination to rule admissible out‑of‑court statements made by an applicant and not to exercise his discretion to exclude that material.  In the judgment of the Court, Stock VP observed:[38]

“ …the benefit of giving reasons does not lead to a conclusion that a separate articulation of specific reasons is always necessary – ‘separate’ in the sense of a reasoned ruling.”

43.Of the necessity that the defence be aware of the reason that their challenge to the admissibility of the evidence has been rejected, Stock VP said:[39]

“ The reason should be clear either from what has transpired in the court of trial during the canvassing of the issues, from the nature of the issues themselves, from the evidence or a combination of these; or, indeed, from a reasoned ruling. This means that if the basis of the tribunal’s determination is clear from the circumstances as revealed by the record, there is no need for the provision of reasons;

... If the basis for the decision is not clear from the circumstances - which includes the evidence, the nature of the challenge, exchanges in the course of the proceedings - then reasons should be provided…”.

44.In the applicant’s case the issues were extremely narrow.  First, there was the issue of the credibility of DPC 810.  As the judge said in her directions to the jury when this issue was re‑canvassed in the general issue “His evidence is critical” [40]. Obviously, in determining that the video recorded interview was admissible in evidence the judge was to be taken as accepting his evidence and rejecting that of the applicant where the two accounts were in conflict.  Secondly, there was the issue of whether or not in persisting in questioning the applicant in face of her repeated assertions that she did not know what was contained in the plastic bag DPC 810’s behaviour was oppressive, so that the judge could not be sure that the applicant had made her statements in the video record of interview voluntarily.  Clearly, the evidence relevant to that issue was primarily contained in the video record of interview, as reflected in the transcript.

45.In context, it is to be noted that the questions posed of the applicant were posed in the record of interview which took place between 01:03 and 02:18 hours on 15 January 2015, after the applicant had been served with a Notice to Persons in Custody, which had been interpreted to her and after the words of caution had been administered to her.  By signing the document, the applicant acknowledged receipt of a copy of the Notice to Persons in Custody at 00:18 hours on 15 January 2015.  The applicant had been intercepted and arrested at 21:50 hours on 14 January 2015.  In the record of interview, the applicant answered in the negative when asked if she needed the assistance of a lawyer.[41]  The words of caution informed her, inter‑alia, that she was not obliged to say anything.[42]

46.Notwithstanding the applicant’s repeated assertions that she did not know what was contained in the plastic bag she was carrying when arrested, which she acknowledged contained powder, DPC 810 was entitled to pose questions probing her account, so long as the length of the questioning and the manner in which the questions were delivered was not oppressive.  It is clear that much of DPC 810’s questioning was prompted by the applicant’s assertion that she had been promised a payment of $1,500 for picking up and delivering the goods.  Given the applicant’s account of the circumstances in which she had picked up the plastic bag, namely next to a garbage bin, and her observation that it was a powder‑like substance, DPC 810 was obviously entitled to ask the applicant if as a result, she had suspicions about what she had been asked to do with what she was dealing.

47.Other lines of questioning developed from other statements of the applicant in the course of the video recorded interview, for example that she had been told by both Irul and the man to whom she spoke on the telephone about collecting and delivering the goods to “be careful” and, in the context of her evidence of conversations with her “naughty friend” about dangerous drugs, of whether she thought, felt or suspected that the contents of the plastic bag could be dangerous drugs.

48.We are satisfied that it was perfectly obvious to the applicant and her legal representatives that in ruling the video recorded interview admissible that the judge had accepted the evidence of DPC 810 and was satisfied that there was nothing improper or oppressive in the questions posed of her.  Of the exercise of the judge’s discretion to exclude the evidence, it is to be noted that in the short oral address of counsel for the applicant at the conclusion of evidence specific reference was made to the judge’s discretion.  That submission was made in the context of the fact that questions were posed of the applicant, notwithstanding the fact that she had repeatedly denied knowing that the contents of the plastic bag were dangerous drugs.  The judge’s ruling followed immediately after those oral submissions.  It is clear that, in ruling as she did, the judge rejected those submissions.  There was no need for the judge to articulate the obvious in a written judgment.  There is no merit in this ground of appeal.

