HKSAR v. Huang Ruifang

CACC 330/2018

[2021] HKCA 11

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 330 OF 2018

(ON APPEAL FROM HCCC NO 455 OF 2017)

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J U D G M E N T

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Introduction

1.On 6 November 2018, following a trial before Deputy High Court Judge Lugar-Mawson and a jury, the applicant was convicted by unanimous verdict of the jury of a single count of trafficking in a dangerous drug, namely 6,960 millilitres of a liquid containing 4,770 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The judge sentenced the applicant to 28 years and 4 months’ imprisonment. 

2.On 13 November 2018, the applicant filed a notice of application for leave to appeal against conviction and sentence.  By notice dated 3 July 2019, the applicant formally abandoned her application for leave to appeal against sentence.

The grounds of appeal 

3.In her application for leave to appeal against conviction, the applicant is represented by Mr Andrew Raffell.  Finalising the perfected grounds of appeal has been a long drawn out process.  Mr Raffell filed Perfected Grounds of Appeal dated 31 May 2019, consisting of four grounds, which can be briefly described as follows.  Ground 1: the judge wrongfully admitted into evidence, video film extracted from the applicant’s mobile telephone (it was accepted that the video film depicted the concealment of a dangerous drug in slippers); Ground 2: the prejudicial effect of the video film outweighed its probative value; Ground 3: the judge failed to direct the jury on the video film; and Ground 4: the judge wrongfully directed the jury that the testimony of Rosa Lau (DW2) was irrelevant.

4.Mr Raffell filed Amended Perfected Grounds of Appeal dated 24 September 2019 (Grounds 1 to 6), consisting of two additional grounds, which can be briefly described as follows.  Ground 5(i), (ii) and (iii): the applicant’s trial counsel, Mr Jeremy Cheung, was flagrantly incompetent; and Ground 6: the conviction was unsafe and unsatisfactory.  In support of Ground 5, the applicant filed an affirmation dated 20 September 2019, in which she stated:

“Issue of Admissibility

5. One of the important issues of the trial is the admissibility of a video and/or screenshot of a warning video about clients using couriers to smuggle drugs which was present of the applicant’s mobile phone. The exhibit number of the screenshot is P48 and P48A and the mobile phone P37.

6. I did give clear instructions to Mr Cheung and I would object to the admissibility of the said video and/or screenshot (‘the said Objection’) on the ground that the said video and/or screenshot was a ‘self-help’ video warning couriers from South America to China, which I was one of them, of the danger of using coffee [amended in a supplemental affirmation dated 18 October 2019 from ‘coffee’ to ‘slippers’] to disguise the presence of dangerous drugs and that the said video and/or screenshot had no probative value with regard to my knowledge of the dangerous drugs in my luggage and was highly prejudicial.

7. This is the subject of grounds 1 to 3 of the Perfected Grounds of Appeal.

Counsel’s Incompetence

8. All along, I maintained the said objection. Mr Cheung did raise the said objection during the course of the trial on 12^th October 2018.

9. However, Mr Cheung withdrew the said objection during the course of the trial on 15^th October 2018. This withdrawal had not been drawn to my attention at that time.

10. I was only drawn to the said withdrawal when the court told my current solicitors for the appeal.

11. Mr Cheung confirmed in his letter to my current counsel, Mr Andrew Raffell dated 14^th August 2019 that he should have insisted on the said objection and that he did not advise nor take instructions from me before the said withdrawal.”[1]

5.The applicant attached a copy of the letter from Mr Cheung addressed to Mr Raffell dated 14 August 2019.  In his letter, Mr Cheung stated:

“On reflection, I should have insisted on with the objection I raised in respect of the mobile phone message(s) (i.e. warning messages) for reason that at the end the prejudice arising therefrom is overwhelming.

I did not advise nor did I take instructions from Madam Huang in respect of my withdrawing the objection.”

6.This resulted in a response to Ground 5 from the trial solicitor, Mr Lam Kar Hang, who filed an affirmation dated 1 November 2019.[2] He produced a letter from Messrs Henry Lam & Associates, Solicitors, in which it was stated:

“Upon Counsel advice, the Applicant had given her written instruction relating the said Objection application on 15^th October 2018, of which is privilege information that required the Applicant’s unequivocal signed waiver of privilege to reveal such information, or if so required to do so by court.”

7.It would appear that contrary to Mr Cheung’s recollection, he had discussed the matter with the applicant and obtained her written instruction in respect of the objection.

