HKSAR v. Liu Hsiu Hsiang

CACC000304/2001

CACC 304/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 304 OF 2001

(ON APPEAL FROM HCCC 322 OF 2000)

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Coram: Hon Stuart-Moore VP, Stock JA and Tong J

Date of Hearing: 4 November 2003

Date of Judgment: 19 November 2003

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 7 August 2001, following a trial before V. Bokhary J, the Applicant was convicted by a jury of trafficking in a crystalline solid containing just under 4.2 kilogrammes of methamphetamine hydrochloride ("ice"). She now seeks leave to appeal against conviction.

2.The facts concerning the Applicant's arrest were straightforward. After the Applicant, aged 39, had entered the Customs Arrival Hall at Lo Wu Control Point, on her way into Hong Kong from the Mainland, she was intercepted by Customs Officers. In one hand, she carried a red carrier bag and, with her other hand, she was dragging a small suitcase. When these items were duly searched, the officers found a total of six Ferrero Rocher chocolate boxes containing what appeared to be 180 individually wrapped chocolates together with two boxes of what, at first sight, were Japanese-style cakes containing a total of 100 individually wrapped cakes. The chocolates and cakes were a mere subterfuge for the ice, valued at approximately $1.4 million, which was discovered inside them.

3.The Applicant gave evidence that she had not realised she was carrying dangerous drugs. According to her, Chan Ching, who was a friend, had asked her to take the chocolates and cakes as a favour and to give them to Chan's boyfriend, Peter Cheung, in Hong Kong.

4.The prosecution relied on the presumptions arising from the Applicant's physical possession of the carrier bag and the suitcase, pursuant to section 47 of the Dangerous Drugs Ordinance, Cap. 134 which provides (so far as it is relevant to the proceedings) as follows:

"47. Presumption of possession and knowledge of dangerous drug
	(1)	Any person who is proved to have had in his physical possession-
		(a) anything containing .... a dangerous drug;
		(b) ....
shall, until the contrary is proved, be presumed to have had such drug in his possession.
	(2)	Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug."

Grounds of appeal

(1) Directions on the presumptions

5.The directions relating to the presumptions, given in summing up the case to the jury, gave rise to the first ground of appeal raised by Mr Macrae, SC, on the Applicant's behalf. He submitted that the directions were not only wrong in law but confusing also. We shall deal with each of the passages containing the directions which were criticised in turn. Firstly, the judge said:

"In this case, you are concerned with certain presumptions. I will be giving you specific directions on those presumptions in due course. However, I should say something to you about presumptions at this stage, just having told you about the burden of proof on the prosecution and the standard of proof which the prosecution must achieve.

In certain circumstances, the law provides presumptions which the prosecution can rely upon. Presumptions work like this. If certain basic facts alleged by the prosecution are proved, then certain facts alleged by the prosecution are presumed unless and until the defence gives sufficient evidence to the contrary. You have just heard me talk about basic facts alleged by the prosecution being proved. Let me explain that. There are two ways in which such facts can be proved. One is if the prosecution proves them beyond reasonable doubt by evidence. The other is where the defence accepts them. In either case, they are proved.

I spoke of facts being presumed unless and until the defence gives sufficient evidence to the contrary. In regard to a presumption, 'sufficient evidence to the contrary' means evidence which if believed, and on the view most favourable to the defence, could be taken by a reasonable jury to support the contrary to what is presumed......." (Appeal bundle pp. 3-4)

6.What the jury were to make of these directions it is hard to say. The judge appears to have deliberately departed from the statutory phraseology in section 47(1) and (2) by replacing the words "until the contrary is proved" in regard to the presumptions which are to be made if the defence is unable (on the balance of probabilities) to prove the contrary. Instead, the judge had used the phrase: "until the defence gives sufficient evidence to the contrary".

7.It may well be, as Mr Macrae submitted, that the judge was trying to be helpful to the defence. If so, he argued, she had left the jury with a muddled approach which can only have confused them. What, for example, was the jury to make of the explanation the judge provided in the self-made definition she had given them which stated that "sufficient evidence to the contrary" meant evidence which "if believed and on the view most favourable to the defence, could be taken by a reasonable jury to support the contrary to what is presumed".

