HKSAR v. Chen Xuehui

CACC 394/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 394 OF 2012

(ON APPEAL FROM HCCC NO. 19 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.At the hearing, we dismissed the applicant’s application for leave to appeal against her conviction on 11 September 2012 after trial by Deputy High Court Judge McMahon and a jury of trafficking unlawfully in dangerous drugs on 26 July 2011, namely 1080.82 grammes of heroin hydrochloride and 299.29 grammes of monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant was sentenced to 16 years and 8 months’ imprisonment. We said that we would give our reasons in due course. That, we do now.

The Trial

2.On her arrival at Hong Kong International Airport late at night on 26 July 2011, the applicant was intercepted by an officer of the Customs and Excise Department and her baggage searched.  The dangerous drugs, the subject of the count on the indictment, were found concealed in the lining of her LV suitcase and inside the heels of two pairs of shoes found inside that suitcase. 

The prosecution case

3.It was the prosecution case that the applicant was acting simply as a courier, knowingly bringing the dangerous drugs from Hanoi into Hong Kong.

4.Chief Customs Officer Wong testified that at about 11:15 pm on 26 July 2011 he was on duty in the ‘Green’ Customs channel of the Hong Kong International Airport when the applicant came up to him and asked him about finding transportation to Guangzhou.  Having answered those enquiries, Chief Customs Officer Wong ordered that the applicant’s luggage be searched.

5.A search of her LV suitcase revealed a piece of cardboard, covering an object wrapped in tinfoil, protruding from the sides of the suitcase.  It was found to be a white powder.  The officer conducting the search arrested and cautioned the applicant.  In response, the applicant said, “This suitcase doesn’t belong to me, I simply carried it for others.  The tops and the slippers were samples and I don’t know of these things.”

6.In a subsequent video-recorded interview of the applicant under caution, the applicant said that:

•  she had suffered from mental illness, but she had recovered so that the illness did not have much influence on her life;

•  she went to Vietnam at the request of her friend IK to meet IK’s friend in Hanoi to pick up some samples for IK’s business;

•  she was told that she was going to Hanoi by IK only the day before her departure.  IK paid for the airline tickets, gave her US$150 for expenses and remitted money to her during the trip;

•  previously, IK had paid for her to travel to Cambodia and Malaysia; she thought the reason that he did so was because she had helped him with his business by lending money to him;

•  although the original plan was for her to stay in Vietnam for 3 days, in fact she stayed 11 days; 

•  having been contacted by a person called Nancy and after she and Nancy had lunch, she went to Nancy’s room where she took possession of the LV suitcase which contained samples;

•  upon returning to her own hotel room, she reported the details of the samples by telephone to IK. Then, she checked the suitcase carefully as she had some misgivings. She did so again before going to sleep and also in the morning before she went to the airport;

•  she said a lot of people had reminded her of cases where individuals had innocently brought contraband back to China and that was why she had minor misgivings about this matter in the first place;

•  since she trusted IK, she did not have any doubts about the arrangement made by him; she had not thought about why the samples could not be sent by post;

•  she said her weak point was she liked travelling too much and she trusted people too easily; and

•  she had no idea where IK lived.

7.It was an admitted fact that in July 2011 the retail value of the dangerous drugs was HK$1,133,315.44.

The defence case

8.The applicant availed herself of her right to give evidence and called two witnesses in the defence case.  She adopted the account that she had given in her out-of-court statements.  She said that she had no idea that dangerous drugs were concealed in the suitcase.  She was used as an innocent agent to transport the dangerous drugs into Hong Kong.  She testified that she lived with her father and she came from a very respectable family. She worked as a part-time interpreter and tutor.  As an interpreter, she sometimes worked for Africans in Guangzhou at trade fairs.  Her friend IK was an African, who was engaged in clothing and shoes business.  They had contact by telephone from time to time and had meals together.

9.As far as the trip to Hanoi was concerned, IK told her that his business was not good and that he needed her assistance urgently to travel to various Asian countries to collect and bring back business samples.  She said she would help him.  In cross-examination, she said she met IK many times.  She had given him financial help, a total of 2,000-3,000 RMB, not only for his business but also for renting his flat.

