HKSAR v. Xu Yuzhen

CACC310/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 310 OF 2009

(ON APPEAL FROM DCCC 359 OF 2009)

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Before : Hon Stock VP, Hartmann JA and McMahon J in Court

Date of Hearing : 31 August 2010

Date of Judgment : 16 September 2010

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.The 44-year-old female applicant was convicted by Mary Yuen J in the District Court of trafficking in 19.18 grammes of heroin.  She was sentenced to 5 years 6 months’ imprisonment and now seeks leave to appeal her conviction.

2.The prosecution case at trial was that the applicant had arrived at Hong Kong International Airport from South Africa and had been detained by customs officers for a routine search.  An ion test of her handbag, which was the only luggage she had, proved positive for procaine (which in evidence was said to be a substance used as an anaesthetic) and as a result it was decided to take the applicant to a small room for a more thorough search.

3.In that room, which was little more than a cubicle with a desk and two chairs, a search of the applicant’s body and clothing by two customs officers, PW1 and PW2, revealed nothing suspicious.  However towards the end of the search two large pellets containing the drugs the subject of the charge were found lying on the floor under the desk next to which the applicant was sitting.  It was the prosecution case that the room in which the search of the applicant took place had been thoroughly inspected beforehand and found to be “clean”.  It was the defence case that the two pellets must have been left there by an earlier occupant of the room and not been noticed before the applicant had been brought into the room for her search.

4.Mr McGowan for the applicant raises a number of grounds but they can be distilled into the simple argument that the judge was wrong to reject the defence case and to conclude on the prosecution evidence that the two pellets found in the room came from the applicant’s possession.

5.Mr McGowan firstly criticises the judge’s rejection of the applicant’s evidence for reasons which he says were insufficient.  The judge said, concerning the credibility of the applicant :

“ … She clearly changed her evidence as she progressed along her testimony. She changed her account about her jeans being taken out of the search room for checking. She had not been truthful when she suggested the customs officer did not cut open the pellet to take sample of its content. She could not be right to allege the customs officer only wiped on the outer surface of the packaging of the drugs for testing.”

6.We should note that it seems to us that the judge was simply offering examples of some aspects of the applicant’s evidence, but not all, which led her to reject that evidence.  As to the first matter mentioned by the judge, during her evidence-in-chief the applicant had said both her trousers and shoes had been placed in a plastic container and taken out of the search room for a while before they were brought back for her to dress herself, whereas in cross-examination, she agreed she had never completely removed her trousers.  In that regard this was said :

“Q. … Now, near the end of the questions asked of you by your lawyer, you were asked whether your trousers and shoes were put in a box and taken out of the room and your answer was, ‘Yes,’ to that.

A. Right, that’s my answer.

Q. And today you’ve made it very clear that what was put in the box and taken out was your shoes.

A. Shoes and socks.

Q. And you’ve made it very clear several times that at no time did your trousers come off, completely off you during this searching process within this small room.

A. That’s right.

Q. So if you to tell us yesterday that your trousers and shoes were placed in the box and taken out, it’s simply untrue, it didn’t happen, did it?

A. What I said was socks and shoes, perhaps it was not translated correctly, that’s something I don’t know.

Q. Well, you’ve just finished agreeing with me that you said trousers and shoes, Madam.

A.      Right.”

7.Mr McGowan suggests that this inconsistency in the applicant’s evidence was immaterial and not therefore such as to affect her credibility.  Taken in isolation that may be a valid criticism, but in the context of the evidence as a whole the judge was, in our view, entitled to place some weight on the inconsistency.  One of the subsidiary issues at trial, and part of the defence case, was that the procedures said to have been followed by PW1 and PW2 had not been in fact been followed and, in terms of what occurred in the search room, the applicant gave a quite different chronology of events.

8.In any event, as is plain from the judge’s reasons extracted above, this discrepancy in the applicant’s evidence formed one part only of the matters the judge took into account in rejecting the defence case.

9.The other matter specifically referred to by the judge involved an inherent improbability in the applicant’s evidence; namely her assertion that PW2 had not taken a sample from one of the two pellets of drugs, but had simply “wiped” the pellet for the purpose of testing its contents.  Mr McGowan argues there was no improbability in this aspect of the applicant’s evidence as the “wiping” procedure is a common enough investigatory tool and, according to PW2, had already been performed on the applicant’s luggage prior to the applicant being taken to the search room.  It is suggested also that the applicant may simply have misremembered what was done in respect of the pellets.