8.On 8 October 2019, Mr Cheung filed a letter with the Court, copied to Mr Raffell, in which he explained that the letter he had written to Mr Raffell on 14 August 2019 was based on his recollection and asked for a copy of the audio recording of the proceedings at trial on 15 October 2018.  He also attached a copy of the defence notes of the proceedings before the judge when he formally withdrew his challenge to the admissibility of the WeChat messages.  It was recorded in the notes that Mr Cheung had given thought to the challenge of the WeChat messages and had taken instructions in relation to withdrawing his objection.  The WeChat messages included the video film of the use of slippers to smuggle drugs.  The applicant accepted that the video film was stored in her mobile telephone but it was the defence case that this was a warning video about clients using couriers to smuggle drugs.  It was also the defence case that the applicant was a professional smuggler but not in relation to dangerous drugs.

9.In a letter to the Court dated 11 November 2019, Mr Raffell stated:

“After several discussions with trial counsel, Mr. Jeremy Cheung, and having recently received the attached copy of a written instruction from the applicant to Mr. Cheung from the trial solicitors, the applicant will no longer rely on the ground that she had not given Mr. Cheung instructions to withdraw her objections to the warning video on her phone.”

10.Mr Raffell attached to his letter a handwritten statement in Chinese from the applicant dated 15 October.  At the hearing of this application, it was confirmed by Mr Raffell that the statement was in the applicant’s handwriting and signed by her.  This was the written instruction from the applicant dated 15 October 2018 (during the course of the applicant’s trial from 11 October to 2 November 2018) referred to by Mr Lam in his affirmation.  The English translation states:

“I, Huang Ruifang, authorize the counsel to withdraw, and give my consent to his withdrawal of the objection to the application concerning the shoes video and [the name ‘Rosa’ appears to have been written] WeChat messages.”

11.As a consequence of this development, Mr Raffell was directed to file Re-amended Perfected Grounds of Appeal by 28 November 2019. 

12.In an application dated 15 November 2019, Mr Raffell withdrew Ground 5(ii) from the Amended Perfected Grounds of Appeal on the basis that the applicant accepted the ground could no longer be reasonably argued.  This ground stated:

“5. Trial counsel acted with flagrant incompetence according to the CFA in HKSAR v Chong Ching Yuen, (2004) 7 HKCFAR 126, in the following three respects:

i) …

ii) He did so without giving advice to or obtaining instructions from the applicant. (See letter of Mr. Cheung, dated 14^th August 2019).

iii)   … .”

13.Mr Raffell filed Re-amended Perfected Grounds of Appeal dated 15 November 2019 (Grounds 1 to 6).

14.A further direction was issued to Mr Raffell to consider his grounds of appeal and whether he needed to make a further amendment in light of his application.

15.The leave application had been fixed for 3 December 2019, but on 25 November 2019 Mr Raffell applied to vacate the hearing because the applicant’s case required further investigation and consideration because of contradictory information from the defence team at trial and the need to further consider an issue at trial which he considered was important.  The application was granted, although Mr Raffell was reminded to comply with the decision of this Court in HKSAR v Apelete Kokou Afla [2019]HKCA 1320; [2019] 5 HKLRD 602, in which a new practice was laid down where flagrant incompetence of trial lawyers is advanced as a ground of appeal.

16.In the meantime, Mr Cheung filed an affidavit dated 14 July 2020, in which he stated:

“3. I was initially apprehensive of the Prosecution adducing a video clip which was amongst a series of WeChat messages the Applicant stored in her mobile phone. The WeChat messages spanned from 3 March to 8 April 2017.

4. The video clip show somebody breaking open a pair of slippers inside which were concealed with white powder. The video clip was sent to Daan Fan on 30 March 2017. The Applicant was then carrying slippers to Daan Fan from Brazil to China.

…

8. Hence, I raised my objection on 12 October 2018 in relation to the video clip inserted in the prosecution’s table. In my opinion, the video clip was prejudicial and had no probative value.

9. During the weekend i.e. 13 & 14 October 2018, I went through the entire WeChat messages again. I came to the view that it was an essential part of the case of the Applicant that the jury ought to see the entirety of the WeChat messages from 3 March to 8 April 2017. The point I was planning to make was that had the Applicant knowingly engaged in drug smuggling, she would not have left a clear evidence trail i.e. all the WeChat conversation.

10. Whilst the video clip together with some WeChats were being cherry-picked by the Prosecution, my tactical decision was to rely on the whole of the WeChats to show the whole picture.

11.   On 15 October 2018, I explained my tactical decision to the Applicant.  The Applicant was agreeable to the course I was going to take i.e. withdrawing the objection I raised on 12^th October 2018 in relation to the video clip.”

