Case Document

100%Judiciary

CACC 196/2020

[2022] HKCA 1518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 196 OF 2020

(ON APPEAL FROM HCCC NO 371 OF 2019)

_______________

	HKSAR	Respondent
	v
	Raja Rajeswary P Kagasfaron	Applicant

_______________

Before:

Hon Zervos JA in Court

Date of Hearing:	2 December 2022
Date of Judgment:	2 December 2022

________________

J U D G M E N T

________________

1.On 7 July 2020, following a trial before Campbell-Moffat J (the judge) and a jury, the applicant was convicted of trafficking in a dangerous drug, consisting of 1,191 grammes of a crystalline solid containing 853 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant was sentenced to a term of imprisonment of 21 years and 1 month. She now seeks leave to appeal against her conviction.

The brief facts

2.On 22 January 2019, the applicant, a Malaysian national, arrived in Hong Kong on a flight from Mumbai, India. She was stopped at Customs clearance, and her bags were checked. An X-ray examination of a black bag revealed that it contained three tin cans, labelled “Rice Flour”, which on further examination were found to contain the drugs in question.

3.When the three tins were opened, revealing white crystal substances, the applicant was asked what they were. She said, “I don’t know.” She was arrested and cautioned and again asked what were the substances inside the cans. She repeated, “I don’t know.” She was then asked where she got the cans and she replied, “My brother gave me in Delhi and said it is a sweet.”

4.The next day, the applicant participated in a video recorded interview. She said the three cans were given to her by a black man in Delhi. She was told by him that the cans contained food, and she thought they were sweets. It was during the interview when she was shown the three cans that she saw they were labelled “Rice Flour”. She then said she did not know what was inside the cans. She explained that she came to Hong Kong as a tourist.

5.The applicant testified at trial and explained that she got involved in this case because of her ex-boyfriend, Deepan. She said that they were on good terms, even though they had broken up. She would often speak to him. It was on one of those occasions that she told him of her wish to travel overseas. In a conversation on 5 December 2018, he asked her if she could carry diamonds abroad. She would be rewarded in the sum of $5,000 for doing so. She was surprised but agreed to go and arranged to take leave from her job. Deepan was assisted by his girlfriend, Nanthini, and they arranged for the applicant to fly to Hong Kong via India. From Mumbai, she was scheduled to fly to Ahmedabad but, having missed the flight, later proceeded to Delhi, where she received a bag from a black man. In the bag were three sealed food cans containing the drugs. She received instructions during the trip from Deepan, Nanthini and a person with a Hong Kong telephone number, whose contact name was Josh. However, the applicant eventually realized the number belonged to a person by the name of Max, whom Deepan and Nanthini regarded as the boss. When the applicant ran out of cash in India, funds were transmitted to her from Hong Kong by Ms Lo Oi-man (PW6) via Western Union. PW6 testified an African man named Max had asked her to transmit the funds. She had met Max in a bar, and he had asked her to do an urgent matter for him. In cross-examination, she agreed that Max had told her that he was engaged in trading in diamonds.

6.The applicant testified that she understood that the three cans contained diamonds and did not know there were dangerous drugs inside. She did not mention her belief that the cans contained diamonds until giving evidence at trial. To support her case, she produced a recorded telephone conversation she had with Deepan on 5 December 2018, in which he said the trip was to take diamonds to Hong Kong.[1]

The grounds of appeal

7.Mr Andrew Bullett, who represented the applicant at trial and appears on her behalf in this application, advances the following five grounds of appeal.

Ground 1

8.Ground 1 avers that the judge erred in giving a lies direction even though prosecuting counsel had not asked for, one and it had been opposed as unnecessary and inappropriate by defence counsel. Mr Bullett submits that prosecuting counsel had not relied on any lies as evidence of guilt, and the judge therefore erred in directing the jury that they might consider whether the applicant’s lies supported the case against her.

9.Ms Christal Chan, for the respondent, submits that the judge considered there was a risk that the jury could treat the lies told by the applicant as proof of guilt. She discussed the matter with counsel, and although Mr Bullett opposed giving a lies direction, prosecuting counsel accepted it might prove helpful.[2] The judge exercised her discretion in favour of giving a lies direction which she did in accordance with the specimen direction.[3]

10.The applicant testified at her trial. She acknowledged she lied that: (i) at the time of her arrest, she did not know what was inside the cans; (ii) her brother gave her the cans, who told her it was a sweet; (iii) she came to Hong Kong for tourism when it was to deliver diamonds; and (iv) she concealed her relationship with Deepan and his involvement in the offence.

