HKSAR v. Bian Zhenju

CACC 471/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 471 OF 2012

(ON APPEAL FROM HCCC 254 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court):

1.The applicant sought leave to appeal against her conviction on 9 November 2012, after trial before Line J and a jury, of a single count of unlawful trafficking in dangerous drugs, namely 3.45 kilogrammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing we allowed the application for leave and, treating the hearing of the application as the hearing of the appeal, allowed the appeal and quashed the conviction. We ordered the appellant to be re-tried on a fresh indictment.

THE TRIAL

2.There was no dispute at the trial that the appellant was in possession of a black suitcase when she was detained by Customs and Excise officers as she passed through the Customs area of Hong Kong International Airport in the late evening of 13 January 2011, having arrived on a flight from Malaysia.  Having been provided by the appellant with the code to the lock to the suitcase, a search of the inside of the suitcase by those officers revealed the presence of the heroin hydrochloride the subject of the indictment contained hidden in the cover of 4 books and concealed beneath the lining of the suitcase.

The prosecution case

3.The prosecution case was that the appellant was a courier for reward of the heroin, who had been provided with a ticket for a return flight from Hong Kong to Malaysia and for whom arrangements had been made for her to stay in Malaysia with those who provided her with the black suitcase.  The appellant, who was a resident of the Mainland, first made her way overland to Hong Kong from Guangzhou and then flew to Malaysia.

4.The prosecution relied on parts of a video recorded record of interview of the appellant as undermining the account she gave, elaborated on in her evidence in the trial, of having been persuaded to make the trip to Malaysia by a boyfriend she called Daiha, who at the last moment had not accompanied her as he had promised.  The prosecution pointed to the fact that in the record of interview the applicant did not identify the person who had arranged her trip as her boyfriend.  Further, she did not provide requested details of his full name, information that she would be expected to know of a boyfriend.  On the other hand, they pointed to the fact that the appellant admitted that, prior to the trip, Daiha gave her RMB 600 and US$400.  They suggested that was her reward for acting as a courier of the heroin.

5.Furthermore, the prosecution relied on the fact that the heroin had a retail value of $3.59 million, suggesting that a consignment of that value would not be entrusted to someone who was not aware of the value of the goods in her possession.

The defence case

6.The appellant’s defence, in particular as elaborated in her testimony, was that she had gone to Malaysia on 8 January 2011 having been persuaded to do so by Dahai, a man whom she had known for a short while but with whom she had been sexually intimate.  She said that he was dark skinned and had told her variously that he was British Filipino or African.  At his instigation she had obtained a passport with which to travel with him.  Also, he had obtained for her a single entry visa into Malaysia which was affixed to her passport.  At the last moment he had let her down by not travelling with her, as has been arranged.  Rather, he said that he would follow her to Malaysia the following day.  Then, he made a phone call and she spoke to a female, Abby, in Putonghua who reassured her that she would look after her in Malaysia.  Dahai told her that Abby was a relative and he gave her telephone contact details, which she used to arrange to meet Abby, after she had arrived in Malaysia, with whom she then stayed.  On 9 January 2011, Dahai telephoned her and told her that he would not be joining her after all.

7.On 13 January 2011, Abby and her black boyfriend presented the appellant with a black suitcase, which the appellant was told contained her own clothing and books, which the appellant was asked to take back to the Mainland for the use of children of Dahai’s friend.  Abby told her that her boyfriend wanted her to take the suitcase back with her.  Initially, the appellant was reluctant to take the suitcase to the Mainland.  However, she said that she relented, in part because Abby had been kind to her.  She had not opened the suitcase to inspect its contents because she trusted Abby.  It was only at the airport in Malaysia that Abby had told her the code to the lock to the suitcase.

The issue

8.As the judge directed the jury, the issue in the case was that of the appellant’s knowledge of the presence of the heroin inside the suitcase.  As the judge reminded the jury the appellant had denied knowledge of the presence of the heroin in the suitcase in response to being arrested and cautioned and subsequently in both her record of interview and in her testimony.

Summing-up

9.In the course of his summing up, the judge directed the jury in respect of the ingredient of knowledge in the offence of unlawfully trafficking in dangerous drugs:[1]

“ The important word is “knowingly”.  The law requires that the guilty act, the carrying of the heroin into Hong Kong, be accompanied by a guilty mind.  The prosecution must establish that guilty mind by making you sure that the carrier of the heroin knew she was carrying dangerous drugs if you are to convict.  The prosecution do not have to prove that the heroin belonged to the defendant in the sense of owning it, or that she herself hid the dangerous drugs in the suitcase, or did anything other than knowingly carry them.”