8.We feel bound to say that this direction would probably have been meaningless to a lay jury. However, while the direction, taken as a whole, represented a misstatement of the law and was, with respect, unhelpful if not also confusing, it was in itself neither contrary to the Applicant's general interests nor prejudicial to her defence when looked at in the full context of the summing up and, in particular, the directions later given about the presumptions when the judge returned to this subject. She said:

"The law provides as follows:

1.	Any person who is proved to have had in her physical possession anything containing a dangerous drug shall, unless and until the defence gives sufficient evidence to the contrary, be presumed to have had such drug in her possession;
2.	Any person who is proved or presumed to have had such a dangerous drug in her possession shall, unless and until the defence gives sufficient evidence to the contrary, be presumed to have known the nature of such drug." (Appeal bundle p. 10)

9.Once again, in each of these directions and in the same way as she had done earlier, the judge gave the jury a definition of the law which represented a deliberate departure from the statute.

10.A little later, having just dealt with what in law is meant by "possession":

"Upon your so concluding (that the Applicant had physical possession of her luggage), two presumptions would arise. The first presumption would be that she had those dangerous drugs in her possession. And the second presumption would be that she knew the nature of those dangerous drugs, in other words, that they were dangerous drugs. It would then be for the accused to give sufficient evidence to the contrary. The first presumption would be displaced if the accused gives sufficient evidence that she did not know that the dangerous drugs were concealed inside the chocolates and cakes in the suitcase and the red carrier bag. The second presumption would be displaced if the accused gives sufficient evidence that she did not know their nature, in other words, that they were dangerous drugs." (Appeal bundle p. 11)

11.The jury was then reminded of the general nature of the defence case before the judge went on to say:

"That is sufficient evidence contrary to the presumptions of possession and knowledge. So the presumptions have been displaced and the question becomes this. In all the circumstances and having seen and heard all the witnesses, including the accused herself, do you, as fair-minded men and women having common sense, feel sure that the only reasonable inference is that the accused knew about the drugs and was transporting them as a knowing drug courier in the drug trade, and that her denials of guilt are false? If you are not sure of that, you must find her not guilty. If you are sure of that, then you may find her guilty." (Appeal bundle p. 12)

12.The same misdirection had been, as Mr Macrae pointed out, repeated several times. We can only assume, in a case where the evidence was so heavily stacked against the Applicant, that the judge was trying to be as fair as possible towards the defence by weakening the burden which the Applicant was, in truth, required to discharge, and then stating that the presumptions had been displaced by the Applicant giving "sufficient evidence contrary to the presumptions". However, as Ms Mary Sin, for the Respondent, graphically described it, the defence had effectively been given, by this approach, a "free gift" in circumstances where plainly, and as the defence had informed the judge that they accepted, the appropriate burden of proof lay on the defence to show that the presumptions of knowledge did not apply.

13.It is to be noted that if the judge had directed the jury on the presumptions that the contrary had been proved, this would have brought the matter to an end and an acquittal would inevitably have had to follow. However, bearing in mind that this was effectively the sole issue to be decided by the jury, it is not in the least surprising that the judge chose not to do this. Instead, she had informed the jury, perhaps as a device to exclude the complication which presumptions present, that as "sufficient evidence contrary to the presumptions" had been given, these were "displaced" and that the jury should proceed by considering whether they could feel sure that the "only reasonable inference (was) that (the Applicant) knew about the drugs and was transporting them as a knowing courier in the drug trade and that her denials of guilt (were) false".

14.Mr Macrae criticised this passage as unsatisfactory. In particular, he contended that the phrase relating to the Applicant's denials of guilt being "false" should have been followed at some stage by a proper direction on the approach to be taken by the jury to lies which the Applicant may have told. This argument overlapped with his second ground of appeal to which we shall turn shortly.

15.The question posed to the jury could have been more directly phrased. Once the presumptions had, wrongly in our view, been removed from the jury's consideration, all that was needed was a direction to the effect that the jury had to decide whether they were sure the Applicant knew that she was in possession of dangerous drugs. Only if this was proved, could she be found guilty.

16.Despite these reservations, we have concluded that, when the overall effect of the judge's directions is considered, the defence suffered no prejudice of any kind. On the contrary, the error of law and the somewhat muddled directions, resulting in the jury being told that the presumptions had been "displaced", gave the defence a benefit to which they were never entitled.

(2) Absence of "lies" direction and inadequacy of direction on "inferences"

17.We can take each aspect of the second ground of appeal briefly. The first of the complaints in this ground was that the judge had failed to give a "warning as to the way lies might be used".

