HKSAR v. Perez Osorio Luis Fernando
Read the full judgment text of CACC 284/2016 on BabelCite. This Court of Appeal judgment was delivered on 4 September 2018.
1. The applicant was tried before Madam Justice Barnes (“the judge”) and a jury, of unlawfully trafficking in a dangerous drug, namely 1.07 kilogrammes of a powder containing 0.81 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 19 August 2016, he was acquitted of this charge but convicted, by the unanimous verdict of the jury, of the alternative charge of attempting to unlawfully traffic in the dangerous drug, contrary to the same section
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CACC 284/2016 [2018] HKCA 567 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 284 OF 2016 (ON APPEAL FROM HCCC 50/2016) ------------------------
------------------------ Before: Hon Macrae VP, McWalters JA and Pang JA in Court Dates of Hearing: 24 October 2017 and 18 May 2018 Date of Judgment: 4 September 2018 _________________ J U D G M E N T _________________ Hon McWalters JA (giving the Judgment of the court): 1.The applicant was tried before Madam Justice Barnes (“the judge”) and a jury, of unlawfully trafficking in a dangerous drug, namely 1.07 kilogrammes of a powder containing 0.81 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 19 August 2016, he was acquitted of this charge but convicted, by the unanimous verdict of the jury, of the alternative charge of attempting to unlawfully traffic in the dangerous drug, contrary to the same section and Ordinance, and section 159G of the Crimes Ordinance, Cap 200.[1] On the same day, the applicant was sentenced by the judge to 21 years’ imprisonment. 2.On 6 September 2016, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his conviction only. On 24 October 2017, the application for leave to appeal was adjourned by this court, differently constituted, to allow the applicant to obtain additional transcripts and documents relating to some of his grounds of appeal. 3.At the hearing of the application we reserved our judgment which we said we would hand down at a later date and this we now do. The prosecution case 4.On 17 April 2013, at around 4:05 pm an El Salvadorean male, Rodolfo Tobar (“Tobar”)[2] arrived at Hong Kong International Airport where he was stopped by Customs officers. He had flown from Honduras, via Panama City and Amsterdam, to Hong Kong. His suitcase was searched and the cocaine, the subject matter of the charge, consisting of nine packets, was found concealed inside the lining of the suitcase. Tobar was arrested and Customs officers found him to be in possession of a hotel booking for the Cosco Hotel in Kennedy Town, for 17 to 20 April 2013 inclusive. 5.Tobar agreed to cooperate with the Customs officers by taking part in a controlled delivery operation. He was arranged to stay in Room 239 of the Cosco Hotel with the officer-in-charge, Inspector Ho, to await the person to whom he should hand over the drugs. At the same time, other Customs officers would lie in ambush inside the adjacent room, namely Room 237. 6.It was an admitted fact that Tobar had in his possession a mobile phone containing a CSL SIM card with the number 68243911 and US$1,020 in cash. It was also an admitted fact that stored in the SIM card of the applicant’s mobile phone was the name “Laura” and the telephone number 61774380. 7.At around 7:45 pm on 17 April Customs officers took Tobar to the Cosco Hotel in Kennedy Town. Inspector Ho, the officer-in-charge, and some Customs officers took Tobar to Room 239 while other Customs officers stayed in the adjacent Room 237. Tobar could not speak English and all communication with him took place in the Spanish language. Inspector Ho did not speak Spanish but had a Spanish language interpreter with him. The Spanish interpreter was not called as a prosecution witness and nor was Tobar. Consequently, the evidence that the prosecution could adduce in respect of anything said by Tobar was very limited. 8.When the prosecution closed its case the applicant’s counsel, Mr Andrew Bullett, who also appeared on this application for leave to appeal, submitted that there was no case to answer. The failure of the judge to accede to this application is one of the applicant’s grounds of appeal. 9.Inspector Ho testified on how he communicated with Tobar and on the instruction he gave Tobar in the event someone came to the hotel room to collect the suitcase. His evidence was as follows:[3]
