HKSAR v. Calaunan Concepcion Salcedo

CAC C 109/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 109 OF 2010

(ON APPEAL FROM HCCC NO. 279 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Lunn JA in Court

Dates of Hearing: 23 June and 13 December 2011

Date of Judgment: 13 December 2011

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.On 12 March 2010, the applicant was convicted after trial before Tong J and a jury of one count on an indictment which charged that on 7 April 2009 at the Customs Arrival Hall of Hong Kong International Airport, she trafficked in 1,203.06 grammes of a mixture containing 676.98 grammes of heroin hydrochloride, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. She was sentenced to 20 years’ imprisonment.

2.She now seeks leave to appeal against conviction.

3.It was common ground that on the evening of 7 April 2009 the applicant, who was then aged 41 years and is a national of the Philippines, was selected for baggage examination after she arrived on a flight from Kuala Lumpur.  She was carrying a black suitcase at the bottom of which was concealed in foil wrapping a bag containing the heroin, the street value of which was over HK$590,000.  Her passport was seized as was her mobile telephone, a booking confirmation at a hotel in Hong Kong for a stay of three days, a return ticket to Malaysia, US$600 and some other currency of small value.

4.On the afternoon of the following day she was interviewed under caution.  She said that she was a university graduate but, at the material time, a part-time English tutor and housekeeper.  When asked what was the purpose of the trip to Hong Kong she answered that a Filipino female friend of hers named Marika and Marika’s boyfriend, Joe, had offered her a free trip “as help for my exit from Malaysia because my Malaysian visa will expire soon.”  She did not know what she was going to do in Hong Kong “because I will have to wait for their instructions.”  The suitcase had been given to her by them at the Florida hotel in Kuala Lumpur.  She had packed the suitcase with her clothes but had no idea that it contained drugs.  Marika and Joe had given her a ticket and a hotel reservation.

5.At trial, the applicant testified on her own behalf.  Her defence, broadly speaking, was along the same lines as her answers during the interview, but there were a few differences upon which the prosecution relied.

6.In her oral evidence, she spoke about her background and how her teaching experience took her to a number of countries in South-East or South Asia since 2006, including Mainland China, India, Thailand and Malaysia.

7.She arrived in Malaysia in March 2009 where she had a friend, Precy, who introduced her to Marika.  Marika said that she was an agent for teachers and tutors and knew that the applicant was looking for a job.  She encountered Marika about four times before a trip to Hong Kong and Joe once.

8.On 6 April 2009, according to this account, Marika and Joe said that they had a friend in Hong Kong who would help her to obtain a job.  The applicant said that she did not have enough money to travel but they told her not to worry, they would pay.  This did not surprise the applicant because she knew that agents sometimes obtained compensation from the initial salary of an employee.  She was told that she would be met in Hong Kong by the friend.

9.The applicant said that she did not have a suitable suitcase for the intended travel and told Marika that she intended to purchase one.  Marika offered to accompany her because she, Marika, knew where one could be obtained cheaply.  They arranged to meet at a given location although Marika did not there show up.  Joe then telephoned the applicant directing her to a new meeting place with Marika, namely, the Florida hotel in Kuala Lumpur.  There Marika met her and, in the applicant’s name, they checked into the hotel.  Marika arrived with a suitcase, which was brand-new and gave the applicant the flight ticket and the Hong Kong accommodation voucher.  She suggested that the applicant should go out for a meal but another event intervened which was that she, the applicant, had to meet Precy’s husband, Michael, to whom the applicant owed money.  The applicant left the hotel, met Michael and was away from the hotel for about 30 to 40 minutes.

10.When the applicant returned to the hotel, she packed a suitcase having examined it first, and took some money which Marika handed to her, the air ticket and the hotel reservation form.  She went to the airport and flew to Hong Kong.  

11.Her case was that she had no idea that the case contained drugs.

12.She did not have any information about the agent whom she was supposed to meet in Hong Kong and expected to ascertain that from Marika or Joe after her arrival.

