HKSAR v. Liu Shi Hong

CACC 113/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 113 OF 2012

(ON APPEAL FROM HCCC NO 280 OF 2011)

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Before: Hon Stock VP, Line and Macrae JJ in Court

Date of Hearing: 9 January 2013

Date of Judgment: 9 January 2013

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J U D G M E N T

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Hon Line J (giving the judgment of the court):

1.This is an application for leave to appeal a conviction by a jury for trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap. 134, and to appeal the sentence of 21 years’ imprisonment that was imposed by Deputy Judge Andrew Chan, as he then was.

2.The factual background is simple.  On 5 March of 2011, the applicant arrived at the airport, having travelled from Malaysia, carrying a suitcase with a secret compartment which contained 640 grammes of heroin.

3.The only issue before the jury was whether the applicant knew she was bringing dangerous drugs into Hong Kong.

4.Two complaints are made in the perfected grounds of appeal against conviction. Firstly, that the judge gave the jury a shut-eye knowledge direction when it was inappropriate to do so.  Secondly, that in giving the direction, he erroneously advanced the possibility of the applicant deliberately shutting her eyes to the circumstances as an alternative to actual knowledge that she carried dangerous drugs.

5.There is nothing in either complaint.  In our judgment, the case did call for a shut-eye direction.  There was evidence that the applicant had been suspicious of the presence of drugs in the suitcase, and yet, according to the evidence, she avoided checking properly to see if that was so.  It was the case that in her video-recorded interview, at paragraph 1354, she acknowledged that she had, and I quote:  “A little bit suspicion”, and at paragraph 1414, she acknowledged that she had suspected there was a drug concealed in the bottom of the suitcase.

6.It was thus that the jury required direction upon the failure to inspect.  They were rightly told that the failure to inspect was not to be equated with knowledge, but was a circumstance that could be taken into account.  They were rightly directed about drawing inferences.  They were rightly told this, and I quote from the summing-up, that:  “Guilty knowledge can be inferred if the defendant was deliberately avoiding getting confirmation of the presence of drugs in her suitcase because she did not want the confirmation, and in fact she did not need the confirmation, because in all common sense and in truth, she knew what was going on.”

7.Counsel for the applicant seemed to think that the fact that the applicant proffered an explanation as to why she did not follow up her suspicion with greater investigation rendered the direction inappropriate.  It did nothing of the sort.  If the jury had accepted her evidence concerning her lack of knowledge, they would have acquitted her.

8.The above quotation from the summing-up carried on in this way:  “This is what the prosecution are saying.  Sometimes people call this deliberately shutting your eyes to the obvious or turning a blind eye to the obvious, and the way that the prosecution put their case is that all the circumstances that confronted this lady were such that she knew perfectly well what was going on.”

9.The words used do not, as is contended, offer the jury an alternative to actual knowledge as a route to conviction.  Not only that, the judge made it as plain as possible to the jury that the prosecution had to make them sure that the applicant knew of the presence of dangerous drugs in the suitcase before they could convict, and references to that are to be found in the summing-up in the appeal bundle at page 11D, page 11G, page 13K, and page 18 in the passage from L to Q.

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

11.As regards sentence, the applicant appeared in person without the benefit of Mr Wong.  She was sentenced to 21 years’ imprisonment.  The judge had taken a starting point of 20 years to reflect the 640‑odd grammes of heroin that was carried, the bracket starting at 20 years for amounts of 600 grammes.  He added a further year to reflect the aggravation of carrying the heroin across international borders in the way that is habitually done in these courts.

12.The applicant says three things:  firstly, that the sentence is too long; secondly, that she is a single mother, that she has a daughter of 10 years of age, and that her ex‑husband, who did look after the daughter, now is no longer able to do so, and consequently the daughter is in the care of grandparents in their 80s, and she expressed a desire to look after her daughter as soon as possible.  Finally, she said that she was not the mastermind of the enterprise, and would seek to have her sentence reduced to reflect that.

13.There was nothing before the judge that would have justified him departing from following the guidelines, and it is the case that those matters that the applicant puts before us today do not constitute such exceptional circumstances as would justify us in departing from the guidelines.  They are submissions that are heard frequently in these courts, and whilst we understand what motivates them, the fact is that trafficking in amounts of heroin in this amount across international borders calls for a sentence in accordance with the guidelines.

14.Accordingly, the application to appeal sentence is dismissed.

Ms Anna Y K Lai, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent

Mr H Y Wong, instructed by Pang, Wan & Choi, assigned by the Director of Legal Aid, for the applicant