HKSAR v. Thuo Peninah Wangari

CACC 29/2021

[2024] HKCA 22

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 29 OF 2021

(ON APPEAL FROM HCCC NO 32 OF 2020)

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BETWEEN

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J U D G M E N T

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Hon Zervos and M Poon JJA (giving the Judgment of the Court)

1.The appellant was convicted of one count of trafficking in a dangerous drug, namely 768 grammes of a solid containing 644 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, following a trial before Deputy Judge Bruce (“the judge”) and a jury. She was sentenced to 21 years’ imprisonment.

2.Leave was granted by the Single Judge^[1] on 16 September 2022 for the appellant to appeal against conviction on two grounds that concerned the interaction between the appellant’s right of silence and the defence of duress.

Prosecution case

3.It was not in dispute that on 19 November 2018, the appellant, a Kenyan national, arrived at the Hong Kong International Airport on a flight from Nairobi Kenya, via Addis Ababa in Ethiopia[2]. She was stopped by two female Customs officers in the transit area before her departure for Macau by water jet[3]. She was asked some routine questions about the nature and purpose of her trip. She claimed she was going to visit Macau and that her husband and children were to meet her on the following day[4]. She was then searched. She had on her person, US$1,050 and HK$432 in cash and two mobile telephones[5]. During a body search, a packet of cocaine fell from her underpants when she was removing them[6]. The appellant was “immediately arrested and cautioned”[7]. She was taken to the Accident and Emergency Department of North Lantau Hospital, where she discharged 26 packets of cocaine[8], and subsequently to Queen Elizabeth Hospital, where she discharged a further 39 packets of cocaine[9]. A total of 66 packets of cocaine were recovered, with an estimated street value of $916,224[10].

4.The prosecution relied on WhatsApp communications in one of the appellant’s mobile telephones in support of its allegation that the appellant knowingly possessed the dangerous drugs for the purpose of trafficking[11].

5.According to the Customs officers, the appellant remained silent when she was cautioned at various stages following her arrest. They denied that she said words to the effect, “I will be killed” or “Will I be killed?”. They also denied that they said in response words to the effect, “Well, what have we done wrong?”[12]

Defence case

6.The appellant elected to testify at trial. She said that she had no knowledge of what was contained in the pellets and acted under duress in carrying them in her body.

7.The appellant was a single mother with two children aged 9 and 13 and was working in Nairobi as a house painter. She said she was led to believe by a person called Emma that she could obtain employment in Macau as a domestic worker. Emma took her to see an agent, named Jane, who turned out to be related to her by marriage. Jane collected her passport to make arrangements for her to travel to Macau. About two weeks later, her trip to Macau had been arranged, and Jane was to look after her children while she was away. Just prior to her departure for Macau she went to Jane’s place, who received a telephone call from a person by the name of Mary. The appellant was told that a photograph had to be taken of her children and her husband, even though she was single at the time. She was given a story to tell that she was going to Macau for a holiday and that her husband and children would come the following day. It was said to her that this would make her entry into Macau easier, and the work visa would be sorted out after she arrived there. She was taken to the airport by Mary and a driver and given back her passport and a whole lot of documents relating to her flights and accommodation. Mary also gave her US$400 as pocket money. She said she also had funds of her own, US$1,000 and about 120,000 Kenyan shillings. She was given the telephone number of a person named Mercy, who would give her directions when she arrived in Addis Ababa. She made contact with Mercy, who directed her to a hotel. Mercy told her to leave her room and take her telephone, money and passport but to leave the bag behind. This instruction was confirmed in a WhatsApp message. The following message from Mercy read, “Hi, sweetheart. Try to exceed 100 so that your money can increase.” She responded by saying, “Okay”. She was then told not to eat[13].

8.The appellant went downstairs from the hotel and was picked up by an African male in a taxi, who took her to a house. The man produced a knife and told her to take off her clothes. He forced her to perform oral sex on him and also raped her. He threatened her that if she did not swallow the pellets and put some in her vagina she and her two children would be killed. She complied with the request and swallowed the pellets. She said she thought the pellets contained something suspicious, “not nice things”[14]. She said she was unable to escape[15] and warned not to report to anyone, otherwise she and her children would be killed[16]. She claimed she believed she and her children were in danger at the relevant times as she had yet to arrive at the final destination to deliver the packets[17].

9.When the appellant arrived in Hong Kong she was intercepted by two female Customs officers and invited into a room to submit to a search. They searched her baggage but found nothing. Upon inquiry, she told them she was going to Macau. She also told them the story about her husband and children meeting her the next day. She was asked where she was going in Macau but said nothing. She was then subjected to a body search, and a pellet fell out from her underpants. After the discovery of the pellet, she said words to the effect, “I am going to be killed. I am going to be killed,” but clarified that she said it as a question, “Will I be killed?”. She said the officers asked her had they beaten her up or done anything wrong, and in response she shook her head. They told her she was a suspect, and she said, “God, God” [18].

Grounds of appeal

10.Leave was granted on the following two grounds:

Ground 1 averred that the judge erred in allowing the prosecution to cross-examine the appellant on her failure to inform the authorities as to the circumstances of her duress upon her arrest at the Hong Kong International Airport, thus infringing her right of silence and impacting upon the burden of proof.

Ground 2 complained that the direction that “if the accused had an opportunity to avoid the threats, or that a reasonable person would have avoided the threats, then the defence of duress does not apply” would have caused the jury to embark upon an impermissible line of reasoning to find that the defence of duress did not apply. Further or alternatively, this direction should have been restricted to the time before she landed in Hong Kong as the offence of trafficking by importing had been completed by then.