13.It follows that the issue was whether the prosecution had proved to the requisite standard that the applicant knew when she entered Hong Kong that the suitcase contained drugs.

14.As far as concerns the recorded interview and the oral evidence, the prosecution made some play of the following discrepancies.  First, in her testimony, the applicant said that she had come to Hong Kong to secure employment, whereas that was not mentioned in the interview where she had said merely that she came here in order to enable her to renew a Malaysian entry visa.  Her explanation at trial for this discrepancy was that she did not wish to alert her interrogators to the fact that she hoped to obtain employment here, for she feared that she might not have permission to do so.  Secondly, in her evidence she said that Marika was known to her as an agent of teachers, which is why, she assumed, Marika was prepared to fund her travel; whereas in the interview she described Marika as a friend who was acting out of kindness.

15.The first and second grounds of appeal run together.  They are:

(1) that the judge erred in failing to direct the jury how they should consider or utilise the applicant’s responses in interview; and

(2) that the judge failed to advise the jury of the evidential distinction between her testimony and the contents of the interview and what the potential relevance of any consistencies and inconsistencies might be.

16.Mr McGowan, who appears for the applicant, points in this regard to two passages in the summing-up.

17.At an early stage of the summing-up the judge referred to the interview and said to the jury:

“… you have heard the entire contents of the interview being read out in court. I will not repeat the details here and I invite you to look at his record of interview with care.”

18.Later, he said:

“Members of the jury, the defendant has made a statement to the Customs officer and had also testified in court. It is part of your duty to decide whether she has told the truth or not, having considered what she said and all the circumstances in this case.”

19.Mr McGowan argues that the judge ought to have told the jury that what the applicant had said in court was the evidence in the case on which they should concentrate and it was that which fell for assessment as to truth or possible truth; whereas the record of interview could be considered as evidence of her reaction to questions at the first opportunity after arrest and the consistency of her denials.

20.With respect, we do not think there is anything in these points.  Reading the summing-up as a whole, it is thoroughly clear that what was placed before the jury as the applicant’s defence was her oral testimony.  That view is reinforced by the fact that the judge reminded the jury of the explanations which the applicant had provided as to such disparities as were relied upon by the prosecution.

21.It may be that it would have been better for the judge to have reminded the jury that from beginning to end the applicant had denied knowledge of the drugs; but that much was self-evident and could not stand alone for the denial of knowledge at the time of interview did not in its detail sit well with the evidence at trial.  We do not, in the circumstances, think that the omission constitutes an irregularity.

22.The third ground of appeal asserts that the judge erred in failing to direct the jury that they should ignore any suggestion or implication that the applicant’s previous travel patterns, given her financial situation, were a consequence of, or financed by, drug trafficking on previous occasions.

23.The applicant’s passport was produced by way of admitted facts and the entries in it showed extensive travel in the region by the applicant in the few years preceding her arrest.

24.Counsel for the applicant at trial (not Mr McGowan) spent a considerable proportion of his examination-in-chief ascertaining from the applicant the details of her trips, why she went to various countries, how she afforded to travel to and live in those countries, and why she left them and moved elsewhere.  He traversed this history more than once, thereby himself drawing considerable attention to it.

25.Indeed, so many questions did defence counsel ask about the applicant’s travels that the judge interposed to say:

“COURT: Mr Donald, I know you’re providing background but we are not only dealing with her background, that’s not in issue .... I think we know sufficiently that she was educated then she travelled to different places looking for jobs and I think we have to come back to the main …

MR DONALD: Yes I agree, my Lord. I’ve finished anyway. It’s just that the passport was before the jury. ... Just a matter of explaining why she was travelling between these countries so often.”

26.In cross-examination of the applicant, counsel for the prosecution pursued the question of her travels primarily, so it seems, to show that it was unnecessary for her to come to Hong Kong simply for Malaysian visa renewal purposes for, on her own account, she had previously travelled to countries much closer than Hong Kong for that purpose.  But he also asked her what she did for a living in the various countries to which she had travelled and how she was able to support her expenses in travelling from one country to another.  She said that she was able to finance the travelling from her savings as a teacher or tutor in these various places.