10.Nothing eventful occurred on the evening of 17 April or during the morning of 18 April 2013. However, about 1 pm on 18 April 2013, Inspector Ho checked the SIM card in Tobar’s mobile phone and saw in it a Hong Kong number in the name of “Laura”. He instructed Tobar to call “Laura” on the hotel room’s telephone. There were a number of telephone calls, all of which took place in Spanish. The person speaking to Tobar on the telephone, according to Inspector Ho, had a woman’s voice. 11.Around 4 pm the Customs officer who was the Spanish Interpreter was replaced by a civilian interpreter who also did not give evidence in the prosecution case. 12.At about 5 pm a call was received on the hotel room telephone and this was also a woman’s voice. Later another call was received by Tobar. 13.Shortly before 6:25 pm, Inspector Ho repeated the instruction he had previously given Tobar about handing over the suitcase only after confirming that the person coming to the hotel room was the person who was supposed to collect it. At about 6:25 pm, the applicant turned up outside Room 239, knocking on the door. The suitcase containing the cocaine was passed to Tobar and Inspector Ho concealed himself in a wardrobe behind the hotel room door. This wardrobe had a sliding door which Inspector Ho partially opened. Another Customs officer was standing near the bed with the interpreter and a third officer waited in the bathroom. 14.After partly opening the door and exchanging greetings with the applicant, Tobar, acting in accordance with instructions given by Inspector Ho, tried to hand the suitcase containing the cocaine to the applicant. Tobar and the applicant spoke to each other in a foreign language for about a minute. From his concealed position Inspector Ho saw the applicant touch the side of the extended handle of the suitcase[4] and start to enter the room. Inspector Ho’s evidence was as follows:[5]
15.Inspector Ho’s evidence, therefore, was that when the applicant was arrested he had stepped through the doorway entrance of the room and was standing in the entrance corridor, near to the suitcase. 16.In cross-examination Mr Bullett obtained from Inspector Ho his agreement that the longer the delay for a controlled delivery to take place the more suspicious the intended recipient of the drug was likely to be and that such a person could easily ascertain the actual time that a plane landed. 17.Hindered by the rule against hearsay, Mr Bullett was limited by what he could get Inspector Ho to say about the conversations he had with Tobar. Nevertheless, he was allowed to obtain from him evidence that as a result of the earlier telephone calls with the woman he, Inspector Ho, was under the impression a woman would come to take delivery of the suitcase, but that after the call at 5 pm he was under the impression that it would be a man who would come. He was also allowed to obtain from Inspector Ho evidence that Tobar never told him that when he had the telephone conversations, none of them were with a man who had said that it would be he who would be coming to collect the suitcase. 18.Mr Bullett also cross-examined Inspector Ho on what he observed from his concealed position inside the wardrobe. The transcript of this part of Inspector Ho’s evidence is as follows:[6]
19.It was an admitted fact that at the time of his arrest, the applicant was found to be in possession of HK$17,930.50 in cash and two mobile phones. In one of the mobile phone’s SIM card there was stored, under the name “Nata”, the telephone number 61774380, the same number stored in Tobar’s telephone under the name “Laura”. 20.An examination of the telephone records revealed that there were 14 telephone contacts between 61774380 (“the Laura/Nata number”) and the applicant’s telephone number 60211354. They started at 10:33 hours on 17 April 2013 with the Laura/Nata number calling the applicant. This was followed by two more calls at 11:14 and 11:15 hours. At 12:17 hours the applicant called the Laura/Nata number and he did the same again at 13:24 hours and 19:02 hours on 17 April and again at 7:07 hours on 18 April. The Laura/Nata number then called the applicant at 12:09 hours and the applicant called the Laura/Nata number at 13:14 hours. The Laura/Nata number called the applicant at 17:10 hours and 17:38 hours and the applicant returned call at 18:06 hours. The final call was from the Laura/Nata number to the applicant at 18:12 hours. None of the calls were particularly long in duration, being for no more than 2‑3 minutes and often less. 21.The call records also showed that the Laura/Nata telephone number called the Cosco hotel five times on 18 April, all between 17:02 and 18:59 hours, and two times on 19 April, between 00:48 and 01:00 hours. 22.The applicant’s telephone called the Cosco hotel twice on 18 April, at 17:48 and 18:19 hours. There is no record of any contact between the applicant’s two telephone numbers and the telephone number of Tobar. 23.A receptionist of the hotel said that at round 1345 hours on 18 April she received a call from a male who spoke in a foreign language and who could hardly speak English. In the course of their conversation the male suddenly handed over the telephone handset to a female who requested to be connected to Tobar’s room. After obtaining instructions from a Customs officer who was beside her to do so, she put the call through. 