Respondent’s submissions

11.Mr Kelvin Tang, for the respondent, submitted in respect of the first ground that the cross-examination of the appellant on her late invention of the defence of duress related only to the truthfulness of her defence of duress. Relevant to that was the factual issue of whether she had an opportunity to avoid the perceived threats. Defence counsel did not object to this line of questioning and even went so far as to affirm her answers in re-examination[19]. In its closing speech, the prosecution only invited the jury to consider whether the appellant had availed herself of an opportunity to avoid the perceived threats and the jury was never invited to make any adverse inference from the appellant’s right of silence.

12.In respect to the second ground, Mr Tang submitted that as a matter of law the appellant could only avail herself of the defence of duress if she was acting under duress during the entire period she was committing the crime of trafficking. The period of the crime covered the time from when she ingested the drugs to the delivery of them in Macau, which included the time of importing and exporting the drugs into and from Hong Kong. The jury were invited to view the appellant’s trafficking activity in a wider sense as a continuing act, and the judge was correct in asking the jury to consider whether the appellant had factually made out her defence of duress not only up to her arrival in Hong Kong but also on her way to Macau.

Discussion

13.Before we address the grounds of appeal, it is necessary to examine the defence of duress in some detail.

Defence of duress

14.The defence of duress only arises when it has been established to the requisite standard that the defendant committed the crime alleged against him or her. The defendant who commits the crime under duress may be excused from liability in certain circumstances. The defence can arise where the duress results from threats[20] or extraneous circumstances[21]. It is an exceptional defence, which is confined within narrowly defined limits and available only where the criminal conduct that is sought to be excused has been directly caused by the threats which are relied upon, and the defendant, placed as he or she was, was unable to take evasive action he or she could reasonably have been expected to take. Consequently, there are a series of questions that a jury must answer when considering the defence of duress by threats[22].

15.The first question is whether the threats were made or the defendant reasonably believed them to have been made (Question 1). If the jury decide they were or may have been made then they go on to consider the second question, did the defendant act as he or she did because he or she genuinely and reasonably believed that if he or she did not do so, he or she or a member of his or her immediate family, or someone for whom he or she might reasonably feel responsible, would be killed or seriously injured either immediately or almost immediately (Question 2).

16.If the jury decide that this was or may have been the defendant’s belief, they go on to consider the third question, whether the defendant, before acting as he or she did, had an opportunity to escape from or avoid the threats without death or serious injury, which a reasonable person (a sober person of reasonable firmness of the defendant’s age and sex and any other relevant characteristics) in the defendant’s situation would have taken but the defendant did not (Question 3). In respect of this question, the jury would be asked to consider whether there was a course of action which the defendant could have taken, but did not take, to avoid the threat that he or she reasonably believed to exist without having to commit the crime and that a reasonable person would have taken that course of action. If the jury are sure that was the case, the verdict would be guilty.

17.However, if they decide that there was or may have been no opportunity to escape or to avoid the threatened action, they must go on to consider the fourth question, whether a reasonable person, in the defendant’s situation in believing what the defendant did, would have been driven to do what the defendant did (Question 4).

18.If the jury are sure that a reasonable person would not have done what the defendant did, the defence does not apply, and the verdict would be guilty. However, if they decide that a reasonable person would or may have done what the defendant did, then the defence of duress applies and the verdict would be not guilty. But this is subject to a final question, if relevant, whether the defendant had voluntarily put himself or herself in a position in which he or she knew or ought reasonably to have known that he or she might be compelled to commit a crime by threats of violence from other people (Optional Question 5).

19.If the jury are sure that the defendant did voluntarily put himself or herself in such a position, the defence of duress does not apply, and the verdict would be guilty. However, if they decide that he or she did not do so or may not have done so, the defence of duress does apply, and the verdict would be not guilty.

20.The specimen direction on duress by threats in Hong Kong follows the United Kingdom Judicial Studies Board specimen direction and subsequent iterations.

21.The leading authority on the defence of duress is R v Hasan [23], in which Lord Bingham of Cornhill, with whom the other judges agreed (Baroness Hale of Richmond concurring), discussed and analysed the elements of the defence. He commenced by noting that persons of sound mind will ordinarily be held responsible for the crimes which they commit, but to this general principle, there was a recognised but limited exception in favour of those who commit crimes because they are forced or compelled to do so against their will by the threats of another. He explained that duress affords a defence that exonerates the defendant altogether if raised and not disproved. He observed that the defence of duress is peculiarly difficult for the prosecution to investigate and disprove beyond reasonable doubt. He said, “the prosecution’s difficulty is of course the greater when, as is all too often the case, little detail of the alleged compulsion is vouchsafed by the defence until the trial is underway.”

22.Lord Bingham added that he found it unsurprising that the law in that and other jurisdictions should have been developed to confine the defence of duress within narrowly defined limits. He then set out the limits that accord with those found in the specimen direction[24]. He emphasised that the third question asked by the judge in that case, whether the defendant could have avoided acting as he did without harm coming to his family, focused attention on a cardinal feature of the defence of duress that the execution of the threat must be reasonably believed to be imminent and immediate. He considered that an important limitation of the duress defence regarding whether the defendant could have taken evasive action to avoid committing the crime had been unduly weakened[25].