10.She agreed that she had heard that some Africans in Guangzhou were involved in drug trafficking and, when she was referred to references to that in parts of her video-recorded interview, she said that when she mentioned illegal acts by Africans, she meant not only acts involving dangerous drugs but also other things.  Of the ‘misgivings’ she had said that she had in respect of collecting and bringing the suitcase and the samples back to Hong Kong, she meant that she had to check the suitcase no matter how much she trusted IK.  She had read newspaper accounts of things found hidden in suitcases, such as in the lining of the suitcase.

11.Of her statement in her video-recorded interview, that she wondered why the shoes were so heavy, she said she did not know or suspect that there were drugs in the heels of the shoes.  When she checked the suitcase, she pulled open the zipper and checked the inside of the top part.  After she confirmed that it was empty, she opened the main compartment and started to look to see what was inside.  However, she did not notice a zipper across the bottom of the lining.

12.Having arrived in Hong Kong late in the evening of 26 July 2011, she was concerned about whether or not transportation would still be available for her to travel to Guangzhou.  Having seen a uniformed man, who turned out to be Chief Customs Officer Wong, she went up to him and asked him about transportation.

13.Mr Chen, the applicant’s father, testified that he lived with the applicant.  He had met IK.  He said the applicant was clever and honest.  She was straightforward, but she was inclined to believe and trust others, even those she had known for only a short time. The applicant had been treated in hospital three times for a mental illness.  

14.Dr Choi, a visiting Associate Consultant Psychiatrist at Siu Lam Psychiatric Centre, said that when he had a consultation with the applicant, at Siu Lam Physciatric Centre soon after 2 August 2011, he diagnosed the applicant as suffering from a quite severe manic episode of a Bipolar Affective Disorder, which he described as a severe mental illness, characterized by depressive and manic episodes and sometime psychotic symptoms.  Thesymptomsoftheillnessincludeelevationofmood,increasedenergylevels,self-esteem,grandiosityand hyperactivity, shortening of attention span making the person easily distractible.  Also, judgment could be impaired, so that the person became impulsive and reckless.[1]

15.Dr Choi also said the failure to take medication could increase the risk of relapse, which might significantly affect the process of decision-making.  A patient who suffered from the illness might not have insight into their condition as it worsened, so that they might continue in failing to take their medication.  During the manic stage, patients might do dangerous acts, but they usually would be aware of what they were doing.  Patients suffering from a less severe manic episode might retain their insight and realizations about reality.

16.Having viewed part of the applicant’s video-recorded interview conducted on the afternoon of 27 July 2011, he noted that there was an increase in the rate of delivery and volume of the applicant’s speech increased during the interview, although he said that the applicant displayed no signs of anxiety or distress.[2]  It was his opinion that the applicant was not then suffering from a severe episode because her speech was relevant and coherent.[3]  However, he said that it was possible that she was in the early phase of relapse.[4]

Grounds of appeal against conviction

17.On behalf of the applicant Mr P K Chan submitted that the judge had failed, as was required in the circumstances of this case, to give any or any sufficient warning to the jury that mere suspicion in the applicant that the suitcase contained dangerous drugs did not satisfy the requirement that the jury be sure that the applicant knew that she was in possession of dangerous drugs.  In support of that submission, he drew attention to the judgment of the Court in HKSAR v Lai Wing Huen [5].  There, the Court quashed the appellant’s conviction for trafficking unlawfully in dangerous drugs in circumstances where, in the face of submissions made by the prosecution in his closing speech, the judge did not direct the jury specifically that “mere suspicion” in the defendant as to the contents of a parcel collected by her was not the equivalent of knowledge of the contents.

18.Next, it was contended that the judge’s directions in respect of the evidence relevant to the applicant’s medical condition, in particular the directions “if the defendant’s medical condition simply encouraged her to knowingly bring these drugs into Hong Kong..” [6] and/or if the jury found it “may have made her become more adventurous and be more willing to take the risk” then “that does not help her” [7], may have led the jury into thinking that the applicant had a greater propensity to commit the offence.  Further, it was submitted that there was no evidential foundation for the directions to be found in Dr Choi’s testimony.