17.Mr Raffell filed Re-re-amended Perfected Grounds of Appeal dated 23 July 2020 (Grounds 1 to 7 – the flagrant incompetency allegation was expanded into two grounds, Grounds 5 and 6).  The new Ground 6 stated: 

“6. The trial counsel also failed to effectively bring to the jury’s attention that the video itself could be an indication of the lack of knowledge on the part of the Applicant. Trial counsel should have explained to the jury in clear and strong terms that:

i). The video should only be used as evidence of guilt if they were sure it indicted nothing other than guilty mind;

ii). Conversely, if the jury thought it possible that the video indicated a lack of knowledge, they should consider it as casting doubt on the issue of guilty knowledge on the part of the Applicant.

Trial counsel did avert to this but did so in a vague and inadequate manner (see transcript: to be confirmed).

6.1 These failures were compounded by the similar failure of the trial judge to direct the jury properly as to the evidential value of the video.  This was particularly so as the prosecutor had withdrawn his contention that the video was probative of guilt (See transcript: to be confirmed).”

18.Mr Raffell filed a document entitled Further re-amended Perfected Grounds of Appeal against conviction dated 23 August 2020, in which six grounds of appeal were listed.  He confirmed at the hearing of the application that this represented the final set of perfected grounds of appeal, which read:

“1. The trial judge wrongly admitted into evidence a short video film and/or a screenshot extracted from that video (Exhibits P48 and P48A) which was on the mobile phone (Exhibit P37) of the applicant. In short, it was a ‘self-help’ video warning couriers from South America to China, of which the applicant was one, of the dangers of their client using slippers to disguise the presence of dangerous drugs. In the context of this case, this video and screenshot had no probative value with regard to the applicant’s knowledge of the dangerous drugs in her luggage and was highly prejudicial.

2. Alternatively, if the said video and/or screenshot had any probative it was far outweighed by the prejudicial effect.

3. Further, the learned judge gave the jury no directions on how they were to consider and evaluate the said video and/or screenshot and what issues it went to. In particular he failed to direct them that they could only use it against the applicant if they were sure that it amounted to some evidence of guilt. Further, if they were to draw inferences from the contents of the video/screenshot and the fact that it was on the applicant’s phone, they could only draw inferences against the applicant if they were the only reasonable inferences which could be drawn. Further, the learned judge failed to direct the jury that the prosecution were no longer relying on this item as evidence of guilt (see Defence Counsel’s Final Submission Page 551 R/T). (See Bokhary PJ in HKSAR v Tang Kwok Wah [2002] 5 HKCFAR 209 at para 16 and set out in Specimen Direction 21.2).

4. The learned judge wrongly directed the jury that the testimony of a defence witness, (Rosa Lau DW2) was irrelevant. Such a direction removed from the jury an issue which was within their responsibility to consider. It is for the jury to consider issues of relevance and weight of all witnesses but, particularly as Mr Lau was called to testify about an exchange of voice messages between her and the applicant (Exhibit 52 and 52A). This was highly prejudicial to the defence case.

5. Trial counsel acted with flagrant incompetence according to the CFA in HKSAR v Chong Ching Yuen, (2004) 7 HKCFAR 126, in the following three respects (sic):

i). He withdrew his, valid, objections to the admissibility of the said video/stills mentioned in paras 1 and 2 above.

ii). He failed to raise the issue mentioned in para 3 with the trial judge after the completion of the directions to the jury.

6. In all the circumstances of the above there is a lurking doubt as to the safety and satisfactory nature of the conviction in this case. (Hong Kong Archbold 2019 Para. 7-82).”

19.After the filing of these grounds, on 14 October 2020, the leave application was re-fixed for hearing on 30 December 2020.

20.As the procedural history of this case indicates, it has taken nearly a year and a half for the grounds of appeal to be finalised, only to come full circle, resulting in grounds that are expressed in broad and general terms. 

21.I should add that the Skeleton Argument dated 29 September 2020 in support of the grounds was brief, and lacked reference to relevant transcript of the proceedings at trial.  A Supplemental Written Submission dated 5 January 2021 was filed at the request of this Court in order to address a letter from Mr Cheung to the Court dated 8 October 2019, which had not been included in the appeal bundle; the admission into evidence of the WeChat messages by the prosecution and defence and the applicant’s evidence in respect of the messages, which had also not been included in the appeal bundle; and the relevance of Rosa Lau’s evidence to any fact in issue. 

Application for an adjournment

22.Late in the afternoon on 29 December 2020, Mr Raffell submitted a letter to the Court, attaching a letter from Father John Wotherspoon of the same date, requesting an adjournment of the leave application fixed for the next day, 30 December 2020.  Mr Raffell stated that he needed to take instructions from Father Wotherspoon in relation to the matters he had raised in his letter.  Father Wotherspoon in his letter stated that he supported the applicant’s request for a hearing by the Court of Appeal and offered the following three points:

“1. Did Customs and Excise forward information provided by the Applicant, to the authorities in Sao Paulo to try to locate the woman ‘Ching Je’ whom the Applicant said recruited her to travel to China via Hong Kong?

