HKSAR v. Li Yan Hong

CACC 114/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 114 OF 2012

(ON APPEAL FROM HCCC 255/2011)

_________________

BETWEEN

______________

____________________________________

____________________________________

Hon Barnes J (giving the Reasons for Judgment of the court):

Introduction

1.The applicant was convicted after trial before Macrae J and a jury of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars were that the applicant trafficked 1.44 kilogrammes of a mixture containing 0.96 kilogramme of heroin hydrochloride on 17 January 2011 at the Customs Arrival Hall A of the Hong Kong International Airport. She was sentenced to 23½ years imprisonment.

2.The applicant sought leave to appeal against conviction and sentence.  The applicant was granted assistance by the Hong Kong Bar Association Free Legal Service Scheme and Mr Leung Chun Keung of counsel was assigned to act for her in relation to the application for leave to appeal against conviction.  Mr Jason Peter Lee of counsel was later assigned to act as junior to Mr Leung.  The applicant was unrepresented in respect of her application for leave to appeal against sentence.

3.At the conclusion of the hearing we granted the applicant leave to appeal against the conviction.  Treating the leave application as the appeal proper, we allowed the appeal, quashed the conviction and set aside the sentence.  We also ordered a re‑trial.  We indicated we would hand down our reasons in due course, which we now do.

Prosecution case

4.It was an admitted fact that on the day in question, the applicant arrived in Hong Kong on board Flight AK78 from Kuala Lumpur.  She was intercepted by Customs Officers at the Customs Arrival Hall A for a check.  She was in possession and had control of a red suitcase (“the suitcase”).  In a compartment inside the suitcase four packets with wrappings of metal foil were found.  The four packets were later found to contain the dangerous drug particularized in the charge.  The street value of the mixture in January 2011 was HK$1,046,880.

5.The applicant was arrested and cautioned for the offence of trafficking in a dangerous drug, after which the applicant replied “I know, I understand”.  The applicant later voluntarily took part in a video recorded interview and she basically denied that she was aware of the existence of the dangerous drug concealed in the suitcase.

6.The only issue before the jury was whether the applicant knew she was bringing dangerous drug inside the suitcase into Hong Kong.

4. The evidence showed that when the applicant was chosen by the Customs Officer (PW3) for a random check, after she had collected her luggage, she readily admitted that the suitcase was hers when PW3 asked her whose suitcase it was.  According to PW3, when she asked the applicant to take off her coat, PW3 noticed the applicant had something screwed up in her hand.  When PW3 asked the applicant to put the thing down on the table, the applicant appeared evasive as though she did not want to put it down.  The officer had to ask the applicant twice to persuade the applicant to release them.  The things turned out to be three pieces of screwed‑up luggage tags, ie a set of two luggage tags (no 0807701938 [Exhibit P33]) and a luggage tag (no 1A386914 [Exhibit P34]).  P33 were in respect of the flight to Hong Kong from Kuala Lumpur while P34 was in respect of the flight from Hong Kong to Malaysia.

5. It was the prosecution case that the applicant knowingly brought the dangerous drug inside the suitcase into Hong Kong.  The jury was asked to infer knowledge of the presence of the dangerous drug inside the suitcase from the applicant’s act of removing the luggage tag and screwing up three luggage tags in her hand before going through customs.

Defence case

6. The applicant gave evidence and said that she was not aware dangerous drug was inside the suitcase she used to carry the samples of clothes and her own personal items.  She gave details of how she came to know a black man called “David” and how she had gone to Malaysia a number of times, arranged by David and at David’s expenses, to bring back samples of garment for David.  She described how she was given the suitcase with samples of garment inside on this occasion and how she placed her own personal items inside the suitcase before flying to Hong Kong.  In a nutshell, she said she was duped or used by others to bring in the dangerous drug and she did not know dangerous drug was concealed inside the suitcase.

7.In relation to the three luggage tags, the applicant said in evidence that it was “her practice” to tear off the luggage tags after she confirmed that the luggage was hers (Appeal Bundle page 79). She did so on this occasion.  She said she then inserted her hand into her coat pocket, intending to take the phone out to make a call and she noticed there was a small tag inside her pocket.  As it turned out to be the luggage tag for her own luggage from Hong Kong to Kuala Lumpur, she surmised that she had removed the tag as per her usual practice and had “off‑handedly” put the tag inside her pocket when she could not find a bin to dispose of it (Appeal Bundle page 86).

8.After the applicant found the small luggage tag inside her pocket, she screwed up all three tags in her hand, trying to look for a place to dispose of them.  It was then that she was approached by a Customs Officer.

9.It was the defence case that the applicant had not shown any reluctance in revealing the screwed-up luggage tags to the Customs Officer.  The applicant also disagreed with the suggestion from the prosecutor that she concealed the tags in her hand because she knew the Customs Officers wanted to inspect her suitcase.

Grounds of appeal

10.The applicant basically raised two grounds of appeal and submitted that the conviction was unsafe and unsatisfactory.

11.The first one was that the summing up was unfair and unbalanced.  Under this ground the applicant complained that the judge failed to mention what the defence counsel had said during his final submission in the following two areas:

(a) the tearing and the holding of the luggage tags in the applicant’s hand; and

(b) the retail value of the dangerous drug in question being over HK$1 million.

12.The second ground was that the judge erred in telling the jury they may draw inference from the applicant’s act of tearing off and holding the tags in her hand.

13.One can immediately see that the evidence of the removal of the luggage tag and screwing up the three pieces of luggage tags in the applicant’s hand (“the act”) featured in both grounds of appeal.  It is convenient to deal with both grounds in relation to this act first.

