HKSAR v. Gao Lian

CACC 9/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 9 OF 2012

(ON APPEAL FROM HCCC 291 OF 2011)

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REASONS FOR JUDGMENT

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

1.This was an application for leave to appeal against a conviction for trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The trial took place before Judge Longley, sitting as a deputy, and a jury whose verdict was unanimous. On the 15 January 2013 we dismissed the application and said that we would give our reasons at a later date. This we now do.

2.It was common ground that on 22 March 2011 the appellant arrived at the airport from Kuala Lumpur and that when her suitcase and handbag were searched heroin was found hidden in the lining of each.  It weighed 0.93 kg in a mixture weighing 1.75 kg.

3.The only issue at the trial was whether the prosecution had proved that she knew she was carrying dangerous drugs.  The appellant gave evidence that she did not know of the presence of dangerous drugs.  She explained how she had made two trips to Malaysia and that she had been misled by her boyfriend who duped and used her as an innocent tool to carry the heroin.

4.The first ground of appeal is that the trial was unfair due to an unbalanced summing‑up.  In support of the contention reference was made to 20 separate parts of the summing‑up and it was said that the unfairness was exacerbated by the fact that five of the 20 matters were not put to the appellant in cross examination, nor raised in the prosecutor's speech, so as to afford the appellant an opportunity to answer them.

5.Before dealing with the specific items of complaint, it is pertinent to remember the task facing a judge in summing up a case of this nature to a jury.  In the usual way in cases such as this, there was little in issue between the appellant and the prosecution witnesses.  The meat of the case was to be found in her explanation as to how it came about she carried the heroin into Hong Kong without knowing it and in the testing of her explanation.  The summing‑up, if it was to help the jury, was bound to deal repetitively with the evidence where her explanation was attacked for that is where the attention of the jury rightly lay.

6.In the grounds of appeal it is said that the judge appeared to doubt the appellant's credibility and defence in referring to the 20 matters.  It is therefore right to point out that at the very commencement of the summing‑up he said this:

"counsel on both sides have expressed certain views on the evidence and during the course of my summing‑up to you I may consciously or unconsciously express a view about the evidence.  I want to emphasise you are in no way bound by any opinion, no matter who expresses it, unless you agree with that opinion.  The evidence upon which I comment may have left a completely different impression in your mind to the impression that it has left in mine.  What I say to you in my summing‑up is designed to assist you in your deliberations.  It is not designed to take over your functions and responsibility.  If I stress matters in my summing‑up that you think are unimportant please continue to think them unimportant and disregard them.  If I leave out matters that you think are important please take those matters into account when you come to deliberate on your verdict."

7.Whilst we have given each of the 20 particulars individual attention and consideration we do not intend to deal with them individually in this judgment.  A common thread to our reactions to each was that the judge was in general identifying for the jury those parts of the evidence which logic and common sense identified as being potentially helpful to them in their task.  Their task was very much concerned with the testing the credibility of the appellant's explanation for her carrying the heroin. There were occasions when the questions posed hinted or suggested inherent incredibility of a defence assertion but the overall impact of these comments was within permissible bounds.

8.It was also the case that on several occasions the judge balanced the point in question by immediate comment.  He achieved balance within the context of the immediate points, let alone balance overall.  For instance, in particulars six to nine, which dealt with the fact that in interview the appellant did not mention meeting customers as a purpose of going to Malaysia whereas she did in her evidence, he immediately followed by pointing out the appellant’s explanation to the effect that the interviewing officer had not asked for such detail.  In relation to particulars 10 and 11, which dealt with how the appellant returned to Guangzhou after her first trip to Malaysia, he added:

“anyway, members of the jury, those matters were not clarified with her and may be there is an explanation for that”.