23.When addressing the third question, which was in similar terms to the third question in the Hong Kong specimen direction, Lord Bingham said that the question was not open to criticism and that it should “be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.”[26]

24.The distinct character and characteristics of the defence of duress are important considerations when determining whether it has been proven, particularly the elements of whether the defendant reasonably believed himself or herself to be threatened with death or serious injury, and whether there was any reasonable opportunity available to the defendant to take evasive action. These elements, in particular, will invariably be the subject of examination when a defendant elects to testify.

Ground 1: Infringement of the right of silence

25.In the first ground of appeal, Mr Beel, for the appellant, complains that the appellant’s right to silence was infringed and an unfair burden of proof was imposed on her when prosecuting counsel cross-examined the appellant on her failure to inform the authorities that she had trafficked in the drugs under duress by threats.

26.The appellant raised the subject of duress for the first time in her testimony in court. It was her evidence that she spoke freely after being stopped by Customs officers, who asked her about the nature and purpose of her trip. She told them that she was a businesswoman[27], on her way to Macau for holiday, and that her husband, who was then in London, would join her the following day with their children[28]. She showed a picture of her husband and the children on her telephone to the Customs officers[29]. It was after a single packet of drugs fell out from her underpants during the body search that she was immediately arrested and cautioned[30]. According to the appellant’s evidence, she then said to the Customs officers words to the effect, “I am going to be killed” or “I would be killed”[31], or she asked them, “Will I be killed? Will I be killed?”[32] One of the Customs officers (PW2) was recalled concerning the alleged statements by the appellant, but she denied that they had been made[33].

27.The appellant was extensively questioned by her counsel why she did not seek help from the police or anyone in Addis Ababa, or from the Customs officers in Hong Kong. She repeatedly replied that she was scared that she and her children would be killed[34]. The issue concerning her failure to take evasive action when the opportunity was available to her, particularly by alerting the Customs officers of her situation, was raised as part of her evidence. The prosecution was, therefore, entitled to cross-examine her on this matter.

28.We consider that the prosecution would have been entitled to cross-examine the appellant on the reasonable opportunities available to her to take evasive action, regardless of whether she had opened up this aspect of the defence of duress in her examination-in-chief, because according to the appellant in her testimony she made statements to the Customs officers before and after caution.

29.At the conclusion of the examination-in-chief, in the absence of the jury, prosecuting counsel raised his concerns about how far he could cross-examine the appellant about her failure to complain to the Customs officers without encroaching on her right of silence[35]. He explained that he did not want to “overstep the mark” as he anticipated he would question the appellant about her failure to avail herself of an opportunity, which was reasonably upon her, to render the threats ineffective[36]. The judge, acknowledging prosecuting counsel’s concern, made the following observations:

“COURT: I’m perfectly -- perfectly understanding of that, but it seems to me that given she’s opened up the topic that you would be entitled to question her upon the basis that she had a number of opportunities to deal with the problem. … but my instinct tells me that given what you are concerned about that you would be entitled to ask her about opportunities that reasonably presented themselves.

… when she realised she was in the hands of the authorities, so it was open to her to say, ‘Look, I’m under duress here, help me.’ And in a sense the caution after the arrest was counter-productive. Your witnesses say, ‘Well, we never heard anything like that.’ …

…

COURT: … given that you were examining her on it, I thought that that was a signal of this -- it was open to the prosecution to test what she had said. …”

30.It is apparent from the judge’s remarks that he was of the preliminary view that given the appellant had opened up the topic, prosecuting counsel would be entitled to question her on the basis that she had a number of opportunities to deal with her situation. Later the same day, after all concerned had given the matter further thought, the judge noted that the defence would only come into consideration if the jury were sure that the appellant had committed the offence. As to the ambit of the cross-examination of the appellant on failing to complain to the Customs officers about the threats, the judge ruled as follows[37]:

“COURT: … the issue of the interaction between the right to silence and the possibility of making an assertion that you were acting under duress. … certainly at any time up to the moment of caution, it would be certainly open to you to make inquiries of this witness about the opportunities, one, that she had and, two, that she availed herself of.

At the moment, I’m not quite sure you could say that what she is telling us she said was availing herself of it, but that is a very, very tentative suggestion given there is a lot more evidence to come, I rather think, on that topic. It may be appropriate to tread more carefully after that point, but that is not a prohibition because the real problem here is that the defence doesn’t arise until the jury should -- sorry, I mean let me rephrase that.

The defence doesn’t come into the jury’s consideration until they say, ‘I am sure that she committed the offence.’ …

…

COURT: … but I will probably become more and more nervous about it at times after the caution.”

31.The judge left open the possibility that prosecuting counsel could cross-examine the appellant on this issue but with the following qualification, “certainly at any time up to the moment of caution, it would be certainly open to you to make inquiries of this witness about the opportunities, one, that she had and, two, that she availed herself of.”[38] Defence counsel did not raise any objection or express any disagreement with the judge’s direction at the time or subsequently.

32.As the judge later observed, the case was unusual because the appellant was contesting the charge on two bases. First, she did not know that the pellets she had swallowed contained a dangerous drug. Secondly, she had been forced to swallow and transport the pellets, which turned out to contain cocaine.

33.Prosecuting counsel questioned the appellant as to why she had not reported the rape or the incident when she had returned to the hotel in Addis Ababa or the cabin crew or the captain on the flight to Hong Kong. She said she was confused and that she knew she and her children would be killed[39]. She was further questioned as to why she did not mention the threats of death to the Customs officers:

“Q. Yes. So therefore at least by that stage you knew these were – these were customs officers or people in authority.

A. Yes.

Q. So here you are, you’ve been caught trafficking in dangerous drugs and here was your opportunity to explain to these people in authority about your situation.