19.Then, it was submitted that, having reminded the jury that the prosecution suggested that in approaching uniformed Chief Customs Officer Wong Kai Yiu, and enquiring of him as to the availability of transport to Guangzhou, the applicant was trying to bluff him into thinking she had nothing to hide when she noticed him looking at her,[8] the judge failed to remind the jury of the evidence relevant to the issue.  In particular, the disputed evidence of whether Chief Customs Officer Wong was gazing at the applicant before she made to approach him.

20.Next, it was contended that the judge erred in merely inviting the jury to consider the applicant’s evidence that prior to setting off on her journey to Hong Kong she had opened the suitcase and inspected it, nevertheless she had not noticed that under the lining there was cardboard and tinfoil, “Do you think it possible that the defendant……. noticed nothing unusual about it?”[9] It was submitted that in posing that rhetorical question to the jury the judge ought to have reminded the jury specifically there and then of the medical evidence of the effects of her illness on the applicant, in particular that it could produce a shortened attention span.

21.Finally, it was submitted that the judge had failed to give “sufficient or proper” directions to the jury of the evidence relevant to the lackof motivation in the applicant to commit the offence, notwithstanding the judge’s direction to the jury that if they accepted the evidence of the applicant’s father, Mr Chen, of the applicant’s income the applicant “did not have the motivation” to commit the offence.[10]

A consideration of the submissions

Suspicion: knowledge

22.At the outset of his summing up, the judge identified the fundamental issue arising in the case:[11]

“ You may think, members of the jury, as counsel have already suggested to you, that there is only one fundamental issue in this case and that issue is quite straightforward. It is this: have the prosecution proven that the defendant knew that the drugs were in the suitcase when she brought it into Hong Kong.

If you are sure the defendant knew she was bringing dangerous drugs into Hong Kong, you will find her guilty.  If you are not sure the defendant knew she was bringing dangerous drugs into Hong Kong, you will find her not guilty.”

23.Subsequently, in directing the jury as to the ingredients of the offence, the judge addressed the matter in issue again:[12]

“ the real dispute concerns the third matter which must be proven by the prosecution, that is that the defendant knew that the drugs were hidden in the suitcase.”

24.Of the evidence relevant to the issue of the applicant’s knowledge of the possession of dangerous drugs in the suitcase and of the prosecution case, the judge said:[13]

“ So there is no direct evidence that she did know of any drugs being present inside the suitcase. That means that the prosecution must rely upon inference to prove that she knew there were drugs in the suitcase. Indeed, Mr Marray says that from all of the other facts that they have proven in this case, that is, the circumstances of the defendant going down to Hanoi, what happened in Hanoi and are coming back with suitcase, they say you can infer that she must have known there were drugs in the suitcase.”

25.Of the drawing of inferences, the judge directed the jury:[14]

“ You may only draw an inference against the defendant if that inference is the only reasonable inference to draw from the other proven facts. So if, from a set of facts, the prosecution ask you to draw an inference against the defendant but there are other reasonable inferences which could be drawn as well, then you must not draw the inference against her.”

26.Then, the judge gave the jury directions as to how they were to approach circumstantial evidence:

“ ….circumstantial evidence can be strong evidence but (that) you should examine it with care, consider whether the items of circumstantial evidence upon which the prosecution rely are reliable. Do you accept those items as having been proven, or do you think that some of the matters upon which Mr Marray relies have not been proven so as to allow you to be sure you can rely upon them, or do you think there are other circumstances or other evidence in the case which cast doubt upon those items, or aspects of the evidence which the prosecution rely upon to prove the defendant knew there were drugs in the suitcase.”

27.Having given the jury an example to illustrate that the inference that the prosecution invited the jury to draw, from the fact that the samples in the suitcase carried by the applicant were cheap, might not be the only inference which might be drawn, the judge said:[15]

“ So that is the approach you take to all of the circumstantial evidence put forward by Mr Marray. You look at it, you examine it and see if there are alternative explanations to it that are consistent with the defendant’s case that she saw nothing unusual in what she was doing.”

