HKSAR v. Pal Dharam

CACC 64/2018

[2019] HKCA 560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 64 OF 2018

(ON APPEAL FROM HCCC NO 73 OF 2017)

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REASONS FOR JUDGMENT

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

1.On 8 February 2018, the applicant was convicted after trial before Andrew Chan J (the judge) and a jury of trafficking in a dangerous drug, namely 5,823.80 grammes of a solid containing 4,550.90 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The judge sentenced the applicant to 27 years and 6 months’ imprisonment.

2.On 5 March 2018, the applicant filed a notice of application for leave to appeal against his conviction.  On 16 April 2019, he filed another notice of application for leave to appeal against sentence out of time which he formally abandoned on 14 May 2019.

3.At the conclusion of the hearing, we refused the applicant leave to appeal against his conviction and dismissed his appeal.  We said that we would hand down our reasons for our judgment in due course.  This we now do.

The admitted facts

4.The facts admitted at trial were that at about 6:39 am on 13 May 2016, the applicant arrived at Hong Kong International Airport on an Emirates Airlines flight from Delhi, India via Dubai, United Arab Emirates.  He was stopped by Customs officers for an examination of his baggage.  They searched a grey backpack that he was carrying and found inside another blue backpack which contained a Dubai Duty Free bag with four sealed packets of chocolates inside. A further examination of the packets of chocolates revealed that they contained some chocolates together with 360 pellets, inside of which were a total of 5,823.80 grammes of a solid containing 4,550.90 grammes of cocaine.  The street value of the cocaine at the time of the offence was approximately $6,179,000.

5.A short time later that morning at about 7:35 am, as a result of information and a photograph provided by the applicant to Customs officers, an Indian national, Taneja Tarun (“Taneja”), was intercepted by Customs officers at a taxi stand outside the airport, after he had boarded a taxi.  Inside the taxi was another Indian national, Sukwinder Singh (“Singh”), who was also intercepted by Customs officers. 

6.The records of the airline company revealed that the applicant and Taneja had travelled on sequentially numbered tickets on the same flights from Delhi to Hong Kong via Dubai on 12 May 2016, which had been issued on 10 May 2016 by the same travel agent and at the same time.

7.Neither the applicant nor Taneja had checked in any luggage during the journey, and the two men sat next to each other during the flights from Delhi to Hong Kong via Dubai. The boarding passes of the applicant for both flights were found in the possession of Taneja.  Both men also held a booking for a return journey to Delhi on 16 May 2016 on the same flight with Jet Airways. 

8.According to immigration movement records, both Taneja and the applicant had travelled twice to Hong Kong on 17 April 2016 and 23 April 2016 for 4 days on each occasion.

9.It was an admitted fact at trial that Taneja had been charged but the charge against him was withdrawn and he was released from custody, and that Singh had been released without charge.

The prosecution case

10.The prosecution case was that the applicant was a member of an international drug syndicate, who knew that dangerous drugs had been placed inside the packets of chocolates in his luggage and deliberately brought them into Hong Kong.

11.The prosecution relied on the applicant’s two video recorded interviews conducted on 14 May 2016, in which he said, amongst other things, that he had no savings and was running a small mobile telephone accessories business with limited income.  He said he visited Hong Kong and China once a year to buy mobile telephone accessories, which he would sell back in India, and yet he had been to Hong Kong on two occasions in the previous month of April.  The applicant’s financial position was that he was in debt and the income from his mobile telephone business was about US$18-$19 a day, which was barely enough to cover daily expenses for himself and his family.

The defence case

12.The defence case was that the four packets of chocolates were placed in the applicant’s backpack by his friend, Taneja, when they stopped over in Dubai.  Taneja had asked him to carry the chocolates to Hong Kong for Taneja’s friend, and as he trusted him he did as he asked.  He did not know that dangerous drugs had been placed inside the packets of chocolates and he had been deceived into making the delivery by Taneja, who was a member of an international drug syndicate.

13.Although the applicant elected not to give evidence, he relied on answers he gave during his interviews to support his defence that he did not know that dangerous drugs had been placed inside the packets of chocolates.

