HKSAR v. Ogana Jeiazel Ogana

CACC 461/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 461 OF 2009

(ON APPEAL FROM HCCC NO. 309 OF 2009)

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BETWEEN

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Before: Hon Yeung JA, Hartmann JA and Lunn J in Court

Date of Hearing: 23 February 2011

Date of Judgment: 23 February 2011

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Hon Hartmann JA:

Introduction

1.On 16 December 2009, following a trial in the Court of First Instance before Mr Justice Line and a jury, the applicant was convicted by unanimous verdict of the crime of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The drugs in question consisted of some 1,496 grammes of heroin mixture containing some 956 grammes of narcotic.  The applicant was sentenced to 22 years and six months’ imprisonment.

2.The applicant, who has appeared without the benefit of legal representation, seeks leave to appeal his conviction only.

Background

3.On the morning of 21 May 2009, the applicant, a Filipino national, flew into Hong Kong from Malaysia.  He was carrying a rucksack.  The rucksack was examined by customs officers and found to contain 18 female garments.  What was unusual about the garments was the number of large buttons sewed onto them. The buttons themselves were examined and were found to contain heroin.  When arrested and cautioned, the applicant denied any knowledge of the heroin.

4.As the judge directed the jury, there being no dispute as to the objective facts concerning the discovery of the heroin, the single issue for determination was one of knowledge: could the jury be sure that, when he brought the rucksack into Hong Kong, the applicant knew that it contained dangerous drugs?  In this regard, the judge warned the jury that proof only that the applicant suspected that he may be carrying dangerous drugs would not be sufficient to prove knowledge.

5.On the day after his arrest, the applicant was interviewed under caution, the interview being video-recorded.  In that interview the applicant gave a version of events explaining how it was that he came to be carrying the rucksack when he entered Hong Kong.

6.It is to be noted that, in a lengthy statement of admitted facts prepared for the purposes of trial, the applicant agreed that the answers he gave during the course of the interview had been given voluntarily.

7.At trial, the applicant elected to give evidence, expanding upon the version of events that he had given during his video-recorded interview.

8.It was the applicant’s case that, while unemployed in the Philippines, he received a telephone call from a stranger, a man who introduced himself only as CJ.  The applicant was told by CJ that his telephone number had been obtained from a friend of the applicant in Macau.  The applicant was asked if he would like to come to Macau and in this regard CJ offered him a round trip for free subject only to one condition, namely, that the applicant was to fly first to Malaysia to collect a bag which seemingly belonged to CJ and which, according to CJ, contained only some clothing.  That bag was to be delivered to Macau.  The applicant, who had travelled internationally on a number of earlier occasions and who testified that he was not naïve in respect of such matters, said nothing about questioning this proposal put to him by a complete stranger. Instead he testified that he agreed to the proposal and indeed, having been provided with an e-ticket, flew to Malaysia that same day.

9.On arrival in Malaysia, the applicant said that he spoke to CJ on the telephone who instructed him to purchase an air ticket to take him from Malaysia to Hong Kong and back to the Philippines.  CJ promised that the applicant would be reimbursed and, on the word of this stranger, the applicant said he duly purchased the tickets.

10.Once in Malaysia, the applicant said that he was contacted by a woman known to him only as Shane, a Filipina who held out that she was CJ’s girlfriend.  They met in a fast food outlet in Kuala Lumpur and it was there that she handed the rucksack to him.

11.According to the applicant, the rucksack was heavy.  When he asked Shane what was in the rucksack, she replied that it was only clothing and that, when he checked-in at the airport, if he was asked what the rucksack contained, he should say that it was just “new clothes”.

12.Although the applicant said that he placed some of his own possessions in the top of the rucksack and in doing so saw what appeared to be female clothing wrapped in plastic bags, he did not at any time take the precaution of examining the contents of the rucksack.  He did not do so, he said, because Shane was a Filipina, a fellow national, both of them being in a foreign country.  As such, he said, even though Shane was also a stranger to him, the two of them meeting face to face on just the one occasion, he trusted in her honesty.