24.The cocaine had an estimated retail value of HK$1,094,610. The issue of the applicant’s character 25.Immediately after the jury was empanelled, on 12 August 2016, prosecuting counsel, Mr John Marray, who also appeared for the respondent on this application, sought to adduce the applicant’s immigration record into evidence to show that he had entered Hong Kong illegally. It was submitted that it was a relevant background circumstance which the jury could rely upon to draw the inference that the applicant entered Hong Kong to traffic in dangerous drugs. 26.This application was refused by the judge who ruled that the prejudicial effect of admitting his immigration record outweighed its probative value. In exchanges with counsel, the judge made it clear that in her view this evidence demonstrated that the applicant was not a person of good character and so she would not be giving a good character direction. She said it was sufficient to state as an admitted fact, which was done, that the applicant had a clear criminal record in Hong Kong and Colombia. The judge alerted counsel that it would be a matter for the applicant, if he chose to testify, whether to advance a claim that he was of “good character”. If he decided to do so then the judge indicated she would be sympathetic to allowing the prosecution to make use of his immigration record to challenge his claim that he was of “good character”. 27.Both Mr Marray and Mr Bullett, who appeared for the applicant at trial and on this application, agreed to the course proposed by the judge. Mr Bullett advised the judge of his position, saying:
28.Prior to counsel delivering their final speeches the judge discussed with counsel the directions she should include in her summing-up. She repeated her stance in respect of a good character direction, saying[7]:
Mr Bullett responded by simply saying:
The submission of no case to answer 29.At the close of the prosecution case, Mr Bullett submitted that there was no case to answer because the applicant’s presence at the hotel was equally consistent with the applicant being a person who went there on an innocent errand. If this was so then the evidence did not allow of an inference to be drawn that the applicant knew of the drugs and went to the hotel intending to collect them. Mr Bullett, therefore, asked the judge to direct the jury that they could neither draw an inference of knowledge of the drug, nor intent to collect the drug, by reason merely of the applicant’s presence at the hotel. 30.The following exchange took place between the judge and Mr Bullett[8]:
31.Without calling on Mr Marray, the judge ruled a case to answer. The defence case 32.The applicant elected to give evidence and called Tobar as his witness. 33.The applicant testified that he had gone to the hotel at the request of and as a favour to a sometime girlfriend, Natasha, who was unable to go there herself, to collect what he thought would be garments or similar merchandise. The several recent telephone contacts with her concerned this task and also the applicant’s efforts to find somewhere to stay temporarily after moving out from his girlfriend’s flat. 34.On arrival outside Room 239, the applicant said Tobar pushed the suitcase outside of the room and said “take it”. But the applicant did not want to take it because he thought that the merchandise he had agreed to collect for his friend Natasha should be a bigger package and he suspected Tobar had stolen the merchandise. 35.Tobar also gave evidence as a defence witness. He said he was given the suitcase containing the cocaine by a person in Tegucigalpa, Honduras. That person also gave him a Hong Kong SIM card which he was to insert in his telephone on his arrival. He was then to go to his hotel and await a call from a woman called Laura. This woman would take delivery of the drugs and pay him his reward. The reward was US$4,000 and Laura would pay him at least half, if not the whole of this amount. If she only paid him half this amount then he would receive the balance when he returned home. He was expecting Laura to pay him at least half the amount. 36.He said that because he was arrested he was prevented from using his telephone containing the SIM card that had Laura’s name and telephone number stored in it. But the next day the Customs officers checked all his things, found his telephone, noticed it contained a Hong Kong SIM card, saw the number for Laura in the SIM card and asked Tobar if he was willing to call this number. 