11.In light of these admitted lies, I am not persuaded that the judge was wrong to give a lies direction because, in her assessment, which was well founded, there was a risk that the jury would treat the lies as proof of guilt: Yuen Kwai Choi v HKSAR[4].

12.It was accepted that the applicant was not truthful in her video recorded interview, and she told a number of lies. This was all addressed by the judge in her summing-up, noting that the applicant had explained why she had lied and that she was telling the truth in her evidence in court.[5] The judge then gave the standard lies direction, which includes directing the jury to bear in mind that a person may tell a lie for an innocent reason.[6] Otherwise, leaving the evidence of the lies without a direction may have been to the applicant’s disadvantage in the circumstances of the case.

13.I do not consider this ground to be reasonably arguable.

Ground 2

14.Ground 2 complains that the applicant’s right to silence was infringed by the judge’s failure to direct the jury that the applicant was entitled to remain silent upon and after arrest, and was also entitled to reserve her defence and that no adverse inference could be drawn against her for doing so.

15.Ms Chan submits that this is not a case where the applicant exercised her right of silence but rather that she had made statements on which she could be cross-examined as to their inconsistency with her evidence in court. Accordingly, the present case plainly fell within this category of inconsistent statements and involved no violation of the applicant’s right of silence.[7]

16.The essence of Mr Bullett’s complaint is that the applicant’s right of silence entitled her to reserve her defence and not have any adverse inference drawn against her for doing so. He referred to HKSAR v Cheung Oi Hin[8], which concerned a defendant who made a simple denial of culpability but was impermissibly cross-examined about his failure to “offer a more lengthy explanation to the police”. However, it is permissible to cross-examine and comment on a statement by a defendant to the police which was inconsistent with his or her later defence. That was the situation in the present case. The applicant spoke freely and regularly to the Customs officers, giving different accounts on certain matters on different occasions, which the judge summarised in her review of the evidence to the jury. This was entirely proper and appropriate as the judge, in her review, of the evidence was addressing inconsistent statements made by the applicant which were the subject of cross-examination and submissions by the prosecution.

17.I am not persuaded that this ground is reasonably arguable.

Ground 3

18.Ground 3 is a general complaint that the judge gave confusing and incorrect directions on how to approach the defence evidence. It is accepted by Mr Bullett that the judge properly directed the jury that they must acquit the applicant if they found the defence was or might be correct. But it is complained that immediately after this direction, the judge confused the jury by stating,[9]

“You do not have to positively believe the evidence relied upon by the defendant, but you cannot find an issue against the defendant contrary to the evidence if that evidence gives rise to a reasonable doubt about the issue.

Now, this lady has given evidence and the defendant was not obliged to give evidence. He was not obliged to call any witnesses. She does not have to prove her innocence. She does not have to prove anything because, as I have said, all of the responsibility in our system of law lies with the prosecution. However, she has chosen to give evidence so you must take what she has said into account when considering the issues of facts which you have to determine an is for you to decide whether you believe the evidence of the defendant will it may be true. I have previously told you that if the account is given by the defendant is or may be true, then the defendant must be acquitted.”

19.It is also complained that further on the judge directed the jury that they should take into account the applicant’s good character and that she gave a misleading direction, echoing what she had said earlier about believing the applicant’s evidence. The impugned remarks of the judge were as follows,[10]

“In the first place, the defendant has given evidence, and, as with any woman or person of good character, the good character supports a credibility, so this means it is a factor which you can take into account when deciding whether you believe her evidence or not.”

20.The judge’s directions to the jury on approaching the defence evidence and the applicant’s good character were closely in line with the specimen directions. There is no merit in this ground of appeal.

Ground 4

21.Ground 4 alleges the judge descended into the arena through her interventions which were of such a nature and extent that an informed bystander would say that the applicant did not receive a fair trial. It is complained that the judge put numerous questions to the applicant both in the course of her cross-examination and re-examination, which was more in the nature of cross-examination or assistance to the prosecution than clarification of her evidence.

