HKSAR v. Nguyen Anh Nga

CACC 205/2017

[2019] HKCA 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 205 OF 2017

(ON APPEAL FROM HCCC NO 95 OF 2017)

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Before: Hon Macrae VP, McWalters and Zervos JJA in Court

Date of Hearing: 8 January 2019

Date of Judgment: 8 January 2019

Date of Reasons for Judgment: 11 January 2019

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.On 27 June 2017, the applicant was convicted after trial, before Deputy High Court Judge Saw (the judge) and a jury, of a single count of trafficking in a dangerous drug, namely 3.03 kilogrammes of a crystalline solid, consisting entirely of methamphetamine hydrochloride, commonly known as Ice, and sentenced to 22 years’ imprisonment.

2.The applicant sought leave to appeal in person against her conviction.  At the hearing, we refused the applicant leave to appeal and dismissed the appeal, indicating that we would give reasons for our decision in due course.  These are our reasons.

Previous trials and appeals

3.This was the third time the applicant had been tried for the same offence.  She was first convicted after trial before Line J and a jury in 2011.  This conviction was set aside by the Court of Appeal because of the contents of a written handout given by the judge to the jury which were held to have affected the safety of the conviction: HKSAR v Nguyen Anh Nga [2012] 2 HKLRD 938.  A re-trial was ordered. 

4.The applicant was convicted after the re-trial in 2012 before Barnes J and a jury.  This conviction was also set aside, but this time by the Court of Final Appeal because the direction on inferential reasoning was not adequately linked to the context of the evidence and the rival arguments thereon: HKSAR v Nguyen Anh Nga (2017) 20 HKCFAR 149.  A further re-trial was ordered.

Prosecution case

5.At the second re-trial, much of the prosecution case was not in dispute.  It was agreed by admitted facts^[1] that in the early morning on 6 September 2010, the applicant arrived at Hong Kong International Airport on a flight from Nairobi, Kenya.  She was to take a connecting flight to Phnom Penh, Cambodia, at 08:55 hours the same morning.  A suitcase with a baggage tag in her name^[2] was inspected and found to contain the dangerous drugs in question. The street value of the drugs at the material time was HK$2,345,220. 

6.It was also agreed that the applicant’s fingerprints were not found on the packaging of the drugs, and that she had no criminal record in Hong Kong before her arrest.

7.The prosecution called four witnesses.  The first prosecution witness (PW1) was a passenger services officer who assisted the applicant with her connecting flight.[3]  She notified the second prosecution witness (PW2) for this purpose.   PW2’s responsibility was to retrieve and retag the applicant’s suitcase for the connecting flight to Cambodia.  PW2 took the suitcase to the red channel for customs clearance.[4]  The third prosecution witness (PW3) was the senior customs officer who examined and conducted a preliminary test on the suitcase.  The preliminary test gave a positive result for the possible presence of drugs inside the suitcase.  The applicant was not present when this took place.^[5] 

8.After the preliminary test, PW3 removed the contents of the suitcase and conducted an X-ray examination of it.  It revealed that a foreign object was located in the bottom of the suitcase.  The contents of the suitcase were placed back inside and arrangements were made for the applicant to be brought to where the suitcase was initially examined.^[6] 

9.When the applicant arrived, PW3 asked her whether the suitcase was hers.  She did not answer.  PW2, who was also present, pointed to the red baggage label and asked her if that was her name.  The applicant then nodded.^[7]

10.At about this time, the applicant began to cry, and then squatted down and attempted to open the suitcase, which was on the floor.  It was not clear precisely when the applicant began to cry,^[8] although PW3 said in cross-examination that it was after the red tag was pointed out to her.^[9]  The suitcase was taken back to the conveyor area and thoroughly examined in the presence of the applicant.  Having pushed back the lining of the suitcase and removed a white cover, PW3 found a bag containing the drugs in the corner of the lower panel of the suitcase.^[10]  He confirmed that he had to use some force when accessing the corner of the suitcase and that the bag containing the drugs was glued into the suitcase.[11]