2. At the Applicant’s trial, as far as I know, no mention was made of the fact that on my visit to Sao Paulo, Brazil in January 2018, I was able to verify that ‘Ching Je’ is a real person – through my visit to the location where ‘Ching Je’ is a regular Mahjong player and through my contact with the Applicant’s brother.

3. At the Applicant’s trial, I was not called to be a character witness for the Applicant, denying me the chance to point out that the Applicant has a relatively low IQ, can be communicated with only in the simplest terms, is the sort of person who can be easily deceived etc. (… unlike at the trial of another Mainland woman, Li Dan Dan, for whom I was a character witness and who was acquitted 7:0 on July 26, 2018).”

23.I regret to say that the last minute filing of Father Wotherspoon’s letter caused serious disruption to these proceedings.  It prompted Mr Raffell to apply for an adjournment on the basis that Father Wotherspoon had assessed the applicant as a person of “relatively low IQ” and therefore the applicant may not have had a fair trial.  The application was refused mainly because of the long history of this case and the nebulous basis on which an adjournment was requested.  First, the applicant’s level of intelligence has not been an issue that has been previously raised or the subject of concern, either by the lawyers acting for the applicant in this appeal or at trial, who have had direct dealings with her, albeit through an interpreter.  Secondly, Father Wotherspoon’s comment about the applicant’s level of intelligence was general and unsupported by expert opinion.  Furthermore, the applicant had participated in a video record of interview and gave evidence at trial, and at no time was any issue taken that the applicant did not understand or comprehend the matters that had been raised with her.

The evidence

24.It was not in dispute that the applicant was in possession of the nine cans, containing the dangerous drugs, and hence the issue at trial was whether the applicant knew there were dangerous drugs inside the cans.  The judge in his summing-up to the jury spent a considerable amount of time directing the jury’s attention to the applicant’s answers in her video recorded interview and to her evidence before them, which included the WeChat messages on her mobile telephone.

25.In the course of his summing-up, the judge reminded the jury that the applicant was not obliged to give or call evidence and did not have to prove her innocence.  He went on to state:

“However, she chose to give evidence that she chose to call a witness on her behalf. You must take what the defendant and her witness said into account when considering the issues of fact which you have to determine. It is for you to decide whether you believe the defendant’s evidence and that of a witness or whether it may be true. If the account given by the defendant and if the account given by her witness is or may be true, then the defendant must be acquitted.

Even if you entirely reject the account given by the defendant and the account given by Rosa Lui, her witness, that does not or would not relieve the prosecution of its burden of making you sure by evidence of the defendant’s guilt on the charge that she faces.”[3]

26.In the course of the evidence it was revealed that the applicant is a Chinese female holding a Chinese passport who at the time of the offence was 48 years of age and residing in Brazil.

27.On 6 April 2017, the applicant took a flight from Sao Paulo, Brazil to Johannesburg, South Africa.  She then took a further flight to Hong Kong, arriving at 12:25 pm on 8 April 2017.  She was stopped at customs clearance by Customs officers, who conducted an X-ray and baggage examination of two suitcases in her possession.  Upon request of Customs officers, the applicant provided a key to unlock the padlock on each suitcase.  Inside each suitcase they found a batch of dried seafood and boxes of chocolate together with coloured cylindrical cans.  An ion scanner test of the cans in one of the suitcases proved positive for cocaine.  A narcotic test using drug reagents of the liquid in one of the cans also proved positive for cocaine.  There were a total of nine cans which contained 6,960 millilitres of a liquid, containing 4,770 grammes of cocaine.  The estimated street value of the cocaine narcotic at the time of the offence was $3,830,310.[4]

28.The applicant was arrested and cautioned.  After the applicant had been taken into custody, she was briefly interviewed under caution.  She said she was carrying canned food and sea cucumbers for a friend and her destination was Guangzhou.  She explained she was to contact a “Mr Li” by telephone on 51580504, who would pick her up from the airport.  She would then hand over to him the baggage with the canned food and sea cucumbers.  She said this had been arranged by a friend in Brazil by the name of “Jing Jie”, whom she had known for 10 odd years.  She received $500 in Brazilian currency from “Jing Jie”.

29.The applicant participated in a video record of interview at 10:26 pm on 8 April 2017.  It was an admitted fact that the interview had been recorded accurately and that exhibit P57 was a table listing the WeChat text and voice messages shown and played to the applicant during the interview.  As noted by the judge, the messages in question were found on the applicant’s mobile telephone and were mirrored in the defence schedule of WeChat messages, which were produced as exhibit D6 (consisting of transcripts of all of the WeChat messages for the period from 3 March to 8 April 2017).

