HKSAR v. Zhou Limei

CACC 81/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 81 OF 2014

(ON APPEAL FROM HCCC 163 OF 2013)

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REASONS FOR JUDGMENT
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Hon Poon J (giving the Reasons for Judgment of the Court) :

INTRODUCTION

1.The applicant was charged with a single count of unlawful trafficking in 1.79 kilogrammes of a mixture containing 0.80 kilogrammes of heroin hydrochloride on 15 November 2012, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 25 February 2014, she was convicted after trial before Deputy High Court Judge A Wong (“the Judge”) with a jury as charged by a majority of 5 to 2. On the following day, the Judge sentenced her to 21 years’ imprisonment.

2.By a notice of application for leave to appeal dated 27 February 2014, the applicant sought leave to appeal against conviction.  On 27 February 2015, after hearing the parties, we refused her application.  We now give our reasons.

PROSECUTION’S CASE

3.On 15 November 2012 at around 2 pm, the applicant arrived at the Hong Kong International Airport on Malaysian Airlines from Kuala Lumpur.  She was carrying a black rucksack and a medium size black suitcase (“the Suitcase”).  Acting Customs Officer Yiu Yuk-ha stopped the applicant and directed her to go through a customs inspection, which was carried out by Customs Officer Chan Wai-kei (PW1) in a “Clearance Room”.

4.Officer Chan first examined the Suitcase with an X-ray machine and noticed some special image on its side.  He then opened the Suitcase. Neatly placed inside the Suitcase were pieces of clothes and cloths and some ceramic items.  Most of the clothes were children clothes, some of which were contained in bags with markings on them.  The cloths appeared to be bed‑sheets. Each piece of the cloths was contained in a plastic bag with markings on it.  Officer Chan then removed all the items from the Suitcase.  When he held the empty Suitcase, he found that it was still rather heavy.  He therefore unzipped the lining at the bottom of the Suitcase.  Inside the lining on the left of the Suitcase, he found two packets each consisting of cardboard paper, tinfoil and paper wrapped around a mixture.  He used a cutter to cut open the tinfoil and some white powder fell out.  A rapid test-tube test revealed that the white powder was heroin.

5.Officer Chan then asked the applicant if she understood the local dialect, to which she said yes.  Officer Chan then arrested and cautioned the applicant.  In his oral testimony, Officer Chan said that the applicant responded to his caution by saying in Cantonese : “This suitcase is not mine.  It belongs to an African male called Ah Sam.”  Upon being asked what the white powder was in the Suitcase, she said in Cantonese, “我諗呢一啲係毒品啩”, translated as “I suppose this is dangerous drug”.

6.At the time of being searched by Officer Chan at the Clearance Room, the applicant was also found in her possession a PRC passport in her name, a PRC two-way permit valid for travel to and from Hong Kong and RMB10,587.00, US$380.00 and Malaysian Ringgit 435.10.

7.Later at 4.40 pm on the same day, Officer Chan post-recorded the oral statement of the applicant made under caution.  The post-record of the oral statement read “我諗係毒品”, translated as “I think it is drug”.  Officer Chan read the post-record to the applicant and let her read it once herself.  Officer Chan further told the applicant that she could correct, alter, or add anything she wished in respect of the contents of the post‑record.  The applicant read the post-record and said that she had nothing to add or correct.  The applicant then wrote a declaration that the post-record was an accurate record of questions asked and answers she provided.  She then put down her signature.