18.We have already referred to Mr Macrae's suggestion that a "lies" direction was necessary in the light of the judge's remark which invited the jury to consider whether the Applicant's "denials of guilt (were) false".

19.In our opinion this did not give rise, standing on its own, to the necessity for a direction to be given to the jury about the approach they should take in the event that they found the Applicant to have lied in the course of her evidence. Plainly, her testimony was an important part of the evidence which the jury had to consider. Equally obviously, if the jury were to convict, they would, before doing so, have had to reject the Applicant's account as a false one.

20.Mr Macrae's second contention under this ground was that the judge gave inadequate directions to the jury relating to their approach to the drawing of inferences. This had to be looked at, he suggested, in the full context of the passage where the judge directed the jury as follows:

"The only evidence which the prosecution can rely on is the evidence given in this court. Nothing you have seen, heard or experienced outside court can ever adversely affect any accused person. Preconceived ideas have no place in a court-room. On the other hand, their experience of life and their common sense are things which jurors are expected to use. Go by the evidence. Do not speculate. Use your common sense. In this connection, remember that the only purpose for which the prosecution put before you the accused's travel record was to show that she was a seasoned traveller. You are not to speculate about her trips or anything else. She is charged with one offence and one offence only, that is drug trafficking at the time and place mentioned in the count. You are entitled to draw inferences. If an inference against the accused is based on facts of which you are sure and you are sure that it is the only reasonable inference, then you may draw that inference. Thinking that a fact is the only reasonable inference is the same as being satisfied beyond reasonable doubt of that fact, in other words, being sure of that fact." (Appeal bundle pp. 4-5)

21.We shall return to the evidence relating to the Applicant's travel record, to which reference is made in this passage, when we come to the fifth ground of appeal. In this ground, Mr Macrae complained that the judge had failed to explain what would entitle the jury to draw an inference, namely, if certain facts were proved, they would then be entitled from those facts to infer the existence of other facts. He submitted also that the judge had omitted to point out that if there was a reasonable inference to draw against the Applicant as well as one which was in her favour, then the jury should not draw the inference which was adverse to her.

22.It is, we agree, unfortunate that the judge chose not to use the rather longer formula which is normally given to juries when the proper approach to inferences is being explained to them. Whilst the judge's directions about inferences were accurate so far as they went, they were in our judgment by no means as clear to a lay jury as is the explanation imparted by the longer, standard directions.

23.The question we have asked ourselves, therefore, is whether the omissions to which Mr Macrae referred had left the jury with a false impression as to how inferences in the present case might be drawn, bearing in mind that the only real issue to be decided was whether the Applicant had knowledge of the dangerous drugs in her luggage. We have concluded that although the directions could have been more helpfully expressed than they were, the jury were sufficiently directed. We have in mind the fact that the jury had been told that they could draw an inference against the Applicant if it was based on facts about which they were sure, and that they were sure that it was the only inference to be drawn.

24.This ground, therefore, fails.

(3) Approach to "demeanour"

25.The third ground complained about the nature of the judge's reference to demeanour in the summing up which was as follows:

"Members of the jury, you will also remember the cross-examination of the accused by Mr Delaney for the prosecution. He cross-examined her with a view to undermining her account and denial. You saw all the witnesses' demeanour under cross-examination and you may take that into account as you see fit." (Appeal bundle p. 15)

26.Mr Macrae submitted that the judge's direction as to demeanour was unhelpful to the jury as it stood and that she should have added further advice to make sense of this somewhat blunt statement. He said that there were a number of relevant considerations which could be taken into account by the jury when considering questions related to demeanour, including the fact that the Applicant was a stranger to the courts and to the Cantonese language (she spoke in Mandarin).

27.It has been said, correctly in our view, that demeanour is a notoriously uncertain guide to the truth: R v Ng Wing-ming [1995] 1 HKCLR 65. In our judgment a simple and unqualified statement that the jury is entitled to have regard to the demeanour of witnesses is generally to be avoided, as it runs the danger of being a meaningless mantra, and there are cases, if demeanour is to be referred to, where justice will require the type of qualification to which Mr Macrae alluded. Judges will sometimes remind a jury that those not used to giving evidence will be nervous or that some people are unskilled in expressing themselves and that these natural weaknesses should be recognised. However, all this is a far cry from saying that a bare comment about demeanour provides, in itself, a ground for concluding that there has been a misdirection. In this case, the comment came in the context of a specific reference to cross-examination of the Applicant and for all we know the Applicant may so have conducted herself during cross-examination, by evasion and pauses pregnant with meaning, as to have warranted the comment.