49.Although it is now contended that the judge ought to have directed that references be excised from the video record of interview where the applicant and DPC 810 referred to the statement made by the applicant that she had a “naughty friend”, who appeared to have had some knowledge of dangerous drugs and with whom the applicant appeared to have had some conversations on the subject matter, no such application was made to the judge.  For her part, the only reference that the judge made to the term “naughty friend” was to passages in which the applicant had used that phrase in the video recorded interview.  The judge did so without making any comment.  In the closing speech for the prosecution, having reminded the jury that the applicant’s evidence was that she had created the story of having discussions with a “naughty friend”, Mr Kelly, counsel for the prosecution at trial, questioned need to make up such unnecessary stories.[43]

50.Insofar as the applicant’s references to her “naughty friend” were at all relevant to the issues before the jury, it seems to us that it was relevant to the applicant’s denial that she had ever seen dangerous drugs before.  She said that her “naughty friend” had said that it looked “like powder”.  That had some relevance to the questioning of the applicant of what it was that she suspected was contained in the plastic bag that she picked up by the garbage bin on the 14^th floor of the building, which she said contained a powder.

51.In all the circumstances, we are satisfied that the judge did not err in failing, of her own initiative, to excise the parts of the video record of interview in which reference was made to the term “naughty friend”.  Further, there was no need for the judge to give the jury any direction on that evidence, which relevance was obvious but limited.  As Mr Lai pointed out, the judge had given the jury a full direction in respect of the applicant’s good character in which, inter‑alia, she said the jury were to consider in favour of the applicant:[44]

“ …the fact that she was of good character may mean that she is less likely than otherwise might be the case to commit this crime now. I point out that she has reached the age of 51 years without having a criminal record.”

The judge’s directions to the jury as to their approach to the video recorded interview of the applicant

52.Of the approach to be taken to the video recorded interview of the applicant, the judge directed the jury:[45]

“ You have to consider whether the Video Interview was the result of improper police behaviour, and whether the content was the result of detailed coaching by the police. If you believe that the answers and admissions in the Video Interview were, or may have been, obtained as a result of pressure or improper behaviour by the police, you would disregard the admissions or answers.” [Italics added.]

53.Mr Khattak invited the Court to note that in directing the jury as to their approach, if they were to determine that they were not sure that the admissions were true, the judge said that in those circumstances “you must disregard them.” [Italics added.]

54.In HKSAR v Pang Hiu San [46], the Court of Final Appeal noted that in R v Mushtaq [47], by majority, the House of Lords determined that “…the judge must direct the jury as to voluntariness where the circumstances of the case suggest that the confession was, or may have been, induced by oppression and, if they conclude that the confession may have been obtained as a result of oppression they must disregard it.”  The Court of Final Appeal determined that: “…a Mushtaq direction is required in Hong Kong where the circumstances suggest that the statement was, or may have been, induced by oppression including cases where the defendant denied making the confession.” [48]

55.The context of the judge’s directions to the jury as to their approach to the circumstances in which the video recorded interview had been conducted, in particular to have regard to the issue of improper behaviour by the police, was her earlier direction to the jury in respect of DPC 810:[49]

“You need to be sure that you can rely on his evidence, and to be sure that he tells the truth about what happened when the defendant was arrested, and later on, at the interview.

If you can’t be satisfied so that you are sure that he is a credible witness, the evidence of the Video Interview could not be relied upon, and you would have to acquit.  If you decide that he is a credible witness, you can then go on to examine the contents of the Video Interview.”

56.With great respect to the judge, that direction was impermissibly wide.  Even without the availability to the jury of the out‑of‑court statements by the applicant in the video recorded interview, there remained the undisputed evidence that she was found in possession of a plastic bag which contained dangerous drugs.  In those circumstances, it was a matter for the jury what, if any, inferences they drew of the applicant’s knowledge of the contents.  The direction was unduly favourable to the applicant.  However, it rendered otiose a direction to the jury that, if the jury was satisfied that the applicant’s statements in the video recorded interview might have been obtained in circumstances of oppression, they were to treat the applicant’s as though she had maintained her right of silence.  The jury was directed to acquit her in those circumstances.

57.On the other hand, the direction required the jury, if they were not sure of the credibility of DPC 810 in particular that he had told the truth about what had happened to the applicant after arresting up to the interview, “…the evidence of the Video Interview could not be relied upon”.

58.Although the judge had not used the mandatory direction “you must” but rather had said “you would” disregard the admissions or answers of the applicant, we have no hesitation whatsoever in being satisfied that the jury would have understood that they were to disregard those admissions or answers if they considered that they had been obtained in circumstances of oppression.