9.If it was the case that prosecuting counsel omitted to cross examine or mention some of the particularized matters in her closing address or both, we do not see that the judge in summing up the evidence thereby himself appeared to doubt the appellant’s credibility, as is the written complaint here, or that any unfairness occurred to the appellant thereby.  If there was a legitimate matter to mention in summing‑up, we would not add to a judge's task in a case like this the burden of checking whether it was in fact mentioned in prosecution counsel's closing address or her cross examination.  In many a criminal trial matters will be mentioned in evidence which the opposing party does not deal with by way of question or comment yet it may be worthy of mention in the type of summing‑up that deals in detail with the evidence of a witness.

10.We did not discern imbalance.  The judge’s summary of the appellant's evidence was comprehensive.  It obviously included all that she had said in her defence.  It did so faithfully and accurately.  The judge summed up the evidence thoroughly and in detail, drawing the attention of the jury to matters which he judged would help them in their task.  He did so, in our judgment, with measured comments following a strong and trenchant warning to the jury to ignore anyone else's views, including his, and to follow their own judgment.

11.We have listened to parts of the audio recording of the summing‑up.  We did so because it is not just the words that are used but the way in which they are delivered that can convey a message.  We heard a calm and neutral delivery.

12.Before leaving the first ground, we can do no better than repeat the words of Simon Brown LJ in the case of R v Nelson [1997] Crim LR 234:

"Every defendant has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury.  But that is not to say that he is entitled to have it rehearsed blandly and uncritically in the summing‑up.  No defendant has the right to demand that the judge shall conceal from the jury such difficulties and deficiencies as are apparent in his case.  Of course, the judge must remain impartial.  But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities. . . there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis.  Why should pointing out those matters be thought to smack of partiality?  To play a case straight down the middle requires only that the judge gives full and fair weight to the evidence and arguments of each side.  The judge is not required to top up the case for one side so as to correct any substantial imbalance.  He has no duty to cloud the merits either by obscuring the strengths of one side or the weaknesses of the other.  Impartiality means no more and no less than the judge shall fairly state and analyse the case for both sides.  Justice moreover requires that he assists the jury to reach a logical and reasoned conclusion on the evidence."

13.Ground two of the perfected grounds of appeal complains that the judge directed the jury in such a way that they could have wrongly regarded lies as evidence of guilt and/or as more than merely supportive thereof.

14.The ground is based upon what occurred at the end of the summing‑up:

“MISS CREBBIN [for the prosecution]: My Lord, I was only concerned, I don’t think you made a specific lies direction, you may not think it’s necessary but I’m just raising it with the court. I have discussed it with my learned friend.

MR CHAN: Well, I support my learned friend’s submission, I wonder if your Lordship will consider that lies is no corroborative evidence unless certain conditions are fulfilled, so to speak.

COURT: Well, members of the jury, you should bear in mind that if somebody lies there are sometimes many reasons why people lie. Sometimes people do not necessarily lie in court simply because they are guilty of the offence with which they are charged. There may be other reasons why people lie. It may be that they want to cover up some other matter, some other, perhaps disgraceful behaviour on their part that they do not want to come out. There may be other reasons that they are not telling the truth, not necessarily because they are guilty of the offence with which they are charged. So if you are satisfied that she was lying you should not necessarily conclude that she is lying because she is guilty of this offence unless you can come to the conclusion that that is quite simply the only possible explanation for her lying.

MISS CREBBIN: I’m obliged, my Lord.

MR CHAN:  I’m obliged.”

15.It was unfortunate that the matter was sprung on the judge in this way.  If counsel, in a case such as this, consider the lies direction is necessary they should raise it with the judge before the summing‑up. It is not right to wait until the end of the summing‑up to see if the judge has given the direction or not.  If it is thought that the direction should be given, then, before the summing‑up, discussion can follow and deliberation be given to the point.  If the direction is to be given it can then be tailored to fit the summing‑up.  Raising the matter in the way that occurred in this case, avoided discussion, avoided deliberation and resulted in a direction which is now the subject of criticism, notwithstanding that both counsel expressed themselves as being obliged to the judge for it.