13.As to the inherent unlikelihood of the applicant being asked to undertake such an expensive round trip by air when a rucksack and some clothing could have been delivered far more cheaply by other means such as post, the applicant professed not to know why he had been chosen to make the delivery.

14.Concerning the applicant’s testimony, the judge directed the jury in the clearest terms that there was no burden on him to prove his innocence, the burden of proving his guilt lay always on the prosecution.  The judge directed the jury in the following terms:

“The defendant’s case is that he believed he was carrying clothing in return for free flights, and that he knew nothing of the presence of the heroin. The prosecution must make you sure that this is not so if you are to convict.”

15.The judge continued: “If you think the defendant may be telling the truth, that means you necessarily have a doubt about the truth of the prosecution evidence.”  In those circumstances, he said, it would be the duty of the jury to return a verdict of not guilty.

16.By their unanimous verdict of guilty, the jury clearly rejected the version of events put forward by the applicant and as such rejected any suggestion that, when he entered Hong Kong, the applicant may have been ignorant of the fact that he was carrying dangerous drugs.

The grounds of appeal

17.By means of several letters addressed to this Court before this morning, the applicant appears to have put forward four grounds of appeal.  They may be summarised as follows.

(1)  That at about the time when he was stopped by customs officers and his rucksack searched, one of the officers hit him across the back of the head.  This assault put him in considerable fear, so much so that he felt he could not refuse to make his cautioned statement.  He had failed, however, to give instructions to his counsel concerning this issue.

(2)  That the judge failed to instruct the jury adequately or at all as to the culture among Filipinos to place implicit trust in their fellow countrymen when they met and dealt with each other outside of the Philippines.

(3)  That in his directions to the jury the judge spoke at length of the prosecution case and was heavily biased in favour of the prosecution.

(4)  That the judge, in one specific paragraph of his directions to the jury, to which reference is made later in this judgment, insinuated to the jury that the applicant must be guilty.

The first ground of appeal: the alleged assault by a customs officer

18.As we have said earlier, at trial a lengthy statement of admitted facts was placed into evidence.  Paragraph 12 of that statement, which concerned the taking of the video-recorded cautioned statement, contained the following sentence: “The accused answered questions in the interview voluntarily.”  That the applicant gave his answers voluntarily was therefore an admitted fact at trial.

19.In respect of paragraph 12, we note that it was edited by hand, the editing being initialled by both prosecuting and defence counsel.  The paragraph was therefore a matter of consideration at or before the commencement of trial.

20.The applicant accepts that the statement of admitted facts was read over to him and that he agreed to its contents.  As we have indicated earlier, the applicant further accepts that he gave no instructions to his counsel to the effect that he had at any time been assaulted by customs officers.  This, he said, was his mistake.  At issue however is the voluntariness of the answer that he gave in his video-recorded interview and in that regard the applicant accepted that the answers he gave were voluntary.

An additional ground of appeal

21.The applicant has this morning added to this first ground of appeal by complaining that, because of language difficulties, he was unable to give full and coherent instructions to his instructing solicitors.  The applicant accepts however that he was educated to a fairly high level in the Philippines and that part of his education was in English.  The applicant further admits that a statement was taken from him by his instructing solicitors and that the statement was read over to him. 

22.In addition he accepts that he had an opportunity to have a conference with his counsel, Mr Polson, prior to the commencement of trial and that during that conference he was assisted by the presence of an interpreter.  There could be no grounds for any misunderstanding caused by a lack of fluency in that conference. 

23.In the circumstances we find nothing in this complaint that his defence was compromised by language difficulties, a complaint which, as we have said, was raised for the first time this morning.

