HKSAR v. Raman Kapusamy

CACC 32/2020

[2023] HKCA 10

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 32 OF 2020

(ON APPEAL FROM HCCC NO 126 OF 2019)

__________________________

__________________________

_____________________________

JUDGMENT

_____________________________

Hon M Poon JA (giving the Judgment of the Court)

Introduction

1.The applicant pleaded not guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134) and stood trial in the Court of First Instance before D’Almada Remedios J (“the judge”) and a jury. He was unanimously convicted on 12 March 2020, and sentenced to 26 years’ imprisonment.

2.It was alleged that on 3 June 2018, at Hong Kong International Airport, the applicant unlawfully trafficked in 2,970 grammes of a crystalline solid containing 2,956 grammes of methamphetamine hydrochloride (commonly known as “ice”).

3.On 2 February 2021, the applicant appeared unpresented before the Single Judge. Leave to appeal against conviction and sentence was refused[1]. The applicant renewed his application for leave to appeal against conviction and sentence and with the assistance of the Bar Free Legal Services Scheme, Mr Boyton and Ms Cheung were assigned to represent him.

4.An extension of time to file a new ground of appealed filed by Mr Boyton was granted on 6 April 2022[2]. Perfected grounds of appeal in relation to conviction were filed accordingly. On 15 June 2022, a Legal Aid Certificate was granted in relation to conviction only. Mr Boyton and Ms Cheung were assigned to represent the applicant.

The prosecution case

5.Much of the prosecution case was not in dispute. On 3 June 2018, the applicant departed from Ho Chi Minh City, Vietnam, for Hong Kong on flight VN 598. He had one piece of check-in baggage with the tag number VN722230[3].

6.At about 9:35 p.m. on the same day, at Customs Arrival Hall B of the Hong Kong International Airport, the applicant was intercepted when he was pushing a baggage trolley on which one black backpack and one blue travel bag with the tag number VN722230 (Exhibit P19) were placed. At that time, Exhibit P19 was locked with a padlock[4]. X-ray clearance of the baggage revealed something suspicious inside. A Customs officer (“PW3”) asked if Exhibit P19 belonged to the applicant, to which the applicant answered “Yes” in English. PW3 then asked the applicant whether he had the key to unlock the padlock on Exhibit P19. The applicant therefore searched his front trouser pocket and said, “No key”[5]. PW3 then cut open the padlock, opened Exhibit P19 and three backpacks, each in a transparent plastic bag, as well as a pile of clothes[6] were found.

7.PW3 cut open the inner lining of one of the backpacks. He found one paper packet wrapped with adhesive tape. He cut that open and found some white crystalline substance wrapped with a plastic bag and carbon paper. A drug test conducted proved positive for the presence of “ice”. The applicant was arrested and cautioned for trafficking in a dangerous drug[7]. Two keys to the padlock of Exhibit P19 were then found in the right front trouser pocket of the applicant. When the keys were found, the applicant said, “Oh here”[8]. The inner lining of the two remaining backpacks were cut and similarly wrapped packets of crystalline substance were found. Upon subsequent analysis, the Government Chemist confirmed that the three packets of substance were a total of 2,970 grammes of a crystalline solid containing 2,956 grammes of “ice” with a retail value of HK$1,577,070[9].

8.At 9:30 a.m. on 4 June 2018, a Customs inspector (“PW5”) conducted a preliminary enquiry with the applicant with the assistance of a Tamil/English interpreter. During that enquiry the applicant said that someone unknown to him would meet him at the arrival hall of the Airport to collect Exhibit P19[10].

9.The contents of the applicant’s mobile telephone were subsequently examined by PW5. Several conversations with a person called “Chandru”, mostly voice messages in the Tamil language, were found in the applicant’s WhatsApp messages[11].

10.Between 7:05 p.m. and 9:53 p.m. on 4 June 2018, a video-recorded interview (“VRI”) was conducted with the applicant. The voluntariness of the VRI was not disputed[12]. In the VRI, the applicant said, inter alia, the followings:

(a)  Chandru was an old friend from his school days but he did not know his full name. It was not until he was arrested that he realised Chandru was engaged in illegal business[13];

(b)  He was instructed by Chandru to go to Hanoi, Vietnam. His passport, flight ticket and hotel were arranged and paid for by Chandru[14];

(c)  Chandru did not tell him the nature of the “job” he had in mind[15];

(d)  He went to Hanoi and Ho Chi Minh City for sightseeing and was due to return to Malaysia on 2 June 2018[16];