10.Again taken in isolation these criticisms may have some validity, but in our view the judge was entitled to consider the inherent probabilities in determining what weight to place upon the applicant’s evidence as to this particular matter and, ultimately, was entitled to take it into account in weighing the general credibility of the applicant as to what happened in the search room.  In short, the applicant’s obfuscation or misremembering of the details of what had happened in the room was a matter relevant to the applicant’s credibility.

11.One matter not mentioned by the judge but no doubt forming part of her considerations were the inconsistencies, and indeed improbabilities, in the applicant’s evidence as to why she came to Hong Kong. In her evidence she said she was en route to her home city in the Mainland in order to have injuries she had suffered during a robbery in Botswana treated. She had initially in evidence-in-chief said she had suffered an eye injury and had glass fragments in her eye as a result of her car window being broken by a gunshot during the robbery.  Later in cross-examination she claimed she was also seeking treatment for a pre-existing condition involving her arm. 

12.She agreed also she had never mentioned her eye injury to customs officers but only her arm injury.  There was little doubt that during her evidence her emphasis as to her eye injury being the reason for her travelling through Hong Kong to the Mainland had changed considerably.  She eventually said in cross-examination that her eye injury had been treated by eye-drops while in custody in Hong Kong.

13.In our judgment, the reasons given by the judge for rejecting the applicant’s evidence were, while spartan, sufficient when viewed in the context of the evidence and issues in the case as a whole.

14.Mr McGowan’s primary criticism of the conviction is that the judge wrongly accepted the evidence of PW1 and PW2 as to their thorough checking of the search room before the body search of the applicant began.  This was really the crux of the prosecution case.  If it were possible that the two pellets of drugs had been left behind by a previous occupant of the room then the case against the applicant must necessarily have failed.  It should be pointed out that there was no real suggestion of mala fides on the part of either PW1 or PW2 at trial; the defence case simply was that the pellets must have been on the floor of the search room without the knowledge of either PW1 or PW2 prior to the applicant and the two officers entering the room.

15.The evidence of PW1 was that shortly before bringing the applicant into the room, she and PW2 had completed a search of a Filipino woman and had, after the completion of that search, then checked the room to make sure nothing remained.  Her evidence was, in that regard, as follows :

“A. Every time after the search before we leave the room, we would check to see if there was any personal belongings left in the room.

Q. And what parts of the room do you check when you make that check?

A. Usually, a check would be done at the seat where the passenger sits down and the area nearby, my seat and the area nearby, the table and the wall.

Q. And was such a check done when you finished dealing with this particular Philippine woman during this search – at the end of this search?

INTERPRETER: What was?

Q. Was this check you’ve just described done at the end of the search of the Philippine woman?

A. Yes, I did.

Q. Right. Was anything found?

A.      No.”

16.PW1 said also that another check of the room was performed when the applicant arrived for her body search.  PW1’s evidence in that regard was as follows :

“Q. Is there any – is there any security procedure undertaken before that?

A.      Before the search would be started, we would also examine the seat where the passenger would be sit on and the nearby area, then the table and my seat, and the nearby area; and the table and the wall to see if there was anything left behind.”

and later :

“A. After Customs Officer 06290 had closed the door, I moved to the seat opposite the defendant, where I sat down.

Q. And what happened then?

A. Then I checked the place under the table, the table and the wall.

Q. Checked for what?

A. To see if there was any contraband.

Q. And was there any?

A.      There was not any.”

17.PW2 in her evidence said that after PW1, the applicant and herself had arrived in the search room :

“… Then I turned around closed the door and locked the door. Then I took a look at the right side of the room, looking at P13, the plan at the bottom, that means I looked at the floor as shown in this photograph, the part on top of the table, and also the floor under the table and there was nothing unusual. I also had a look at the surface of the table and the wall and nothing unusual was found. And then I stood on the other side, that means the defendant’s side and had a look at the floor and I also found nothing unusual. …”

18.She returned to the subject, later in her evidence-in-chief, as to what had been done at the conclusion of the earlier search of the Filipino woman.  