30.In her interview and evidence before the jury, the applicant said that she did not know that the cans contained a dangerous drug.  The applicant testified that she moved to Sao Paulo with her husband in 1996 and ran her own business selling artificial jewellery.  She divorced her husband because he was a drug addict and gave up her business in 2015.  She then worked in other people’s shops and sold MTR and phone cards for a friend, Rosa Lau.  She said that since March 2017 she had been engaged in smuggling fish maws and other seafood products to Hong Kong via South Africa before going on to China and smuggling counterfeit goods and other items back to Brazil.

31.The judge gave a very detailed overview of the applicant’s evidence, which included an extensive description of the WeChat messages.  It included the following remarks to the jury:

“I want to deal with one or two of the WeChats.  The first one relates to that little film clip you have seen which shows somebody breaking open a pair of slippers and it is the conversation the defendant had with the man called “Daan Fan”.  Now, we find the Daan Fan WeChats, they are very short and they are in Chinese transcript of page 63 and in the English translation a page 136.  Apart from the video, they are all text messages.

So we have the video sent to Daan Fan on 30 March, that is while the defendant is in China, at 11:26 am.  Then we have a text from her at 12:31 pm, “I am not referring to you, but there are always some people.”  Daan Fan replies, 9:43 pm is the timing, “This shows Brazilians wearing slippers to for drug-trafficking.”  And he continues, “But you guys do need to pay attention.  We won’t do this.  We do business in a disciplined way.”  And the defendant replies at 9:49 pm, again by text, “Only to remind each of us we both should be careful.”

She was questioned about this in cross-examination.  Mr Hui said, ““I’m not referring to you,” what do you mean?”  And again, I have it down as a record of some confusion in her answer, but she then replied, “I’m saying it to Daan Fan.”  Mr Hui said, “doing what?” She said, “to make use of shoes to traffic in dangerous drugs.”  Mr Hui said, ““There are always some people”, what did you mean?”  Her answer, “There were people doing this.”  He said in reply, “it was Brazilians trafficking in such a way.”  Mr Hui continued, ““Only to remind us both that we should be careful”, careful of what?”  And her answer was, “To be careful of people who traffic drugs in shoes.”

I asked her a question, “Why did you send that video?”  “Because I was carrying slippers for Daan Fan and it was to hint to him that we should be careful.  As couriers, we would circulate it amongst ourselves.  Most important of all, the goods were his.”  And Mr Hui asked her a question after I had asked questions, “Why did you need to hint to Daan Fan?” “Because someone sent me the clip and there was no need to ask him.”  Mr Hui, “So you did not confront him?”  “I know him.  I just sent it to him.  He subsequently told me that these type of shoes were worn by Brazilians, not Chinese.”  “Why did you need to hint?”  “How could I possibly ask him?  I had no proof.  I was still in China.  I wanted to find out what his response was.”

Mr Cheung asked her, “Did you receive the clip from Gigi?”  And referred you to a WeChat at page 53 in Chinese transcription, 125 in translation, and she said “Yes.”  Mr Cheung asked, “What did you do with it?”  And she said, “I sent it to my friends, to Dickie, to Rosa, to Jason and to Ah Sa.”  So that is what she had to say about the Daan Fan WeChat.”[5]

32.The judge returned to the subject of the WeChat messages and told the jury:

“I want to make the point that the WeChats show that the defendant was aware of the danger of smuggled goods containing concealed drugs. And you can see that at the WeChats, the text messages with Daan Fan, at the transcript, page 63 and page 136 in the translation.

These were sent to Daan Fan while the defendant was in China, away on the second journey, which was between 19 March to 1 April. And you can see that she received that clip showing the drugs in the slipper from a woman called Gigi. And you can find that in the WeChat at the transcript, page 52, page 125 in translation.

Then there are the points that Mr Cheung made in his closing address, both today and yesterday. He says the defendant relies on the whole of the WeChats to show the whole picture. And he asked you not just to cherry-pick these WeChats and rely on one or two. He asked you to look at them in the round, in the whole.”[6]

Discussion

33.In dealing with the five principal grounds of appeal, it is appropriate that I deal with Ground 5 first as it has a bearing on the other grounds.