A. Yes, but I couldn’t have told them.

Q. Why?

A. Because my kids are in danger and I’m also in danger.

Q. But you must have realized that now that you’re caught by Customs authorities, you weren’t going to go anywhere, so that the people holding your children would soon find out that you were no longer your own agent.

A. Come again.

Q. You were caught by Customs, you were going to in custody. You weren’t going to going anywhere. Did you have -- and as soon as you didn’t appear in Macau, your syndicate or group would have known that. So what do you think was going to happen to your children in that situation that you don’t turn up in Macau and there’s no explanation for where you are?

COURT: One question at a time, please.

A. I was confused and I just surrendered. And I just said to myself, ‘Let’s see what’s going to happen. I don’t know how it’s going to proceed.’

Q. Did you think that -- had it crossed your mind that the syndicate may believe that you had double-crossed them and run away with the million dollars’ worth of drugs. What would they do to your children in that situation?

A. I had left everything to God.

Q. That’s why you didn’t tell the Customs people, when you had the first opportunity to do so, about your situation.

A. I think so.”[40]

…

“Q. Anytime in the first two weeks why didn’t you contact Customs or authorities, tell them that your children had been held hostage because you were forced to carry drugs, so someone could rescue your children.

…

A. I did not say.

Q. Right. Two weeks, your children were -- in your mind, two weeks, you didn’t know what happened to them.

A. I did not know.

Q. If they were really in danger as you suggested or you told us, you would have done something about it immediately. That’s the truth of the matter.

…

A. No, I’m not lying. It’s true, they were in danger.”[41]

34.Prosecuting counsel, in his closing speech, invited the jury to disbelieve the appellant’s claim of duress, submitting that no such threats had been made. He added that had there been such threats, the appellant would not have mentioned it for the first time when she gave evidence in court:

“The prosecution says she was never threatened or forced or compelled to do what she did. She was at all times a willing, active participant. So the defendant has been in jail for two years since this incident took place, and over those two years you may think that she’d been able to formulate this story that she’s now come to court and told you about. She’s had two years to think about her situation, and after two years, she now comes to court and tells you about this alleged threats to her and her children. It was never mentioned when she was arrested, as you’ve heard, never mentioned at all, mentioned for the first time in court two years after the event.”[42]

…

“But most importantly, upon her arrival in Hong Kong, the defendant had plenty of time to reveal, if true, that she’d been forced to consume this cocaine and to tell the authorities that her children were in danger. I mean, she could have also told the airline crew and that sort of thing, but forgetting that, as soon as she’d been stopped by the Customs officers, as soon as she’d been arrested and the dangerous drugs found in her possession, she knew then she wasn’t going anywhere, Customs weren’t going to release a drug trafficker, she knew then she had no chance of delivering the drugs to Macau. The Customs officer even give her a warning, the authority -- you remember the Notice to Persons in Custody setting out your rights, how she can contact lawyers, contact solicitors, her rights to make phone calls.

So here’s an opportunity for her to tell the Customs officers, ‘I’ve been forced to do this. My children are in danger. Please help them.’ So this is a woman who’s so concerned about her children, she says, that she doesn’t tell anybody about the children. She must have known that as soon as she didn’t turn up in Macau, as she was expected to do, that the syndicate would be aware that she was no longer -- that the drugs weren’t going to be delivered, the syndicate would be aware -- this is supposed to be the syndicate that’s got possession of her children, the syndicate would be aware that things haven’t gone too well, she would know that, and she would, you would think, be worrying about her children. She would be telling the police, telling the Customs, ‘Get hold of the authorities in Nairobi. My two children are with Jane. Get around there, rescue them.’

But what does she do? She waits two weeks and then writes a letter. Is this really, members of the jury, a woman who’s under threats, under duress, or who thinks her children are under duress? Was that the actions of a woman who really believed her children were in danger, were being threatened?”[43]

35.Prosecuting counsel reminded the jury that the prosecution contended that the appellant could have done a number of things to avoid the threats, including informing the Customs officers who had intercepted her[44].

36.The judge gave the standard directions on the burden and standard of proof. In addition to his directions on the issue of knowledge, he emphasised with the jury that if they thought the appellant may have been acting under duress, their verdict should be not guilty[45]. He gave very detailed directions on the defence of duress, and it is appropriate to set them out in full[46]:

“Let us now move onto the law in relation to duress. As you know, the accused says she was forced to swallow the pellets that turned out to contain cocaine, and she was forced to insert some of those pellets into her vagina. She says the man at the house where she swallowed the pellets or inserted them into her vagina had a large knife and threatened to kill her and her children if she refused to swallow the pellets. I will deal in far greater detail with the case for the accused in a little while. However, what I want to do at this stage is inform you of the law relating to what is known as ‘duress’.

The first thing you should know is that the defence only arises if you are sure that the prosecution has proved that the accused is guilty of trafficking. If your conclusion is that she is not guilty of trafficking, you do not even need to think about the defence at all. So stage 1, is the accused guilty of trafficking in dangerous drugs, according to the definition I have given you? If ‘yes’, then we go on to talk about duress, and that is fundamental. We do not do it the other way around.

In the barest outline, if you are sure that the accused was guilty of trafficking in a dangerous drug, I direct you that duress of this kind may be a defence to such a charge. It is for the prosecution to prove the guilt of the accused and it is for the prosecution to prove that the defence of duress does not apply in this case. It is not for the accused to prove that it does apply. It is for the accused to prove it does apply. In considering this question, you need to consider a number of issues and you will have the handout in front of you in considering these questions.