14.We have already briefly set out the difference in the evidence of PW3 and the applicant as to her reaction when PW3 asked her to reveal what were held in her hand.  None of the prosecution witnesses actually witnessed the act of tearing the luggage tag off the suitcase, on the evidence that would have been done before the applicant was chosen for a random check.

15.The judge said this in the summing up:

“…. There is of course evidence, the truth of which is disputed, which may or may not help you on that issue. For example, there is the evidence that in a period of three minutes or so, after passing through immigration, the defendant collected the suitcase and decided to remove and get rid of three baggage labels or tags which were screwed up in her hand and which she allegedly had to be persuaded to hand over to a Customs officer. The prosecution say that those actions spring from her knowledge of what was inside the suitcase”. (Emphasis added)

16.Later on the judge said:

“One piece of evidence from which you may want to consider what inferences, if any, should be drawn is the fact that the defendant had torn off her baggage tag or tags and was holding three baggage tags or labels in her hand when passing through customs. As I have said, you are the judges of the facts and it is a matter for you what inferences, if any, you draw from the evidence in accordance with the directions as to the drawing of inferences which I have just given you.” (Emphasis added)

17.The applicant complained that the judge failed to remind the jury of the defence submission on this issue, ie that there was no concealment, that there was nothing special about the tearing off the luggage tags, and that those facts led to nowhere.  In other words, no adverse inference could be drawn from the act.

Our consideration of the submissions

18.A trial judge is under a duty to summarise the issues and the evidence relating to the issues clearly, accurately and fairly to the jury: see HKSAR v LIN Ping Keung (2005) 8 HKCFAR 52.  Whether a summing up is fair and balanced is always case and context specific.  The cardinal rule is that each and every defendant in a criminal court is entitled to a fair trial and to have his defence fairly elicited in evidence and accurately put to the jury for its consideration.  Ultimately, it is a question of context, degree and “feel” of the summing‑up as a whole: see HKSAR v Punsalang Elmer Umali [2011] 3 HKLRD 55.

19.The act of removing the luggage tag attached to the luggage upon arrival at a destination but before a person goes through customs cannot be said to be an ordinary or usual one.  It became the focus of much of the cross‑examination of the applicant and it appears to have been an issue which the prosecutor placed some emphasis on in his final address.

20.The prosecution said the applicant had tried to “distance herself” from the luggage by doing so.  The prosecutor put his case as follows (Appeal Bundle page 108N‑S):

“Q. You see, I suggest to you that you removed -- you did three things when you realised that the Customs wanted to examine your bag. When the Customs wanted to examine your bag, it was for that reason that you removed the sticker.

A. I disagree.

Q. It was for that reason you also concealed in your hand, Exhibit 33-B, the smaller of the two documents?

A. Concealed in my hand?

Q. Yes, you tore it off because you knew the Customs wanted to inspect your bag - your suitcase.

A. I disagree.

Q. And I suggest that you did so because there was nothing else in or on the suitcase which could link the suitcase to you.

A. I do not understand the question.”

However, on the evidence, there was nothing to show that the applicant had concealed the fact that she had brought in the suitcase.  She readily admitted the suitcase was hers when asked by the Customs officer (PW3).  There was not a shred of evidence to indicate that she had in any way distanced herself from the suitcase (even if the jury accepts PW3’s evidence that the applicant appeared to be reluctant to release what she held in her hand).

21.Whilst it is possible to suggest that, by removing the luggage tag, one might be distancing oneself from the place where one comes from, as opposed to distancing oneself from the luggage itself, there was no evidence from any Customs Officers that his/her suspicion was aroused by the absence of luggage tag on the suitcase in question.  The evidence was that the applicant happened to be the subject of a random check.  In any event, that was not how the prosecution put its case to the applicant either.

22.In our view, the act in the present case is so equivocal that a jury cannot possibly draw an irresistible inference that the applicant was aware of the existence of dangerous drugs inside the suitcase.

23.It is true that the judge did not say directly to the jury that they may infer knowledge of the existence of dangerous drugs from the act.  The judge reminded the jury of this piece of evidence and told the jury that they “may want to consider what inferences, if any, should be drawn”.  Bearing in mind the stance of the prosecution—which was repeated by the judge during the summing up—the judge was in effect saying to the jury that from the act of the applicant removing the luggage tag it was open to them to draw as the only reasonable inference that the applicant knew of the existence of the dangerous drugs in the suitcase.  However, far from being the only reasonable inference, it was not, on the evidence adduced, an inference capable of being drawn.

24.We are of the view that the judge should not have left open to the jury to consider whether to draw any inference from this act of the applicant.  As the only issue before the jury was whether the applicant was aware of the existence of the dangerous drugs inside the suitcase when she brought it into Hong Kong, such a misdirection was material, rendering the conviction unsafe and unsatisfactory.

25.For these reasons, we quashed the conviction. It was no longer necessary to consider the other limb (ie failure to mention the defence submission on the cost of the dangerous drugs) under the first ground of appeal, or the applicant’s own application for leave to appeal against sentence.

Re-trial

26.Having considered the seriousness of the offence, the reasons for the success of the appeal, and the length of sentence the applicant has already served (2½ years from date of arrest); and after weighing the public interest in ensuring that those guilty of serious crime are brought to justice and punished against the effects of putting this successful appellant through the ordeal of a further trial, we were satisfied that a re‑trial was warranted and we so ordered.

Ms Ko Po Chui, Catherine Acting ADPP, of the Department of Justice,

for the respondent

For Conviction

Mr Leung Chun Keung and Mr Jason Peter Lee, instructed by

the Bar Free Legal Service Scheme, for the applicant

For Sentence

Applicant appeared in person