14.He also called a witness on his behalf, Admed Salman (who is also known as Big Michael).  He was an inmate at Lai Chi Kok Reception Centre at the same time as the applicant and Taneja.  He testified that Taneja had asked him to convince the applicant to plead guilty and admit to the charge, and not to implicate Taneja.  He said that Taneja also told him that he would give the applicant HK$500,000 and added that back in India for a lesser sum he could get the applicant’s family kidnapped.  He said that the applicant cried upon hearing Taneja’s message and said to him “How can I take this money?  I’ve got small children.”  He said the applicant added that he had a family and did not need the money.[1]

The judge’s summing-up

15.The judge in his summing-up to the jury gave a brief outline of the cases for the prosecution and the defence, before taking them to the evidence and discussing the respective cases in more detail.  He explained at the outset that there was no dispute the applicant had brought into Hong Kong the bag containing the packets of chocolates in which the drugs had been concealed, and therefore the critical issue for them was whether the prosecution had proved beyond reasonable doubt that he knew he was bringing dangerous drugs into Hong Kong.

16.He gave the standard directions to the jury in relation to their role and function and how they should approach and evaluate the evidence as well as the important instructions on the burden and standard of proof.  He noted that they should not speculate about the evidence and that they were to decide the case only on the evidence presented to them.  He also noted that what counsel had said in their closing speeches and what he said in his summing-up was not evidence and that they were not bound to accept what had been said.[2] He said to the jury:

“So you must decide this case on the evidence. There will be no more evidence. That’s all. So you must not speculate about evidence that might have or allowed yourself to be drawn into speculation. … So do not speculate.”[3]

17.He also reminded them that:

“You are expected to make use of your own experience in life when you make your decision about matters in this case, especially your experience of life here in Hong Kong. You are expected to use your common sense. Make sure you use your common sense.”[4]

18.The judge gave directions to the jury in relation to the applicant’s clear record in Hong Kong, and his two interviews under caution which were part of the evidence before them.  He explained to the jury that the applicant had a right to silence, and that they should not adversely regard the fact that he had elected not to give evidence, or to answer only some of the questions asked of him during the interviews.

19.The judge proceeded to summarise the prosecution case by going through the prosecution evidence.  He explained to the jury that there was no direct evidence to suggest that the applicant knew that dangerous drugs were concealed in the packets of chocolates in his backpack.  He then noted that the prosecution relied on the following factual matters which he referred to as headings. 

20.The first heading was that the total weight of the drugs was 5.8 kilogrammes which was “a very heavy load, even if they were chocolates.”  The second heading was that the cocaine in question was worth more than $6.1 million which was “a very valuable commodity.”  The third heading was that the low income of the applicant stood in contrast to his frequent travelling.  Under this third heading, he listed eight subheadings. 

21.The first subheading was that the applicant in his interviews stated that he was living with his grandmother, mother, wife and two children with very limited income and that he had a relatively large family to support.  He also said that he had no savings and that his home was only a little bigger than the interview room. 

22.The second subheading was that the applicant in his interview stated that he ran a small mobile telephone accessories business with limited income. He earned 1,000 rupees per day which was the equivalent of US$18-$19 per day. He said that he used all his income to pay for the expenses to support his family.

23.The third subheading was that he had a small debt of 50,000 to 60,000 rupees.

24.The fourth subheading was that he would need about 50,000 to 60,000 rupees to purchase mobile telephone accessories for one year. 

25.The fifth subheading was that he had very little money on him when he was arrested.  It was at this point that the judge said to the jury:

“Now, Mr McGowan made a suggestion that he had a Bank of China ATM card. He did have a Bank of China ATM card. That’s what Mr McGowan had told you. But on the other hand, Mr McNamara also told you that, fine, he had a bank card, but we have absolutely no idea how much was in the bank account. So there is no evidence as to how much he had in his bank account. You must not speculate. No evidence. No evidence …”[5]

After a break in the summing-up, the judge repeated the fifth subheading, but inadvertently referred to it as the sixth subheading. 

26.The seventh subheading was that the applicant had travelled with Taneja from Dubai to Hong Kong in April 2016.  At this point the judge emphasised to the jury that they should not speculate about whether any crime had been committed on the previous occasion for there was no allegation of any crime having been committed.  However, he noted that they were entitled to consider the frequency of the applicant’s trips to Hong Kong, as the prosecution were suggesting that if the applicant had come to Hong Kong in April to purchase accessories, he would not be coming again to Hong Kong a month later in May to purchase accessories again.  He went on to explain to the jury:

“The prosecution’s stance is that he cannot come in May and April -- in April and May -- because he only needed to come to Hong Kong once to purchase his entire year's stock. That’s what he said in his video interview. And also, members of the jury, you are entitled to consider the amount of accessories he purchased for a year and also you are entitled to consider the cost of the air ticket from Delhi via Dubai to Hong Kong. Now, of course, we don't have any purchase price. All right. But it is a five and half hour journey from Delhi to Hong Kong. On this occasion he was travelling on Emirates, not a budget airway, right? And you can actually look at the ticket. I think his return journey was Jet Airways. Jet, J-E-T. That's point No 7.”[6] (Emphasis added)

27.The italicised part of this passage is the subject of the ground of appeal, in relation to which it is complained that it contains an invitation by the judge to the jury to speculate on the cost of an air ticket from Delhi via Dubai to Hong Kong. 

