HKSAR v. Garcia Aristizabal Maria Alejandra

CACC 345/2019

[2020] HKCA 976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 345 OF 2019

(ON APPEAL FROM HCCC NO 110 OF 2019)

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J U D G M E N T

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Introduction

1.On 21 November 2019, following a trial before Deputy High Court Judge Woodcock (the judge) and a jury, the applicant was convicted of a single count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 25 November 2019, the applicant was sentenced to 8 years and 11 months’ imprisonment.  She now applies to appeal against her conviction only.

The count on the indictment

2.The particulars of the count on the indictment alleged that the applicant:

“… on the 4th day of April, 2018, at Flat A, 5th Floor, Wing Shing Building, Nos. 355-359 Queen’s Road West, Sai Ying Pun, in Hong Kong, together with TREJOS CALVO ALVARO DE JESUS, ARAGON PULGARIN DAVID SANTIAGO and CHAPARROCORREA ELKIN SHUDIAN, unlawfully trafficked in dangerous drugs, namely 120 grammes of a solid containing 84.41 grammes of cocaine, 0.75 grammes of 3, 4-methylenedioxymethamphetamine and 3.83 grammes of cannabis in herbal form.”

The case for the prosecution

3.It was the prosecution case that in the afternoon of 4 April 2018, a team of police officers mounted an operation to execute a search warrant on the flat particularised in the count.  The police observed a Columbian male coming out of the flat.  He was immediately stopped and searched.  The police found in his possession pellets of cocaine. 

4.The police then sought to enter the flat but no one opened the door.  A forced entry took place and the police found three men and the applicant inside the flat.  The applicant and two men were in the bathroom. One man was attempting to flush pellets of drugs down the toilet bowl while the other man and the applicant were in the shower cubicle tossing drugs out of a window.

5.A police officer, standing guard in the rear alley of the building, saw an outstretched arm from the shower window disposing of items that fell to the ground.  She recovered these items, which were three pellets wrapped in blue paper and four pellets wrapped in black paper, which contained a quantity of cocaine. 

6.When the flat was searched by the police, drugs were found in various locations, including those recovered from the toilet bowl and the rear alley of the building.  The police also found items for the purposes of packaging drugs and trafficking in them, such as a scale for weighing, and a quantity of small transparent resealable plastic bags.  A large quantity of cash, consisting of HK$62,000 and US$500, was also found in the flat.

7.The occupants of the flat were all Columbian nationals.  The prosecution alleged that the applicant together with the three males were jointly involved in the trafficking of dangerous drugs.  The dangerous drugs found on the male who had left the flat were dealt with separately against him. 

8.The applicant was tried alone.  It was an admitted fact at her trial that two of her co-accused had pleaded guilty to the offence of trafficking in dangerous drugs, whilst the third co-accused had yet to plead to the offence. 

The case for the defence

9.The applicant did not give evidence at the trial, nor did she call any witnesses on her behalf. The applicant’s video record of interview was not challenged and was adduced into evidence by way of admitted fact.  It was a mixed statement that was relied on by both the prosecution and the defence.  The applicant appeared to admit when explaining and demonstrating what happened that she had her arm stretched out of the window.  She admitted that she was in the bathroom but that she was pushed by the police which led her to put her arm out.[1] It was submitted a trial that what the applicant had said in her video record of interview did not amount to acknowledging she had her arm out of the window.

10.The defence case was that the defendant had no knowledge of the drugs, nor was she involved in the drug trafficking activity that was taking place in the flat.  She said she arrived in Hong Kong about two weeks prior to the offence from Columbia.  She rented a room in the flat at her boyfriend’s suggestion and they had only been there for two days.  She also accused the police of framing her and denied that she had assisted the others in disposing of the drugs out of the window.

The grounds of appeal

11.Mr David Boyton, who represents the applicant in her leave application, also represented her at trial.  He submits four grounds of appeal against the applicant’s conviction. 

Ground 1:  The failure by the judge to give a mixed statement direction

12.In the first ground he alleges that the judge erred in law and on the facts by declining and failing to give a mixed statement direction in relation to the applicant’s video record of interview.

13.The specimen direction for a mixed statement is set out in 40.1 of the Specimen Directions, which reads:

“The defendant’s statement to the police contains both incriminating parts and excuses/explanations. You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true - for why else would he have made them? You may feel that there is less weight to be attached to his excuses/explanations, for they were not made on oath, have not been repeated on oath, and have not been tested by cross-examination.”

14.Mr Boyton complains that the judge misdirected the jury by her following remarks: “The defence rely on the video-recorded interview as evidence of her reaction and explanation after arrest and caution.”[2] He relies on HKSAR v Wong Chi Wan, unrep., CACC 156/2005, 29 March 2006, to support his submission that the judge’s remarks were a material misdirection.  In that case. the applicant made a statement on arrest that was a mixed statement, which was described by the trial judge in his summing-up to the jury as not evidence of the truth but just his reaction. 