Lies

59.In cross-examination by Mr Kelly, the applicant accepted that she had told lies to the police in the record of interview.[50]  She said that she lied in saying that Irul had looked for her to do a job.[51]  Irul had not set up the job for her to collect something in Chungking Mansions for a reward of $1,500.[52]  She had created a story and had not mentioned Usman because she had been told by the police not to mention the rice box.[53]

60.In his closing speech, Mr Kelly suggested to the jury that in the accounts that the applicant gave on the video record of interview she had tried to hide from the jury that the applicant knew that she was a courier, and that she had acted on instructions as to where to go: which building, which floor and to go to Sham Shui Po to make the delivery.  Further, she acted on instructions to wait and was acting on instructions to take a taxi.  He suggested that in her account in the video record of interview the applicant had tried to “simplify matters” and kept those details out of her account.[54]  Mr Kelly suggested that the applicant had lied in her evidence in saying that she had collected a rice box or lunchbox and had done so to give credence to her account.[55]

61.The judge reminded the jury that the applicant had admitted that “…she told a number of lies in her Video Interview.  This relates to her account of being asked by Usman to collect the order of food and take it to him at Sham Shui Po.” [56]  Having said that the applicant said that she did so because “…she was just following the instructions of the police” who had asked her “to be good”, the judge said:[57]

“ You can take those lies into account when you are assessing her general credibility if you think they are relevant, and if you think she was or might have been telling those lies because of her fear of the police, you can safely ignore all of them.”

62.Of course, since Usman had not been mentioned by the applicant in the video record of interview, the judge was suggesting to the jury, in accordance with the applicant’s evidence, that the lie lay in creating the account in which no reference was made to Usman for the fact that the applicant was collecting and delivering an order of food for him.  Rather, she had created the account she gave in the video record of interview.

63.Clearly, the challenge by the prosecution to the truthfulness of the applicant’s account in both the video recorded interview and in evidence was a challenge to her credibility.  The prosecution did not suggest, nor was there a risk, that the jury might regard the fact that the applicant had told lies as probative of her guilt.  It is to be noted that in his closing speech for the prosecution Mr Kelly suggested in terms that the applicant’s “version of events is just not credible.” [58]  That was the issue.

64.Not surprisingly, counsel for the applicant at trial did not ask the judge to give a ‘lies’ direction nor did he complain at the conclusion of the summing up that no such direction was given.  We are satisfied that there was no need whatsoever to give a ‘lies’ direction.

The right to free legal advice prior to being questioned by the police

65.There is no dispute that at trial no submission was made to the judge to exclude the video recorded interview on the basis that the applicant had been denied her request to have access to legal representation.  The written “Grounds of Objection” filed on behalf of the applicant and the voir dire advanced no such submission.[59]  Nevertheless, that is the nub of the submission now made in this Court.

66.Mr Khattak acknowledged that there was no general scheme in Hong Kong by which free legal assistance was made available to a person on his arrest.  However, he submitted that if an indigent person expressed a desire to have a lawyer, then if no lawyer was provided and an interview ensued the Court should step in and exclude the resulting record of interview.

67.As far as we understand Mr Khattak’s submissions, it was suggested that it was to be inferred from that that the applicant had been put off from asking to have legal advice/representation by an inability to pay for that service; and, albeit that that is what she wished, that explained why she had answered in the negative when asked if she wished to get assistance from a lawyer.

68.Although Mr Khattak was pressed to identify any evidence in which the applicant stated that she wished to have legal advice or legal representation either to the police, in the video record of interview or in her evidence, in either the voir dire or the general issue, he was unable to do so.

69.As a result, Mr Khattak was driven to submit that it was to be inferred that the applicant wished to have legal advice and/or representation from the fact that in the record of interview when asked if she needed “legal advice to represent you” she had said “the thing (you said) earlier needs to be paid, isn’t it Sir?”  Mr Khattak submitted that the applicant’s answer supported her evidence that, after having enquired if she needed a lawyer, an unidentified police officer had told her that she needed “to pay 3000.”  In her evidence in the general issue, the applicant testified that she had said “I don’t have money”.[60]

70.At trial, the submission made in respect of the relevance of what the applicant testified was a conversation about whether or not she needed a lawyer, before the video recorded interview took place, was that it supported her evidence that there had been prior discussions with police officers, in which circumstances it supported her evidence that she had been coached by police officers as to what not to say in the interview.