28.The judge went on to deal with the eighth subheading which concerned the applicant’s refusal to disclose the identity of Taneja as his travelling companion in the April 2016 trip.  He noted that the applicant when asked this question in his interview said that he could not recall. 

29.The ninth subheading concerned the applicant’s answer in his interview, that when asked how much he had paid for his air ticket, he said that he would tell the judge.  However, the judge reminded the jury to consider whether the applicant was exercising his right of silence.

30.The judge concluded the summary of the prosecution case by noting that these were the facts which the prosecution submitted would enable the jury to come to the inference that the applicant was guilty of the offence.  He then noted the prosecution’s position about Taneja’s involvement, and that even though he may have organised the trip it did not make the applicant less involved in the offence.  He said:

“Now, you should be careful to distinguish between arriving at a conclusion based on reliable evidence and mere speculation. Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them. Neither the prosecution, the defence nor you should do that, so you can only draw an inference against the defendant, if that’s the only reasonable inference to be drawn from the proved facts.

Now, these are just some of the facts and circumstances, members of the jury. They are by no means exhaustive and binding on you in any way. So these are just views expressed by Mr McNamara or perhaps views expressed by me. If you are not with me or with Mr McNamara, don’t follow them, all right? If there are facts and circumstances that have not been mentioned and you think they are relevant, please consider these relevant facts and circumstances. It is your view that matters. It’s not his view or my view, right?”[7]

31.As he did with the prosecution case, the judge next summarised in detail the defence case.  We will not discuss the judge’s summary of the defence case to the same extent that we have of the summary he gave of the prosecution case because no issue was taken with what the judge said in this part of his summing-up. However, it is useful to briefly note the defence case as summarised by the judge to the jury. 

32.The judge explained that the defence case was that the applicant did not know there were drugs concealed in the packets of chocolates and that he had been tricked into carrying the drugs into Hong Kong by Taneja, who was a member of an international drug syndicate.  It was noted that in his interviews, the applicant had consistently told the Customs officers that the packets of chocolates had been given to him by Taneja.  He explained that Taneja was a trusted friend, and when Taneja asked him to carry the packets of chocolates, he was doing no more than a favour for his trusted friend.

33.The judge had previously noted that in cross-examination of the relevant Customs officers, Taneja as well as Singh, told lies to them and this was relied on by the defence to show that Taneja was the drug trafficker and that he had deceived the applicant.

34.The judge explained that the defence relied on the photographs found on Taneja’s mobile telephone, which he noted suggested that he was the mastermind behind the trafficking of the drugs and that there had been a number of telephone calls to the applicant. 

35.The judge also explained that as part of the defence closing address to them, it was submitted that each of the packets weighed 1.5 kilogrammes which was stated on the packaging and this was nothing out of the ordinary for the applicant to be suspicious about, and that the applicant did not behave suspiciously as depicted on the CCTV footage at the airport.

36.The judge concluded his summary of the defence case by describing in detail the evidence of Ahmed Salman, who testified about being approached by Taneja to convince the applicant to accept blame for the case.

37.At the conclusion of his summing-up, the judge asked counsel for the prosecution and the defence if they wish to raise any point about the summing-up but both declined[8].

The ground of appeal

38.The applicant advanced a single ground of appeal against conviction, in which he complained that the judge erred in his summing-up to the jury by inviting the jury to take into account matters not in evidence, and to speculate as to matters not in evidence, thereby rendering the conviction unsafe and unsatisfactory.

39.It was complained that the judge invited the jury to speculate when he told them that they could consider the cost of the air ticket from Delhi to Hong Kong via Dubai.  It was pointed out there was no evidence as to the cost of such an air ticket.

40.It was also complained that the judge told the jury not to speculate in relation to the Bank of China ATM card seized from the applicant, which might have been of benefit to the defence case.  It was submitted that this illustrated that there was an inconsistent approach by the judge when dealing with defence evidence and prosecution evidence.

The applicant’s submission

41.Ms Elizabeth Herbert, counsel for the applicant, mounted her submission on this ground on the fundamental principle that a summing-up must be fair and balanced, so that a jury can properly weigh up the true issues in the case. She submitted that a balanced summing-up was one that on objective consideration contains a fair statement and analysis of the case for both sides.