15.Stuart-Moore VP, giving the judgment of the Court, held that “the exculpatory element contained in the applicant’s reply was evidence of the truth of what was said, although it might not carry the same weight as the inculpatory part.  In telling the jury that it was not evidence of the truth, the judge was in error.”[3]

16.I am not persuaded there is any substance to this complaint.  Firstly, the judge’s comments in the present case cannot be equated with those made in Wong Chi Wan, and secondly the judge throughout her summing-up emphasised to the jury to treat the applicant’s out-of-court statements as evidence.

17.The applicant’s case was a denial of any knowledge of the drugs in the flat or of the drug trafficking activity taking place there.  She accused the police of framing her and lying about their account of her trying to dispose of the drugs by throwing them out from the shower window.  She relied on her explanation in her video record of interview that she was in the bathroom at the time the police raided the flat and that they pushed her which caused her to stretch out her hand.

18.The judge repeatedly reminded the jury of the applicant’s explanation in her video record of interview as to what took place and to take it into account in deciding the case.[4] This is amply illustrated by the judges following comments:

“ You must take what she said into account when deciding the issues of fact which you have to decide. It is for you to decide whether that explanation in the interview is true or whether it may be true. If the account given by the defendant in that interview is or may be true then the defendant must be acquitted. …”[5]

19.The judge also gave the applicant a good character direction as to both credibility and propensity.  She said in respect of credibility:

“… although the defendant has chosen not to give evidence before you, she did, as you know, give an explanation to the police in a video-recorded interview. In considering that explanation and what weight you should give to it, you should bear in mind that it was made by a person of good character and take that into account when deciding whether you believe her explanation.”[6]

20.The judge stressed to the jury that they should take into account and assess the applicant’s explanations, and without the usual qualifying remarks contained in the specimen direction that they may feel that less weight should be attached to explanations that have not been given on oath and have not been tested by cross-examination.  The effect of this meant that judge’s comments and treatment of the applicant’s explanations in her video record of interview were clearly to her advantage.

21.I do not consider that the applicant suffered any material disadvantage because of the failure of the judge to give this direction in the exact terms as provided, bearing in mind what was in issue and what the judge said throughout her summing-up to the jury about the applicant’s explanation in her video record of interview.  I am therefore of the view that this ground is not reasonably arguable.

Ground 2:  The failure by the judge to deal with a material inconsistency of the evidence

22.In the second ground of appeal, Mr Boyton complains that the judge failed to properly direct and highlight to the jury a material and significant conflict between PC 12686 (PW2) and PC 20836 (PW3), which cast doubt on the credibility and reliability of PW3 whose evidence was critical in proving the prosecution case.

23.PW3 testified that he subdued the male who attempted to flush the drugs down the toilet bowl, and handed him over to another police officer (PW2) to control.  PW3 observed the applicant and another male rush into the shower room and that the applicant had her hand stretched out of the window.

24.PW2 testified that he had followed PW3 to the toilet and took control of the male after PW3 had subdued him.  PW3 pulled the male outside the toilet and handed him over to PW2.  When PW2 was asked if he saw anyone else in the bathroom area he said: “I didn’t see anyone. I didn’t notice.”[7]

25.In his closing address to the jury, Mr Boyton highlighted amongst other things, what he described as a material inconsistency between the evidence of PW2 and PW3.  In my view, there was no material inconsistency as claimed, and in any event, even if there was such an inconsistency it did not affect the evidence of PW3 because he was supported by the defence case that the applicant was in the bathroom at the relevant time brushing her teeth.

26.Mr Boyton also complains that the judge’s following remarks were a misdirection which effectively endorsed the prosecution’s version of the events:

“ … PW3 tried to open the door but it was locked. His superior shouted out a warning but since there was no response from inside, his superior broke down the door with tools and rushed in. He immediately went right towards the bathroom. He said the door was closing. He pushed the door open and saw a man near the toilet bowl throwing something into the toilet bowl. Next to him was the defendant. I mean next to that man was the defendant and next to her was another man. The defendant was not behind him and, therefore, PW3 did not have to get past him and that other male flushing drugs away as suggested by Mr Boyton as being the scenario. That was not his evidence.