The first issue is whether the threats were in fact made to the accused. Obviously if the prosecution has made you sure that the threats were not made, then the defence does not apply. You would eliminate it at that stage. However, if you decide that the threats were made or may have been made, you should go on to consider the second question. The second question is whether the accused genuinely or reasonably believed that if she did not swallow the pellets or insert them into her vagina, and travelled with the pellets in her body to Hong Kong and Macau, then she or her children would be killed or seriously injured immediately or almost immediately.

In this context, ‘immediately’ is a concept which must take account of the fact that the process took place over a number of hours, from the time of the swallowing of the pellets, to arriving into the hands of the associate for the syndicate trying to have the cocaine in the pellets sent to Macau. In other words, it is a long process from house in Addis Ababa to Macau. That was what was being expected of her. That is what the threat, if there was one, applies to. If you are sure that the accused did not genuinely and reasonably believe that if she failed to swallow the pellets or insert them into her vagina and travel with the pellets in her body to Macau and Hong Kong, then either she or her children would be killed or seriously injured immediately, in the concept of ‘immediately’ that I have just discussed, the defence would not apply.

If, on the other hand, you think that the accused may have genuinely and reasonably believed, if I can just put this in shorthand, that her failure to cooperate would lead to her children or herself being killed or at least seriously injured, then you look at the next question. The next question is whether it really was the threats which caused the accused to act as she did. If the prosecution makes you sure that she would have carried out these acts anyway, with or without the threats, then duress does not apply. If, on the other hand, if you think that the threats were or may have been the reason why the accused acted as she did, then you should proceed to the next question.

Now, the next question is whether, before acting as she did, the accused had the opportunity to avoid the threats without death or serious injury being caused to her or her children and that a reasonable person in the position of the accused would have taken the evasive action as the accused did not. I will talk about the detail of this a little bit later on, but you will remember that the prosecution says the accused could have done any number of things to avoid the consequences of the threats, including telling the customs officers who intercepted her.

On the other hand, and again I will talk about this in a little more detail later on, the accused says that even when she was speaking to the Customs and Excise officers, she was so afraid she did nothing. So members of the jury, if the accused had an opportunity to avoid the threats, or that a reasonable person would have avoided the threats, then the defence of duress does not apply. If, on the other hand, that you think that the accused may not have had an opportunity to avoid the threats, or it is possible that a reasonable person in her position would not have done so, then we go to the next question.

Just pausing there before we get to the next question, I spoke of either the accused or a reasonable person. In this context, I mean a sober person of reasonable firmness, of the age and sex of the accused, that reasonable person would also have the educational background and social and cultural background of the accused. The accused was born and raised in Kenya. She is the mother of two children. Obviously the reactions of such a reasonable person may not be the same as the accused. If you are sure that a reasonable person of the age and sex of the accused, and having those characteristics I have just mentioned, would not have done what the accused did, then the defence does not apply.

If you think a reasonable person may have done what as the accused did, then the defence does apply. In that case, you would come to a verdict of not guilty. So you go through the whole process. If the prosecution proved to you the things that I have spoken to you, to make you sure, no duress. If, at the end of the day, you think that she may have been subjected to duress in the way I have described, then she is not guilty. The prosecution bear the proving, bears the burden of proving that the defence of duress does not apply. If you think the accused may have been acting under duress in the sense I have just described, then your verdict is not guilty.” (Emphasis added)

37.The judge supplemented his oral directions with a written handout on duress, which was unimpeachable.

38.Later in his summing-up, the judge gave a summary of the prosecution case in which he directed the jury not to hold against the appellant the lack of communication to persons outside the prison system. He said[47]:

“According to the prosecution case, she agreed to falsely portray, (1) the reason for her layover in Addis Ababa, remember the visiting her sister reference; and (2) to falsely portray the purpose of her visit to Macau and to misrepresent her occupation. The prosecution says that her movements in Addis Ababa were never consistent with simply travelling to Macau for domestic work. The case for the prosecution is she was never threatened, never placed under duress, never raped.

…

Now, the prosecution case is no rape, no threats, and all this is just a tissue of lies. You can measure the absence of threats and fear by the absence of immediate steps to check on her kids when she got to Hong Kong. The case for the prosecution is she must have known these were officials. Whether she knew they were exactly members of the Customs and Excise Service of Hong Kong or not, may not matter, but they were officials and that she could reveal her position to them. That is the prosecution case. If she had said, ‘I will be killed’, which they deny, as you remember, the senior customs officer said, ‘I’d be asking a whole lot more questions if that happened.’

The prosecution say, well, there were no urgent and immediate enquiries because she knew perfectly well her kids were safe because there was no threat. But that is the prosecution case. That is what you have to evaluate. She says the complete opposite, as you know. The prosecution say she willingly carried out this arrangement and knew perfectly well that what she carried was a dangerous drug, even if she did not know it was cocaine. Of course, as I have pointed out already, there are difficulties in prison, and I am sure everybody would accept that, as to making communications to the outside world. Do not hold it against her, the fact that she was in custody. The only relevance is to the issue of difficulties that she may have faced in communicating.” (Emphasis added)

39.It is also relevant to note that the judge, in his summing-up, reminded the jury that the appellant did not have “to prove anything at all” and that the burden of proof was on the prosecution to prove its case against the appellant beyond reasonable doubt, which he repeated in emphatic terms[48].

