HKSAR v. Liu Xiaoli

[English Translation – 英譯本]
CACC 296/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 296 OF 2011

(ON APPEAL FROM HCCC NO. 365 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

Hon Chu JA (giving the reasons for judgment of the Court):

1.The applicant was charged with one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. The drugs involved were899.16 grammes of a mixture containing 495.68 grammes of heroin hydrochloride and 119.70 grammes of monoacetylmorphine hydrochloride.

2.The applicant pleaded not guilty and was tried before Tong J sitting with a jury. On 11 July 2011, the jury found her guilty by a majorityof 5:2.  On 19 July 2011, she was sentenced to 18 years’ imprisonment.

3.The applicant applied to this Court for leave to appeal against both conviction and sentence.  Subsequently, on 14 February 2012 she abandoned her application for leave to appeal against sentence.  As to her application for leave to appeal against conviction, it was dismissed by this Court after hearing.  We now give the reasons for our judgment.

Facts of the case

4.At 5.59 pm on 10 May 2010, the applicant arrived at the Hong Kong International Airport on board an airliner coming from Kuala Lumpur.  She was stopped and searched by customs officers.  In the backpack which she was carrying the officers found a notebook computer, some items of clothing and some shoes.  In the course of the search, the officers sensed a sour smell, so they searched the backpack more thoroughly.  Finally, they cut open the back of the backpack and found the dangerous drugs, the subject-matter of this case.  The purity of the heroin was within the range of 30% and 70%, and its retail price at the time of the offence was HK$825,428.88.

5.The applicant elected to give evidence.  She had no previous criminal convictions. Her evidence was that she was a manager of an office furniture company in Foshan in Mainland China, earning a monthly income of over RMB10,000 yuan. In her spare time she studied for a master’s degree course in business administration.  She said that through the introduction of her friend Xiao Jin [transliteration of 小靳] she had come to know a woman called Lily, who was engaged in foreign trade.  In mid April 2012 she and Xiao Jin went to Malaysia together and brought some goods samples back to the Mainland for Lily.  The present occasion was the second one on which she went to Malaysia and brought goods samples back to the Mainland for Lily.  The applicant said that Lily had arranged for her the purchase of air tickets and the booking of hotel accommodation, and had paid her US$300 and RMB 200 yuan.

6.When the applicant arrived there, she followed Lily’s instruction and came into contact with a person called Army, and received the backpack involved in this case.  She said that she did not know there was a secret compartment in the backpack, nor did she know it contained dangerous drugs.  She said she had never touched any dangerous drugs before.  She believed what Xiao Jin said, i.e. it would not involve the commission of anything illegal, and on that basis she agreed to fetch the samples for Lily.  The applicant went on and said that upon receiving the backpack she had taken the items of clothing out and checked them.  She had also felt the inside of the backpack but did not discover anything.  She did not sense any sour smell either.  What she could smell was only the body odour of the person who contacted her.

7.The applicant called three character witnesses and produced the written statement of another character witness.

Jury’s verdict

8.When the trial judge finished his summing up in directingthe jury to reach a verdict, the jury retired to consider what verdict they should return.  After some time, the jury asked the trial judge the following question:

“We unanimously agree that the defendant knowingly brought contraband into Hong Kong, but some of us think that knowingly carrying contraband is not the same as knowingly carrying dangerous drugs. For this reason we cannot reach a majority verdict, and we therefore hope that Your Lordship could give us some legal advice.”

9.Having discussed with the prosecuting counsel and the defence counsel, the trial judge gave further direction to the jury.  The following was what he said:

“In this regard I have two things to say in response: The first one is that before you can convict the defendant you have to conclude that she knew that the content of the packet was some kind of dangerous drug; and the second thing, with regard to the deliberation among you, members of the jury, I shall give you some time to give your answer to the following question from the court, that is, if the court gives more time for you to continue your deliberation, is it possible for you to reach a verdict or is it already impossible to do that? May I ask you to discuss this and give me your answer to this question first? After that, I shall decide what should be the next step to take.”