(e)  He came to Hong Kong on Chandru’s instructions. He would not receive any reward for bringing Exhibit P19 to Hong Kong, but Chandru would forgo the debt of 500 Ringgit owed by him[17];

(f)  Exhibit 19 was given to him by a woman before he departed from the hotel in Ho Chi Minh City for the airport. He asked the woman what was inside. She opened Exhibit P19, showed him the three bags and then locked the padlock to Exhibit P19. The key to the padlock was given to him and he did not open Exhibit P19 thereafter[18];

(g)  He thought Exhibit P19 was heavy because “so many clothes were in it”[19];

(h)  When asked about the Whatsapp message “I am sweating” sent to Chandru from Ho Chi Minh City airport, he explained that it was because he was walking here and there and people were asking so many questions, which he did not know how to answer[20];

(i)  He understood that someone would meet him at Hong Kong International Airport and collect Exhibit P19 from him[21];

(j)  He told the Customs officer that there was no key to the padlock on Exhibit P19 because he thought he had lost it[22];

(k)  He felt he was cheated by Chandru. He insisted that he had no knowledge there were dangerous drugs inside Exhibit P19. He voiced his concern about his children[23].

The defence case

11.The defence case was that the applicant knew nothing of the presence of the “ice” inside Exhibit P19 when he entered Hong Kong. He believed he was carrying gold bars.

12.The applicant elected to give evidence. He talked about his family with three children in Selangor, Malaysia. His wife was expecting another child. He worked as a labourer to make ends meet and had borrowed 500 Ringgit from Chandru. In his dire financial condition, he asked his friend Saravana to find him an extra job and was told to deliver gold abroad for Chandru. Chandru promised him 5,000 Malaysian Ringgit (equivalent to about HK$9,850) and paid for his passport and the flight ticket. The applicant said he also introduced a fellow labourer friend of his to deliver gold for Chandru[24].

13.On 28 May 2018, the applicant flew from Kuala Lumpur in Malaysia to Hanoi in Vietnam. He was contacted by Chandru on Whatsapp and complied with Chandru’s instructions. On 1 June 2018, Chandru told him to buy a one-way ticket to fly to Ho Chi Minh City. He arrived in Ho Chi Minh City on 2 June 2018, where on Chandru’s instructions, he contacted an Indonesian woman. On 3 June 2018 Chandru instructed him to go to Hong Kong. He told Chandru he wanted to go home but Chandru threatened him that his wife and children would be killed if he did not deliver the gold from Ho Chi Minh City to Hong Kong. He complied but in re-examination said that he entered Hong Kong willingly and not under threat.

14.The applicant said he was given Exhibit P19 before travelling to Ho Chi Minh City airport. He asked the Indonesian woman why the travel bag was so heavy and he was told that there was gold hidden inside. She showed him a backpack which looked exactly the same as those inside Exhibit P19 and he saw some gold bars in it. Therefore, he believed that he was taking gold bars concealed in those backpacks to Hong Kong. He said that Chandru told him that two men would pick him up at the airport and would drive him to a hotel. He was to leave the Exhibit P19 in the car, although this instruction differed from the message subsequently sent to him by Chandru via Whatsapp[25].

15.When he arrived at Hong Kong International Airport and was asked for the key to the padlock of Exhibit P19, he replied “No key” because he had forgotten about the small pocket in the right front pocket of his trousers where the set of keys was placed. He only realized that he had been cheated by Chandru to bring dangerous drugs into Hong Kong when he talked to the Tamil interpreter the following day. He did not mention delivering gold bars during the VRI because he thought the VRI would be broadcast on television. He was frightened and thought of his children at the time[26].

Ground of appeal (on conviction) and submission

16.The sole ground of appeal advanced by Mr Boyton is that the judge erred in failing to give the jury a “lies” direction, when it was plain from the prosecuting counsel’s final address that the applicant had deliberately lied in relation to the keys to the padlock due to a realization of guilt. That lie, he submitted, was used by the prosecution not merely to undermine the defence case but to support the prosecution’s case.

17.It is submitted that the extensive discussion between the judge and counsel as to whether a lies direction was called for in the circumstances of the present case only concerned the lie relating to the purpose of his trip (whether for sightseeing as he alleged in his VRI or for delivering gold as he said in his testimony) and not the keys to the padlock. Trial counsel, Mr Bullett, strenuously resisted a lies direction. Mr Boyton holds a contrary view but he stresses that he is not alleging flagrant incompetence of trial counsel as a discrete ground of appeal. He relies on the case of R v Birks[27]to advance the proposition that the failure to give a lies direction in the present case has deprived the appellant of a fair trial and the jury, having heard the judge repeating prosecuting counsel’s address that the lie relating to the keys was deliberate, would have been led on an impermissible line of reasoning to find the applicant guilty because of that lie without a proper direction on lies. It is submitted that by the non-direction, justice miscarried.