40.Mr Beel accepts that the prosecution was entitled to cross-examine the appellant about the reasonable opportunities available to her to avoid the threats. He argues that a difficulty arose when the prosecuting counsel put to the appellant that she had never mentioned the threats when she was stopped in Hong Kong by the Customs officers[49]. He contends that the appellant’s right of silence was infringed when prosecuting counsel put to the appellant that after she had been arrested and cautioned by the Customs officers for trafficking in a dangerous drug this was her opportunity to explain her situation[50].

41.Mr Beel also complains about prosecuting counsel’s remarks in his closing address to the jury, in which he said that the appellant had been imprisoned for two years before coming to trial with plenty of time to make up a story about the threats. Prosecuting counsel noted that the threats had not been mentioned when she was arrested and were only raised for the first time two years after the event in court. In this context, prosecuting counsel submitted to the jury that they should completely disregard her explanation about the threats because they were false, but adding:

“… of course, you will make up your own mind as to whether she was telling the truth or not, but the prosecution puts forward, submits to you, that she’s been untruthful and I’ll outline a few reasons as to why we the prosecution says you should not believe this story that she was suffering from duress or that she had no knowledge about the dangerous drugs.”

42.It would have been preferable that prosecuting counsel did not make reference to the appellant being in prison custody, but we do not consider it resulted in any prejudice to her. The essence of his submission to the jury was that the defence of duress was a recent invention and the appellant should not be believed, which he was entitled to make in the circumstances of the case.

43.Prosecuting counsel further addressed the jury on the appellant’s opportunity to tell the authorities that she and her children were in danger and that she had been forced to smuggle the drugs to Macau. He also referred to the appellant’s evidence that, notwithstanding the alleged threats and her purported concern for the safety of her children, it was two weeks later that she sent a letter through Father John Wotherspoon, a prison chaplain, to her family[51]. The failure to raise the alarm about her situation or enquire about the safety of her children was the subject of cross-examination to show that she was not concerned about her children and that the threats were false[52].

44.Mr Beel contends that the veracity of the appellant’s defence of duress was attacked on the basis of a failure to avail herself of the opportunity to complain to Customs officers about the threats allegedly made to her whilst she was in Addis Ababa. He complains that a lack of direction on the appellant’s right of silence would engage the jury in an impermissible line of reasoning, undermining her defence of duress. He further complains that the third question that the jury were asked to consider under the defence of duress, namely, whether the appellant had an opportunity to avoid the threats, was inappropriately posed since the basis of the trafficking act in the present case was “importing” and that was already completed at the time the appellant landed in Hong Kong.

45.Mr Beel makes a general complaint that the way the subject of the defence of duress was dealt with at trial infringed upon the appellant’s right of silence and “also impacted upon the burden of proof”. In his submissions, he does not articulate how the burden of proof has been affected by the circumstances of the present case. He referred to Lee Fuk Hing [53]and Ata Asaf [54], but again does not articulate in his submissions how the principles in these cases arise in the present case other than to identify that a defendant has a right of silence. As we understand his argument on this aspect of the ground of appeal, he is submitting that it is inappropriate to use a person’s silence against him or her in any way, such as failing to mention a matter upon arrest later relied upon as a defence at trial[55]. However, his argument does not address the concept of the right of silence in the context of the defence of duress and the circumstances of this case.

46.As we have already noted, the defence of duress is only available after all the elements of the substantive offence are proved. The appellant’s defence was that she did not know the pellets contained a dangerous drug and that she was transporting the pellets in her body under duress. It was made clear to the jury that once they were satisfied to the requisite standard that the appellant was guilty of trafficking in a dangerous drug, they had to consider the defence of duress.

47.After a routine search was conducted of the appellant’s luggage, followed by a body search, a pellet in transparent wrapping fell to the ground when she was undressing. It was the prosecution’s case that she had all along remained silent after the search and throughout the period she was in the hospital when the pellets were discharged. It was the defence case that after she was searched she said to the Customs officers, “I will be killed” or “Will I be killed?” or words to that effect[56]. Mr Beel argues that the evidence was vague as to when this was said. However, it would appear from the evidence of the two Customs officers and the admitted facts that the arrest and caution followed immediately after the pellet fell out from the appellant’s underpants[57]. On the appellant’s own evidence she did not invoke her right of silence at the time Customs officers intercepted her. After she made her statement to them, she said nothing further and refused to answer questions in her video recorded interview.

48.When the appellant testified, defence counsel asked the appellant why she did not seize the opportunity to tell Customs officers of the threats when she was stopped and arrested. It seems the defence wanted to establish that the effect of the threats prevented her from complaining about duress to the Customs officers. The prosecution’s cross-examination was directed at querying whether her claim of duress was genuine and credible.

49.Mr Beel sought to argue that the appellant’s statement that she would be killed was said before the caution was administered and that after it had been administered she exercised her right of silence. We do not agree with this submission. It was not a point that was raised at trial and it is plain from the sequence of events that the appellant made her statement after the pellet of drugs had fallen from her clothing. The Customs officers, familiar with past cases involving the use of pellets to smuggle drugs, immediately administered a caution on suspicion that she was trafficking in a dangerous drug.

50.If there is no factual basis from which duress might reasonably be inferred in the prosecution’s case, then the defendant has the evidential burden of laying a factual foundation for the defence. Upon the defence discharging the evidential burden, the onus then falls on the prosecution to disprove duress to the criminal standard[58]. It is recognised that duress is a unique defence that is peculiarly difficult for the prosecution to investigate and disprove. This factor is an important consideration that features in the case authorities and the nature and scope of the elements of the defence of duress. In the present case, it was highly relevant for the prosecution to question the appellant in respect of the threat of death that she said she reasonably believed had been made against herself and her children, and any reasonable opportunity to escape such threat. In Hasan, Lord Bingham emphasised the requirement of the immediacy of the threat and the defendant’s inability to avoid the threat when considering the defence of duress[59]. The prosecution was entitled to question her about what efforts she made, if any, to avoid the danger to herself and her children, or to ensure that her children were safe from such danger. The question of her taking any evasive action was a legitimate and permissible line of questioning by the prosecution in order to test the veracity of her claim that she acted under duress.