The first thing that PW3 did was to pull that man back throwing drugs into the toilet - - throwing drugs into the toilet and hand him to his colleague, PW2. He did describe how he pulled that man back in answer to my question when I gave him the opportunity to give a full explanation of what happened in the toilet - - the bathroom. You can imagine that the scenario must have been very chaotic and happened very quickly. He was trying to prevent drugs being flushed away. PW3 then rushed into the shower cubicle and he grabbed that second male. That was his evidence. He could see clearly that both that man and the defendant had one arm each stuck out of open windows. When he grabbed that male from his position he could see clearly that the defendant had her left arm stretched out of the window. When he pulled that male back, the defendant immediately turned around herself and raised both hands up in the air.”[8]

27.Before turning to address PW3’s evidence, the judge summarized PW2’s evidence and noted that when he took control of the male, who had been subdued by PW3, he did not notice anybody else inside the bathroom.[9] This aspect of PW3’s evidence was highlighted by the judge.

28.It should also be noted the judge reminded the jury to assess the credibility of the police witnesses[10] and take into account the inconsistencies or omissions in a witness’s evidence and whether the witnesses were fabricating their evidence.[11]

29.I am satisfied that the judge gave a fair summarization of the evidence of PW2 and PW3 and emphasised to the jury the defence contention that the police were lying about seeing the applicant discarding the drugs out of the shower window.

30.Mr Boyton further complains that the judge misdirected the jury by telling them “that unless evidence is challenged, there will be no discrepancy”.[12] The judge did not make such a statement.  What Mr Boyton relies on and what the judge actually said was:

“ None of PW1’s evidence was effectively challenged. I will say here that there is no discrepancy about what was said or shouted or heard before the flat door was rammed open. Mr Boyton did suggest this morning that there was a discrepancy because PW1 said the man shouted outside the flat, ‘Police,’ whereas PW2 said there was shouting inside the flat. Their evidence was not challenged on this point and as it stands the man outside the flat shouted first and then PW2 heard shouting inside the flat.”[13] (Emphasis added)

31.The basis of this complaint arises from the judge’s remarks about the cross-examination of PC 17374 (PW1).  When examined in context, the judge’s comments were not as claimed, and were entirely appropriate.[14]

32.I find that this ground when considered in its full and proper context is not reasonably arguable.

Grounds 3 and 4:  Alleging trafficking of the herbal cannabis and rejecting self-consumption

33.In the third ground of appeal, Mr Boyton complains about the judge’s following comments to the jury were wrong in law and on the facts:

“Mr Boyton has said that the herbal cannabis found inside the grinder and the pipe were clearly for self-consumption and, therefore, not for trafficking, which means the defendant cannot be convicted of this charge which includes that herbal cannabis. There is no evidence of self-consumption and that is his opinion.”[15]

34.Mr Boyton in his closing address to the jury said that the cannabis was for self-consumption but there was no evidence to support this proposition.  The applicant’s defence at trial was that she was unaware of the presence of the drugs in the flat, nor of the drug trafficking activity that was taking place there.  When Mr Boyton made his remarks the judge brought the matter to his attention and he agreed.[16] 

35.The fourth ground of appeal, is an alternative to the third ground.  Mr Boyton questions whether it was correct in law when preferring a single count of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134, to include residual dangerous drugs that may be found in any equipment for the consumption of a dangerous drug.

36.The definition of “trafficking” under section 2 of the Ordinance is very wide and includes “dealing in or with the dangerous drug”.  It was open to the jury based on the evidence to conclude that drug trafficking activities took place in the flat, including dealing in herbal cannabis, whether by packaging the drug for consumption or by providing it to others for consumption.  Furthermore, section 2(3) of the Ordinance provides:

“Any quantity of a dangerous drug shall be a dangerous drug for the purposes of this Ordinance notwithstanding that the quantity is insufficient to be measured or used.”[17]

37.There is no substance to these grounds of appeal.

Conclusion

38.For the reasons I have given, I am not persuaded that the grounds of appeal are reasonably arguable and accordingly leave is refused.

39.The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application. 

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

Mr David Boyton, instructed by Francis Kong & Co, assigned by the Director of Legal Aid, for the applicant

[1] See Appeal Bundle, 17J-N.

[2] Appeal Bundle, 21E.

[3] Wong Chi Wan, at [29].

[4] Appeal Bundle, 3B-H; 9P-10E; 12M-T; 18U-19G; 17B-N; 19G-M; and 20E-21G.

[5] Appeal Bundle, 9R-U.

[6] Appeal Bundle, 19J-M.

[7] Appeal Bundle, 118G.

[8] Appeal Bundle, 23A-O.

[9] Appeal Bundle, 22D-K.

[10] Appeal Bundle, 3H-P and 6A-P.

[11] Appeal Bundle, 7D-G.

[12] Applicant’s Written Submission, at [18]. 

[13] Appeal Bundle, 21T-22D.

[14] Appeal Bundle, 21T-U.

[15] Appeal Bundle, 16H-K.

[16] Appeal Bundle, 191S-T.

[17] Dangerous Drugs Ordinance, Cap 134, section 2(3).