The respondent’s submissions (on conviction)

18.Ms Florrie Chan, representing the respondent, points out that when prosecuting counsel commented in her closing speech that the applicant lied about or deliberately concealed the key[28], it was only one of the many aspects of the evidence to demonstrate that the applicant’s claim that he believed he was carrying gold into Hong Kong was not worthy of belief. The other aspects included: (1) that the applicant had to closely report his actions to Chandru[29]; (2) he raised no question as to why gold bars had to be so concealed[30]; (3) the inconsistencies between his VRI and his testimony in court as to the purpose of the trip, whether it was for sightseeing or for delivering gold bars[31]. Ms Chan relies on the case of HKSAR v Lau Tak Mong[32]and submits that the key to the padlock never assumed any prominence in the trial. The focus was on the purported mission to deliver gold. There was no risk that the failure to produce the keys would engage the jury in an impermissible line of reasoning. Ms Chan submits that a lies direction was not called for in the circumstances of the present case, and a general direction on the burden of proof would suffice.

19.In reply to Mr Boyton’s supplemental submissions, Ms Chan simply pointed out that he only alluded to flagrant incompetence of trial counsel as a “possible” reason for a miscarriage of justice[33] but did not advance the same as a ground.

Discussion

20.This appeal turns on two issues:

(1)  whether a lies direction was required in view of prosecuting counsel’s closing address in relation to the keys;

(2)  The position an appellate court should take when appellate counsel takes a stance directly contrary to that of his predecessor in respect of legal directions to the jury and what prerequisites, if any, should be satisfied, before the appellate court would entertain such a ground.

21.It is contended by Mr Boyton that the prosecutor told the jury that the applicant’s lies about the keys was due to a realization of guilt, which went further than a mere attack on the applicant’s credibility, and this cried out for a lies direction.

22.In the court below, prosecuting counsel commenced her closing speech at 11:12 a.m. on 10 March 2020. The following passages are relevant to the present appeal:

“However, when Officer Choy subsequently performed a search on the defendant, he found from the defendant’s right front trousers pocket, the key for the padlock. And when the defendant said again, in English, “Oh here”. One thing to note here is that Officer Choy said, apart from the keys, nothing else was found in that particular trouser pockets.

Members of the jury, it will of course, be for you to decide if the defendant was merely being careless in not being able to find the key, thereby answering the officer, “No key”. Why didn’t he say, “I couldn’t find the key?” He said, “No key”. Or whether he was deliberately hiding the key from the officers, it’s a matter for you.

…

On this note, I will invite you to imagine yourself to be travelling on your own to another country. If you were being intercepted by customs officers requesting you to open your luggage that was being locked, would you likely tell an officer that there was no key, only after a quick search in your own pocket? Maybe. Maybe, if you wanted to hide something.

Members of the jury, why would the defendant tell Officer Choy that there is no key to the padlock so lightly, when in fact, the key was just in his trousers pocket? The prosecution say that the answer is very obvious. It is because the defendant was too fearful to let the customs officer check his bag, which he knew full well to contain dangerous drugs.”[34]

Before concluding her speech at 12:40 p.m., prosecuting counsel said:

“… But still, on that issue, I would still invite you to just put yourself in that scenario and think, taking into account Officer Choy’s evidence, is it really the defendant only being careless that he couldn’t find the key in his pocket? Or he deliberately refused to hand it over. I’ll leave it to you.”[35]

23.After prosecuting counsel finished her closing speech in the morning on 10 March 2020, Mr Bullett started his closing speech for the defence at 2:25 p.m., and finished at 3:35 p.m. He dealt with the “no key” submission of the prosecutor. He told the jury that there could be a variety of reasons why the applicant gave the “no key” reply: his English was not good[36]; he simply failed to find the keys[37]; or, as he had testified he thought there were gold bars inside. Mr Bullett told the jury:

“…given that you hardly speak English, you might be forgiven for a two-word pidgin English answer. So that doesn’t prove anything. Don’t draw any adverse conclusions from that, please.”[38]

24.Immediately after his speech, Mr Bullett made a submission to the judge that no lies direction was required[39]. His view was that since the whole line of attack on the applicant’s credibility was his purported plan to carry gold, other matters which prosecuting counsel said were untrue in the applicant’s testimony had not assumed too much significance and were certainly not material lies. The discussion carried on around the admission by the applicant in his evidence that he lied in the VRI about the nature of his trip.