22.Mr Bullett lists twelve areas where the judge descended into the arena and inappropriately questioned the applicant:

“a. Whether [the applicant’s] old Sim card was registered in her name;[11]

b. Why [the applicant] lied to Nanthini about deleting photos;[12]

c. When [the applicant] knew the person communicating with a Hong Kong number was Max;[13]

d. Why [the applicant] lied to Deepan about deleting messages;[14]

e. Why [the applicant] recorded the conversation between Deepan and Nanthini on 17 January 2019 and why did she then forward it to her friends;[15]

f. Why [the applicant] did not just give Deepan’s phone number instead of his address to her friends;[16]

g. Was it ‘another untruth’ that [the applicant] was afraid when told it was dangerous if she was caught;[17]

h. There had surely been other conversations about shipment and/or diamonds before 5 December 2018;[18]

i. Whether [the applicant] thought she would be committing a criminal offence by taking diamonds;[19]

j. Why [the applicant] was to go to three cities in India and whether she thought something was wrong from these arrangements and the circumstances in which she received the bag;[20]

k. Whether [the applicant], in spite of references to risk and the possibility of something happening, really did not become concerned about what she was carrying and doing until she was arrested;[21]

l. Whether, when Deepan told her to delete everything, she thought something was illegal.[22]”

23.Mr Bullett complains that the judge, by her questions, placed greater and disproportionate emphasis on the applicant’s lies or purported lies, and this was unfair. He also complains that the questions put by the judge were in the nature of cross-examination, and most, if not all, had not been put by prosecuting counsel. Referring to R v Yeung Mau Lam[23], Mr Bullett submits that the judge’s interventions gave the clear impression that impartiality had been abandoned and that she was assisting the prosecution, in particular by taking up points that prosecuting counsel had not made.

24.Mr Bullett submits that the complaint under this ground had been reinforced by the manner in which the summing-up dealt with many of the same points adverse to the applicant, especially the questions regarding subparagraphs 4(b), (d), (h) and (j). He notes that in respect of subparagraphs 4(b) and 4(d), the judge questioned the applicant about whether she had lied to Nanthini and Deepan about deleting photographs and messages when this had not been raised by prosecuting counsel it his cross-examination of her. It was a point that was later taken up by prosecuting counsel and mentioned in the judge’s summing-up.

25.Subparagraph 4(h) concerns questions asked by the judge about the applicant’s conversation on 5 December 2018, which was the central plank of the defence case as it related to transporting diamonds. Mr Bullett submits that the judge interrogated the applicant and that this was not the first such conversation she had, which sought to undermine the defence case. It was also a point that was highlighted by the judge in the summing-up, suggesting that it had been staged.

26.Subparagraph 4(j) concerns the judge questioning the applicant about her stopover in Ahmedabad, which the judge said in the summing up was another example of her not telling the truth.[24]

27.At the close of the day, after re-examination of the applicant, the judge asked a series of questions that went over to the next morning. She raised several subjects with the applicant and after she had finished, she invited counsel if they wanted to ask any questions. Mr Bullet accepted the invitation while prosecuting counsel did not.[25]

28.Ms Chan submits that the judge’s interventions were made for the purpose of clarifying the evidence and part of the proper case management function of ensuring the trial was properly and coherently conducted. She points out that the ultimate question is whether the Judge's conduct was such that it would have caused an informed bystander listening to the case to say that the defendant had not had a fair trial.

29.Ms Chan submits that some of the questions asked by the judge were to clarify facts (in subparagraphs 4(a) and 4(c)) or give the applicant the opportunity to clarify her answers (in subparagraphs 4(b), 4(e) and 4(f)). As for the judge’s question whether the applicant was “actually afraid or is this another untruth” (in subparagraph 4(g)), it had been admitted by the applicant that she had given untrue answers to the Customs officers and therefore, in this context, the question was proper.

30.Ms Chan submits that other subjects raised by the judge as mentioned in subparagraphs 4(h), 4(i) and 4(j), was to either clarify matters or clear up points that had been overlooked or left obscure. She notes that when Mr Bullett raised an objection with the judge about her descending into the arena, she responded:

“... but I’m trying to ascertain what her case is because I have to sum it up and I have warned you on a couple of occasions, Mr Bullett, that I didn't understand her case. I gave you the opportunity to make her case clear. You didn't. So I am going to do that because this is the trial I’m in now.”[26]

31.The respondent submits that the judge’s interventions were made for the purpose of clarifying the evidence and proper case management function so as to ensure the trial was properly and coherently conducted. There was no issue that an informed bystander would be of the view that the defendant did not have a fair trial.