28.This ground fails.

(4) Directions given after questions asked by the jury

29.Mr Macrae had originally intended, in his fourth ground of appeal, to rely on fresh evidence produced under section 83V of the Criminal Procedure Ordinance, Cap. 221, to cast a doubt on the way in which two questions asked by the jury, three hours into their retirement, had been answered by the judge. The criticism was not directed at the judge but suggested that non-disclosure on the part of the prosecution had left the jury with an incomplete picture about the precise issue on which the jury were seeking help. In the event, however, Mr Macrae was persuaded, by the good sense of Ms Sin's written response for the Respondent, not to pursue this line of argument and no application to adduce fresh evidence was made.

30.In a somewhat different approach to this ground, Mr Macrae submitted that the very nature of the answers which the judge provided to the jury's questions nevertheless left open a degree of doubt about certain aspects of the evidence. In such circumstances, he contended that the judge should have told the jury that if this was the view to which they came, they should resolve the matters on which they needed further assistance in the Applicant's favour. It was submitted that this omission, following defence counsel's specific request that the judge should so direct the jury, made the verdict unsafe or unsatisfactory.

31.The questions which the jury asked were read out by the judge as follows:

".... there are four queries which you have reduced into writing and handed to the jury usher to be given to me and I would like to read your queries into the record and then I shall answer your queries. All right? So your queries read as follows: 'We would like to examine the following: (1) suitcase as shown in photo number 1, 36 to 40; (2) items inside the suitcase except the cakes and chocolates as shown in photo number 40 not listed as exhibit; (3) a detailed list of belongings when the accused was arrested (including all the stuff returned to the accused); and (4) the jade bracelet ... ring already shown in court." (Appeal bundle pp. 33-34)

32.The judge at some length, then proceeded to remind the jury of all the evidence they had heard from the arresting officer (PW1) and from the Applicant in order to answer questions 2 and 3, having indicated that the jury could be given the items to which questions 1 and 4 referred.

33.The judge specifically reminded the jury that apart from the drug-related exhibits taken from the suitcase, the "other items ...... contained inside the suitcase ...." were visible in photograph 40 of their album. As these items were not exhibited it was not, therefore, possible to give them to the jury. The same applied, as the judge went on to say, to the detailed list requested by the jury of all the Applicant's possessions, including the items returned to her. However, there were photographs which also showed the property taken from the Applicant's red carrier bag. The jury were also reminded that they had a copy of the Applicant's air ticket. The judge then reminded the jury of all the items which the jury had been told were returned to the Applicant before saying, in relation to the evidence given by PW1:

".... there were three pieces of clothing and they looked like pyjamas and they were underneath the boxes of chocolate and the box of green cakes. When he was shown photo 40, he confirmed that they were the clothing that he was referring to. He said that he handed everything to the exhibit officer on 1 August 2000 and he himself could not recall if he had given anything back to the accused. He also said that he did not recall seeing any items of toiletries. In fact, he said that there's no toiletry bag, nail clips, toothbrush, toothpaste inside the suitcase or red carrier bag. There were also no socks, stockings, underwear or bras. Just three pieces of clothing which seemed to him to be pyjamas." (Appeal bundle p. 35)

34.After this, the jury were reminded of what the Applicant had said about her possessions. The judge said:

".... when it was put to her that she only had three pairs of pyjamas, and showing her photo 40, the accused said that that was not correct. She said that apart from clothing, she also had one toothbrush and other toiletries. She was then asked about the three items of clothing and she said that they were three suits and that she was wearing one of them, being one white jacket, vest and trousers. And one was a pink suit of linen and lace and there was one pair of pink shorts and one suit was a white suit of similar style to the pink suit.

But in cross-examination, the accused confirmed that all the clothings that she had were as shown in photo 40....." (Appeal bundle p. 35)

35.After this, without further ado, the judge invited the jury to return to their deliberations.

36.Clearly, the evidence which was related to the jury's questions, both for and against the Applicant, had been placed before them to remind them of every relevant detail. This was done fully and fairly. It was a matter for the judge to decide whether, in the exercise of her discretion, a further direction to the jury was needed to remind them of the burden and standard of proof.