25.Although the judge indicated by the close of the day that she was still thinking of giving a lies direction[40], on the following day the parties addressed her further and Mr Bullett again resisted a lies direction:

“…it seems to me that (prosecuting counsel is) not arguing that any particular lie is probative of guilt, it’s just saying because these things are inconsistent, that means the evidence is unreliable. And my considered position now is that it’s not - - well, a lies direction is for the benefit of the defence to protect the defendant against improper reasoning. And my considered position is that that’s not in the interests of the defendant to have such a direction in this case and it’s not necessary.”[41]

26.Mr Bullett stressed that even if the applicant admitted he lied, it was in relation to a completely non-material matter[42], a minor matter[43] and was a “non-issue”[44]. Whilst the prosecutor did ask the judge to form her own view as to whether there was a real danger that the jury would rely on the lie to prove guilt[45], she noted the strong position of defence counsel and did not insist on a lies direction:

“…in light of my learned friend’s very strong stance - - and I believe that he has taken proper instructions from his client - - and, as I said yesterday, there are always both sides of the coin as to whether a lies direction is better given or better not given. I would say that even though I understand that it is very difficult for your Ladyship to touch upon the area, but since my learned friend has given a very strong stance, my view is that it may be better to leave the lies direction and to just to give a usual general credibility direction and also the standard of proof direction.”[46]

27.After some further discussions, the judge decided not to give a lies direction[47].

28.Pursuant to the Court’s direction, Mr Bullett provided a statement in which he stated that he considered that the central issue was whether the applicant knew he was delivering dangerous drugs or smuggling gold into Hong Kong. Once the jury rejected the central defence that he was smuggling gold, a conviction would be inevitable. He considered a lies direction would not have altered the outcome but might have made it more likely. Mr Bullett further stated that he could not recall whether he had any discussion with the applicant about any lies direction but even if he had, given the applicant’s background, he doubted whether the applicant would have any view on the matter.

29.Whilst Mr Boyton does not go so far as to allege incompetency of counsel, he complains that Mr Bullett’s assessment of the materiality of the lie about the keys was wrong since the lie inevitably leads to the inference of knowledge. It is stressed that this Court can still entertain this ground on the basis that this is a ground other than “flagrant incompetence” of counsel which caused a miscarriage of justice: R v Birks[48]. Mr Boyton submits that justice miscarried by the failure of the judge to give a lies direction, which warrants this Court to intervene regardless of the divergent views between appellate and trial counsel as to whether such a direction should be given.

30.We find the case of HKSAR v Mo Shiu Shing[49], useful in this aspect. The Court, after examining the case of R v Lucas[50]where the standard lies direction originated, said at pages 164I – 165D:

“If a Lucas direction is given where there is no need for such a direction (as in the normal case where there is straight conflict of evidence), it will add complexity and do more harm than good. Therefore, in our judgment, a judge would be wise always, before speeches and summing up in circumstance number four, and perhaps also in other circumstances, to consider with counsel whether, in the instant case, such a direction is in fact required, and, if so, how it should be formulated. If the matter is dealt with in that way, this Court will be very slow to interfere with the exercise of the judge’s discretion. … The direction should, if given, so far as possible, be tailored to the circumstances of the case, but it will normally be sufficient if it makes the two basic points:

(1) that the lie must be admitted or proved beyond reasonable doubt, and;

(2) that the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons, so only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case.”

31.Two key points flow from the above passage. Firstly, a lies direction premises on “a proved lie or an admitted lie that is material to the case”: Mo Shiu Shing, at page 161 B-C. If a lies direction is given when there is no need for such it may “do more harm than good”. Secondly, this court is slow to disturb the decision made by a judge following full consultation with counsel.

32.In the present case, the defence never accepted that the applicant’s “no key” answer was a lie. Mr Bullett had, in his closing speech, proffered a number of possibilities for the applicant to have given that answer. Since the lies direction which was premised on an admitted or proven lie would, in the present case, convert a neutral issue of credibility for the jury to be used against the defendant with the judge’s direction, we understand Mr Bullett’s sentiment by taking a strenuously opposing tactical stance.