8.Between 10.55 pm and 11.55 pm on the same day, the applicant voluntarily participated in a video recorded interview (“VRI”) conducted by Customs Inspector Tse Fu-ming (PW2).  During the interview, the applicant said she was married.  She sold skincare products in her retail shop in Guangzhou, Mainland and her income was Renminbi 8,000.00 a month. She came to know an African, known as CJ, who was running clothing business in Guangzhou.  He went to her shop a few times and asked if she wanted to go abroad and had fun.  Later, CJ obtained a visa for her and asked her to collect samples from his younger brother who was doing business in Nigeria, Africa.  She agreed and travelled to Nigeria for 4 days in October 2012.  CJ paid for her air tickets, accommodation and a reward of Renminbi 4,000.00 although she was not given any samples to bring back to CJ.  Afterwards, CJ asked her to travel to Kuala Lumpur and to take some clothing samples back to Guangzhou for him.  CJ paid for her air ticket and promised to give her a reward of Renminbi 3,500.00 upon her return.  She was instructed, first, to go to Beijing on 12 November 2012 as it is cheaper to fly from there to Kuala Lumpur.  In Kuala Lumpur, she met another African, Sam.  At one stage, she said that Sam picked her up at Hotel Sentral at 5.30 am on 15 November 2012 and drove to Times Inn Hotel where he checked in a room.  Sam put the samples into the Suitcase for her onward delivery to CJ.  Later in the interview, she said Sam took her to Times Inn Hotel at 10 pm on 14 November 2012, saying that he would take her to the airport at 5 am the next morning.  She checked out of the room around 5 am on 15 November 2012 and met Sam.  She saw Sam put the samples into the empty Suitcase at his room and asked someone to send her to the airport.

9.In respect of the dangerous drug found in the Suitcase, the applicant said that she had never seen it before.  She was asked why she gave the oral statement “I think it is drug.”  She explained that she saw the Customs Officer checking the packet with a straw, and the Officer said it was dangerous drug.  She was stupefied then.

10.A subsequent examination by a Government chemist confirmed that, the two packets found inside the lining of Suitcase consisted of 890 grammes of mixture containing 400 grammes of heroin hydrochloride and 900 grammes of mixture containing 400 grammes of heroin hydrochloride respectively.  The then street value of the unlawful drug was HK$1,605,630.00.

DEFENCE CASE

11.The applicant elected to give evidence but called no defence witnesses.

12.The applicant’s testimony was consistent with the account she gave in the VRI in respect of her trips to Nigeria and Kuala Lumpur.  She made no mention of her oral statement made to Officer Chan or the circumstances under which it was uttered.  In cross-examination, she admitted that she did know CJ’s full name; that she did not have his business card; and that she did not know where he lived and where his office was.  She also agreed that CJ did everything for her travel to Africa and Kuala Lumpur.  The applicant produced some documents, including sales record of her shop; some invoices; credit card receipts of her shop; sales receipts; and a set of bank documents which related to the account of her shop.  She disagreed that she knew that the Suitcase contained the dangerous drug.

ISSUE AT TRIAL

13.The issue at trial was whether or not the applicant knew that the dangerous drug, the subject matter of the charge, was concealed in the Suitcase.

VERDICT

14.As noted earlier, by a majority verdict of 5 to 2, the jury found the applicant guilty as charged.

GROUNDS OF APPEAL

15.Mr Philip Wong, counsel for the applicant, advanced 4 major grounds of appeal on her behalf :

(1) There was a material irregularity in the trial in that the Judge failed to hold a voir dire to determine the admissibility of an oral response of the applicant to a question of Officer Chan upon her arrest and caution and a post-record of what purported to be her admissions against interest, given that there was evidence which raised issues of the nature and effect of the oral response and the post-record, as well as the unreliability of the oral response and the post-record.

(2) Likewise, the Judge misdirected the jury when he invited them to determine the legal effect of the oral response and the post-record, which were matters of admissibility for him to determine.

(3) Furthermore, the Judge’s direction to the jury that they should ignore the oral response and the post-record if they found them not to amount to a confession was insufficient and something less than the Mushtag direction, namely that they were “required to disregard it”.  Also, it was insufficient in that the jury was not directed specifically that either the wording in the oral response and the post-record that recorded it were equivocal or the difference in the wording of the oral response in the testimony of Officer Chan from that of the post-record thus rendered them unreliable and, if that was the case, the jury could not be satisfied that they were a confession by the applicant.

(4) The Judge misdirected the jury when he failed to remind them of the relevant part of the cross-examination of the applicant despite having told them he would do so in the summing up.  That failure might have effectively discouraged the jury from examining and considering in details that material part of her evidence relevant to their determination of the nature and effect of the oral response and the post-record that recorded it.