27.At the first hearing of this application, we were concerned to know why the applicant’s passports ever found their way into evidence in the case and whether the prejudicial effect of their admission into evidence and of the questions about her travels and travel expenses outweighed the probative effect.  In answer to this concern, we were told that the passports were put in as part of admitted facts; so we wanted to know at whose behest and for what purpose and asked that enquiries be made of counsel who had appeared in the court below.  So, since counsel upon appeal did not appear in the court below – as is regularly the case in this jurisdiction – we had to adjourn the hearing of the application part-heard.

28.Mr McGowan, for the applicant, has spoken to Mr Donald whose recollection is that he, Mr Donald, wished the passport evidence to be before the jury to support the applicant’s case that she had been working in different countries as a teacher and tutor.  He cannot recall whose notion it first was to place the passports before the jury but even if it had been the prosecutor’s, Mr Donald, for the stated reason, would not have objected.

29.The prosecutor, on the other hand, wished to use the passport entries to test the credibility of the applicant, particularly because the passports show that she had been to Malaysia and Thailand on several occasions and, therefore, if, as she had said in her interviews, she only came to Hong Kong because she needed to leave Malaysia for another country in order to renew her Malaysian visa, there were other places adjoining Malaysia to which she had regularly travelled and to which she could, had visa renewal been her true purpose, have travelled on the instant occasion.  There was a further reason – a somewhat weak point, we think – which was that as a frequent traveller she would be well aware of baggage searching routines which would have encouraged clever concealment of drugs.

30.It is difficult in the circumstances which have now revealed themselves to discern an appealable point in relation to this evidence and from the fact that the judge did not tell the jury not to infer that her travelling routines in southern Asia showed her to be a drug courier.

31.The fact of frequent travelling in the region was evidence which defence counsel positively wished to adduce and explore.  He saw some advantage in doing so.  Further than that, it was at his instigation that her ability to finance her travels from teaching was explored.  By doing so, it was perfectly open to prosecuting counsel to test the credibility of the story underlying the evidence thus pressed, not least when it went to a central issue in the defence, namely, that the applicant was an itinerant teacher and that is why she came to Hong Kong.  And the objective of showing that her visa story sat uncomfortably with her travel pattern was also a permissible objective for prosecuting counsel to pursue.  In relation to the issue how she afforded her travel around Southeast Asia, this was, as we say, a question opened by defence counsel himself.

32.At no stage in the course of cross-examination were any of the questions put by prosecuting counsel the subject of objection.  At no stage did prosecuting counsel ever suggest that the applicant had been a drug trafficker on her previous travels.  We have studied as well the closing speech by prosecuting counsel and there is a reference to the fact that the applicant was a frequent traveller but in that context the only point made was the rather weak point to which we have already alluded, that such a seasoned traveller would know of the risk of baggage searches and would purposely conceal contraband to avoid discovery by Customs officers.  There was no suggestion, or even hint, that the jury should infer that on previous occasions she had trafficked in dangerous drugs.  Further, there was no invitation to the judge by defence counsel to warn the jury against such an inference.  That is a matter of some significance for counsel at trial will have had a good feel for the dangers and benefits of such a direction. Everyone in their speeches left the matter well alone.

33.Against this background, the warning which Mr McGowan says the jury should have been given is likely, we think, to have caused more harm to the applicant than good.  Nor, in the circumstances, is there now any basis on which to contend that the evidence was admitted impermissibly.  It must follow that this ground fails.

34.Accordingly, the application for leave to appeal against conviction is dismissed.

Mr Edmond Lee, SADPP (Ag.) of the Department of Justice, for the Respondent

Mr James McGowan, instructed by Messrs Tsang, Chan &Woo, assigned by Director of Legal Aid, for the Applicant