Ground 5

34.Ground 5 complains that Mr Cheung was flagrantly incompetent by withdrawing his objection to the admissibility of the video film evidence and failed to raise with the judge how such evidence was to be considered and evaluated by the jury after the completion of his summing-up to the jury.  Mr Raffell’s submission in his Skeleton Argument in support of this ground stated as follows:

“6. Trial counsel has acknowledged in his letter dated 14 August 2019 that he made 2 mistakes with regard to the issues mentioned in paragraphs 1 to 4 above. That is he should have persisted in his objections to the telephone video evidence and that he should have obtained specific instructions to abandon those objections, and did not do so. It is clear from the transcript that he also failed to raise the issue of that evidence with the trial judge after the completion of his jury directions. Grounds 5 i) and 5 ii) might not amount to flagrant incompetence by themselves. It is submitted that taken together and combined with ground 5 iii) they do so amount. The errors of the judge mentioned above might have been averted if he had had full and continuing assistance from defence counsel from the stage of the ruling on admissibility to the failure to deal with the issues raised in his directions. He was given no such assistance.”

35.The first matter that needs to be noted is that Mr Cheung did obtain specific instructions from the applicant to withdraw the objection to the WeChat messages.  The withdrawal of the objection was formally done in court and in the presence of the applicant.  The decision to withdraw the objection and admit the WeChat messages into evidence as part of the defence case was obviously carefully considered by Mr Cheung, which he discussed with the applicant.  She agreed with the approach suggested by counsel and confirmed her position in a written instruction.  Significantly, the applicant later gave evidence in her defence and admitted into evidence the WeChat messages, in respect of which she was extensively examined by Mr Cheung.  It is difficult to understand how the applicant could have stated in her affirmation that all along she maintained her objection to the WeChat messages and the withdrawal of the objection had not been drawn to her attention.

36.The second matter is that Ground 5(ii) has been withdrawn, but Mr Raffell has not updated his Skeleton Argument to reflect this change of position.

37.The complaint that Mr Cheung failed to raise with the judge how such evidence was to be considered and evaluated by the jury after completion of his summing-up to the jury is without substance.  First, the judge summarised the evidence of the WeChat messages and referred to the defence case in relation to them.  Secondly, Mr Cheung extensively addressed this evidence in his closing address to the jury, which the judge reflected in his summing-up to the jury. 

38.In all the circumstances, the applicant was bound by the way the trial was conducted by counsel and it provides no basis for complaint if another counsel takes the view in hindsight that they would have approached the matter differently.  I see no basis for complaint, nor do I consider that the admission of this evidence resulted in the applicant receiving an unfair trial.  See HKSAR v Chong Ching Yuen (2004) 7 HKCFAR 126, at [6] and [49].

39.This Court has laid down a new practice where flagrant incompetence of trial lawyers is advanced as a ground of appeal.  It is imperative that this practice is fully and properly complied with (and) as soon as it is contemplated as a ground of appeal.  The haphazard and cavalier approach taken in addressing this ground in the present application, highlights the importance of this new practice.  In HKSAR v Apelete Kokou Afla, Macrae VP, giving the judgment of the Court, explained that any appellate counsel putting forward a ground of appeal alleging flagrant incompetence on the part of a legal representative at trial has a duty to satisfy himself that the ground is “properly arguable”.  He went on to state:

“In making that assessment, he will be required to look for independent and objective evidence to support the complaint and, in every case, unless there are in exceptional circumstances good and compelling reasons not to do so, make full and proper inquiries of the previous legal representatives at trial in relation to the complaint before articulating it as a ground of appeal. Simply sending the previous legal representatives a copy of the grounds of appeal and asking for comments will not suffice: specific questions must be formulated for comment. Counsel must then add an appropriate certificate in the grounds of appeal themselves that he has complied with this duty when relying on such a ground. Furthermore, a signed waiver of LPP from the applicant in respect of the legal representatives at trial, together with an affirmation in support of the claim, must be filed at the same time as the ground of appeal.”[7]

Grounds 1 and 2

40.Grounds 1 and 2 can be dealt with together.  Mr Raffell complains the judge wrongly admitted into evidence the video film and screenshot extracted from the video film which was on the mobile telephone of the applicant (the video film evidence).  This is a reference to the “slippers video”.  He contends the evidence had no probative value in relation to the applicant’s knowledge of the dangerous drugs in her luggage and was highly prejudicial.  In support of these two grounds, Mr Raffell’s submission is set out in his Skeleton Argument as follows:

“1. … It was a warning to couriers from South America to China of the use of slippers to disguise dangerous drugs, (cocaine), by drug traffickers posing as legitimate customers of couriers. Such evidence could only be of weak, marginal relevance at its highest. This would be far outweighed by the prejudicial effect of such evidence being presented to the jury by the prosecution.”

41.As already noted Mr Cheung initially objected to the admission of the WeChat messages, but after he thought about the matter he decided that it would be to the advantage of the applicant that the entirety of the messages be admitted into evidence.  It is even acknowledged by Mr Raffell in his written submission under Ground 3, in respect of the WeChat messages that “[t]here is a viable argument that this evidence could have warranted an inference favourable to the defendant.”