11.PW3 also confirmed that he found in the applicant’s handbag a quantity of banknotes,^[12] and that the applicant did not speak English.[13]

12.The senior officer to PW3 was the fourth prosecution witness (PW4).  Later the same day, PW4 arrested the applicant and, with the assistance of an interpreter, made a record of the applicant’s immediate response to the allegation that she was trafficking in drugs.  Her response was that the nametag was hers but not the things kept inside the suitcase.[14]

13.PW4 later conducted a formal record of interview with the applicant.  She answered the initial questions put to her, but then declined to answer any further questions.  The answers she gave were to the effect that she thought that the suitcase contained US dollars and did not know there were drugs inside it.  She said that the suitcase belonged to her and that a South African, whom she did not know, asked her to take it to Cambodia.  In a hotel, she put her personal clothing in the suitcase and saw that there was already other clothing inside it.  She said that she knew nothing else as she closed the suitcase without looking at its contents.  When asked what knowledge she had of the methamphetamine drug wrapped inside the suitcase, she said that she did not know the drug.  She said that her younger sister operated a coffee shop in Vietnam, and it was there that she met her younger sister’s boyfriend, a South African by the name of Mai Ka, who asked her to take US dollars from South Africa to Cambodia.  She was to be given US$1,500 upon arrival in Cambodia as a reward.  She said she had a liver disease and needed the money for treatment.  She had only known her younger sister’s boyfriend for two months and was unable to contact him at the time of the interview.  When asked where the US dollars that she said she was bringing from South Africa to Cambodia were, she said the South African male told her that the US dollars were inside the suitcase, but she did not check.  She said that she did not see the US dollars, only clothing.  She reiterated that she was told the US dollars were placed inside the suitcase but she did not see them.  She did not know why there were no US dollars in the suitcase.  She then declined to answer any further questions.[15]

Defence case

14.The applicant neither gave evidence, nor called any witnesses on her behalf.  Her counsel submitted to the jury that there was insufficient evidential basis for them to conclude that the applicant knew there were drugs in the suitcase.  In particular, the following salient points were advanced in her defence:

(i) The applicant had explained to customs officers that she did not know there were drugs in the suitcase,[16] and that she only thought she was smuggling US dollars.[17]

(ii) Since she was only a courier and not well educated, it was not  unreasonable that she did not inspect the suitcase to find out that there were drugs inside.[18]

(iii) There were other reasons why she cried than that she knew there were drugs inside the suitcase, as she had missed or was about to miss her flight, she was trapped in a foreign place, unable to speak English or Cantonese, and she was brought to the red channel by customs officers when she thought she was smuggling US dollars.[19]

Summing-up

15.In his summing-up to the jury, the judge identified the main issue in the case as “whether the prosecution can prove that the defendant knowingly brought those dangerous drugs into Hong Kong… that she knew there were dangerous drugs in that suitcase when she brought it with her on her flight from Nairobi”.[20] This was repeated to the jury when he explained the elements of the offence of trafficking in a dangerous drug.[21]

16.He directed the jury on the burden and standard of proof.  He reminded them that the applicant did not have to prove her innocence or give evidence,[22] and that she did not have to answer the further questions of the customs officers when interviewed.[23]  In fact, he rebuked prosecuting counsel for having commented in his closing address to the jury about the applicant’s failure to answer any further questions.  He reminded the jury that the applicant was fully entitled to do so, as she was exercising her right of silence.[24]

17.He gave the jury the standard direction in relation to the answers given by the applicant in her record of interview.[25] He stressed to them that even if they rejected the explanations or the defence of the applicant, it did not mean that she was guilty of the offence because they still had to consider whether the evidence as a whole proved that she knew she was bringing drugs into Hong Kong.[26]