51.The prosecution presented a strong case that the appellant’s claim that she acted under duress was not true by reference to the appellant’s testimony and other evidence. It was submitted that the appellant made no effort to raise any alarm or show any concern for her or her children’s safety, which seriously undermined the claim that she reasonably believed that a threat had been made against her and her children, especially given the undisputed fact that she spoke freely with the Customs officers, with no hint of acting under duress, by telling them the story of going to Macau to meet up with her family, which she had been instructed to use to make her entry into Macau easier.

52.In Lee Fuk Hing, the Court of Final Appeal in addressing the protections of the right of silence noted that as a matter of ordinary experience, the failure to put forward an innocent explanation when given an opportunity to do so might support an inference that any later explanation was false. However, the Court doubted whether there was a real distinction between using silence to infer guilt and using it to attack the weight of an account given at trial but not earlier and that such a distinction would be difficult for a jury to understand or apply, particularly where an accused is administered a caution informing him or her in unqualified terms that they need not speak. It was on this basis that the Court stated that a person’s right of silence might become a possible source of entrapment.

53.In Ata Asaf, Fok PJ, giving the judgment of the Court, reiterated the principles in Lee Fuk Hing but added that the question of whether the right of silence had been materially infringed was fact and context sensitive, and that it was necessary to identify the issue to which the inadmissible evidence was related and its importance in the context of the case as a whole[60]. In that case, possession of the drugs was not in dispute, and the issue was whether the appellant possessed them for the purpose of trafficking. Prosecuting counsel had questioned the appellant about why he did not tell the police where he stored his equipment to consume drugs as part of his defence that the drugs found in his possession were for his own consumption. The Court held that it was inadmissible evidence because the appellant exercised his right of silence and did not say anything to the police after his arrest and caution, and that it constituted a material infringement of the appellant’s right of silence, which had not been remedied by the judge’s standard direction on the right of silence.

54.The Court of Final Appeal has acknowledged that there may be circumstances where the right of silence is not infringed as envisaged in Lee Fuk Hing v HKSAR [61]:

“57. …if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inference even if they are adverse to the accused.”

55.In the recent decision of HKSAR v Chan Chu Leung[62] the Court of Final Appeal revisited the issue of the right of silence. Fok PJ, with whom the other judges agreed, reiterated that the right of silence is a collection of a disparate group of immunities and is ultimately a facet of an accused person’s right to a fair trial[63]. He explained that a suspect or an accused is protected by the right of silence in two respects[64]:

“First, it protects him against the suggestion that it is to be inferred that, because he failed or refused to say something earlier, he must be guilty of the offence charged (this use to infer guilt is sometimes referred to as ‘guilt use’). Secondly, it protects him against the suggestion that, because he failed or refused to say something earlier, his later explanation or testimony is not to be believed (this use is sometimes referred to as ‘credibility use’).”

56.Fok PJ reaffirmed the principles of the previous authorities that “given the right of silence in this jurisdiction and the unqualified terms of the caution given to suspects, it is inappropriate in Hong Kong to use a person’s silence against him in any way”[65]. He explained that when a person’s right of silence was engaged, “he was entitled, as instructed by the form of the caution, not to say anything.”[66] He stressed that in this context, it was important to note the absence of any general obligation on a defendant in criminal proceedings in Hong Kong to disclose the nature of his defence to a criminal charge, save for the statutory obligations to give an alibi notice or notice of expert evidence[67].

57.After a review of the principles in HKSAR v Lam Sze Nga[68], Fok PJ addressed the interplay between confession statements and the right of silence and provided the following guidance on this topic:

“54. Where, therefore, the voluntariness of a confession statement is disputed, notwithstanding the right of silence, cross-examination and comment is permitted on, for example, allegations of police misconduct exercised in order to extract an involuntary confession. This may entail suggestions being put to the accused that, because of his failure to raise a complaint about police misconduct until much later, that complaint is not credible. Such suggestions are permissible in the context of determining the admissibility of an alleged confession (‘… for this limited use …’). If it is determined the confession was made voluntarily, then there is no question of any right of silence having been exercised by the accused and what he said will be admissible. On the other hand, if it is determined the confession was not made voluntarily, then it will be inadmissible and the accused will be treated as having exercised a right of silence and having said nothing. In a trial before a judge alone, this will not cause any difficulty of application. In a trial before a jury, the judge will have to direct the jury to disregard anything said by the accused in their presence if it is determined that the right of silence was exercised.”

58.Fok PJ emphasised that this approach does not provide a basis for permitting inroads to the right of silence for more general purposes[69]. However, it is appropriate to note that if a confession statement has been ruled admissible, a defendant may still dispute at trial the voluntariness and reliability of the confession statement, and it would, therefore, be incumbent on the trial judge to direct the jury as to the right of silence and against drawing any adverse inference, if they find the defence case to be true or may be true[70].