42.The significance of the WeChat messages and the presentation of them by the defence was mentioned by the judge in his summing up.  He said:

“I remind you that in his closing speech on Wednesday, yesterday, Mr Cheung accepted that the defendant had told lies in the video recorded interview, and he accepted that what she told Inspector Chan in the video recorded interview is inconsistent with what appears in the WeChat messages. He also made the point that it is the defendant herself who exposed the lies. Because it is an essential part of her case that you see the entirety of the WeChat messages from 3 March to 8 April 2017.

These WeChat messages, they are put in evidence by the defendant, not the prosecution and it is the defence legal team who was responsible for transcribing and translating them.”[8]

43.The judge went on to address the WeChat messages, as well as referring to the evidence of the applicant who was extensively examined by her counsel in relation to them.  The fact is that the applicant answered questions about the WeChat messages on her mobile telephone in her record of interview and gave evidence in relation to them at her trial when examined by her counsel.

44.It is clear that the defence relied on the WeChat messages to assert that the applicant, together with others, were warning each other to be careful when smuggling contraband so that it did not include dangerous drugs.

45.This ground fails as it was clearly part of the defence case to rely on the WeChat messages in their entirety.

Ground 3

46.Ground 3 complains the judge gave no directions to the jury on how they should consider and evaluate the video film evidence.  In support of this ground, Mr Raffell’s submission in his Skeleton Argument reads:

“2. Without assistance as to the possible evidential uses to which such evidence could be legitimately put by the jury they may well have been at a loss as to how to approach it. The likelihood is that they would regard it as, in some ill-defined respect, evidence of guilt to a greater or lesser degree. The situation depicted would very likely be outside of the everyday experience of jury members. Assistance and an explanation from the trial judge is imperative in such circumstances.

3. It is trite law that the jury can only draw an inference against a defendant if it is the only reasonable inference that can be drawn from a fact of which they are sure. No such direction on this matter of the video is given by the trial judge.

4. There is a viable argument that this evidence could have warranted an inference favourable to the defendant.  That he is that she was as careful as she reasonably could be to try to not be used to carry dangerous drugs into and/or through Hong Kong.  That the commodities she was carrying, a fish product and the tens of fruit juice containing the cocaine, were different to slippers but that that attitude of care would have applied to all commodities carried by the applicant.  She had had the slippers video sent to her a few months before her arrest because she had been delivering a consignment of slippers at that time.  She could not have inspected the 10 juice she was carrying and that she was an innocent carrier duped by the traffickers in South America.  No such direction was given by the learned trial judge.”

47.In oral submissions, Mr Raffell distilled his argument under this ground that the judge failed to direct the jury that if they found the defence case in respect of the WeChat messages was true or may be true then they should acquit the applicant.  The judge gave such a direction generally about the defence case.

48.Mr Cheung in his closing address to the jury took them to the WeChat messages in which certain warnings were given about smuggling goods by members of the chat site, including the applicant.  He also referred to the “slippers video” and said to the jury:

“… Of course, entirely a matter for you at the end of the day how much weight you will give to that clips. Is it a pointer of innocence or is it a pointer of my client is engaged in drug dealing or trafficking?”[9]

49.The judge gave the standard directions to the jury that they were the decider of the facts[10] and that they should only draw inferences from the facts proved, if it is the only reasonable inference to draw.[11]  He brought to the jury’s attention that the WeChat messages were put into evidence by the defence to ensure that they had all of them from 3 March to 8 April 2017 and that this was an essential part of the applicant’s case.[12]

50.He summarised the WeChat messages, including the ones between Ching Tse and the applicant[13] as well as the “slippers video.”[14]  He told the jury to examine the WeChat messages and decide their correct context.  At one stage, the judge when addressing the prosecution case said:

“ I want to make the point that the WeChats show that the defendant was aware of the danger of smuggled goods containing concealed drugs. And you can see that at the WeChats, the text messages with Daan Fan, at the transcript, page 63 and page 136 in the translation.

These were sent to Daan Fan while the defendant was in China, away on the second journey, which was between 19 March to 1 April. And you can see that she received that clip showing the drugs in the slipper from a woman called Gigi. And you can find that in the WeChat at the transcript, page 52, page 125 in translation.

Then there are the points that Mr Cheung made in his closing address, both today and yesterday. He says the defendant relies on the whole of the WeChats to show the whole picture. And he asks you not just to cherry-pick these WeChats and rely on one or two. He asked you to look at them in the round, in the whole.”[15]

51.The judge referred to the defence case throughout his summing-up, relevant references were:

“ I agree with Mr Cheung that a great part of the WeChats, particularly those with Ching Tse and Rosa, and with Dicky, concern fish maws; concern their quality and their weight and how to pack them.