18.He noted that there was no direct evidence that the applicant knew there were drugs in the suitcase.[27]  He explained to the jury the difference between direct and circumstantial evidence.[28]  He further explained to them that the prosecution case was based on circumstantial evidence, namely that she was entrusted with a large and valuable quantity of drugs and would know what she was transporting, that she had the opportunity when she was packing the suitcase to inspect inside it to see what was there, and that when she was first challenged about whether or not the suitcase was hers, she reacted by crying.[29]

19.He explained to the jury the process of drawing an inference from the evidence accepted by them, stressing that no inference adverse to the applicant should be drawn unless it was the only reasonable inference.[30]

20.He noted the basis on which the prosecution submitted that the only reasonable inference to be drawn was that the applicant knew that there were drugs in the suitcase,[31] including her reaction when she was asked about the suitcase.[32] He also noted the defence submission that the inference suggested by the prosecution was not the only reasonable inference in the circumstances, and that other equally available inferences were that she was distressed because she missed her connecting flight (being a foreigner and unable to speak English or Cantonese) and that she believed she was smuggling US dollars.[33]

21.He also directed the jury on the applicant’s good character.  He told them to bear in mind her good character when considering what she said to the customs officers, and that being a person of good character might mean that she was less likely to commit the offence.[34]

22.Having summarised the evidence, the judge, in his final remarks to the jury, gave an overview of the respective cases of the prosecution and the defence, emphasising to them that they should focus on all the evidence that they were satisfied was reliable in order to determine whether the prosecution had proved that the applicant knew there were drugs in the suitcase.[35]

Applicant’s submission

23.In her notice of application to appeal against conviction, the applicant merely complained that she did not agree with her conviction.  No perfected grounds were filed by her, nor had she submitted any written submission to the Court.

Respondent’s submission

24.Mr. Andy Lo, for the respondent, submitted that the judge correctly summarised the evidence, and properly gave the standard directions to the jury.  He further submitted that the judge correctly directed the jury on the elements of the offence and the key issues for them to consider. 

25.He noted that the judge comprehensively dealt with the subject of circumstantial evidence and the drawing of inferences in his summing-up to the jury.  He cited HKSAR v Nguyen Anh Nga (2017) 20 HKCFAR 149 and HKSAR v Lee Cheuk Hei [2017] 5 HKLRD 483, and submitted that the judge appropriately gave a special direction on inferential reasoning, set in the context of the evidence and the competing arguments on this issue.  He pointed out that the judge also highlighted matters favourable to the defence, such as the applicant’s good character and the exculpatory explanations as suggested by the defence.[36]  He further pointed out that the judge reminded the jury not to draw adverse inferences which might impeach the applicant’s right of silence, and not to consider submissions or suggestions unsupported by evidence.[37]

26.He submitted that the judge had fairly summed up the evidence and arguments on the key issue of whether the applicant had knowledge of the drugs in the suitcase.

Consideration

27.We turn now to consider the conduct of the proceedings at trial and the summing-up to the jury.

28.There was no dispute that the applicant arrived in Hong Kong on 6 September 2010 with an accompanying suitcase that contained the dangerous drugs in question.  The issue for the jury, which was emphasised throughout the proceedings and in the summing-up, was whether the applicant knew that there were dangerous drugs in the suitcase when she brought it into Hong Kong.

29.As a result of the age of the case, the judge told the jury not to be concerned about the time taken for the case to come before them.  He then went on to explain the burden and standard of proof to the jury, emphasising that upon a consideration of the whole of the evidence they had to be satisfied beyond reasonable doubt of the applicant’s guilt.  Having noted that the applicant had not given evidence or presented evidence, he stressed that she was under no obligation to do so, and that she did not have to prove her innocence for the burden rested with the prosecution to prove her guilt beyond reasonable doubt.

Prosecuting counsel’s comments

30.The judge properly stressed to the jury the applicant’s right of silence, namely her entitlement not to answer questions put to her by the customs officers.  It is in relation to this subject that the judge had to address comments made by prosecuting counsel in his closing address to the jury.