32.The Court of Appeal in Yeung Mau Lam when addressing the propriety of interventions by a judge set out the following when considering such an issue:

“We are satisfied that the authorities establish the following five proposition apposite to our considerations:

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena;

(5) The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.

As Denning, L.J. pointed out in Jones v. National Coal Board (supra), questions must, where necessary, be asked to clear up points which have been overlooked or left obscure, the judge should discourage repetition and should intervene to ensure that he follows the points being made by advocates. In our view, it can be added to these observations that it is the duty of the judge to ensure, at all times, that he understands the evidence of the witnesses and that the witnesses make responsive answers to the questions asked. We further observe that while it is desirable that judicial questioning comes either at the end of cross-examination or, preferably, at the end of re-examination, there may well be circumstances in particular trials which make it proper for the judge to intervene by asking questions at much earlier stages.”

33.It was famously said by Lord Denning in Jones v National Coal Board[27], “If a judge should himself, conduct the examination of witnesses ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict’”.

34.The role of the trial judge is often very demanding, but above all, it is imperative that he or she must exercise restraint and maintained impartiality to act within the scope of his or her neutral role. Certainly, asking questions is permitted within reasonable bounds as long as the trial judge’s interventions do not compromise the appearance of a fair trial. It is important to bear in mind that a criminal trial is an adversarial process between the prosecution and defence, where the examination of witnesses is counsel’s responsibility. It is not an investigation by the trial judge. Where a trial judge does intervene and asks questions of a witness, the issue as to whether he or she has crossed the line and undermined the appearance of fairness is when the trial judge has assumed the role of counsel for the prosecution through his or her cross-examination of defence witnesses and appeared to prejudge the credibility of them.

35.It is complained that the most of the matters addressed by the judge in her questions had not been canvassed by prosecuting counsel and were adverse to the applicant. The judge did ask a lot of questions, but that alone is not decisive, although a relevant consideration together with the nature and purpose of the questions asked. It is axiomatic that context and content are everything, and hence the judge’s conduct by questioning the applicant in the way raises the spectre as to whether she gave the impression that she had taken sides with the prosecution by the nature of the questions and the manner in which they were asked.

36.I find this ground to be reasonably arguable.

Ground 5

37.Ground 5 avers that the judge’s summing-up was unbalanced, with various factual errors, which was unfair to the applicant and undermine the defence case in various respects. It is said that the judge dealt in detail and at length with lies in such a way which was “inaccurate, inappropriate, excessive and apparently intended to undermine [the applicant]’s credibility and destroy the defence case”.[28] The following matters were listed:

“(a) the fact that [the applicant] had not paid her phone bill and so needed a new Sim card[29];

(b) whether the telephone conversation on 5.12.18[30] was the first mention of shipment[31];

(c) the evidence of PW6[32];

(d) [the applicant]’s lies or alleged lies[33];

(e) the absence of photos of the cans, a matter not advanced by the prosecution but mentioned by the [judge], in a way which invited speculation, and not cured by a direction not to do so[34];

(f) [the applicant]’s statements concerning Deepan[35];

(g) whether [the applicant] in her VRI was withholding information, including about Deepan, Nanthini and Max/Josh[36];

(h) the significance of Ahmedabad, and [the applicant]’s evidence as to it[37].

38.This ground is to a large extent allied to the previous ground.

39.As for subparagraph 5(a), Mr Bullett submits that it was irrelevant and prejudicial to direct the jury that because the applicant had not paid her phone bill, she must have been in some trouble.[38] Instead, the applicant had said in the video recorded interview she had no debt.[39] furthermore, a new number had been registered in her name which had not been mentioned by the judge.[40]

40.As for subparagraph 5(b), Mr Bullett submits that judge did not deal fairly with the conversation on 5 December 2018, by emphasising that it was the prosecution’s case that this was not the first such conversation when it arose from questions from the judge.[41] He submits that this was a point that was repeatedly reinforced in the judge’s summing-up.[42]