71.In those circumstances, in referring to what the applicant had said in the video recorded interview and its relevance to her case, the judge said:[61]

“Items 61 to 65, it was the question of the lawyer. It may be a question of interpretation. 61, the interpreter says, “Because at present, you do not have legal advice, do you need it, so there is legal advice to represent you.” The defendant was supposed to have said, “The thing you said earlier, which needs to be paid.” That could be, as Mr Poon suggested, a reference to conversations that took place outside the interview room before the interview. But it can also be reference to the fact that when the Notice to Persons in Custody was read out by the interpreter, that there was a comment about being entitled to a lawyer in the notice to persons in custody. So “the thing you said earlier” could also be the Notice to Persons in Custody. She asked whether it needs to be paid.

In 64, PW1 says, “Just mentioned now, the one that has to be paid for, but because I am now asking you that the lawyer, I mean, actually, the legal representative, I mean, the lawyer -- the interpreter has just mentioned to you, do you need the presence of this kind of person to offer assistance?”  And when that line was interpreted to her, she said “no”.  So it is a matter for you to consider, when you take an overall look at the evidence of the defendant on this point.”  [Italics added.]

72.By contrast, it is to be noted that in the voir dire, although the applicant testified of having had a conversation with an unidentified police officer about whether or not she needed a lawyer and having been told that she would need “to pay 3000”, the applicant did not assert “I don’t have money”.[62]  DPC 810 denied in cross‑examination that there had been any conversation with the applicant about the need to have a lawyer and of payment.  At the hearing, Mr Khattak accepted that the applicant did not say that she wanted a lawyer, but could not pay for a lawyer.

73.In cross-examination of the applicant in the general issue, issue was taken with the applicant in respect of her evidence of a conversation with the unidentified police officers in which she had been asked if she needed legal advice and in which she had been informed of the need to make a payment.  The applicant disagreed, and confirmed that there was such a conversation.[63]

74.The submissions now advanced in this Court not having been advanced before the trial judge, this Court does not have the advantage of the issue having been canvassed before the judge and of any findings that she might have made.  However, noting that Mr Khattak was unable to identify any evidence that, prior to the video recorded interview, the applicant expressed a wish to receive legal advice/representation and/or that she indicated an inability to pay for such service, we are satisfied that there was no evidence.  The context in which that evidence is to be viewed is that the provisions stipulated on the Notice to Persons in Custody form had been interpreted to the applicant prior to the video record of interview and that in the video record of interview she had acknowledged that she was “clear” about those rights.  It follows that the issue of a breach of the Basic Law of the Bill of Rights simply does not arise. There is no merit whatsoever in this ground of appeal.

Unfair and unbalanced summing up

75.In these times, it appears that many counsel consider that grounds of appeal against conviction advanced in this Court are incomplete without there being an allegation that the summing up was unfair and unbalanced.  Usually, as in this case, no complaint was made to the judge.  In this case, the summing up took place over two days.  So, there was an opportunity to raise any such complaint at the end of the first day or the beginning of the second day of the summing up and, obviously, at the conclusion of the summing up.  Clearly, as was to be expected, counsel for the applicant appears to have paid close attention to the summing up.  At the end of the first day of the summing up he did raise with the judge that she had not given the applicant the benefit of a good character direction.  As the judge said in response, that complaint was premature, because her summing up was incomplete.  In fact, the judge gave the full good character direction to the jury at the commencement of the second day of the summing up.

76.In discharging his or her duty to remind the duty of the salient parts of the evidence in the summing up the judge is required to do so in a balanced, fair and impartial manner.  Often that will involve reminding the jury of evidence that one party relies on and then pointing to evidence on which the other party relies by way of answer.  Even if the other party does not do so, the judge is entitled to point to evidence that is relevant to the issue raised by the first party.  The judge is entitled to comment on the evidence, provided that it is done fairly.  But, if the judge does so, it is required that the jury be directed that the jury, not the judge, determine what facts are accepted or rejected.  The judge gave a direction to that effect in this case:[64]

“ …if I refer to the evidence, and I appear to express my views about the facts or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them. If I do not mention something which you think is important, you should have regard to that fact in any event, and give it the weight you think it deserves, but when it comes to the facts of this case, it is your judgment alone which is important.”