DISCUSSION

16.Grounds 1 and 2 can be conveniently dealt with together.  Mr Wong strenuously argued that the Judge should have held a voir dire to determine the admissibility of the oral statement and post-record. Mr Wong readily accepted that the Chinese word “諗” can be translated as “suppose” or “think”.  He also accepted that the Chinese words “毒品” used in the post-record were not accurately translated.  It should be “dangerous drug’ as opposed to “drug”.  He, however, placed much emphasis on the Chinese word “啩” used in the oral statement, which he said, indicated suspicion rather than knowledge on the applicant’s part.  Thus what the applicant said orally, Mr Wong reasoned, did not amount to a confession.  Mr Wong went on to submit that Officer Chan’s evidence was inconsistent and unreliable.  The Judge had therefore failed to consider and determine the inconsistency in Officer Chan’s evidence in a voir dire.  With respect, we disagree.

17.After referring to the applicant’s oral statement and the post‑record and pointing out the difference between them, the Judge directed the jury in these terms :

“ In this connection, you have to decide three matters : (1) what exactly did the defendant say; (2) what was the effect of her statement; and (3) is what she said true. In deciding what the defendant had actually said, you have the evidence of PW1, the post-record which was signed by the defendant, and the evidence of the defendant herself. PW1 said the post-record is an accurate record, but what was written down is not exactly the same as what he related to you in court. What exactly did the defendant say is a matter for you to decide. In your consideration, you may wish to take into account that according to the post-record, the defendant had read its content, written down a declaration and put down her signature. On the other hand, what PW1 related to you in court was something he spoke from his memory about something which had happened more than a year ago.”

18.On the effect of the applicant’s oral statement, the Judge further directed the jury :

“ …Having decided on what the defendant had actually said, you then have to consider the effect of her statement. In consideration of the effect, you must exercise care and examine whether it is a confession on the part of the defendant in the sense that she all along knew the substance was a dangerous drug or whether, having regard to the circumstances, in particular at that time – the substance in powder form had been found and a rapid test yielding a positive result of heroin had been conducted – whether it would have been possible that the defendant made the statement only as a response to her understanding of the finding of the test, only as a reaction to the situation rather than reflecting that she all along had the knowledge that the dangerous drug was inside her suitcase.

As Mr Davies said, when the defendant made the statement, the officer had already told her that she was arrested for an offence contrary to the Dangerous Drugs Ordinance. In this regard, you may also wish to take into account the explanation of the defendant when she was later interviewed in the police station.

It is only when you are sure that what the defendant meant by her statement is that she all along knew dangerous drug was contained in the suitcase that you need to consider further what you are to do with this statement. If, for whatever reason, you are not sure, the you should not treat the statement as a confession of the defendant and should not take it as evidence against the defendant at all.  For this reason, you should ignore this evidence altogether.”

19.The Judge repeated the same direction later when he told that jury that only if they were sure that the applicant meant that she knew that dangerous drug was contained in the Suitcase, then they should go to decide whether what she said was true before they could act on it.

20.The Judge also took the jury through the relevant record in the VRI :

“ 490. A : So, I want to ask (you), why did you give such (an) answer? You said, ‘I think it is dangerous drug.’ What made you think like that?

491. B : Er, it was because, because, because those, those people were checking with a straw on the spot. He said er, it was positive. He said this was, was, was, was, was drug. Well, I, well, well, I myself was stupefied then. He said it was dangerous drug.

…

500. A : But at that time, well, today, at that time the officer asked you, ‘Do you know what the white coloured powder is?’ [B : Mm.] So, you also instantly though that [B : Yes.] it was dangerous drugs. Is that right?

501.  B :  Mm, mm.  It was because, it was because the officer on the spot took out, took out a few bottles.  There was also, also some color in there.  There was some color, or, or it could be seen that he was also there – you, it was because you spoke Cantonese.  I could also understand the Cantonese spoken by all of you.”

21.In sum, the Judge’s directions to the jury on the oral statement were :

(1) to have regard to the possibility that the statement was said in response to the positive result of the rapid test;

(2) the fact that Officer Chan told the applicant that she was arrested for an offence contrary to the Dangerous Drugs Ordinance;

(3) to take into account the explanation given in the VRI;

(4) to exercise care before treating the statement as a confession;

(5) only consider the third question (“is what she said true?”) if they were sure that the applicant meant by her statement that she all along knew dangerous drug was contained in the Suitcase; and

(6) otherwise, they should ignore this evidence altogether.