10.After discussion, the jury informed the learned judge in writing that “We think that if more time is given we should be able to reach a majority verdict.”  Then the learned judge said the following to the jury when they came back into the courtroom:

“Members of the jury, thank you very much. I shall now read your written answer into record. You wrote down ‘My Lord, we think that if more time is given we should be able to reach a majority verdict.’ In that case, I shall ask you to continue your deliberation until you arrive at a conclusion. In any event, let me remind you. You have been provided with a sheet of … a sheet of paper about your verdict which contains several questions. I ask you to bring it along with you. If you have reached a verdict, you can inform the court of that by following the steps set out on it.”

11.Then the jury resumed their deliberation.  Finally, they found the applicant guilty by the ratio of 5:2.

Applicant’s grounds of appeal

12.The applicant’s Perfected Grounds of Appeal pointed out that for the following three reasons the conviction was unsafe or unsatisfactory:

(1) The trial judge did not give the jury any explanation as to the legal definition of dangerous drug stipulated in the Dangerous Drugs Ordinance.

(2) The directions given by the trial judge as to whether the applicant was made use of and whether she carried the dangerous drugs without her knowing what she was actually doing constituted conjectures prejudicial to the applicant, which also undermined the applicant’s defence in an unbalanced and unfair way.

(3) The further direction given by the trial judge in response to the question raised by the jury was not balanced, and he erred in failing to give any explanation as to the legal definition of dangerous drug in the Dangerous Drugs Ordinance, and in failing to remind the jury that ultimately it was open to them not to reach a valid verdict.

Grounds of appeal (1) and (3)

13.Grounds of appeal (1) and (3) are closely related to each other, so they shall be dealt with at the same time.

14.The complaints concerning the jury’s question and the further direction given by the learned judge were referred to in paragraphs 8 and 9.

15.Mr. Wong, counsel for the applicant, submitted that from the question raised by the jury it could be seen that some of the jurors at that time thought that the applicant did not know she was carrying some dangerous drugs, and that therefore, in order to be fair, the trial judge should have given the jury the direction that if they were of the view that although the applicant knew that she was carrying some contraband goods, she had no idea that they were dangerous drugs, then they should find her not guilty.  Mr. Wong complained that the further direction given by the trial judge was unidirectional in that he failed to remind the jury that if they considered that the applicant was not aware or might not be aware that there were dangerous drugs in the backpack, they should return a verdict of not guilty.

16.In our view, the trial judge in his summing up directing the jury to reach a verdict had repeatedly given specific, detailed and fair directions about the issue of whether the applicant knew that there were dangerous drugs in the backpack she was carrying.  Among such directions were the following passages:

“... Mr. Kwan [transliteration of 關] emphasized that you must pay attention to the fact that the dangerous drugs were concealed in a secret compartment, and that it is possible that it was really outside the defendant’s knowledge. If you accept that there is such a possibility, you should find her not guilty. The law is not that she is guilty simply because she might have knowledge of that. This certainly is a correct statement about the law.”

“… The prosecution said if you find that the defendant did not know there were dangerous drugs concealed in the backpack, then you should find her not guilty; and the defence pointed out that if you think it is possible that the defendant did not know that, then you should acquit her. Members of the jury, what the defence said is correct. If you find that the defendant did not know the dangerous drugs were there, then of course you should find her not guilty. Not only that she did not traffic in the dangerous drugs, she did not even possess the dangerous drugs. If you think there is the possibility that she did not know the dangerous drugs were there, the result is the same. That’s because the benefit of the doubt must go to the defendant, so you still are required to find her not guilty.”

“Secondly, if you consider that the defendant’s evidence that she did not have the requisite knowledge is possibly true, you must return a verdict of not guilty. Thirdly, if you do not believe what the defendant said, then the outcome of your disbelief will depend on what is it that you believe and what is it that you don’t believe. If the thing which you don’t believe does not affect the crucial point, namely it is possible that she did not have the requisite knowledge, you must give the benefit of the doubt to her. I shall say this part again. If the thing which you don’t believe does not affect the crucial point, that is, it is possible that the defendant did not have the requisite knowledge, then you must still give the defendant the benefit of the doubt.”