37.These were not questions, in our opinion, which gave rise to the necessity for such directions in the particular circumstances which had arisen. The jury merely wished to see a number of items and, when the judge was unable for procedural reasons to provide all of these, it was a simple matter to remind them of the evidence directly related to their questions.

38.Accordingly, this ground fails.

(5) Introduction of the Applicant's record of travel

39.In his fifth ground of appeal, Mr Macrae alleged that the introduction of the Applicant's travel record, showing that the Applicant had been a frequent traveller during the year 2000 between Taiwan, Japan, the Mainland and Hong Kong, was more prejudicial than probative and should not have been admitted. He submitted, alternatively, that as the introduction of this evidence amounted to a "killer" blow to the defence, even if the judge had been right to admit the evidence, the directions she gave on this aspect of the case had been inadequate.

40.It was plainly the fact that the Applicant was a seasoned international traveller. We shall need to say more about this later but against this background the prosecution applied, in the face of objection from the defence, to introduce this evidence on the basis, it was said, that it demonstrated that the Applicant was not a person who might na?vely accept a request to carry someone else's goods across the border and that it showed she was well aware of the penalty notices regarding dangerous drugs which are frequently exhibited in places where Customs' checks are carried out.

41.Against this, whilst accepting that the Applicant was an experienced international traveller and that this would emerge as part of her defence, the Applicant's trial counsel had expressed a concern that the jury might put a sinister interpretation on the Applicant's rather specific pattern of travel which she had undertaken four times in the space of about six months before her arrest. To this, the prosecutor replied that if this was the concern of defence counsel, it was a matter which could be addressed by him if he wished to do so. It is only right to say that, when prosecuting counsel addressed the jury in his own final speech, he maintained exactly the stance which he had adopted when first seeking the introduction of this evidence.

42.In a passage taken from the summing up to which we referred earlier, the judge also dealt with this issue by directing the jury that they were "not to speculate about (the Applicant's) trips or anything else". She had added to this that the jury should remember that the only purpose for which the Applicant's travel record had been put before them was to show that she was a "seasoned traveller".

43.However, these observations amount to a superficial appraisal of this ground. Mr Macrae's stance was that, in reality, what lay behind the prosecutor's application for the introduction of evidence about the Applicant's "travel pattern" was a desire to provide the jury with further evidence to show that she was a courier who was being used to transport valuable consignments of dangerous drugs across international boundaries.

44.Mr Macrae submitted that the best test of this intention on the part of prosecuting counsel was by looking at the way in which the material was used in cross-examination. The evidence had been that the Applicant had travelled regularly to Hong Kong from Taiwan in 2000, returning to Taiwan after visiting the Mainland and Japan. The first trip that year had been in February which disclosed a slight variation, we were informed, from the other journeys. This was because the Applicant apparently came to Hong Kong from Macau on that occasion. The next two journeys were in July before the final one on 1 August 2000 which resulted in the Applicant's arrest. Each of these journeys was completed within a very few days.

45.The Applicant's explanation for her travels was that after she became unemployed in the year 2000, she went into business on her own, dealing in jade jewellery.

46.The Applicant was cross-examined about how she had become unemployed, about her previous earnings and about the fact that the cost of her air ticket was a little more than her monthly earnings from her previous employment as a saleswoman. Counsel then asked a number of questions related to the very small quantity of clothing she had with her (as shown in photograph 40 of Exhibit P. 57). The Applicant was also questioned about the reason why she would be delivering all these foodstuffs to "Peter Cheung", a comparative stranger to her, and her reasons for having no mobile telephone number at which to call him if he did not appear at the place where they had agreed to meet. This line of questioning ended with the suggestion that Peter Cheung was a "complete and utter fiction" and that the Applicant was intent on taking the dangerous drugs to Japan.