“A. At the beginning again we checked the room and found that there was nothing unusual. And then we started to search. And after it had been completed, Inspector Fung told her to get back all her things and asked her to sign on the register. And I, before leaving the room, also checked again to confirm that there was nothing unusual.”

19.Neither PW1 nor PW2 when cross-examined were shaken in their evidence that the search room was “clean” when the applicant was brought into it, and the judge was wholly entitled to accept, from their evidence, that that was so and that the only reasonable inference was that the applicant had brought the drugs into the room and had discarded them there when the opportunity arose.  That is particularly so given the size of each pellet of drugs.  Each was approximately the size and shape of a bottle cork and two in close proximity to each other would not have been overlooked in any sort of an inspection of the small cubicle‑sized search room, which contained little more than a desk, two chairs and some other equipment.  The pellets were found under the desk (one wrapped in a tissue).  The desk was small, narrow and open on one side.  If the drugs had been under the desk at the times the room was checked they would have been seen.

20.Mr McGowan argued also that there was simply no opportunity for the applicant to have disposed of the pellets without being observed in the act of so doing once she and the two officers entered the small room.  We considered this submission very carefully but at the end of the day do not think that to be a valid criticism, particularly given the evidence of the two officers that the applicant at one time during the search, while she was sitting in a narrow space between the desk and a wall so as to remove her shoes and socks at the request of PW2, threw her shoes at PW2 and when she did so was observed by PW1 to have moved her feet as if she were “kicking” something under the desk.  PW1 had immediately looked under the desk and seen the pellets on the floor.

21.The throwing of the shoes was a remarkable occurrence made even more remarkable by it being the applicant’s “kicking” motion at the time she threw her shoes which attracted the attention of PW1 to the drugs which were under her desk.  Given the co-incidence of these events and the credibility of PW1 and PW2 in their evidence the judge was entitled to conclude that the applicant had placed the drugs under the desk.

22.Mr McGowan argued also that the judge overlooked the improbability of a middle-aged woman travelling to Hong Kong from South Africa with two pellets of drugs when there was no suggestion she was a consumer of drugs and when she was in stable employment in Bostwana.  We do not think those improbabilities, if that be what they are, are of any great magnitude and certainly are not of a nature to affect the validity of the judge’s conclusion once she was satisfied that the applicant had dropped the pellets onto the floor of the search room.

23.Finally, Mr McGowan complains of the lack of evidence as to where specifically the applicant had hidden the drugs prior to dropping them on the floor.  This, with respect, is a matter which did not require a precise finding from the judge.  It is true that at the time the applicant threw her shoes at PW2, and PW1 observed her simultaneously “kicking” at something, that the clothing of the applicant had already been searched with nothing found.  But the applicant’s shoes and socks had not at that stage been searched, and indeed as Mr Robert Lee, SC for the respondent said in his submissions it is quite possible that the drugs had been placed on the floor by the applicant at an earlier time before her clothes had been searched and that the kicking motion observed by PW1 was simply the applicant’s attempt to further push the pellets out of sight under the desk.

24.Be that as it may, the task of the judge was simply to decide whether the pellets had been in the applicant’s possession when she came into the search room and not to decide, if so, where she had been hiding them.  The judge concluded :

“… Though neither of the 2 customs officers was in a position to tell from which part of the defendant’s belongings those 2 pellets were originally hidden, I am satisfied beyond reasonable doubt that the pellets inclusive of its tissue wrapping came from the defendant and were amongst the defendant’s belongings (though not necessarily from her shoes) when she landed Hong Kong from flight SA-286.”

25.That was a conclusion the judge was entitled to make.  It was unnecessary for her to decide, on the facts of this case, the exact whereabouts of the hiding place of the pellets.  Once the judge had decided that the drugs were not in the search room prior to the arrival of the applicant in the custody of PW1 and PW2, the only reasonable inference was that they had been on the person of the applicant before she had discarded them and had been brought by her from South Africa.  There was nothing unsafe in the judge's conclusions and the application is dismissed.

Mr Robert S.K. Lee, SC, DDPP of the Department of Justice,   for the Respondent

Mr James H.M. McGowan and Ms Ody Lai, instructed by Messrs Wong & Co., for the Applicant