The second ground of appeal: the Filipino expatriate culture of trust

24.The applicant complains that the judge did not, or did not adequately, give directions to the jury as to the existence of a ‘culture’ of trust that exists between Filipinos when they have dealings with each other outside of their home country, that ‘culture’ explaining why the applicant had no reason to question the inherent honesty of Shane, the woman who gave him the rucksack.

25.The applicant, of course, was only able to testify as to his own view, namely, that he, as a Filipino national felt that he could trust other Filipino nationals when he had dealings with them outside of the Philippines.  He had no basis for testifying as to any national trait or characteristic.  He did testify as his own view and the judge reminded the jury of his testimony when he said the following:

“He [the applicant] said that Shane told him that if he was asked about the contents of the rucksack when he checked in he should just say, “Only new clothes”. He said that he trusted her as she was a Filipina. He later added that they were both from the Philippines in a foreign country.”

26.This was not a long trial.  It ran a couple of days only.  The evidence of the applicant would have been fresh in the minds of the jury and defence counsel, of course, would have had the opportunity to remind the jury of all matters favourable to the applicant.

27.It was incumbent on the judge to remind the jury of the material matters that arose out of the applicant’s testimony and this he did.  The assertion by the applicant that he trusted Shane because she was a Filipina, the two of them having dealings with each other outside of their home country, was just one of those matters.  His reminder to the jury of that assertion was – in the context of a clear, succinct and balanced summing-up – an adequate reminder.

The third ground of appeal: that the summing-up was biased in favour of the prosecution

28.There is nothing in this ground.  Insofar as the written transcript of the summing-up is an indicator, the judge spent approximately the same amount of time setting out the prosecution case as he did the defence case.  On any ordinary reading of the summing-up, there can be no suggestion that the judge laboured the prosecution case while giving scant attention to the case for the defence nor can it be said that the judge, by the manner in which he fashioned his directions to the jury, attempted to persuade the jury to convict.

29.With respect to the applicant, the version of events put forward by him was one which stretched credulity.  Put simply, it was inherently implausible.  It was not for the judge to attempt to bolster the defence case.  It was for him, in respect of the matters of evidence, to provide the jury with a balanced overview and this he did.

The fourth ground: a specific insinuation of guilt

30.The applicant complains in particular of the following direction given to the jury, asserting that it was clearly biased in favour of the prosecution:

‘The question of suspicion is also something you can consider in the context of the facts. Whether you do so or not is up to you. The way it is available for use is to consider whether the owner or supplier of the heroine, with its eventual retail value of over one million Hong Kong dollars, would consider that an innocent courier’s suspicions may be aroused in the circumstances you find exist here. Would he take the risk of an innocent courier inspecting what he was given, thereby risking losing his drugs either to the authorities or to the courier himself by his disposal of them in panic or for his own profit, rather than pay someone trusted with the knowledge?”

31.There is nothing in this complaint.  When read in context, the paragraph was part of a set of directions given to the jury to assist them in the manner in which they may, if they so chose, approach the evidence.  The core issue for the jury, it is to be remembered, was one of knowledge: on a consideration of all the evidence, could the jury be sure that the applicant must have appreciated that he was carrying dangerous drugs of some kind?  In considering that issue, the jury was entitled to look to all relevant circumstances.  The jury after all was correctly reminded that they were entitled and indeed expected to employ common sense and their own experience of life.  One of the relevant circumstances, in the particular factual context mapped out by the applicant, was the likelihood of CJ entrusting the applicant – a complete stranger to him – with a rucksack containing items of women’s clothing festooned with over 500 outsized buttons which themselves contained heroin worth over $1 million without informing him of the true nature of what he was carrying and getting his agreement to do so.  In terms of the direction of which the applicant complains, the jury were told no more than that, if they chose to do so, this was one of the matters to which they could give consideration.

Conclusion

32.For the reasons given, this application for leave to appeal against conviction is dismissed.

Mr Thomas Law, SADPP of the Department of Justice for the Respondent

Applicant in person.