HKSAR v. Rosnah Binti Abdul Latip

CAC C 368/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 368 OF 2011

(ON APPEAL FROM HCCC NO. 175 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP giving the Reasons for Judgment of the Court:

1.On 22 August 2011, the applicant was convicted after trial before Bokhary J and a jury of one count of trafficking in a dangerous drug namely 1197.16 g of mixture containing 724.12 g of heroin hydrochloride. She was sentenced to 22 years’ imprisonment. She now seeks leave to appeal that conviction. On 11 October 2012 we dismissed her application and said that we would give reasons in due course. These are those reasons.

2.On 30 December 2010 the applicant was intercepted at the international airport upon her arrival here on a flight from Kuala Lumpur.  The suitcase which she was carrying was searched and inside two concealed compartments of the case the drugs were found wrapped in tinfoil.  She was asked what it was but she said that she did not know.  She was arrested.  In her hand was found a Kingston pen drive, the relevance of which will soon be apparent.  The value of the drugs in the suitcase was HK$840,406.

3.On the night of 30 December she was interviewed by Customs officers and the account she gave in the course of the interview was along much the same lines as the testimony which she provided in her defence at trial.

4.The applicant is a national of Indonesia who has spent much of her life in Sabah.  At the material time she was aged 49 years and, according to her evidence, is fairly well-educated: she is the holder of a diploma in secretarial skills and has had a hand in running a number of businesses.

5.Her story was that in 2009 she went from Sabah to Kuala Lumpur in search of employment and there found work as a supervisor.  In the building in which she lived, she met a Nigerian man called Kelly and she and he formed an intimate relationship which ended in March 2010.  She returned to Sabah where she met another man, David, also a Nigerian.  He left for Kuala Lumpur in September 2010 and she followed him and the two became engaged to marry.  However whilst in Kuala Lumpur, Kelly made contact with her and they met and talked about pen drives.  He allegedly said that his previous pen drive business had not been financially successful but more money could be made if pen drives were copied on the Chinese mainland.  What he proposed was that she would take a pen drive to the Mainland where a cousin of his would be waiting for her and the pen drive which she took could then be used for the purpose of making copies.  Why it was necessary for somebody to carry a single pen drive internationally, let alone in return for a financial reward, was the subject of some cross-examination.  Be that as it may, she provided Kelly, at his request, with her passport and agreed to transport this pen drive to China for the sum of US$800.  She was to travel to Guanzhou via Hong Kong.

6.She stayed with Kelly for a night or two and proposed to take a bag of her own as her luggage but, instead, Kelly brought along a large suitcase and packed in it the clothes she had already packed in her case.  He wanted her to use the suitcase he had provided because it was, he said, the type of suitcase which was popular with Nigerians and the suitcase, too, could be copied by persons in the Mainland, for manufacture and onward sale.  So Kelly, with the help of a friend of his, packed the suitcase and did not let her carry it to the airport in Kuala Lumpur but insisted on carrying it there himself.  She had even seen Kelly or one of his friends “patting” the inside of the suitcase, as if checking its contents.  She herself had checked the suitcase in this way to assuage her own suspicions.  It was in these circumstances that she took the flight from Kuala Lumpur to Hong Kong.  She had no idea of the contact details of the cousin in Guanzhou.  Once she reached Hong Kong, she decided, however, that she was not going to travel on to Guanzhou but would return to Kuala Lumpur the next day, since she was anxious to get back to her fiancé.  She did not know that the suitcase contained drugs.

7.Both in her interview and in her testimony, she explained how at several stages of the dealings with Kelly and the suitcase, she was suspicious of what was going on and made her suspicions apparent to him: for example, she was suspicious about the provision by him of a suitcase when all she was supposed to carry, at first, was a pen drive; she was suspicious of the fact that Kelly packed the suitcase for her; suspicious when she saw Kelly and his friend patting the inside of the suitcase; she was suspicious when he insisted on carrying the suitcase to the airport.  Indeed she was so suspicious that she asked him in terms whether there was anything illegal going on but he assured her that there was not.  So she trusted him.

8.It is against this background that we come to examine the impugned passage of the summing-up; a passage which forms the sole ground of appeal in this case.  The passage is as follows:

“Members of the jury, in your approach to the account given by the accused, you will of course use your commonsense and your sense of realism. The uncontradicted evidence for the prosecution as to the value of these dangerous drugs is that their street value in Hong Kong in December 2010 was over HK$840,000.

