HKSAR v. Maria Cornelia Duvenhage

CACC 11/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 11 OF 2009

(ON APPEAL FROM DCCC NO. 568 of 2008)

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BETWEEN

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Before: Hon Stuart-Moore VP, Hartmann JA and McMahon J

Date of Hearing: 29 April 2009

Date of Judgment: 29 April 2009

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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):

1.The appellant was convicted on 10 December 2008 of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  This followed a trial before Deputy District Judge Flora Cheng.  The appellant now seeks leave to appeal against her conviction.

2.In an able and well-presented submission from Mr Raymond Cheng, for the respondent, he has responsibly conceded that the approach taken by the judge to the burden of proof was fundamentally flawed.  Accordingly, we shall grant leave and treat the hearing as the appeal.

3.We do not, in view of the acceptance by the respondent that the appeal should be allowed, need to go into the facts in any depth.  It suffices to say that the appellant was intercepted at the Arrival Hall in Hong Kong International Airport with 20.17 kilogrammes of herbal cannabis, worth $1,674,110, in her suitcase.  The appellant possessed the key to the padlock used to secure her suitcase and, apart from a blanket which had been used to wrap the twenty separately wrapped packets of herbal cannabis, there was nothing else inside her case.  The appellant claimed she did not know how the drugs came to be there.

4.Knowledge on the part of the appellant as to the presence of the drugs inside the suitcase was the central issue at trial although there were other matters in dispute relating to the evidence about events following her arrest.

5.There was, on any view, an extremely strong case against the appellant.  The main points were summarized in the final paragraph of the judge’s Reasons for Verdict in these words:

“42.  To conclude, I find the Defendant's testimony fraught with embellishments that I have no hesitation to reject. I find that she placed sufficient clothing and daily necessities in her hand-carry travelling bag because she knew full well that there were drugs placed inside her suitcase. Her claim that she came to Hong Kong for sightseeing was just a convenient but unconvincing lie to cover her underlying criminal activities of importing the dangerous drugs into Hong Kong. I find that she did say ‘books’ to PW2 when asked what's inside her suitcase. She said so because she has knowledge that there were dangerous drugs wrapped in slabs that resembled the appearance of books. I am satisfied that the prosecution has proved beyond all reasonable doubt that the Defendant unlawfully trafficked in 20.17 kilogrammes of cannabis in herbal form by importing the same into Hong Kong. The Defendant is convicted as charged.”

6.Although the judge correctly referred to the criminal standard of proof in this paragraph, this was marred by an earlier reference to the burden of proof in her Reasons for Verdict.  The whole of the earlier passage, to set it in full context, reads as follows:

“33.  When evaluating the Defendant’s evidence on the issue of knowledge, I bear in mind that she has a clear record and I have directed myself on her good character, namely that her propensity to commit crime is lesser and there is a higher possibility that she is telling the truth. I also reminded myself that the burden of proof rests with the prosecution and the Defendant has no legal burden to prove her innocence. If she can show on the balance of probability that she has no knowledge about the drug found in her physical possession, I have to find her not guilty.” [Emphasis added]

7.There was no obligation on the appellant to show, on a balance of probabilities, that she had no knowledge of the drugs in her suitcase.  All that the appellant had to do was to raise in evidence the defence of a lack of knowledge (the ‘evidential burden’).  Once the judge had determined that sufficient evidence had been adduced to constitute an issue fit to be considered by her, as was plainly the case here, it was then for the prosecution to prove that the appellant knew about the drugs in her suitcase.  It was not for the appellant to prove that she did not know of their presence in her luggage.  (See: Hung Chan-wa and Anor [2005] 3 HKLRD 291).

8.If, on the evidence taken as a whole, there remained a reasonable doubt about the appellant’s guilt then it would follow that the judge would be unable to be sure of guilt.  Usually, this is expressed with words to the effect that if what a defendant says is or may be true, the prosecution will have failed to prove its case.  With respect, the wording used by the judge in this case gives an impression that she thought that there was a burden on the appellant to show on balance that she was unaware of the existence of the drugs inside her suitcase.

9.This is unfortunately a point which is not unknown to the courts.  Mr Cheng reminded us that in Tsang Wai-man v HKSAR [2003] 6 HKCFAR 109, a similar situation presented itself.  That was also a drugs case.  The issue centred entirely upon whether the drugs, admittedly in the appellant’s possession, were intended for the purposes of trafficking or for self-consumption.  The District Judge rejected the appellant’s testimony that he had bought fifty-one packets contained in three larger packets because a bulk purchase enabled him to obtain a more favourable price, saying:

“In conclusion, I find that the defendant’s explanation, even according to the lower standard of proof in civil cases, was unbelievable. Hence, I do not accept his explanation.”

10.Sir Noel Power NPJ (at page 112), giving the reasons for allowing the appeal against conviction for trafficking, and substituting a conviction for simple possession, said:

“6.  Fundamental to the propriety of a conviction is the application of the correct onus and standard of proof.  It is the right of every defendant to have his defence properly considered.  No onus lies upon him to establish anything.  He is entitled to acquittal if his evidence raises a reasonable doubt.  Mr Cheung contended that the defence evidence was so weak that, if the court had assessed that evidence in accordance with the correct onus and standard of proof, a conviction must inevitably have followed.  But it is not possible to say that, had the learned trial judge assessed the defence evidence having regard to the correct onus and standard of proof, it may not have been sufficient to create a reasonable doubt as to the appellant’s guilt.  The onus having been reversed against the appellant by the trial judge, it is not appropriate to apply the proviso.

7.  The foregoing demonstrates that the appellant has been done a substantial and grave injustice. The appeal was therefore allowed so as to quash the trafficking conviction and substitute for it a conviction for simple possession.”

11.In the present case, we are equally satisfied that the error in placing on the appellant the burden of proving, on a balance of probabilities, that she had no knowledge of the presence of the drugs in her suitcase, was so fundamental that it cannot be cured.  This went to the crux of the case.

12.Accordingly, the appeal is allowed.  The conviction and the sentence imposed for the offence are quashed.

13.Having heard the submissions of counsel, we order a retrial.  The case must be listed for plea in the District Court within two months from today with a view to fixing a date for trial within two months of the plea date.

Mr Raymond Cheng, SPP, of the Department of Justice, for the Respondent.

Mr Frederic Whitehouse, instructed by Messrs Rita Law & Co., assigned by Director of Legal Aid, for the Appellant.