Improper behaviour of the police

77.In the context of the applicant’s evidence of the oppressive behaviour of DPC 810 prior to the video recorded interview, and having reminded the jury of the numerous occasions in which the applicant asserted in the video recorded interview that she did not know what she was carrying was dangerous drugs, the judge was entitled to invite the jury’s attention to the fact that on numerous occasions in the video record of interview she had denied knowing that the plastic bag contained dangerous drugs.[65]  The point was both obvious and a point that had been prayed‑in‑aid by the prosecution in its closing speech.[66]  That comment by the judge was balanced by her earlier reference to the applicant’s case, namely “There were many instances when she alleged that what she said was a result of police coaching.  Mr Poon suggested that “you can tell from her short “yes” and “no” answers that she was being asked leading questions, that is, questions which suggest the answer.” [67]

The plastic bag carried by the applicant

78.Of the issue of concealment of the dangerous drugs carried by the applicant, the judge reminded the jury that it was her testimony that she was carrying two rice boxes contained in a plastic bag.  But, she went on to say that, in respect of the prosecution case that there were no rice boxes and that the dangerous drugs were contained in the plastic bag, counsel for the applicant had suggested to the jury in his closing speech that the outer plastic bag was semi‑transparent so that the dangerous drugs “were not as well concealed as you might expect.”  However, the judge went on to observe that the plastic bag was “a very common type” so that “it would not necessarily attract attention from the police.”  Complaint was made that was unfair.

79.Having inspected the plastic bag in court it is clear that the judge’s observation was accurate.  Moreover, although counsel for the prosecution had reminded the jury that DPC 810 had said that there had been cases in the past were defendants had held dangerous drugs in their hands, so that carrying dangerous drugs inside plastic bags, inside another plastic bag, is not unusual,[68] the judge made no reference to that prosecution submission.

Crying

80.The criticism of the judge’s suggestion to the jury that, having regard to the applicant’s evidence that she had been crying during the video recorded interview they might view the videotape “…to see whether that is the case, or may be, the case” is misplaced.  In cross‑examination before the jury, the applicant testified in respect of the video recorded interview “I cannot remember anything.  I was crying.” [69]  Of her crying, the applicant went on to say “Sometimes stop, Sometimes cry.” [70]  In his closing speech, counsel for the prosecution not only referred to the evidence of the applicant but also invited the jury to view the video recording to view her demeanour.[71]  Counsel for the applicant did not respond to that suggestion in his speech.

81.Having reminded the jury that the videotape of the video recorded interview itself, as opposed to the transcript, was also available for them to view after they had retired, the judge was entitled to remind them that they might wish to view the videotape for the purpose suggested by counsel for the prosecution.  There is no merit in this ground of appeal.

Inconsistencies in the account of the applicant and the video recorded interview and her evidence

82.Complaint was made by Mr Khattak that, having reminded the jury in considerable detail of the account that the applicant had given in her video recorded interview, the judge invited the jury to contrast that account with what she had said in her evidence:[72]

“ In her evidence-in-chief, she gave another account of events at that day, and in cross-examination, she gave quite a lot of details about what she was doing, and what she had been asked to do. You might wonder why, if things had happened as she claimed they did, why she did not give those details to the police on the night she was arrested. She explained everything in relation to her silence by saying that what she had been told by the police, was that she had been told by the police, not to say anything about the rice boxes that she claimed were in the bag, and that she should go ahead and plead guilty in court.”

83.Although the judge referred to the applicant’s explanation as being in respect of “her silence”, it is clear, and would have been understood as such by the jury, that the judge was referring to her acceptance in cross‑examination before the jury that she made “no mention” in the video record of interview of various matters, including the collection of food at the initiation of Usman and the black man who had given her instructions by telephone to wait and then to come to the 14^th floor and who had given her the packaged food.

84.The judge went on to remind the jury:[73]

“ She says that she could not mention the black man, or the details about Usman, or the other details about how she was to collect the food, because she had been told by the police not to mention the rice boxes. It is a matter for you to consider when you are considering the evidence as a whole.”

85.As noted earlier, the judge had directed the jury that they were to acquit the applicant unless they were sure that DPC 810 had told the truth and they were sure that he was a credible witness about the events from arrest of the applicant up to and including the conducting of the video record of interview.

86.Clearly, having received that direction, in finding the applicant guilty of unlawfully trafficking in dangerous drugs the jury must have found DPC 810 a credible witness of truth and, must necessarily have rejected the evidence of the applicant insofar as it was in conflict with his evidence.  In those circumstances, as she did, the judge was entitled to invite the jury to have regard to the inconsistencies in the accounts given by the applicant in the video record of interview as compared with that given in her evidence.