28.It was in that context that the judge invited the jury to have regard to the submissions made by the parties as to the relevance or otherwise of the circumstantial evidence from which knowledge was or was not to be inferred.

29.The judge enumerated the evidence on which counsel for the prosecution relied:[16]

“ Mr Marray points to a number of things. He says that the defendant must have known there were drugs in that suitcase.”

•  that the applicant would have been highly suspicious to be sent to Hanoi to collect clothing samples not elaborate or special samples, but merely ordinary clothing;

•  that before the applicant returned with those samples she knew that they were provided by a man she had never met, about whom she knew nothing and whose telephone number she did not know;

•  that they were delivered in a suitcase provided by Nancy, whom she had not met before, about whom she knew nothing and whose telephone number she did not know;

•  that IK was a member of an African community, which community in Guangdong had a reputation for occasionally dealing in contraband;

•  that although she had contact with IK over some years, they were not close friends and she did not know his full name;

•  that in her evidence she said that she had told IK that if he was involved in illegal business she would tell the police to arrest him; and

•  that she testified that she had some ‘misgivings’ about collecting the sample and had checked the suitcase and its contents.

30.Having regard to all the evidence, the judge reminded the jury of the position taken by the prosecution, namely that the applicant:[17]

“ ..must have been more than merely suspicious; she must have known he was going to Vietnam to collect more than a dozen or so items of clothing. [Italics added.]

31.Finally, the Judge reminded the jury:[18]

“ Remember, at the end of the day, the prosecution must make you sure that the defendant knew there were drugs in the suitcase. If you think it’s possible she did not know, then you must find her not guilty.”

32.The judgment of this Court in HKSAR v Lai Wing Huen is of no assistance to the applicant.  It turned on its own particular facts, which involves wholly different issues.  The appellant was arrested by Customs officers as she left Kowloon Central Post Office, having collected two parcels addressed to other persons.  In order to collect the parcels she had presented a letter of authorisation and copies of the passports of the two recipients.  The parcels were declared to contain female shoes.  Having opened the parcels, she placed the two bottles, resembling wine bottles, found in each of the parcels into a bag she had brought.  However, she did not remove the polyfoam packaging around the bottles.  The bottles were found to contain a mixture of solid and liquid cocaine.

33.In the video recorded interview the applicant explained that she did not remove the polyfoam packaging around the bottles because she believed the bottles to contain wine.  She knew nothing about the drugs.  She explained that she was collecting the parcels for a friend, Charles, whom she had met on a social website in 2009.  They became lovers.  He claimed to run a red wine business in Shenzhen.  In her testimony, the appellant adopted the account that she had given in a video record of interview.  In the context of Charles’s request that she collect the parcels, she had raised with him in a ‘Chat Room’ conversation the question of whether he was involved in the drug business and the question of whether or not she was being used.  She expressed her concerns, “What I worry if the police come and catch me”.  However, she said that there being no evidence that he was involved in the drug business, she put aside those suspicions.

34.In his closing speech, counsel for the prosecution invited the jury to conclude that, given that the appellant had harboured suspicions of Charles’s involvement in the drug trade and was concerned about there being a problem with the wine, the fact that she had not inspected the bottles was explained by the fact that she knew that the bottles did not contain red wine.

35.In the judgment of the Court, allowing the appeal and quashing the conviction, Barnes J said that given the submissions made in the speech of counsel for the prosecution:[19]

“ …the judge did not make it clear to the jury that mere suspicion was not enough and this might have misled the jury into thinking that if the applicant had harboured slight suspicion but had not opened the polyfoam boxes to see what the red wine bottles contained, this would be equivalent to her having knowledge.”

36.In the instant application the prosecution did not invite the jury to infer guilty knowledge from a failure to inspect the suitcase.  Rather, they relied on the whole panoply of circumstantial evidence from which they invited the jury to infer knowledge.

37.We are satisfied that it was made abundantly clear to the jury that they had to be satisfied so that they were sure that the applicant knew that she was in possession of dangerous drugs and, there being no direct evidence, that they were entitled to have regard to the circumstantial evidence to determine if it was permissible to draw the irresistible inference of knowledge.  In context, it was made clear to the jury that it was required to be satisfied from that evidence not merely that the applicant was suspicious but that she knew that the suitcase contained dangerous drugs.