I should make the point, however, the fact that there was conversation in the WeChats about fish maws and indeed that fish maws were concealed in the suitcases when the Customs examined on 8 April is not inconsistent with the defendant also being concerned in smuggling or bringing dangerous drugs into Hong Kong knowingly. She could have been dealing both in fish maws and in dangerous drugs. That is entirely a matter for you.

But what I must stress, and it is a point that Mr Cheung made, is that nowhere in the WeChats between the defendant and the woman, Ching Tse, is there any mention of drugs or anything that could be referable to drugs.

Mr Cheung made a very valid point that all the WeChat conversations were found on her mobile phone and none have been deleted or erased. He asked rhetorically had the defendant been knowingly engaged in drug smuggling, would she have left such a very clear evidence trail.

He points out to you that suspicion is not enough. And I agree with him on that.”[16]

52.An aspect of the defence case was that the “slippers video” was a warning video to couriers of the use of slippers to conceal dangerous drugs.  Whilst it has not been articulated in precise terms by Mr Raffell, it seems he is complaining the judge did not fairly or properly remind the jury of this aspect of the defence case.  It was somewhat difficult to assess this complaint as transcript of relevant evidence, particularly the applicant’s testimony, was not included in the appeal bundle. On this point, there may be a reasonable argument.

Ground 4

53.Ground 4 complains the judge wrongly directed the jury that the testimony of a defence witness, Rosa Lau (DW2) was irrelevant.  It is complained that the judge, by his direction, removed from the jury relevant evidence in considering the case against the applicant, particularly in respect of an exchange of messages between the applicant and DW2 that were stored on the applicant’s mobile telephone.  In respect of this ground, Mr Raffell complains in his Skeleton Argument:

“5. … The defence witness’s testimony may have been somewhat marginal. But it was adduced in answer to evidence of telephone messages between her and the applicant produced by the prosecution and might have raised some doubt(s) in the mind of the jury as to whether they were sure that the messages amounted to incriminating evidence against the applicant. Left to their own devices they might well have answered in the negative. It is not the situation here that this testimony was obviously and clearly irrelevant to an issue in the case and therefore a legitimate target for the judge’s comments.”

54.By way of background, the applicant in her record of interview stated that she was not in debt and did not owe money to Rosa Lau.  However, in her evidence the applicant said she owed $2000 to Rosa Lau in April 2017, although she did not consider this as a debt.  It became an issue as to whether she was experiencing financial difficulties at the time of the offence.

55.The judge summarised the evidence of DW2 to the jury.  He noted that she had testified about making a loan to the applicant which had been repaid by the applicant’s family and that the applicant was not a smuggler.  He questioned this evidence in light of the applicant’s evidence that she was a smuggler and that DW2 was aware that the applicant brought counterfeit goods back to Brazil.  He also noted that she was not present when Ching Tse gave the applicant the nine cans and the applicant packing the nine cans into her two suitcases at the Man Lee Hotel on 6 April 2017.  The judge explained that as she was not present at any of the relevant events in relation to the smuggling of the nine cans, therefore she could “say nothing” about what had happened.  It was at that stage, the judge said to the jury:

“Now, it is a matter for you, it is a matter Mr Hui addressed you on, you may consider that Rosa’s evidence is of little help, indeed you may even consider it to be irrelevant. It is an entirely a matter for you.”[17]

56.The judge also addressed DW2’s evidence in relation to certain WeChat messages, in which she was a participant, elsewhere in the summing-up.

Ground 6

57.Ground 6 is a general complaint that there is a lurking doubt as to whether the applicant’s conviction was safe and satisfactory.  It is based on the previous grounds of appeal which are without merit and therefore fails.

Conclusion

58.It follows from what I have said, that I am not satisfied that the grounds as advanced are reasonably arguable.  Leave to appeal against conviction in respect of those grounds is accordingly refused. However, through the maze of generalities and paucity of material, there appears to be a reasonable argument that the defence case in relation to the “slippers video” was not appropriately mentioned to the jury by the judge in his summing-up.  It was the defence case that the “slippers video” was a warning video that had been distributed amongst smugglers of contraband.  I have not had the benefit of considering the applicant’s evidence because it has not been included in the appeal bundle.  It will need to be included in order to address this ground of appeal which I consider to be reasonably arguable. It is only on this basis that I grant leave to the applicant to appeal against her conviction.

59.In relation to the grounds of appeal on which I have refused leave, 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 Prakash L Daryanani, SPP of the Department of Justice, for the respondent

Mr Andrew Raffell, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the applicant

Annexure A

Annexure B