37.When he did call Laura she was suspicious at the delay in him contacting her and he tried to allay her suspicions by saying that his flight had been delayed. There were three calls with Laura and in the end she said she would not come to pick up the suitcase but would send someone else to do so. She said this person would be a man and she said she would pay Tobar herself, the following day. 38.The Customs officers remained in the room awaiting the arrival of this man. They concealed themselves in various places in the room and instructed Tobar not to allow the man to enter the room but to pass over the suitcase to him at the doorway entrance of the room. 39.Subsequently, the applicant knocked on the door of the room at around 6:25 pm. Tobar said that he had tried to get the applicant to take the case when he opened the door, but the applicant did not want to do so. The applicant said: “I have to come in a minute because I cannot just collect the suitcase and leave. I need to go inside” and “let me enter the room and let’s talk”. So Tobar had to let the applicant inside the room even though Inspector Ho had instructed him not to do so. 40.In order to get the applicant’s fingerprints on the suitcase Tobar said he placed it in the applicant’s way in the entrance corridor of the room with the handle extended. The applicant’s left hand lifted the handle of the suitcase in order to turn it 90 degrees so that he could walk past it. At this time the Customs officers arrested him. In all his conversation with the applicant no mention was made by either of them of drugs or of a payment for Tobar. The Perfected Grounds of Appeal 41.Mr Bullett advanced seven grounds of appeal in support of the application for leave to appeal conviction. The first ground of appeal asserts that the judge erred in ruling that there was a case to answer. In support of this ground Mr Bullett submitted that the prosecution evidence was insufficient to link the applicant to the cocaine and the prosecution could not establish a prima facie case because the evidence of the applicant’s mere presence at the hotel room did not allow an adverse inference to be drawn that he attended the hotel room for the purpose of taking delivery of the suitcase knowing that it contained dangerous drugs. 42.The applicant’s second ground of appeal complains that the judge failed to properly direct the jury on the drawing of inferences and in particular, she failed to direct them that no adverse inference could be drawn from the applicant’s persistence in entering the room. 43.The third ground of appeal asserts the judge was wrong to have left the alternative charge of attempt to the jury and, even if she was right to do so, she failed to give proper directions on attempt when directing the jury on what constituted conduct that was ‘merely preparatory’. It is submittedthat the judge’s reference to an intervening event, namely being arrested, that stopped the applicant from taking possession of the suitcase, was unbalanced and prejudicial to the applicant. 44.The fourth ground of appeal asserts that the judge erred in ruling that no good character direction should be given in favour of the applicant. 45.The fifth ground of appeal complains of the judge’s failure to discharge the jury upon realizing that the Admitted Facts bore the case number in respect of the applicant’s first trial, thereby revealing to the jury that this was a retrial. 46.The sixth ground of appeal claims that as a result of what is asserted in the other grounds of appeal the judge’s summing-up was unbalanced. 47.The seventh ground of appeal argues that there is a lurking doubt in respect of the conviction. Discussion 48.We shall briefly deal with Grounds 3-5 of the Perfected Grounds of Appeal before dealing with the other grounds of appeal. Grounds 3-5 all have in common an attempt by Mr Bullett to argue on appeal a different stance from that adopted by him at trial. 49.On 17 August 2016, after the defence case was closed, and before counsel delivered their final speeches, Mr Bullett drew the judge’s attention to “one small point” in respect of the first Admitted Facts. This document contained the case number of the first trial in the title, thereby inadvertently revealing that the trial was in fact a re-trial. 50.The judge replied to Mr Bullett’s concern as follows[9]:
51.Then, Mr Bullett raised the possibility of the jury searching the Judiciary’s website for material in relation to the first trial. The judge’s response, which Mr Bullett accepted, was[10]:
52.Mr Bullett did not make an application to discharge the jury on the basis of this erroneous reference in the first Admitted Facts to the first trial. 53.There then followed another discussion on the issue of “attempt”, and it was agreed by counsel for both sides that this alternative verdict should be left to the jury and that the judge would give the usual direction on “attempt”. After obtaining Mr Marray’s affirmative view that attempt should be left to the jury as an alternative verdict, the judge turned to Mr Bullett and this prompted the following exchange[11]:
54.The judge also took the opportunity to repeat to counsel that she would not give a good character direction. The following exchange took place:[12]
55.All these decisions by Mr Bullett were considered decisions which he reached by employing his legal knowledge and exercising his professional judgment in what he then considered were the best interests of his client. Unless he can say that by adopting these positions he acted in a flagrantly incompetent way or he unwittingly led the judge into clear judicial error or the effect of his conduct was in some way to deprive the applicantof his right to a fair trial, then we do not see that he can now adopt a different stance before us. 56.Mr Bullett made it clear that he was not alleging that he was guilty of flagrant incompetence; merely that, on reflection, he made the wrong decision. In respect of Ground 5 this is a rather surprising admission given that the judge made her decision in respect of the good character issue at the beginning of the trial. Mr Bullett had ample opportunity to reflect on his decision and the fact that he failed to resile from it speaks volumes to the correctness of the judge’s ruling. 57.In respect of the third ground of appeal concerning the propriety of leaving attempt as a verdict, both parties referred to the Court of Appeal’s judgment in HKSAR v Mohammed Saleem[13]. In that case, the court held that, insofar as the actus reus is concerned, where there is no evidence that the appellant had possession of the drug, a charge of “attempt” should be left to the jury. At paragraphs 14-15 of that judgment, the court said:
58.In our view this was precisely the position in respect of this controlled delivery operation. The applicant was arrested prior to acquiring possession of the suitcase. It was the prosecution case that the applicant came to the room intending to take possession of the suitcase in the knowledge that it contained dangerous drugs but was arrested before he could do so. A verdict of attempt was clearly available on these facts and the judge was quite right to leave it to the jury. To suggest that the facts did not establish that the applicant’s conduct was not more than ‘merely preparatory’, is nonsensical. The applicant attended the hotel room, took steps to enter it and reached out to take hold of the suitcase containing the drugs. These facts easily meet the threshold for leaving an alternative verdict to the jury as laid down by the Court of Final Appeal in Ho Hoi Shing v HKSAR[14]. 59.Nor can we find any merit in the complaint that the judge’s comments were prejudicial to the applicant when directing the jury on the question of whether his conduct went beyond the merely preparatory. Her comments were legitimate common-sense observations on an issue that the jury had to determine. That this is so is readily apparent when the impugned direction by her is placed in the context of her overall comments. This is what the judge said:
60.It is the last paragraph quoted above on which Mr Bullett relies. But the judge’s reference to the arrest acting as an intervening event was an obvious comment to make in the circumstances of this case. Furthermore, it could not be disputed, and was not in fact disputed, that the arrest had this effect. The issue in this case was whether the applicant knew the suitcase contained drugs; not whether he went to the hotel intending to take delivery of the suitcase, which was admitted, and not whether he actually took delivery of the suitcase, which was conceded he did not. On these two matters, relevant to the actus reus of the attempt, the prosecution and defence were in agreement. There is no merit at all in the third ground of appeal. 61.In relation to Ground 4, we agree with Mr Marray that a judge has a wide discretion in deciding whether a good character direction should be given and in this case the judge had properly exercised her discretion. In this respect the comments by the Court of Final Appeal in Tang Siu Man v HKSAR (No 2)[16] are relevant. What is apparent from the majority judgment in Tang Siu Man, and subsequent cases, is that a trial judge has a wide margin of assessment when considering whether disreputable conduct of a defendant amounts to bad character so as to impact on the decision of the judge as to whether the defendant should receive the benefit of a good character direction. Once the judge has made that assessment the decision of whether to give a good character direction will be an exercise of judicial discretion by the judge. The ultimate issue is not whether a direction should have been given but whether its absence rendered the judge’s summing-up unbalanced and unfair. 