87.There is no dispute that, by a slip of the tongue, the judge erred in directing the jury in respect of their approach to the applicant’s evidence “if what he says may be true, it would mean you have a doubt about her evidence.”  However, that slip of the tongue is put in context by the directions that immediately proceeded the slip:[74]

“…if you think the account given by the defendant is or may be true, then the defendant must be acquitted.”

88.We have no doubt that the jury would have understood that succinct and clear direction and would not have been misled by the judge’s slip of the tongue.

Ground 10

89.In support of his submission that the judge ought to have directed the jury specifically that, even if they were satisfied that the applicant was suspicious that she was carrying dangerous drugs that was insufficient to establish that she knew that she was carrying dangerous drugs, Mr Khattak drew the Court’s attention to the following direction of the judge to the jury:[75]

“ On the question of knowledge, the defendant made what amounts to admission that she did know or suspected what she was transporting was dangerous drug, there were also many denials by her that she knew what was in the white plastic bag.” [Italics added.]

90.Further, he pointed to the fact that the distinction between the mental element of suspicion and that of knowledge in respect of what the applicant was carrying had been addressed in the defence closing speech.  There, having said to the jury that the burden was on the prosecution to prove beyond reasonable doubt that the applicant “knew that she was carrying dangerous drugs” counsel said:[76]

“ Even if she suspect (sic) that she was carrying dangerous drugs that is not enough; prosecution must prove beyond reasonable doubt that she knew that she was carrying dangerous drugs.”

91.Further, in his very final submissions to the jury, counsel for the applicant said:[77]

“ …is it possible that the defendant did not know that she was carrying dangerous drugs? The answer should be, yes, it was possible that she did not know. Please remember suspicion is not enough.”

92.Mr Khattak invited the Court to have regard to the numerous occasions in the video record of interview in which the applicant had answered in the affirmative enquiries as to whether or not she did “ever think it might be… dangerous stuff ”[78]; “could think”, “sometimes thought”, “thought” and “sometimes felt” that what she was carrying was “narcotics”.[79]

93.Mr Khattak acknowledged that at the conclusion of the summing up, although the judge enquired of counsel whether or not they had any submissions to make in respect of the summing up, counsel for the applicant had answered in the negative.[80]

94.Mr Khattak invited the Court to note the judgment of this Court in HKSAR v Bian Zhenju [81], where the applicant had been tried for unlawfully trafficking in heroin hydrochloride, which had been found on her arrival at Hong Kong International Airport concealed in the lining of her suitcase.  The issue at trial, was the applicant’s knowledge of the presence of the heroin hydrochloride in the lining of her suitcase.  In a written note the jury had asked for “guidance on the interpretation of suspect”.  Although the appeal was allowed and the conviction quashed on other grounds, nevertheless the Court approved of the judge’s direction in answer to the question of the jury, inter‑alia that “suspicion does not suffice… knowledge must be proved.”

95.Mr Khattak also relied on the judgment of this Court in HKSAR v Lai Wing Huen [82], another case in which knowledge was at issue in a trial of the applicant on a count of unlawfully trafficking in dangerous drugs, to support the proposition that, when the issue arose, it was required that the judge directed the jury that “mere suspicion was not enough”.  What was required was proof of knowledge.

96.For his part, Mr Lai submitted for the respondent that there was no requirement for the judge to give a direction to the jury drawing to their attention the difference between suspicion and knowledge and directing them that the former was insufficient to establish that the applicant knew that she was carrying dangerous drugs, because it did not arise on the defence case.  He pointed to the fact that in the applicant’s evidence she had answered in the negative the question “…did you ever suspect what you were carrying was dangerous drug?”  Similarly, she answered in the negative the question “…did you know what you are carrying was dangerous drug?” [83]

97.Also, Mr Lai pointed to the fact that it was the applicant’s evidence, as summarised by the judge that, while she did not deny there were dangerous drugs in the plastic bag she was carrying when arrested, “they were concealed by the two rice boxes, so her suspicions would not be aroused.” [84]

98.However, Mr Lai conceded that, contrary to the judge’s direction to the jury, there was no evidence from the video record of interview that the applicant had admitted that “she did know” that what she was transporting was dangerous drugs.  Of course, the whole phrase used by the judge was “she did know or suspected”.  Mr Lai said that there was evidence that supported an admission by the applicant that she suspected that she was carrying dangerous drugs.