16.In our judgment, this was not a case that required a lies direction.  The single issue of knowledge turned upon the credibility of the appellant's innocent explanation for carrying the heroin into Hong Kong.  In the course of testing her credibility she was accused of lying and cross‑examined on differences between her evidence and what she had said in her video recorded interview.  No established lie was identified or relied upon as being supportive of guilt in a way that was distinct or separate from what may be described as “the general issue”.  The matter never moved beyond a straightforward issue of credibility.

17.It is right that when a lies direction is given that it will usually contain words to the effect that lies can never prove guilt in themselves.  The judge did not include this in what he said to the jury.  It is said that this omission, but more particularly the words used, allowed room for an implication to arise, which the jury would have appreciated, that there may be circumstances where lies could directly prove guilt.  This was based upon the judge saying in the above quoted passage that:

"sometimes people do not necessarily lie in court simply because they are guilty of the offence with which they are charged"

and that

“there may be other reasons that they are not telling the truth, not necessarily because they are guilty of the offence with which they are charged” [emphasis supplied].

18.We were not unanimous as to whether there was a misdirection.  One view was that the jury would have understood from the words used that sometimes people did lie in court because they were guilty with the clear implication that lies could be proof of guilt.

19.The other view was that there was never any danger that the jury would have looked at any particular lie or lies as proving guilt by themselves, as opposed to regarding her whole explanation as being untrue, and that accordingly the omission to give the direction was not material and hence there was no misdirection.

20.We found it unnecessary to resolve the conflict of views, because if there was a misdirection we are unanimous that we should apply the proviso to section 83 of the Criminal Procedure Ordinance.

21.This is so because in our judgment, the suggested misdirection can have worked no disadvantage to the appellant.  We say this for the simple reason that the jury could never have thought that the prosecution was seeking to prove the appellant's guilt by reference to her having told a particular lie or lies as opposed to her whole case about knowledge of the heroin simply being untrue.  We have no doubt that the unanimous verdict of the jury was based on their rejection of her explanation of innocently carrying the heroin without knowing it.  The case was left to the jury squarely on the basis of whether or not the prosecution had made them sure that her explanation was untrue.  To convict the jury must have found that the appellant's innocent explanation was untrue and that absent an innocent explanation the facts spoke for themselves.

22.Put another way, the issue for the jury was so clearcut that we are confident they would have spelt out no implication from the alleged misdirection about how they could use the lies as an indication of guilt which would have been impermissible.

23.The discussion in the Court of Final Appeal concerning lies in the case of Yuen Kwai Choi [2003] 2 HKLRD 176, makes clear, at paragraph 39, that the need for the warning that lies of themselves cannot prove guilt arises where a direction of lies is required.  This repeats what this court said in the second conclusion in the case of HKSAR v Mo Shiu Sing [1999] 2 HKLRD 155, which held, when speaking of the warning, that the need for the warning arises where there is a danger that the jury may believe that lying goes to proof of guilt.  That there was no such danger in this case before the alleged misdirection is rightly conceded.  We reject the argument that the alleged misdirection could have created such a danger to the extent that a miscarriage of justice could have occurred.

24.Finally it was contended that there was a material failure to warn the jury to draw no adverse inference against the appellant because she elected to say nothing on arrest and there was a delay before her video interview in which she answered all that was asked of her.

25.Nothing was said at trial that would have led the jury to draw any adverse inference against the appellant in this regard.  The overwhelming likelihood was that the jury would have understood that the video recorded interview was the opportunity for the customs officers to make enquiries and for the appellant to make any explanation she chose.  There was no risk that the jury would have held her conduct in this regard against her.  It called for no separate direction.  There is nothing in the point.

26.Given the arguability of the lies direction issue, we granted leave but, for the reasons now provided, we dismissed the appeal.

Mr Tam Sze‑lok Isaac SADPP(Ag), of the Department of Justice, for the respondent

Mr Paul Vincent Loughran, instructed by To, Lam & Co, assigned by Director of Legal Aid, for the appellant