62.It was not disputed by Mr Bullett before the judge that the applicant had entered Hong Kong illegally and that this fact deprived him of the status of a person of good character. Mr Bullett argues that as long as the disreputable conduct is not before the jury then the defendant remains a person of good character and is entitled to a good character direction. We do not agree. The cases do not say that at all. What they do say is that there has to be good reason for the judge to conclude that the defendant is not of good character and there is no doubt that good reason existed in respect of the applicant. That this good reason was not placed before the jury in order to protect the applicant’s right to a fair trial is neither here nor there in terms of how the judge should exercise her judicial discretion on this issue. In resolving this issue the judge acted with commendable common sense and fairness. There is no merit in the fourth ground of appeal. 63.The fifth ground of appeal complaining that the judge should have discharged the jury when she became aware the Admitted Facts contained the case number for the first trial, which could have alerted the jury to the fact this was a retrial, is unworthy of a counsel of Mr Bullett’s experience. The judge’s response, to which Mr Bullett agreed at the time, was a sensible one which balanced the interests of the applicant with the overall interests of justice. To suggest that the judge’s response may have in some way impacted adversely on the fairness of the applicant’s trial is, itself, nothing more than speculation. This is a ground of appeal which should never have been advanced. 64.We now turn to the first ground of appeal which asserts that the judge erred in ruling that the applicant had a case to answer. In addressing this ground of appeal it is necessary to bear in mind an important contextual element; namely that at this stage of the trial there was no evidence of the content of any of the telephone calls or of the content of the conversation between Tobar and the applicant. 65.In respect of the first ground of appeal. The only issue was whether the primary facts allowed the jury to draw the inference that the applicant knew the suitcase contained dangerous drugs. In the language of the Court of Appeal in Attorney General v Li Fook Shiu Ronald[17] “could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established?” Answering this question in respect of the element of the prosecution case of the applicant’s knowledge that the suitcase contained dangerous drugs requires an examination of the evidence as it stood at the close of the prosecution case. 66.The following list of facts are the primary facts from which the inference of knowledge could be drawn:
67.From these primary facts it could be inferred that:
68.There is nothing unusual about a drug trafficker sending an associate to take delivery of drugs from a courier and in these circumstances,like the present case, the issue is whether the associate knew of the presence of drugs in the suitcase. This is an issue that regularly arises in drug trials and which it is the duty of the jury to resolve. Is there anything about this case which distinguishes it from all these other drug cases which give rise to the same factual issue for resolution? 69.Mr Bullett submits that what distinguishes the present case from other cases of its kind is that here there was considerable delay between the time Tobar entered Hong Kong and the time he contacted the Laura/Nata woman. Mr Bullett argues that this fact, in conjunction with the fact that instead of coming herself to take delivery of the drugs she sent the applicant, may allow of the inference that the Laura/Nata woman may have suspected a trap and so may have sought to distance herself from the drugs. This in turn raises the question of whether, in these circumstances, she would have sent someone who was her associate in drug trafficking or would have sent an unwitting dupe, which was what the applicant claimed to be. 70.But the problem with this scenario painted by Mr Bullett is that at the end of the prosecution case there was simply no evidence to support it, other than the fact that Tobar may have been regarded by Laura/Nata as being very late in making contact with her. According to Tobar, the Laura/Nata woman was in fact suspicious of the delay and queried the reason for it. In order to allay her suspicions he explained to her that his plane was late, an explanation which could be readily revealed as a lie by checking the plane’s arrival time. However, this evidence of Tobar was not before the judge at the close of the prosecution case. 71.That being so, we are not persuaded that at the close of the prosecution case there existed an inference from the primary facts that the Laura/Nata woman was suspecting a trap and would have sent a dupe to take delivery of the suitcase. As the evidence stood at this stage of the trial, such a possibility was mere speculation. 