22.In our view, the way in which the Judge dealt with the oral statement and the post-record was entirely correct.  It was plainly a matter for the jury to decide which version they accepted, and having made that decision, to give effect to the oral statement as they found to have been made by the applicant according to the natural meaning of the words used. Contrary to Mr Wong’s argument, no voir dire was required to deal with these matters which fell squarely within the province of the jury.  There is no substance in Grounds 1 and 2.

23.We next turn to Ground 3.

24.In HKSAR v Pang Hui San (2014) 17 HKCFAR 545, the Court of Final Appeal had this to say about the Mushtag direction :

“ 3. In this appeal we are concerned with first, in what circumstances a direction should be given to a jury about the voluntariness of a confession notwithstanding the fact that an accused denies making the confession, and secondly, in the event that such a direction is required , whether it is :

… sufficient for a judge to warn the jury that they may consider that they should give no weight to a confession and disregard it if they conclude that it may have been obtained as the result of oppression; or whether the judge must go further and direct them that if they so conclude they are required to disregard it. (Emphasis added)

4. The answer provided by a majority of the House of Lords in R v Mushtaq and subsequent decisions of the Privy Council, was that the judge must direct the jury as to voluntariness where the circumstances of the case suggest that the confession was, or may have been, induced by oppression and, if they conclude that the confession may have been obtained as the result of oppression they must disregard it.  This is commonly called the Mushtaq direction….”

25.The Judge’s summing up against which Mr Wong attacked is :

“ It is only when you are sure that what the defendant meant by her statement is that she all along knew dangerous drug was contained in the suitcase that you need to consider further what you are to do with t his statement. If, for whatever reason, you are not sure, then you should not treat the statement as a confession of the defendant and should not take it as evidence against the defendant at all. For this reason, you should ignore this evidence altogether.” (Emphasis supplied)

Mr Wong submitted that the Judge should have used the word “must” rather than “should”.  Again, we disagree with Mr Wong.

26.As rightly submitted by Ms Anna Lai, Senior Assistant Director of Public Prosecution, for the respondent, the Judge’s summing up must be viewed in its entirety.  We have already set out in length the parts of the Judge’s summing up which are relevant to the oral statement and the post-record.  In our view, the summing up was clear, balanced and careful. We fail to see how the use of “should” instead of “must” by the Judge in the passage under attack could be flawed in the way as Mr Wong argued.  There is no merit in Ground 3.

27.In support of Ground 4, Mr Wong argued that the Judge had failed to remind the jury of the relevant part of the applicant’s cross‑examination on the oral statement and that might have discouraged the jury from examining or considering her evidence in that regard.

28.The applicant was cross-examined very briefly on the oral statement.  She was referred to counter 491 of the VRI and asked if she did say that “I think it is drug.”  She said, “Yes, I did say so.”  Although the Judge did not refer to this very short question and answer when he summarised her evidence, he did take the jury through the relevant parts in the VRI counter by counter, including counter 491.  And the jury had the VIR before them for reference.  In the circumstances, we fail to see how the Judge’s failure could have the effect on the jury as contended by Mr Wong.  There is no substance in Ground 4.

29.For completeness, we would mention that the Form XI originally contained 6 Grounds of Appeal.  We have already disposed of the first 4 Grounds above.  In his written submissions, Mr Wong abandoned Ground 5.  Ground 6 contends that the conviction was in all the circumstances of the case unsafe and unsatisfactory.  It does not add anything to Grounds 1 to 4.  And Mr Wong simply made no reference to it in his oral submissions.  It must fall together with Grounds 1 to 4. 

CONCLUSION

30.For the above reasons, we dismissed the applicant’s application for leave to appeal against her conviction.

Mr Philip Wong, instructed by Damien Shea & Co, for the applicant

Ms Lai Yuen Kee, Anna, SADPP, of the Department of Justice, for the respondent