99.We are satisfied that the judge’s directions to the jury that the applicant “made what amounts to admission that she did not know or suspected what she was transporting was dangerous drugs”, elided the difference between the two mental states.  There was a risk that the jury might have proceeded on the impermissible line of reasoning that proof of either mental state was sufficient to prove the guilt of the applicant.

100.That there was a significant difference between the two mental states was made clear by counsel for the applicant in his closing speech “…suspicion is not enough”.  Rather, it was required that “…the prosecution must prove beyond reasonable doubt that she knew that she was carrying dangerous drugs.”  However, as the judge told the jury, she directed the jury as to the law, which they were required to accept and follow.[85]  A jury takes its directions from the judge and correct references to the law by counsel for either party do not necessarily cure the judge’s omission.[86]

101.Whilst it was the applicant’s evidence that she did not know or suspect that she was carrying dangerous drugs, if the jury rejected that evidence they were required, by the direction of the judge “…to be satisfied on the basis of the prosecution evidence that she had these drugs for trafficking.”  A significant part of that evidence was what the applicant had said in the video recorded interview.  Mr Lai was correct to concede that there was no evidence that the applicant admitted that she knew that she was carrying dangerous drugs.  However, there was a considerable body of evidence, if accepted by the jury, that she suspected that what she was carrying was or might be dangerous drugs.

102.In all those circumstances, we are satisfied that the judge was required to give the jury the simple direction that proof of suspicion only in the applicant that she was carrying dangerous drugs was insufficient to prove knowledge that she was in possession of dangerous drugs.  With respect to the judge, she erred in failing to give that direction.  We are satisfied that that was a material misdirection by omission.

103.Realistically, Mr Lai acknowledged that, in all the circumstances, it was not appropriate to invite the Court to apply the proviso.

Conclusion

104.Accordingly, we allowed the application for leave to appeal and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the applicant’s conviction.

Orders

105.Mr Khattak did not oppose Mr Lai’s application for a retrial.  We were satisfied that such an order was appropriate, which order we made, remanding the applicant in custody pending her retrial.  Further, we ordered that the prosecution file a fresh indictment with the Court containing the same count within 14 days hereof and that the matter come before the Listing Judge for fixing of the dates for the retrial within 28 days hereof.  Finally, having regard to the length of time since the commission of the alleged offence, we ordered that an expedited date of trial be fixed.

Epilogue

106.At the conclusion of the hearing, we drew Mr Khattak’s attention to the fact that we had not found it necessary to invite counsel for the respondent to reply to any of the arguments advanced in grounds 1 to 9.  For the reasons we have set out, none of them had any merit.  The Court was burdened with no fewer than four box files of authorities provided by the applicant in support of meritless grounds of appeal.  Although Mr Khattak had filed re‑amended perfected grounds of appeal against conviction on 29 September 2017 it was not until almost the end of the first day of the hearing that finally he identified and articulated the only ground of appeal of any merit whatsoever.

107.Counsel are reminded that their duty in a criminal appeal to the Court of Appeal is not to settle grounds of appeal unless they consider that the proposed appeal is properly arguable.[87] It is not the function of counsel to settle as many grounds of appeal as he or she can possibly think of regardless of whether they are realistically and properly arguable, as though the number of grounds is some sort of indicator of their ability or industry.  Not only does such an approach bring no credit to counsel in the eyes of the Court nor does it sensibly advance his client’s cause, but the practice is in danger of leading counsel to “lose sight of the wood for the trees” and obscure what might otherwise be a good ground of appeal.  That is precisely what has happened in this case.

108.The one ground on which this appeal was allowed (and one good ground was enough) lay undiscovered until the argument was well under way before this Court.  It is not difficult to see that it had become obscured by a morass of appeal points, some of which should never have been advanced and others which, as we have earlier observed, appear to have been adopted because it is the culture of certain appeal counsel to include them almost as a matter of course in grounds of appeal, regardless of their merits; by this we refer particularly to the grounds concerning the absence of a lies direction and the averment of an unfair and unbalanced summing up.

109.Appeal counsel are experts in their field and are expected to bring professionalism, realism and common sense to the performance of their duty.

Mr Ned Lai, SADPP, of the Department of Justice, for the respondent.

Mr Shahmim Khattak (Kelly Lam) and Mr Anthony Lai (13 March 2018), instructed by Boase, Cohen & Collins, assigned by Director of Legal Aid, for the applicant.