17.The question raised by the jury during their deliberations after they retired was a request for direction from the trial judge to deal with the difference in opinions among themselves.  The difference in opinions arose because some jurors thought that knowingly carrying contraband was not the same as knowingly carrying dangerous drugs.  Therefore, the crux of the question was whether the jury could find the applicant guilty of trafficking in dangerous drugs if they considered that she knew what she carried was contraband.  The further direction given by the trial judge was that the jury had to be satisfied that the applicant knew the article in question was a certain kind of dangerous drug before they could convict her.  This direction was aimed at the crux of the jury’s question.  In our judgment, in the summing up which the trial judge made earlier on, he had already given clear and thorough directions about the element of “knowledge”; that being so, when he replied to the jury’s question, it was appropriate for him to give a direction which was focused and direct.  It was not necessary for him to repeat that the applicant did not commit the offence of trafficking in dangerous drugs if she did not know or might not know there were dangerous drugs in the backpack.  We do not agree that the further direction given by the learned judge in response to the jury’s question was in any away unbalanced or unfair to the applicant.

18.Mr Wong also complained that the trial judge erred in failing to give the jury any explanation as to the definition of dangerous drug in the Dangerous Drugs Ordinance.  He submitted that the nature of a dangerous drug was a crucial matter in this case, and that it was even more necessary for the trial judge to explain to the jury the definition of dangerous drug in the ordinance when the jury’s question was about contraband and dangerous drugs.

19.At the beginning of the trial, the prosecution and the defence had already agreed that heroin was concealed in the back portion of the backpack which the applicant was carrying, and that the dangerous drugs in this case were governed by Part I of the First Schedule of the Dangerous Drugs Ordinance: see 4(c) and paragraph 9 of the Facts Admitted by the Prosecution and the Defence.  For this reason, the trial judge in his summing up told the jury that there was no dispute between the prosecution and the defence over the fact that the dangerous drug involved in this case was heroin and that it was a dangerous drug governed by the Dangerous Drugs Ordinance.

20.Our view is that under these circumstances, the jury certainly would clearly understand that the dangerous drugs concealed in the backpack being carried by the applicant were drugs which fit the definition in the Dangerous Drugs Ordinance.  In the present case, the disputes between the parties had nothing to do with the legal definition of dangerous drug or whether the drugs in question were dangerous drugs governed by the Ordinance.  The trial judge was not required to explain anything about the definition of dangerous drug in the Ordinance. The question raised by the jury in the course of their deliberations did not show that they had any doubt concerning the legal definition of dangerous drug or whether the drugs involved in this case were dangerous drugs as defined in the Ordinance and so the trial judge needed to explain to them the legal definition of dangerous drug.  Furthermore, we do not agree that the jury could be confused by the trial judge’s statement to them that before they could convict the applicant they had to conclude that she knew what she was carrying was a certain kind of dangerous drug and therefore they needed to be provided with some explanation about the legal definition of dangerous drug.

21.With reference to the trial judge’s further directions given to the jury, Mr. Wong further submitted that it was necessary for the trial judge to remind the jury that ultimately they were entitled to have diverse views on the verdict and that they were not obliged to reach a legally valid verdict.  Mr. Wong opined that the emphasis of the jury’s question was on the ratio by which a verdict could be constituted, and that therefore the trial judge’s approach was seriously inadequate and by which pressure would be exerted on the jury, so that they were not able to be free to deliberate and arrive at a verdict without being subjected to any form of pressure.

22.We do not agree with Mr. Wong’s interpretation of the jury’s question.  The jury did not ask the trial judge for directions about how to reach a majority verdict.  What they sought was further directions as to the element of “knowledge”.  The trial judge replied that before they could convict the applicant they had to conclude that she knew what she was carrying was a certain kind of dangerous drug.  After saying that, he asked the jury to indicate whether it was possible for them to reach a valid majority verdict if he gave them more time to continue their deliberation.  He also told the jury that he would decide what the next step to take should be after he had their answer.  It should be noted that the trial judge made such enquiry of the jury only after he discussed with the prosecuting counsel and the defence counsel and obtained their approval.