On the accused’s account, it is being suggested that somebody used her to import these dangerous drugs into Hong Kong by duping her – in other words, by tricking her – in the way suggested.  Ask yourselves this question – answering it with commonsense and realism: would anybody owning very valuable dangerous drugs entrust them to anyone other than a knowing drug courier who knew the precautions to be taken over them?  Would drug dealers entrust valuable dangerous drugs to a wholly unsuspecting courier unaware of the care to be taken to ensure that the suitcase in which they were being carried was not lost or stolen?  Would drug dealers take such a risk? And would not it be an even greater risk to entrust such drugs to a courier who, although not a known courier, had some suspicion?  Would not the danger, apparent to the drug dealers, then be that the courier might, acting on such suspicion, reveal them to a policeman, to airport security staff or airline staff?  If that was done while the drug dealers were nearby, they would not only lose the drugs but could themselves be arrested.”

9.The suggestion was that this passage rendered the conviction unsafe and unsatisfactory because the rhetorical questions posed by the judge went to the very heart of the defence; were not based on any evidence before the jury; were not based on examination or cross-examination of the applicant; were speculative; did not put the case evenly before the jury; unreasonably assumed facts that were highly prejudicial to the applicant and therefore created a real possibility that the conviction was unsafe and unsatisfactory.  The comments may have been, but were not, balanced by the converse arguments that might have been put: that it was dangerous for a supplier to reveal to a courier what it is she was carrying, since she might then not agree to go; that if she knew what was in the case, she might herself sell the drugs to a third party, or she might go to the authorities. 

10.We did not agree with these criticisms.  First, the judge had made it perfectly clear that the jury was entitled to disagree with any view that the judge expressed; she urged them to decide the case fairly; she impressed upon them that questions of fact were for them alone; she emphasised upon whom the burden of proof lay; she mentioned a series of factors urged on the applicant’s behalf by her counsel at trial; she outlined in considerable detail the applicant’s defence; and immediately following the passages which we have cited she said: “These are the sorts of considerations which form the prosecution’s case – which the defence disputes and is for you to decide on – that the only reasonable inference is that the accused was a willing courier of these dangerous drugs and was unlawfully trafficking in them.  If you think that the accused’s account is or might be true, then of course you would acquit her.  But if you feel sure that there is no truth in her account and that the only reasonable inference is that she unlawfully trafficked in dangerous drugs, then your duty will be to find her guilty.” (Emphasis added)

11.So the judge put the criticised considerations as contentions made or which might be made by the prosecution.  But even if that were not the effect of what she said, they were perfectly valid points for the jury to consider particularly in this case where the applicant’s contention was that she had made it well known to Kelly that she, the applicant, was suspicious of what was going on.  The question whether in those circumstances, Kelly would have entrusted her with the drugs without making sure that she was a safe pair of hands for his purpose was a sensible question to pose.  As for the failure of the judge to canvass why a supplier might chose not to tell a courier what he or she is in truth carrying, whether a judge should normally do so and whether the failure to do so renders the summing-up unfair must be a case specific question.  In the context of this case, the reasons proposed why Kelly might have chosen not to tell the applicant sound weak by contrast to the points mentioned by the judge and suggesting them may have served to illustrate the strength of the prosecution case.

12.It is relevant to note that in HKSAR v Lin Ping Keung (2005) 8 HKCFAR 52 at 59 – 60, the Court of Final Appeal emphasised that the trial judge is entitled to express to a jury his or her own views, provided that the jury is told clearly that they are only the judge’s personal views and that the jury must form its own view and can ignore the judge’s if the jury does not agree with them.  Reference was made to part of the judgment of Simon Brown LJ in R v Nelson [1997] Crim L R 234 and [1996] EWCA Crim 707 (25 July 1996) page 7where he said:

“Of course, the judge must remain impartial. But if common sense and reason demonstrates that a given defence is riddled with implausibilities, inconsistencies in illogicalities, there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis.”

13.That is all that has happened in this case and we saw no basis for holding that the judge crossed an impermissible line.

14.Accordingly, the application for leave to appeal against conviction was dismissed.

Mr Tam Sze Lok, Isaac, SADPP (Ag.) of the Department of Justice, for the Respondent

Mr Giles Surman, instructed by Lo, Wong & Tsui, assigned by Director of Legal Aid, for the Applicant

Please refer to FAMC59/2013 for the relevant appeal(s) to the Court of Final Appeal.