Bipolar disorder: propensity

38.Of the relevance of the medical evidence of the applicant’s Bipolar Disorder to the issue of the applicant’s knowledge as to whether or not there were dangerous drugs in the suitcase, the judge said:[20]

“ Mr Khosa, unsurprisingly, relies upon the evidence of Dr Choi, DW3. Dr Choi’s evidence was that the defendant was a sufferer of a mental illness known as bipolar disorder. When she was having an episode of this disorder, she would display symptoms which would make her more susceptible to believing in other people and that she would have defective judgment and would be more easily misled. In other words, you might think, members of the jury, that a person suffering from this illness, when the illness was affecting them, could be prone to arriving honestly at an understanding of events that normal people such as yourselves would not arrive at; they might be more easily duped.”

39.Later in his summing up, the judge reminded the jury of the evidence of Dr Choi in respect of these symptoms of a manic episode of a person suffering from a Bipolar Disorder:[21]

“ …..he says the symptoms are elevation of mood, pressured speech, racing of thoughts, shortening of attention span, the sufferer is easily distractible. But again, and importantly, you might think, he says judgment can be impaired. Sufferers can become impulsive and reckless. They may make wrong decisions and engage in behaviour that is quite abnormal for them.”

40.Then, he repeated his earlier direction as to how the jury was to consider the evidence in the context of whether or not it was possible that the applicant had arrived at an understanding of events that normal people would not have understood, but then went on to deal with an alternative situation, which did not assist the applicant:[22]

“ Let me emphasise this: If the defendant’s mental condition simply encouraged her to knowingly bring these drugs into Hong Kong, that does not help her case; she still brought the drugs knowingly into Hong Kong. But if the defendant’s mental condition, you think, may have made her wrongly believe that there were no drugs in that suitcase, may have allowed her to be more gullible and more easily convinced that the suitcase had no drugs, if you think her condition may have encouraged her to believe there were no drugs in the suitcase, that of course goes to her state of knowledge and that, of course, does mean that you cannot convict her. But if you think her medical condition would only have made her become more adventurous and be more willing to take the risk, then that does not help her. She still knowingly brought the drugs into Hong Kong.”

41.We are satisfied that the directions had a solid evidential foundation and were entirely appropriate.  The directions in no way suggested that in consequence of suffering from Bipolar Disorder the applicant had a greater propensity to commit the offence.

The applicant’s approach to Chief Customs Officer Wong

42.Having noted that there was undisputed evidence that as she entered the ‘green channel’ in the Customs Hall at Hong Kong International Airport the applicant went up to a uniformed Customs officer and made enquiries of him, the judge reminded the jury of the related submissions of the respective parties:[23]

“ It is beyond doubt that the defendant went up to PW1 and asked him about transportation to Guangzhou when she was not intercepted or stopped by PW1 at that stage. Mr Khosa says that is wholly inconsistent with her having guilty knowledge about the presence of the drugs.”

43.Earlier, he had said that the defence submitted:[24]

“ (that) show she did not know there were drugs……. that it is a very unlikely thing to do, if you are knowingly carrying drugs in your suitcase, to go up to a Customs officer and attract attention to you, attracted attention by speaking to him..”

44.Then, the judge went on to describe the prosecution submissions on the point, which had been put to the applicant in cross-examination[25], it first having been suggested to her that she knew there were drugs inside the suitcase:[26]

“ Mr Marray suggests that the defendant was simply trying to bluff PW1 into thinking she had nothing to hide when she noticed him looking at her. And later on, in the course of me reminding you of evidence, I will remind you that PW1 said, at that stage, he was gazing at the defendant. I will remind you of PW1’s evidence concerning that later on. So take what Mr Marray says about this into account anyway. Do you think the defendant was so clever and so brave as to go up to this Customs officer and try and deflect attention from herself? Do you think she had that ability in terms of cunningly trying to deflect the Customs.”