42.She acknowledged that the judge correctly directed the jury that they should not speculate and that they should distinguish between arriving at a conclusion based on reliable evidence from one based on mere speculation.  However, she argued that the judge invited the jury “to take into account and/or estimate and/or speculate” as to the cost of the applicant’s air ticket, which was not in evidence, when he told them that they were entitled to consider the cost of the air ticket from Delhi to Hong Kong via Dubai.

43.Ms Herbert submitted that by his comments, the judge was suggesting to the jury that the cost of ticket would have been significant given the length of the journey and the airline on which he travelled.  However, there was no evidence as to the price of the ticket and nothing to suggest that a ticket with Emirates Airlines would necessarily have been more expensive than one with a budget airline.  She also contended that the ticket could have been discounted because of the stopover at Dubai or because it was part of a special deal offer. 

44.She pointed out that based on the applicant’s answers in his interviews, his case was that he travelled to Hong Kong to purchase mobile telephone accessories for his small business, and the implication from the judge’s comments to the jury was that his defence was “unbelievable given the cost of the ticket.”  She submitted therefore that the judge’s comments went to the heart of the defence case and in all likelihood affected the jury’s verdict.

45.She further pointed out that in contrast to the way the judge addressed the matter of the cost of the air ticket, by inviting them to speculate that it would have been expensive, this was not done in relation to the Bank of China ATM card that was found in his possession at the time of his arrest.  The judge when addressing this matter told the jury that they should not speculate, and that there was no evidence as to how much was held in the bank account.  She submitted that this might have been a matter that would have benefited the defence case.

46.In view of the foregoing matters, Ms Herbert submitted that the judge’s summing-up was unbalanced, and because they were vital to the key issue in the case, the conviction was unsafe and unsatisfactory.

The respondent’s submission

47.Mr William Siu, for the respondent, took issue with the applicant’s complaint for the following reasons. 

48.First, the judge’s comments were under the seventh subheading when he was summarising the prosecution case. 

49.Secondly, even if the judge’s comments contained his own view of the evidence, it was a matter for the jury whether they did or did not take them into account.  He submitted that the comments could not be taken as an invitation to the jury to speculate. The judge had explained at the outset of the summing-up that the jury were the judges of facts and that it was for them alone to decide what evidence they should accept or reject.

50.Thirdly, the judge expressly reminded the jury that “we don’t have any purchase price” of the air ticket and it was a matter of common sense that an Emirates Airlines ticket from Delhi to Hong Kong via Dubai must have cost the applicant a certain amount of money.

51.Fourthly, soon after the judge made his comments he went on to remind the jury that they should not speculate and emphasised to them that they did not have to adopt what he had said unless they agreed with it. 

52.Fifthly, at the conclusion of the summing-up, defence counsel did not raise any objection to the contents.

53.Of the matter of the Bank of China ATM card, Mr Siu submitted that the judge treated the cases for the prosecution and defence equally when it came to reminding the jury not to speculate.  He pointed out, as an example, the applicant’s travel to Hong Kong in April 2016, in respect of which the judge stressed to the jury that there was no allegation against him about committing a crime at that time, and that they should not speculate. 

Discussion

54.The judge’s comments about the cost of the airline ticket from Delhi via Dubai to Hong Kong were made when the judge was summarising the prosecution case.  He was addressing the prosecution’s point that according to the applicant, he was a person of limited financial means who came to Hong Kong and China to buy mobile telephone accessories once a year, and yet prior to his trip in May 2016 he had already travelled to Hong Kong with Taneja twice in the previous month of April.  It was at this stage that the judge explained to the jury that they were entitled to consider the amount of accessories the applicant purchased for a year, and the cost of the airline ticket from Delhi via Dubai to Hong Kong, although he noted that there was no evidence as to the cost of the ticket.  He also noted that a journey from Delhi to Hong Kong would take 5½ hours and on this occasion the applicant had travelled on Emirates Airline and had a return ticket with Jet Airways.

55.These comments must be read in context.  They were made when the judge was summarising the prosecution case to the jury and in respect of the evidence of the applicant’s frequent overseas travel and limited financial means.  The prosecution submitted to the jury that the purpose of the applicant’s trip to Hong Kong was to bring the dangerous drugs here and not to purchase mobile telephone accessories as he claimed.    

56.In his interview, the applicant had stated, amongst other things, that he was a person of limited financial means, that he came to Hong Kong and China once a year to buy mobile telephone accessories, for which he would spend the equivalent of about 50,000 to 60,000 rupees, that a trip from Delhi to Hong Kong would take 5½ hours, and that he paid for his air ticket to Hong Kong.