72.On the primary facts that we have set out and the inferences available from them we are satisfied that a properly instructed jury could, may or might find that the only reasonable inference to be drawn from those facts was that the applicant knew that the suitcase contained dangerous drugs. That being so, the first ground of appeal fails. 73.The second ground of appeal complains of the judge’s directions on the drawing of inferences. 74.After explaining the nature of an inference and how it could be drawn the judge turned to the evidence on which the prosecution relied as primary facts. These primary facts were[18]:
75.Then, the judge turned to the defence’s arguments, namely, that there were other reasonable inferences to be drawn such as that the applicant was an innocent dupe caught up in doing a friend a favour. Another reasonably available inference was that since no one had contacted Tobar to collect the drugs on 17 April 2013 or the morning of 18 April 2013, the deal had been called off. In support of this inference, the judge, reminded the jury of Mr Bullett’s point that anyone could easily check the arrival time of Tobar’s flight and having done so would become suspicious at the delay in Tobar making contact. 76.No complaint is made about the judge’s directions on the legal principles relating to the drawing of inferences. Nor can we see any imbalance in the judge’s description of each party’s case on drawing the inference of knowledge. Each party’s case was fully and fairly laid before the jury. By referring to the primary facts on which each party relied the judge made it clear that the jury were entitled to have regard to all of these facts for the purpose of deciding what, if any, inference they could draw. In so doing the judge did tailor her directions to the evidence in the trial. 77.Complaint is also made that the judge wrongly allowed the jury to make use of the fact, as a primary fact for the purpose of drawing an inference of knowledge, that the applicant persisted in entering the hotel room. That he did so is not disputed and in fact it was his evidence that he wanted to enter the room and he explained why. The prosecution asked the jury to reject his explanation and act on the fact that he was intent on entering the room. 78.We do not agree with Mr Bullett that the jury should not have been permitted to act on this fact as a primary fact for drawing the inference of knowledge. The conduct of the applicant suggested that he was there to do more than just take the suitcase away. He had other things he wanted to do. They could have been to check the contents of the suitcase or to pay Tobar. If he had been an innocent dupe cruelly misused by the Laura/Nata woman, then the last thing she would have wanted him to do was to check the contents of the suitcase. She would have given him strict instructions to get the suitcase, leave immediately and bring it to her. To that extent his conduct in wanting to enter the room was inconsistent with the conduct of an innocent dupe and more consistent with that of a person who had knowledge of the contents of the suitcase. Conclusion 79.For these reasons we refuse the applicant leave to appeal his conviction.
Mr John Marray, counsel on fiat, and Mr Alan Chan SPP (Ag) of the Department of Justice, for the respondent Mr Andrew Bullett, instructed by Peter KH Wong & Co, assigned by DLA, for the applicant [1] The attempt offence was not pleaded in the indictment, which contained only one count pleading the substantive offence, but arose out of the evidence adduced at trial. By virtue of section 159G(1) of the Crimes Ordinance, Cap 200, a person may be convicted of an attempt to commit an offence with which he is charged even though he is not charged with the attempt. [2] Tobar was not called as a prosecution witness but did testify as a defence witness and was DW2 at trial. [3] Appeal Bundle, page 147B-I. [4] Notwithstanding that special tape had been placed on the handle of the suitcase to capture the fingerprints of anyone who touched it, no fingerprints of the applicant could be found on this tape. [5] Appeal Bundle, page 152P-154R. [6] Appeal Bundle, page 164E-167M. [7] Appeal Bundle, page102L-O. [8] Appeal Bundle, page 99A-O. [9] Appeal Bundle, page 101J-K. [10] Appeal Bundle, page 101N-O. [11] Appeal Bundle, page 102B-C. [12] Appeal Bundle, page 102K-S. [13] [2009] 1 HKLRD 369 [14] (2008) 11 HKCFAR 354 at paragraphs 12 – 15. [15] Appeal Bundle, page 54B-T. [16] (1997-98) 1 HKCFAR 107 [17] [1990] 1 HKC 1 at 13C-D [18] Appeal Bundle, pages 48Q-49Q. |
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