31.We carefully examined and considered this matter to ensure that no miscarriage of justice had taken place.  Prosecuting counsel in his closing address had said:

“There came a time, members of the jury, if you care to look at it, you will see in answer number 17 at the back of the record of the interview where she said, “In relation to the question” - - well, the observation that only the drugs were found, no money. I do not know why and do not want to answer further questions.” And let me make it clear, lest I am being accused of being unfair, and that she had every right either not to answer any questions or, at any stage, to say “I don’t want to answer any more questions.” She had that right. And I don’t want to criticise her for exercising that right.

But on the other hand, one can surely say that, if it cannot be said she gave an absolutely full, frank answer to every single question she was asked.  She was asked a series of questions, she answered.  And then there came a time when she didn’t want to answer any more.  And it may well have been many other questions that the Customs officer Ng would have wished to have - - to ask her.  We couldn’t possibly ask him, “What did you intend to ask her?”  That wouldn’t be relevant, wouldn’t be proper to even ask him.  But the fact is that there came a time when she wouldn’t answer any more questions.

So therefore, what she says about these events is fairly limited, you may think.”[38]

32.It was clear to us that prosecuting counsel did the very thing that he said he would not do, namely he criticised the applicant for exercising her right of silence.  The judge was right to rebuke prosecuting counsel for his comments in his summing-up to the jury.  He said:

“Now, Mr Laskey suggested to you, in the course of his closing speech, that the defendant, when answering the questions of the customs officer, refused at a certain point in time to answer any further questions, and that by reason of that, she has not given you a full account of the circumstances known to her.

Now, with respect to Mr Laskey, that is an entirely improper assertion to make. This accused, like any other accused, is entitled to remain silent or indeed to answer any question they choose fit to answer, and at any point in time, to elect not to answer any more questions. She is doing no more than exercising her right to not answer questions. And if you turn, in due course, to the interview pages, you will see that she was told, in clear and unambiguous terms, that she is not required to answer any questions, and if she does answer any questions, they will be taken down in writing, and might be used in evidence. So the exercise of that right by her cannot and should not be in any way taken by you as any indication on her part of guilt. She is doing no more than exercising her right to silence.”[39]

33.A little later on the judge returned to the subject when addressing the contents of the record of interview:

“Now, that document records, as I have indicated earlier, the answers given by the defendant to the questions asked of her by the customs officer, and you will recall my observations that the fact that she declined, towards the end of that, to answer any further questions is nothing more than her exercising her right to do so and that should not, ladies and gentlemen, be held in any way against her by you. That is her prerogative, and you must not, under any circumstances, consider that her exercising her right should be something indicating guilt.”[40]

34.Although we did not consider this comment by prosecuting counsel to be proper, we were satisfied that the judge appropriately dealt with it by his directions to the jury. Prosecuting counsel was in effect inviting the jury to form an adverse inference against the applicant because she failed to answer further questions, when all she was doing was exercising her right of silence, which she had been told she could do at the outset of the interview.  See Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 and also HKSAR v Lam Sze Nga (2006) 9 HKCFAR 190; HKSAR v Lam Sze Nga [2007] 2 HKLRD 75, and HKSAR v Wong Chuck Pan, FAMC 17/2018, [2018] HKCFA 54.

35.We can only stress that counsel in their closing addresses to the jury must be very careful about what they say to them and not offend the basic tenets of trial advocacy, or more particularly, the fundamental principles of fairness, especially when acting as prosecuting counsel where his or her sole purpose in a criminal trial is to perform the very important function of a minister of justice.  See the Prosecution Code, 2013, paragraphs 3.1-3.16.  See also Randall v The Queen [2002] 1 WLR 2237 and 2241G – 2242A.

Direction on inferential reasoning

36.As already noted, the Court of Final Appeal gave judgment in relation to this case on the need for a special direction on inferential reasoning.  The Court of Final Appeal emphasised that there may be exceptional circumstances in which it may be desirable or even necessary to give the jury a special direction on the drawing of inferences, and that this should be specifically set in the context of the evidence and the arguments on this issue. 