33.We note that when the necessity of a lies direction was discussed, the subject of the key to the padlock was never a subject of discussion at all. At no time was the lie/concealment of the key to the padlock perceived by either party to be a material lie. Prosecuting counsel simply pointed out the inconsistencies and unreasonableness in the applicant’s testimony about the purpose of the trip, the arrangement for collection of the bag and telling the Customs officers that he had no key when the keys were in his very own pocket, are all factors to discredit the applicant[51]. Prosecuting counsel concluded her closing address with the following remarks:

“…the prosecution says that what the defendant told you about a plan to bring gold, a version that only came out when he was testifying in the witness box, was nothing but a lie. And in order to support this lie, he had to make up many other lies in order to, in his wishful thinking, make this big lie look consistent with first, the WhatsApp messages and secondly, what he said in the video-recorded interview and the preliminary inquiry.”[52]

That was also the understanding of Mr Bullett.[53]

34.Prosecuting counsel, throughout her closing speech, pointed to various parts of the applicant’s evidence to discredit the claim put forward in his testimony that he believed he was delivering gold bars. She was in essence trying to persuade the jury to reject that claim and find that he had knowledge of the dangerous drug instead. The following are a few examples:

“…it is because the defendant was too fearful to let the customs officer check his bag, which he knew full well to contain dangerous drugs…”[54]

“…why he needs to skip mentioning the Carlton Guest Hotel to the immigration officer. … Why would they want to leave no trace for investigation if he is not fearful of being found to be delivering gold? The answer is very clear. Because the defendant knew at all relevant times, that he was bringing dangerous drugs into Hong Kong.”[55]

“…the defendant told us that such a representation he made to the customs officers, namely that the purpose of the trip was for sightseeing, was not true.

…

…whichever angle you took, … we say that the defendant had full knowledge that what he was carrying with him was dangerous drugs, well and carefully concealed inside the three backpacks inside the blue travel bag.”[56]

35.In our view, the crucial issue in the present case is whether the claim of the applicant that he thought he was carrying gold inside his bag into Hong Kong was or may be true. At no time was the prosecuting counsel relying on the lie/concealment of the keys to support the prosecution case. That remark was made, amongst others, to show that the applicant’s explanation that he thought he was bringing gold into Hong Kong was “incredible, inconsistent, self-contradictory and did not make any sense at all”[57]. The judge reminded the jury that if they rejected the account given by the applicant, they still had to be sure that the applicant was a knowing courier of drugs[58]. However, with the evidence as it was, the jury was bound to find that the applicant knew he was carrying drugs if they rejected his claim of bringing gold. Mr Boyton’s submission that even when the jury rejected his claim of gold, they could find his knowledge to be something else other than dangerous drugs is nothing but fanciful speculation. The issue of the keys, standing on its own, can go both ways either to support or discredit his claim of gold, and would not tip the balance one way or the other. On the contrary, to give a lies direction based on the “no key” answer of the applicant would be to convert a neutral issue of credibility to use which the jury could, with the direction of the judge, use against the applicant.

36.We are satisfied that looking at prosecuting counsel’s speech as a whole, there was no risk of the jury engaging in the suggested impermissible line of reasoning. A lies direction would have been counter-productive in the circumstances of the present case.

Postscript

37.In the present case, flagrant incompetence was never alleged as a ground of appeal. However, as we observed, Mr Boyton, as appellate counsel, did not just have a divergent view but vehemently criticized trial counsel for not asking for a lies direction. He complained that Mr Bullett was in error and the judge went along with that and the applicant was deprived of a fair trial.

38.The Court of Final Appeal dealt with the legal principles in relation to the concept of counsel’s error as a ground of appeal in Chong Ching Yuen v HKSAR[59]. We would rely on the following excerpt to remind counsel acting for appellants that such a ground should not be put forward lightly:

“47. …Gleeson CJ in R v Birks (1990) 48 A Crim R 385, a decision of the Court of Appeal of New South Wales:

…

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decision taken by a barrister in the course of running a case. …

…

In Halsbury’s Laws of England (4^th ed.) Vol.3(1), para.518 at p.420, it is stated that:

… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgement. (pp.390-391)

48. It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”

39.These principles were reiterated in HKSAR v Apelete (No 1)[60]:

“72. It is easy, with the benefit of hindsight, to be critical of the actions and decisions of trial counsel. Where the acts or omissions of trial counsel are the result of the exercise of professional judgment, then the hurdle for establishing professional incompetence, and that the trial was consequently unfair, is a high one indeed.”

Conclusion

40.There is no substance in the ground of appeal advanced and we refuse leave to appeal against conviction. The appeal is dismissed accordingly.

Ms Florrie Chan, SPP of the Department of Justice, for the respondent

Mr David Boyton and Ms Athena Cheung, instructed King & Co, assigned by Director of Legal Aid, for the applicant (for conviction only)