HKSAR v. Bian Zhenju
Read the full judgment text of CACC 133/2014 on BabelCite. This Court of Appeal judgment was delivered on 26 March 2015.
1. The applicant sought leave to appeal against her conviction on 7 April 2014, after a trial before M. Poon J and a jury, of one count of trafficking unlawfully in a dangerous drug on 13 January 2011, namely 3.45 kg of heroin hydrochloride contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, for which offence she was sentenced to 27 years’ imprisonment. At the conclusion of the hearing, we allowed the appeal and quashed the applicant’s conviction and said that we woul
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CACC 133/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 133 OF 2014 (ON APPEAL FROM HCCC NO. 545 OF 2013) ____________
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__________________________ REASONS FOR JUDGMENT Hon Lunn VP (giving the Reasons for Judgment of the Court) : 1.The applicant sought leave to appeal against her conviction on 7 April 2014, after a trial before M. Poon J and a jury, of one count of trafficking unlawfully in a dangerous drug on 13 January 2011, namely 3.45 kg of heroin hydrochloride contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, for which offence she was sentenced to 27 years’ imprisonment. At the conclusion of the hearing, we allowed the appeal and quashed the applicant’s conviction and said that we would give reasons for so doing in due course. That, we do now. The Trial 2.There was no dispute at trial that, having travelled by air from Kuala Lumpur, the applicant was detained by Customs and Excise officers in the Arrival Hall at Hong Kong International Airport in possession of a black suitcase, her ‘checked-in’ luggage, which on inspection was found to contain the heroin hydrochloride the subject of the charge concealed in a lining of the suitcase and in four books. At trial the issue was whether the prosecution had proved that the applicant knew of the presence of those dangerous drugs. The prosecution case 3.Having been intercepted for the examination of her baggage in the Arrival Hall by a Chief Customs officer, the applicant’s black suitcase was subjected to an ion test by Customs officer 89183 under the supervision of Senior Customs officer 9060, Mr Fan Ka Hung, and passed through an X-ray machine. The ion test gave a positive result for the presence of dangerous drugs on/in the suitcase, whilst the X-ray image suggested the items were concealed inside the suitcase. 4.Senior Customs officer Fan directed that the applicant and her luggage be taken to a baggage examination counter for further investigation. He said that whilst they were proceeding to the counter, the applicant became impatient and said in Putonghua: “As you have already seen it with the X-ray device, why do you have to open the suitcase again?” In face of his insistence on opening the suitcase for inspection, the applicant claimed that she did not know the combination code with which to open the lock. Having been told that the Customs officers would open the suitcase with screwdrivers if necessary, the applicant provided the code with which the lock was opened. 5.After the suitcase had been opened one of a number of books contained in the suitcase responded positively to the presence of heroin after being subjected to an ion test. White powder was found concealed in the cover of one of books and behind the lining of the suitcase. Having been arrested for contravening the Dangerous Drugs Ordinance by Customs officer 0832, in the presence of Mr Fan, and after the words of caution had been administered, the applicant said: “I don’t know.” 6.In a subsequent video recorded interview under caution the applicant said she had been framed up by others and asserted that she did not know she was carrying dangerous drugs. The applicant said that she had come to know a man with a dark complexion called “Dahai” in Guangzhou about three months ago and had seen him several times. Initially, Dahai offered to travel to Malaysia together with the applicant, but in the end he bought an airline ticket for her alone and persuaded her to travel there by herself and to stay with his relative or friend Abby, explaining that he would join her the following day. As a result, on 8 January 2011, the applicant flew to Kuala Lumpur. However, in the event Dahai did not join her. Although she was anxious to return to work in Guangzhou her airline ticket was taken from her and she was unable to begin her return travel until 13 January 2011. On that afternoon, Abby and her boyfriend presented her with the black suitcase and asked her to take it to Guangzhou. She was told the suitcase contained children’s books, which were for a friend’s children. Whilst she was watching television, her belongings were transferred from her travel case to the suitcase. She did not see what was in the suitcase, and she never checked it. 7.On subsequent examination, the heroin particularised in the count was found concealed in the covers of all four books found within the suitcase and concealed beneath three layers of cardboard in the lining of the suitcase. It was an admitted fact that the estimated retail value of the heroin at that time was over $3.5 million. The defence case 8.The applicant gave evidence in the defence case. Whilst she accepted that she was in possession of the black suitcase when intercepted, she denied knowing that dangerous drugs were concealed inside the suitcase. 