41.Mr Bullett submits that in subparagraph 5(c), PW6, in her evidence, provided support for the defence case when she stated that Max had told her he dealt in diamonds. He acknowledged that at trial he was critical of the testimony of PW6 but relied on this particular part of her evidence. He contends that the judge was critical of the defence stance, and inappropriately directed the jury that “you cannot sort of go, “She is lying but I will have this bit of truth.”[43]

42.As for the rest of the subparagraphs, they concern persons and places involved in the applicant’s trip. Mr Bullett submits that the judge unfairly and repeatedly suggested that the applicant had not been forthcoming in her video recorded interview about the involvement of the four other people, and about her stop in Ahmedabad.[44]

43.Ms Chan submits that the judge’s summing-up reflected the nature and state of the evidence and the issues that had been raised by the parties. There was no unfairness in her summing-up.

44.On the issue of the phone bill (subparagraph 5(a)), Ms Chan contends it was a straightforward summary of the facts:[45]

“At some stage, she must have got into a little bit of trouble because she told you that by December of 2018, she had had her phone blocked. She could only get incoming calls because she had not paid the bill. We do not know why. She certainly did not say in the video interview that she was in debt, but we do know that she did not pay the bill, because, if you accept what she tells you, she was ringing, she said, Deepan that day to tell him she had got a new SIM card, which was instead of being post-paid was now pre-paid. So, we know that much, but just as general background.”

45.On the issue of the 5 December 2018 conversation (subparagraph 5(b)), the following had been submitted by prosecuting counsel in his closing speech:

“You may find it very strange that the way the subject of diamond was brought up. You recall that at the beginning of the phone conversation, Deepan asked, ‘Are there persons to make shipment?’ It was ‘Are there persons’ as though he was asking the defendant to look for or trying to recruit person for making this shipment.”[46]

46.She argues that the judge in her following remarks, was merely summarising the position of both the prosecution and defence on the issue of the first mention of the “shipment”: this issue The Judge said the following in her summing up:-

“Now, the 5th December phone call that is recorded is, so far as the defendant is concerned, the beginning of her story in respect of this case. That is what she was suggesting and she was cross-examined about it. She is saying this is the first time this is mentioned. Mr Leung has suggested to you that that is not the case. If you look at the content, it does not appear that this has come straight out of the blue. The defendant says, ‘yes, it has’.”[47]

47.As for PW6 (subparagraph 5(c)), this Chan submits that the judge treated the evidence PW6 in neutral terms and reminded them that the applicant’s case was that she thought she was carrying diamonds and not dangerous drugs:[48]

“Oi-man Lo or Lo Oi-man, gave evidence and Mr Bullett criticised her to you. It is his right to do that. He is defence counsel, but it left me in a bit of a quandary because he was saying to you, or at least it appeared to me that he was saying to you, that she should not be believed. It was all very odd, was it not, that she met him once and all of a sudden, she agrees to send 10,000 rupees, HK$1,000, without knowing she is going to get it back, from her personal account to India and that she had amazingly lost his telephone number and his contact details, right?

But in the same breath, Mr Bullett is saying to you but she said Max deals in diamonds. I am not telling you what to think about this witness. She was here. You decide what she said, but I have to say that you cannot sort of go, ‘She is lying but I will have this bit of truth’ or ‘she is telling the truth but I will have this lie’. You have got to decide. You can divide it up. Sometimes witnesses, all sorts of witnesses will tell you some things which you are sure about and other things you are not sure about and other things you think are downright untrue. You have to decide that for yourselves but I am just pointing it out that it seems a little disingenuous to turn around and say you cannot believe a word she says but by the way she did say he was trafficking in diamonds. Of course, we must remember the defendant’s case is, ‘I thought I was moving diamonds’ and I will repeat it more than once. That is why she says to you, "I am not guilty because I thought I was moving diamonds and nothing else, not dangerous drugs. I didn't have any suspicions of it. It thought I was moving diamonds.”

48.On the issue of the people and places involved in the trip, Ms Chan submits that the judge was merely reviewing the evidence and that there was nothing unfair in how she addressed these matters.

49.I am satisfied that this ground is reasonably arguable, particularly in respect of the judge’s summary and remarks on PW6’s evidence and her general comments concerning the defence case.

Conclusion

50.For the above reasons, I am not persuaded that Grounds 1, 2 and 3 are reasonably arguable. I am satisfied that Grounds 4 and 5 are reasonably arguable, and leave is granted to the applicant to appeal against her conviction on those grounds.