23.What the trial judge did was only making an enquiry of the jury.  This was different from what happened in HKSAR v Chan Ka Man [2005] 1 HKC 162 and HKSAR v Chung Chi Bor [2008] 1 HKC 255.  What transpired was not that the jury indicated that they could not reach a majority verdict and then the trial judge asked them to continue their deliberation.  The purpose of the trial judge’s enquiry was simply to find out whether the jury was in such a situation that they could not reach a majority verdict.  Since the jury’s answer was that they could reach a majority verdict, the trial judge did not need to remind them that they were entitled to have diverse views and that they were not obliged to reach a majority verdict.  We do not consider that the approach taken by the trial judge resulted in pressure being exerted on the jury or created a risk that the jury was given the misconception that they were obliged to reach a majority verdict.

24.Grounds of appeal (1) and (3) are not substantiated.

Ground of appeal (2)

25.The applicant’s second ground of appeal is targeted at the directions given by the trial judge in the summing up regarding whether the applicant carried the dangerous drugs when she was being made use of and not knowing that there were dangerous drugs.  The relevant part was set out below:

“… The defence witnesses said that the defendant was rather simple-minded and was too ready to believe what other people said. You have to consider whether Lily did take advantage of the defendant’s weakness in this respect, won her confidence and then sent her to Malaysia by lying to her that she was to go there to fetch some goods samples. Of course, on the other hand, would a drug trafficker find someone who was completely ignorant of what’s going on to help him to convey dangerous drugs? In the course of conveying the drugs, if any contingency arises and if she can’t cope with it, then it may result in a loss of $800,000 odd. You need to consider this matter carefully from these different angles in a balanced and fair manner according to the evidence in this case.”

Mr. Wong submitted that the trial judge only directed the jury to consider the possibility that a drug trafficker would not take the risk of losing dangerous drugs worth $800,000 odd, but he did not direct the jury to consider another possibility, namely it would be easier for a drug trafficker to control the activities of a person who did not know what was going on, and when being stopped and questioned such a person would not give him or her away by behaving nervously or furtively.  Mr. Wong relied on HKSAR v Punsalang Elmer Umali [2011] 3 HKLRD 55 to criticize that the trial judge’s directions were not only unbalanced, but they also unfairly undermined the applicant’s defence.

26.In HKSAR v Punsalang Elmer Umali (paragraph 14) the Court of Appeal pointed out that whether a summing up is fair and balanced is always case and context specific and that the key point is the effect produced by the summing up as a whole.

27.Moreover, in order to be fair and impartial, the trial judge in his summing up is duty bound to explain clearly to the jury both the prosecution case and the defence case.

28.Regarding the issue of whether the applicant carried the dangerous drugs without her knowing what she was actually doing, the prosecution in their closing speech said that the drugs in question was worth a lot of money, and that if the applicant knew nothing about the true facts, Lily would have been reckless if she let her carry the drugs.  When the trial judge gave directions to the jury as to the present case as a whole, he mentioned the defence case that the applicant was being made use of as a cat’s paw in this drug trafficking.  After that he referred to the criticisms raised by the prosecution, i.e. would a drug trafficker find someone completely in the dark about the truth to help him convey his dangerous drugs, thereby taking the risk of losing the drugs that were worth several hundred thousand dollars?  He just presented to the jury the arguments put forward by the two parties about this issue so that they could consider it from different perspectives.  What he did was not as Mr. Wong said aiming for the destruction of the applicant’s defence.  When the trial judge, in response to the defence counsel’s request, gave further directions to the jury on this issue, he explicitly said that he had to state the prosecution’s views too because he should not present only the defence case to the jury.  He correctly reminded the jury that they should draw on their common sense to assess the arguments advanced by the prosecution and the defence.

29.We do not agree with the applicant’s allegation that the directions given by the trial judge as to whether she was made use of as a cat’s paw so that she carried the drugs without knowing what she was actually doing were tendentious or were destructive to her defence.  Ground of appeal (2) is not substantiated either.

Conclusion

30.Based on the above analysis and reasons, we do not consider the applicant’s conviction to be in any way unsafe or unsatisfactory.  We therefore refuse to grant the applicant leave to appeal against her conviction.

Mr. Richard Wong, instructed by Messrs To Lam & Co., assigned by the Director of Legal Aid, for the Defendant/Applicant.

Ms. Catherine Fung, Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.