45.Of the dispute in the evidence of Mr Wong, on the one hand, and the applicant, on the other hand, as to whether or not Mr Wong was gazing at the applicant before she moved towards him as she made her way through the ‘green channel’ the judge reminded the jury of their evidence.  Of Mr Wong’s evidence, he said:[27]

“ while he was there in the ‘green’ channel, looking at passengers and intending to select some of them to be searched, while he was in uniform, the defendant came to him and asked him if there was transport to Guangzhou and he said there was……

In cross-examination, he said if the defendant had not approached him, he did not know, he was not sure, if he would have selected her for a search.  He had not yet made a decision in that regard.  He said he had been gazing at the defendant.  He was looking for passengers who travelled alone with simple luggage; they were the ones he was interested in.  When he was cross-examined about his evidence that he was gazing at the defendant, he agreed that in his witness statement which he made for the purposes of this trial, he had not mentioned that he had been gazing at the defendant.”

46.Of the inconsistency between Mr Wong’s out-of-court statements and his evidence in the trial, the judge said:[28]

“ Members of the jury, do you think that omission in his witness statement contradicts his evidence in any way before you and undermines his reliability in this regard? That is entirely a matter for you. But bear in mind that making a witness statement is not the same as giving evidence in court and being subjected to examination and cross-examination by counsel. So we are talking about, perhaps you might think, a different thing when we talk about evidence in court, or different things when we talk about evidence in court and the contents of a witness statement. Nevertheless, bear in mind that he had not mentioned anything about gazing at the defendant in his witness statement. That was something he said in court, apparently for the first time. Ask yourself whether that means that that particular aspect of his evidence may be a little bit unreliable.”

47.Of the applicant’s evidence as to her encounter with Mr Wong in the ‘green channel’, the judge said:[29]

“    She was worried about there still being transport to Guangzhou.  She looked around to see if there were any staff she could ask and she saw PW1.  She said she was “parallel” to him, at a distance, so she went over to him.  She said PW1 was not looking at her; she simply went up to him and asked him if there was still Guangzhou transport.”

48.In one respect, the judge’s summary of the evidence on the issue was less than complete.  In cross-examination, Mr Wong said that he was six feet from the entrance to the ‘green channel’ when he noticed that the applicant had just entered the ‘green channel’.  She was one of seven or eight passengers.  He was looking at all of them.  In re-examination, he had been asked and answered:[30]

“ Q. So are you able to say how long you looked at her -- before she spoke to you?

A.    It might be less than a second from the time I pay attention and pick her out, her image, might be just less than a second in my mind.”

49.In answer to a question from the judge, Mr Wong said, “I was gazing at her”.

50.Nevertheless, we are satisfied that the judge had reminded the jury of the crux of the evidence relevant to the circumstances leading to the conversation between the applicant and Mr Wong.  On any view, only a short period of time had elapsed after each of them had seen the other before the applicant spoke to Mr Wong.  Although, there was a basis for the prosecution to make the suggestion to the applicant that in approaching Mr Wong and initiating the conversation she was presenting as an innocent[31], characterised as a “bluff” by the judge, the suggestion was of limited weight and met appropriately by the rhetorical questions quoted earlier that the judge posed for the jury, in effect a raised ‘judicial eyebrow’.[32]

The applicant’s evidence that she noticed nothing unusual about the suitcase

51.Mr Chan’s complaint that the judge did not direct the jury that, in having regard to the applicant’s evidence that despite her search of the suitcase she did not discover the dangerous drugs concealed in the lining or in the souls of the two pairs of shoes, they should have regard to the evidence of Dr Choi in respect of her medical condition is not valid.  Whilst reminding the jury that it was his evidence that one of the symptoms of the illness was “impulsivity, shortened attention span and distractibility” and “a tendency to jump to conclusions without carefully processing the information available”[33], the judge went on to remind the jury of how the defence relied on their evidence in the context of the applicant’s search of the suitcase and its contents:[34]

“ Mr Khosa, as I understand his case, relies upon that. He is suggesting to you that this illness may have caused the defendant to conclude there was no danger, there was nothing wrong with this suitcase. There was no danger in this suitcase, there was nothing wrong with it and that she could bring it back through Hong Kong, because she had simply failed to process the information properly and she had jumped to that conclusion that there were no drugs in the suitcase, which is what she says she concluded in her evidence.”