59.The application of the right of silence and the protections it offers to a person who has exercised the right, ensure that the person’s silence cannot be used against him or her in any way. Nonetheless, as explained by Fok PJ, an infringement of the right of silence is not necessarily fateful to the fairness of the trial process[71]. It will depend on whether the infringement is significant or material, and whether any unfairness can be cured by appropriate directions from the judge[72].

60.The question arises whether, upon or after caution, a defendant who has exercised his or her right of silence can be cross-examined on a reasonable opportunity to report a threat to the authorities in respect of the defence of duress. It would seem that once a caution has been administered and a defendant has exercised his or her right of silence, whilst it is reasonable to expect that he or she would report a threat under duress if it was true, no examination of the defendant is permitted beyond this point. Accordingly, in the case of a defendant advancing the defence of duress, a failure by him or her to take action that would negative the threat by reporting it to the arresting authorities after the administration of a caution and the exercise by him or her of the right of silence, cannot be the subject of cross-examination or comment.

61.In the present case, we consider that the prosecution rightly challenged the appellant’s claim of duress by questioning why she did not seize the opportunity to disclose to the Customs officers that she was acting under threat. As already pointed out, this issue had been initially raised by defence counsel when questioning the appellant during her testimony. In the circumstances, the prosecution was entitled to cross-examine the appellant on the elements of the defence of duress, including the failure to take evasive action that was reasonably available to her. According to the appellant, she did not exercise her right of silence as she asked the Customs officers, “Will I be killed?”, but said nothing about the nature of the threat and how she and her children were in peril.

62.The prosecution argued that the failure to take evasive action supported its case that the appellant’s claim of duress was not credible. It was not used to equate with guilt. Furthermore, there was no improper or inappropriate impact on the burden of proof. The appellant had an evidential burden to raise the defence of duress, and it was always on the prosecution to disprove the defence to the criminal standard.

63.Even if there had been an infringement of the appellant’s right of silence in questioning her about not reporting the threat to the Customs officers when they stopped her, we are of the view that in the circumstances of the case it was not material. The appellant testified that she answered routine questions asked by the Customs officers, and when the pellet fell from her clothing, she made a statement to them, asking would she be killed. The question of whether the appellant took any evasive action against the threat when there was a reasonable opportunity for her to do so, was an important consideration in respect of the defence of duress that she relied on at trial. We should add that in other cases, depending upon the circumstances, it may be necessary for the judge to give specific directions to prevent or cure any unfairness that would arise from the admission of infringing material[73].

64.This ground of appeal fails.

Ground 2: Misdirection on the defence of duress

65.In the second ground of appeal, the appellant complains that the judge erred in directing the jury on the question of whether the appellant had an opportunity to avoid the threats.

66.It is accepted that the judge directed the jury on the issue of duress in accordance with the specimen direction. He put before the jury four questions that they needed to consider in determining whether the defence of duress had been made out. It is the third question regarding the appellant’s opportunity to avoid the threats that is the subject of this ground. As we understand Mr Beel’s argument, he contends that after the appellant had been stopped by Customs officers, she had already committed the offence of importing the drugs into Hong Kong. Hence, the third question did not arise, or if it did, it should have been confined to the time when she returned to her hotel in Addis Ababa and departed for Hong Kong.

67.Mr Beel argues that the judge, when directing the defence of duress, erred in posing the third question to the jury, thus conflating the actions to avoid the threats before the appellant embarked on trafficking the drugs to Hong Kong with actions that she could have taken after she was stopped by Customs officers. He submits that this was not a continuing offence as the offence of trafficking was completed when the appellant landed in Hong Kong as the basis of the prosecution case was “importing”[74]. This was explained by the judge as follows:

“…In the present case, the prosecution’s case is that the accused imported the drugs into Hong Kong. That is the only issue in the definition of trafficking in dangerous drugs with which we are concerned in this case. Under our law, importing is an act of trafficking…” [75]

“…What the prosecution must prove is that she knew she was carrying a dangerous drug…What the prosecution have to prove is that she knew as she entered.”[76]

68.In this regard, Mr Beel argues that the prosecution was not entitled to question the appellant on her failure to disclose her claim of duress to the Customs officers after she arrived in Hong Kong as the third question phrased by the judge was “whether, before acting as she did, the accused had an opportunity to avoid the threats…but you will remember that the prosecution says the accused could have done any number of things to avoid the consequences of the threats, including telling the Customs officers who intercepted her.”[77] He contends that when the appellant landed in Hong Kong, the act constituting trafficking, namely, importing, was completed.

69.We reject this argument. Notwithstanding, the prosecution relied on the act of importing as the basis for the trafficking offence, the fact remains that the appellant alleged that she was made to swallow the drugs and deliver them to Macau via Hong Kong, and that was the period she claimed she was acting under duress. Had she not been stopped in Hong Kong, she would have continued with her journey, transporting the drugs in and out of Hong Kong. The act of trafficking commenced in Addis Ababa and was to continue to the ultimate destination of Macau. It did not stop when she landed in Hong Kong. The judge rightly pointed out[78]:

“… ‘immediately’ is a concept which must take account of the fact that the process took place over a number of hours, from the time of the swallowing of the pellets, to arriving into the hands of the associate for the syndicate trying to have the cocaine in the pellets sent to Macau. In other words, it is a long process from house in Addis Ababa to Macau…That is what the threat, if there was one, applies to.”

70.This ground of appeal is without merit.

Conclusion

71.It follows from what we have said that the appellant’s appeal against conviction is dismissed.

Mr Kelvin Tang, SPP, of Department of Justice, for the respondent

Mr Trevor Beel, instructed by Morley Chow Szeto, assigned by Director of Legal Aid, for the appellant