57.Prosecuting counsel in his closing address to the jury noted the applicant’s background and financial circumstances and his recent trips abroad, namely two trips to Hong Kong and one trip to Jakarta in April 2016, and then one trip to Hong Kong in May 2016.  He said to the jury:

“How did he do that? The admitted facts indicate that the ticket on the May trip, the trip where he was arrested, was organised, was booked by Mr Taneja. Although, at counter 599, he says in his interview, he says, ‘Yes, Taneja booked the tickets, but I paid him for them.’ Then you go to what he says about his travel, in the light of that, what he says about his travelling arrangements. At 421, members of the jury, he says, ‘I would come sometimes.’ He was asked how many times he’d come to Hong Kong. He said, ‘I would come sometimes, but right now, I’ve come after one year.’ ”[9]

58.Prosecuting counsel went on to address the applicant’s answers in relation to recent trips to Hong Kong and that he would come once a year to buy enough accessories for the year when he made the trip.  He then said to the jury:

“Now, members of the jury, the situation is this, isn’t it? We’ve got a man who, for all intents and purposes, has no money. He lives from hand to mouth. He’s come to Hong Kong three times in the past month. We don’t know why he has come to Hong Kong, but being generous to him, I suppose, it can be said that the reason might have been to buy goods in China for his business. But, members of the jury, consider this in that context. All he had with him was a rucksack and some clothes. He didn’t have with him any container or case with which he could carry the goods, the 50,000 or 60,000 rupees worth of goods that he bought in China to last his business for a year. He didn’t have any money.”[10]

59.Prosecuting counsel then mentioned about the ATM card and noted that there was no evidence as to whether it gave him access to any cash but if it did it would be minimal bearing in mind his financial circumstances outlined in the interview and “not enough to buy tickets every two or three weeks in the last month to come to Hong Kong and back.”

60.It is clear that the judge’s comments when considered in context were no more than the summary of the points made by the prosecution.  As we have already pointed out, immediately thereafter he summarised the defence case. 

61.In our view, the judge was not inviting the jury to speculate about the cost of the airline ticket.  All he was doing was explaining to the jury that they were entitled to consider that the airline ticket would have incurred a cost to the applicant.  This was simply a matter of common sense.  The applicant had said in his interview that he paid for the airline ticket.  He nevertheless reminded the jury that there was no evidence as to the actual cost of the ticket, but the jury were still entitled to take into account, if they chose to do so, that the airline ticket would have incurred a cost to the applicant. 

62.The judge had reminded the jury at the outset of the summing-up that they were to assess and evaluate the evidence using their everyday experiences and common sense, and Ms Herbert takes no issue with these remarks.  In addition, he repeatedly reminded the jury not to speculate. 

63.Immediately after he had summarised the prosecution case, the judge warned the jury of the dangers of speculating and also stressed that it was a matter for them whether or not they accepted the views expressed by the prosecutor, or any by himself, during his discourse of the prosecution case. 

64.In our view, there was no different treatment by the judge when dealing with the Bank of China ATM card.  He rightly pointed out to the jury that there was no evidence as to the amount of money, if any, on the card and they should not speculate about it.  It was an admitted fact that when the applicant was arrested he was in possession of a Bank of China ATM card.  No other particulars were admitted about the card. 

65.It seems that Ms Herbert was not relying on this point as a matter that the jury should have been invited to consider but were prevented from doing so by the judge’s comments.  Instead, she submits that the judge did not address the issue of the cost of the airline ticket in the same way as the Bank of China ATM card.  We do not agree.  The question of the cost of the airline ticket was a matter of common sense, while the question of the amount on the Bank of China ATM card was speculative.

66.There is no substance to this ground of appeal.

Conclusion

67.For the reasons we have given, we refused the application for leave to appeal against conviction and we dismissed the appeal.

Observation

68.We do not know the reason for the withdrawal of the charge against Taneja but it strikes us as somewhat surprising in the light of the information that had been gathered and the further inquiries that could have been made by the authorities.  Even the judge commented that on the evidence presented at trial it appeared that Taneja was the mastermind.  We raise this matter because it is becoming apparent to us that the Customs and Excise Department is primarily focused on persons in possession of a dangerous drug, and few cases are coming before the courts involving the principal players or the organisers of the trafficking of the drug.

69.We feel that our observation as to the nature of the drug trafficking cases coming before the courts and the case of the withdrawal of the charge against Taneja should be further examined and appropriately addressed.

Mr William Siu, SPP, of the Department of Justice, for the respondent

Ms Elizabeth Herbert, instructed by Mohnani & Associates, assigned by the Director of Legal Aid, for the applicant