37.The judge in this instance had this matter firmly in mind.  He repeatedly reminded the jury to consider the evidence as a whole and not to draw an inference from the proven facts unless it was the only reasonable inference.[41] He then addressed the direction on inferential reasoning specifically in the context of the evidence and the competing arguments submitted by the parties on this issue.  He noted that the prosecution was inviting the jury to draw the only reasonable inference that the applicant knew there were drugs in the suitcase by her reaction when asked about the suitcase.[42]  However, the defence disagreed, putting that there were at least two other equally reasonable inferences that could be drawn from the fact that she was crying at that point in time.  The first was that because she could not speak English or Cantonese and had missed her connecting flight to Cambodia, she became distressed.  The second was that she believed that she was in possession of US dollars that she was smuggling into Cambodia.[43]  He concluded:

“If you considered that these alternative inferences were equally open on the facts, then of course, if they are equally open on the facts, then the inference of guilty knowledge in respect of dangerous drugs could not properly be drawn by you. It is only possible for you to properly draw that inference if you can properly exclude the other two inferences. This is a matter for you, members of the jury, when you come to evaluate the evidence, and you will have to determine whether, in the circumstances, the inference of knowledge on the part of the accused as to the contents of that suitcase is sufficiently powerful and is indeed the only one that you could draw.”[44]

38.We were satisfied that the judge properly addressed the issue of inferential reasoning in conformity with the requirements as set out by the Court of Final Appeal in this case and directed them in terms which could not have left the jury in any doubt that they could not infer that the applicant knew there were drugs in the suitcase unless it was the only reasonable inference to draw from the proven facts.

Applicant’s admission

39.At the hearing, the applicant complained about the circumstances in which one of her answers was given in the record of the interview.  She said that when she answered that the suitcase belonged to her, the interpreter told her that she could explain later about the South African man giving her the suitcase, but for now she had to admit that the suitcase belonged to her.  She said that as a result of this answer, the judge told the jury that if the suitcase did not belong to her, why did she say it did.  She seemed to indicate by this complaint that the judge gave an adverse impression of her to the jury from an answer that was obtained from her improperly.

40.In response, Mr Lo pointed out that there was no challenge to the voluntariness of the record of interview, nor was it suggested that the applicant’s answers were obtained or given as a result of any improper conduct.

41.We note that the judge in his summing-up gave the standard direction to the jury in relation to a mixed statement, telling them that they had to consider both the inculpatory and exculpatory answers.  He said that these were matters they had to consider when evaluating the whole of the evidence and that it was important that they determine what evidence they accepted, or did not accept.  He explained in some detail how they should approach the incriminating answers and the explanations by the applicant.  It was at this stage that he said to them that they might take the view that the incriminating answers were more likely to be true, giving as an example the applicant’s statements that it was her suitcase, and her nametag.[45] He added:

“That is an admission against her interest, and why should she say that, something that is contrary to her interest, something in favour of the prosecution.”[46]

The judge then went on to explain to the jury how they should approach the applicant’s explanations.

42.We point out that no issue was taken at trial about the applicant’s admission that the suitcase belonged to her.  The issue at trial was whether she knew there were drugs in the suitcase.  Her defence was all along that she believed that the suitcase contained US banknotes that she was to smuggle into Cambodia.  We find no substance in this complaint.

A fair and balanced summing-up

43.The judge fairly summarised the cases for the prosecution and the defence and focused the jury’s attention on the relevant issues of the case.  He gave a fair and balanced summing-up to the jury.

44.We were unable to detect any error or mistake that would render the conviction unsafe or unsatisfactory.

Conclusion

45.For the above reasons, we refused the application for leave to appeal against conviction and dismissed the appeal.

Mr Andy Lo, PP of the Department of Justice, for the respondent

The applicant appeared in person