10.The judge went on to direct the jury as to the distinction between knowledge and suspicion:[2]

“ The defendant’s case is that she knew nothing of the presence of any dangerous drugs. The prosecution must make you sure that is not so if you are to convict. They must make you sure she knew. Proof only that the defendant suspected that she was carrying dangerous drugs is not enough, for knowledge must be proved.”

11.Having retired to consider their verdict shortly after 11:00 a.m. some hours later the jury sent the judge a note, with the result that the court was reconvened for a discussion between the Bench and Bar in respect of that note at 3:34 p.m.  Although the judge had directed the jury in terms that, if they were unable to reach an agreement in respect of a verdict in which at least five of them were agreed they were to indicate that position, without revealing the nature of their division, the note said:

“ Result

Not Guilty Guilty

4 3

Dear Judge

Need your guidance on the interpretation of suspect.”

12.Having consulted counsel, and with their agreement, the judge gave further directions to the jury to the following effect:[3]

“ To suspect something is to imagine it on little or no evidence.

And I’ve taken that from the Oxford English Dictionary.

It is a state of mind less than belief, less than knowledge.

Now, it may be -- I don’t know, but it may be that the issue of suspicion has arisen because you’re considering what if there was suspicion in a defendant about what she thought might be in a container - in this case, a suitcase. Now, there is a direction that I can give you which is taken from the Specimen Directions that judges use in these courts, and I’m going to read that to you slowly, and you’re going to have it in front of you, because it’s difficult to carry in your mind, and you will have the exact words of what I’m going to say, and I have to be precise to get it right.

So we’ll pause there for a moment whilst my clerk is copying out the relevant material for you. I’ll add this. The direction you’re going to read is particularly relevant when you have a situation that may arise on the evidence here - it’s entirely a matter for you, this - where if someone suspects something and thinks, ‘Well, there could be drugs in there,’ the question arises why don’t they look, because if you are suspicious, why wouldn’t you go and check?

If it’s that sort of area that is engaging your attention, then what I’m about to give you in writing deals with it. So I’ve read to you the first paragraph. Here is the second one.

‘Where there is an issue about knowledge of the contents of a container - that would be the suitcase in this case - the jury must be told that suspicion does not suffice and that knowledge must be proved. In such cases, judges must be very careful not to suggest that by itself, failure to take an opportunity to inspect is to be or may be equated with knowledge of the contents. In appropriate cases, it is a fact that may be taken into account and from which, with all the other circumstances, guilty knowledge may be inferred. In essence, guilty knowledge may be inferred where the custodian has evidently avoided getting confirmation which he neither wanted nor indeed needed, and where in common sense and in truth he knew.’

And I’ve added the paragraph at the end to remind you, not that I’m sure you need reminding of it though, that you can only infer guilty knowledge if you’re sure it’s the only reasonable inference based on all the evidence.”

13.The passages in italics were provided to the jury in a typewritten handout in the sequence set out above.

GROUNDS OF APPEAL AGAINST CONVICTION

14.The sole ground of appeal advanced on behalf of the appellant by Mr Khattak was that the judge had erred in giving the jury what was in effect the ‘shut eye’ knowledge direction in response to the jury’s note.  Such a direction was appropriate only rarely.[4]

A CONSIDERATION OF THE SUBMISSIONS

15.The directions given to the jury by the judge prior to the retirement of the jury reflected appropriately the issues that had arisen in the trial. The crucial issue was, as identified by the judge, proof by the prosecution of knowledge in the appellant of the fact that heroin was contained within the black suitcase.[5] His directions addressed that issue appropriately, as did his direction that “Proof only that the defendant suspected that she was carrying dangerous drugs is not enough, for knowledge must be proved.”[6]  It is not without significance that the judge did not give a ‘shut eye’ direction.  On the issues arising in the case it was not appropriate.  The prosecution case was simple: the appellant was a courier for reward.[7]  The issue of whether or not she inspected the contents of the suitcase was irrelevant, because she knew it contained heroin.[8]  That is why she had travelled to Malaysia and why she returned to Hong Kong in possession of the black suitcase and the heroin.  Similarly, the defence case was simple: she had no knowledge of the presence of heroin in the suitcase.

16.With respect, the judge’s direction to the jury in response to their enquiry for guidance, “on the interpretation of suspect” was entirely appropriate.  In George v Rockett [9] the High Court of Australia cited with approval the definition of ‘suspicion’ provided by Lord Devlin in Hussein v Chong Fook Lam[10]:

“ it is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove.”