47.After a most thorough cross-examination, there was the following interchange between the prosecutor and the Applicant:

"	Q.	You are a courier of dangerous drugs, knowingly taking out of China to Japan, there is no doubt, 'Ice'.
	A.	Not correct.
	Q.	You got a call on about 28 July saying that your services were needed and therefore promptly went through Hong Kong into Shenzhen.
	A.	On the 28th a friend gave me a call saying that someone from Japan would like to buy some jade, so I called the travel agent for an air ticket and the air ticket was given to me on the 29th and then I took a plane on the 30th going to Hong Kong, heading for Shenzhen.
	Q.	And you knew that you were going to Shenzhen to pick up a consignment of dangerous drugs. The reason, I suggest to you, that you stayed and were delayed for a period of 24 hours is because the cakes weren't ready.
	A.	I disagree." (Appeal bundle p. 82)

48.Mr Macrae submitted that it had been wholly unnecessary to put before the jury the detail of the Applicant's travel pattern in 2000 as the jury were almost bound to speculate, in the light of the way the prosecution had put their case, that she had been involved in three earlier drug operations in which she had acted as a courier.

49.We are not in a position, from the material before us, positively to confirm the basis of Mr Macrae's suspicions that the prosecutor had, in reality, sought the inclusion of the Applicant's travel pattern in evidence to add weight to the suggestion that the Applicant was a drugs courier. However, as it is difficult to see why, based on the reasons advanced by the prosecutor, the whole of the travel pattern needed to be introduced when the Applicant's counsel appeared to be content for the Applicant to admit that she was a seasoned traveller, and given the tenor of the cross-examination to which we have referred (at paragraph 48 above), we have taken it upon ourselves, therefore, to consider whether this evidence was, in any event, admissible for the purpose which Mr Macrae suspected was in the prosecutor's mind.

50.We are satisfied that the evidence was admissible for the reason given in Makin v Attorney-General for New South Wales [1894] AC 57 at 65 which was as follows:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

Whether or not the Applicant gave evidence, the jury were entitled to know more about the Applicant's lifestyle than was likely to emerge from simply being told she was a "seasoned" traveller.

51.It would have been unlikely for the Applicant to have chosen not give evidence in the face of what were otherwise overwhelming presumptions of knowledge as to what she was carrying. In such an event, however, the jury would have been entitled, for example, to consider whether an unemployed person from Taiwan, in the light of the numerous international flights she had been making in such the short space of time after losing her job in July, could really have found herself innocently delivering chocolates and cakes to someone she barely knew in Hong Kong.

52.As it happened, the Applicant did give evidence and she accounted for her movements by saying that she had become, by July 2000, a dealer in jade jewellery although the first journey in February 2000 was said to have been for "fun" in Beijing. The prosecution was entitled to seek to undermine the Applicant's story about being in business to sell jade by taking her through her route to see what possible relevance it might have to such a business bearing in mind, amongst other things, the cost of this round trip to someone with limited financial resources and the apparent haste in which each of the journeys was completed.

53.In saying that the evidence was properly admitted, we do not wish to appear to be lending encouragement to the view that it is ever proper to mislead a judge into admitting evidence at trial on one basis when, in reality, another basis is the true purpose for seeking its admission. Whether counsel did so in the present case it is not possible to say but we are satisfied that the evidence was properly considered by the jury whether or not the judge was misled by the reasons she was given for admitting this evidence.

(6) Strongly worded comment to the jury

54.Towards the end of the summing up, when concluding her remarks about the issues and the evidence, the judge commented to the jury:

"You are to approach the case in a balanced way. So you should be neither cynical nor gullible. Do not ignore the defence. Consider it with care. At the same time, as persons with common sense, you are entitled to ask yourself this question. Is it at all realistic to think that anyone involved in dealing with this amount of dangerous drugs worth over $1.4 million retail would entrust them to an innocent outsider who would not know to guard them with proper care rather than to a knowing drug courier in the drug trade who would guard them with proper care." (Appeal bundle p. 16)

55.It was submitted that this comment, coming at the end of the summing up, was "neither fair nor balanced" and that, taken with some or all of the points raised in the other grounds, the conviction was unsafe or unsatisfactory.

56.We disagree. The question which was posed by the judge would have been anticipated by any sensible jury especially as the prosecution had canvassed the same proposition. If, by chance, it had escaped their consideration, it was a question which the jury needed to address. The judge had left all the issues which had arisen in the trial open to the jury to decide and, as to this, the judge was fully entitled to have left this rather obvious and important question open to the jury to consider.

57.This ground fails.

Conclusion

58.Having regard to the arguments which were advanced in grounds 1 and 5, we propose to grant leave. However, treating the hearing as the appeal, we dismiss the appeal.

Representation:

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent.

Mr Andrew Macrae, SC, and Mr James McGowan, instructed by Messrs Quan & Co., for the Applicant.