52.Clearly, there is no merit in this ground of appeal.

Motive

53.As Mr Chan acknowledged, the judge did remind the jury of the evidence that was relevant to the issue of the absence of a pecuniary motive in the applicant to commit the offence.  Of the evidence of the applicant’s father, he said:[35]

“ He said he was quite surprised that his daughter had ended up in this trouble. He said his daughter had a 50,000 renminbi investment. He collected the dividends for her. Whenever she needed money, she would collect it from him.”

54.Of that evidence, the judge said:[36]

“ If you accept this evidence, the defendant was not completely out of money and desperate to travel and bring back things for money. She did not have that motivation to commit any criminal offence - or the criminal offence that is alleged by the prosecution. She seemed to have a reasonably stable though not very large income, but enough for Mr Chen and her to get by.” [Italics added.]

55.Earlier, the judge had reminded the jury of the evidence of the applicant herself that she was a 42-year-old divorcee who lived with her father, who was a professor of Chinese medicine at the University of Guangzhou and that she herself had been awarded a Degree from the University.  Furthermore, the applicant worked as an interpreter.[37]

56.Finally, it is to be noted that in cross-examination, counsel for the prosecution did not suggest to the applicant that she was unlawfully trafficking in the dangerous drugs for reward because of financial needs.

57.We are entirely satisfied that, as far as it was necessary to address the issue of motive, the judge’s directions were appropriate and sufficient.  No doubt, the judge chose to deal with the matter at all simply because it had been advanced as part of the defence case.

Conclusion

58.For the reasons we have given, we were satisfied that there was no merit in the applicant’s application for leave to appeal against conviction, which application we dismissed.

Mr Raymond Cheng, SADPP (Ag.) of the Department of Justice, for the respondent

Mr CHAN Pak-kong, instructed by Alfred Lam, Keung & Ko, assigned by Director of Legal Aid, for the applicant

[1] Appeal Bundle, page 500.

[2] Appeal Bundle, page 494 N-T.

[3] Appeal Bundle, page 495 H.

[4] Appeal Bundle, page 495 S.

[5] HKSAR v Lai Wing Huen [2014] 2 HKLRD 973.

[6] Appeal Bundle, page 40 R-S.

[7] Appeal Bundle, page 41 D-E.

[8] Appeal Bundle, page 20 O-P.

[9] Appeal Bundle, page 17 E-H.

[10] Appeal Bundle, page 37 I-L.

[11] Appeal Bundle, page 2 J-N.

[12] Appeal Bundle, page 11 E-F.

[13] Appeal Bundle, page 8 A-E.

[14] Appeal Bundle, page 8 G-K.

[15] Appeal Bundle, page 15 Q-S.

[16] Appeal Bundle, page 11 L-M.

[17] Appeal Bundle, page 14 L-N.

[18] Appeal Bundle, page 21 R-T.

[19] HKSAR v Lai Wing Hue; page 980, paragraph 29.

[20] Appeal Bundle, page 21 C-I.

[21] Appeal Bundle, page 40 N-Q.

[22] Appeal Bundle, pages 40 R - 41 E.

[23] Appeal Bundle, page 20 L-O.

[24] Appeal Bundle, page 20 H-J.

[25] Appeal Bundle, pages 475 R - 476 D.

[26] Appeal Bundle, page 472 B.

[27] Appeal Bundle, 22 H-J.

[28] Appeal Bundle, 22 R - 23 E.

[29] Appeal Bundle, page 32 I-L.

[30] Appeal Bundle, page 440 E-G.

[31] Appeal bundle, pages 475 R - 476 D.

[32] Reasons for judgment, paragraph 44.

[33] Appeal Bundle, page 41 H-I.

[34] Appeal Bundle, page 41 J-O.

[35] Appeal Bundle, page 37 F-H.

[36] Appeal Bundle, page 37 H-L.

[37] Appeal Bundle, page 31 J-N.