The High Court went on to say, “The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.”

17.Similarly, the judge was correct to direct the jury that,“suspicion does not suffice and…. knowledge must be proved.” [11] In giving that direction in effect the judge was repeating his earlier direction to the same effect.[12]

18.However, with respect to the judge, notwithstanding that he had the agreement of both counsel, in our judgment it was not appropriate in the circumstances of this case to give the jury a ‘shut eye’ direction.  As is obvious from the text that the judge read to the jury, in fact it was not a Specimen Direction at all but merely a ‘Note’ for the information of judges from which a direction could be fashioned.  As this court noted in HKSAR v Yang Yulan[13], which judgment was delivered six months after the summing up in the instant appeal, the circumstances in which it is appropriate to give such a direction is confined to rare cases:

“ 23. We would like to take this opportunity to say that although in cases involving dangerous drugs, proof of ‘constructive knowledge’ on the part of the defendant by the prosecution is sufficient to show the defendant’s knowledge, as Bokhary JA (as he then was) pointed out in the above case of Law Wai Choi (at page 561D), such knowledge of a material circumstance is rarely relevant and its relevance is confined to rare cases.

24. If all the circumstances faced by a defendant were very suspicious and he deliberately shut his eyes to the circumstances at the material time, it might be construed that he had the knowledge but this is not necessarily the only finding (see R v Griffiths (Leslie George) (1974) 60 Cr App R 14).

25.  Since ‘constructive knowledge’ is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to the suspicious circumstances, it is not appropriate for judges to give general directions to the jury on ‘constructive knowledge’.”

19.Furthermore, it is to be noted that, although the judge’s further direction was an entirely new direction, he did not make any attempt to remind the jury of evidence relevant to the direction.

Conclusion

20.In all the circumstances, we were satisfied that the judge had fallen into material error in giving those directions to the jury.  Accordingly, treating the hearing of the application for leave to appeal against conviction as the hearing of the appeal, we allowed the appeal and quashed the conviction.

Retrial

21.Although Mr Khattack opposed the order of a retrial, on the basis that the appellant had faced three trials, we were satisfied that it was appropriate to order a retrial and we did so.  In the first trial, the jury could not reach a verdict and was discharged.  In the second trial, the jury was discharged during the defence case, apparently on the basis that some of their number had improperly sought information relevant to the trial on the internet.  It follows that the verdict of the jury in the instant appeal was the first verdict returned against the appellant.  Given the seriousness of the allegation, we were satisfied that it was in the public interest that a retrial be ordered.  We ordered that the appellant be retried on a fresh indictment and that the case be brought on within 6 weeks for the determination of the hearing dates.

Mr David Leung, DDPP(Ag.), of the Department of Justice, for the Respondent

Mr Shahmim K. Khattak (Kelly Lam), instructed by Michael Cheuk, Wong & Kee, assigned by Director of Legal Aid, for the Applicant (for conviction)

Applicant appeared in person (for sentence)

[1] Appeal Bundle, page 23 A-E.

[2] Appeal Bundle, page 23 M-P.

[3] Appeal Bundle, pages 43 T - 44 R.

[4] The Queen v Law Wai Choi [1997] HKLRD 555, per Bokhary JA at 561D; The Queen v Cheung Kwok Kuen (CACC 51/1996; unreported, 8 July 1996) per Bokhary JA at paragraph 34.

[5] Appeal Bundle, page 23 A-E.

[6] Appeal Bundle, page 23 N-O.

[7] Appeal Bundle, page 498 J-L, where it was suggested by the prosecution in cross-examination of the appellant that she had met Dahai the night before she travelled to Malaysia so that he could give her the airline ticket and, “so that Dahai could also give you the money, your reward for carrying the drugs from Malaysia to Hong Kong.”

[8] Appeal Bundle, page 506 M-N, where it was suggested by the prosecution in cross-examination of the appellant that she did not entertain any suspicions about the contents of the black suitcase, “because you knew full well that the suitcase contained a substantial amount of drugs.”

[9] George v Rockett (1990) 170 CLR 104, paragraph 14.

[10] Hussein v Chong Fook Lam (1970) AC 943 at 948.

[11] Appeal Bundle, page 44 L-M and 544.

[12] Appeal Bundle, page 23 N-O.

[13] HKSAR v Yang Yulan [2013] 4 HKLRD 170 at 176.