9.The applicant’s testimony was broadly consistent with the account that she had given in her video recorded interview, albeit that she added further detail to that account. She and Dahai had sexual relations at Dahai’s place the first time they met. Afterwards, they developed a relationship. She explained that she had told the interviewing officers in the recorded interview that Dahai was a British-Filipino Chinese, because he had been in China for eight years. So, in her mind, he had become Chinese. On 9 January 2011, when she was in Kuala Lumpur, Dahai informed her that he was busy and would not be going to Malaysia. She was not too upset, as she was enjoying herself, shopping at the mall. Although she was scheduled to leave Malaysia on 11 January 2011, Abby took her airline ticket and asked her to stay one more day for a birthday celebration. 10.The applicant explained that she was persuaded to take the suitcase with her because the books were important and were for the children of Dahai’s friend. Furthermore, Abby had treated her well and she had agreed to transport the suitcase to the airport. She trusted Dahai and Abby, even though Dahai had broken his promises and Abby had taken her ticket and passport without apparent reasons. 11.Finally, the applicant denied that she had made a fuss when the Customs officers demanded to open the suitcase. She had not refused to open the suitcase for inspection. She told the Customs officer that the code to the lock was either three or four zeros. She told him that she was going to call her friend to confirm the code but, having dialled Abby’s telephone number she was unsuccessful in making contact. Grounds of Appeal 12.On behalf of the applicant Mr Philip Wong submitted that the judge erred in refusing the jury’s request to listen to the audio recording of the evidence of Mr Fan on 28 March 2014 and that of the applicant on 31 March, 1 and 2 April 2014. 13.Then, it was contended that the judge erred in failing to correct a mis-statement of the law made by counsel for the prosecution in his closing submission to the jury. It was contended that counsel had told the jury that it was open to them to convict the applicant if they found she had lied in her testimony. Mr Wong submitted that, in those circumstances, the judge erred in failing to give the jury the full Lucas direction. However, in his oral submissions, Mr Wong accepted that the judge had given the full lies direction, in the sense that she had directed the jury that if they were satisfied that the applicant had lied, in respect of the matters identified, and that the lies have been told other than for an innocent reason they were entitled to take that into account in support of the prosecution case. 14.In his written submissions, Mr Philip Wong advanced a separate ground, namely that the judge had erred in limiting the direction that she gave in respect of lies told by the applicant in her video recorded interview when it was the prosecution case, as evidenced by counsel’s closing speech that she had lied in her testimony as well. A consideration of the submissions The jury’s requests of the judge 15.Having retired to consider their verdict at 10:19 a.m. the jury formulated various written requests which were communicated to the judge, including a request to be provided with the recording of the two days of the evidence of Mr Fan and the two days of the evidence of the applicant. Those requests were items 3 and 4 of the four items of the written request. As was to be expected, in the absence of the jury, at 10:58 a.m. the judge discussed the four separate requests with counsel. Of the request to be provided with the audio recording of the evidence of Mr Fan and the applicant, the following exchange occurred between the judge and counsel for the applicant at trial, Mr Kelly:[1]
16.Clearly, the applicant’s counsel agreed not only that the audio recording should not be played back to the jury but also accepted that offering to remind the jury of the evidence was the appropriate way to respond to their request. 17.In the result, the judge directed the jury:[2]
18.Although the judge had repeatedly invited the jury to identify with particularity any issue in the evidence of the two witnesses that they wished to have clarified no further request was forthcoming from the jury, who returned their unanimous verdicts of guilty at 3:06 p.m. 19.Of the significance of the evidence, Mr Wong was correct to state in his written submissions that the applicant’s testimony “formed the whole of the defence case”. His contention that Mr Fan’s evidence was the “crux of the prosecution case resonated with Mr Wong’s closing speech in which he described Mr Fan’s evidence of the exchanges with the applicant in the Arrival Hall as “crucial” in considering whether the applicant was telling the truth in saying that she had provided the code to the lock immediately on request. However, it is to be noted that no issue was taken in cross-examination with Mr Fan’s evidence that the applicant provided the combination code to his colleagues only after she had told the applicant that the suitcase had to be opened and he had returned with two screwdrivers. 20.In support of his submission that the judge erred in failing to provide the jury with the audio recording of the evidence of the two witnesses, Mr Wong cited the judgment of the Court of Appeal of Alberta in The Queen v Dorset[3]. Shortly before the hearing he provided the Court with the judgment of the Court of Appeal of England and Wales in R v Rawlings.[4] In Dorset, at issue was the identification of the appellant as one of the robbers of the members of staff of a bank. At 5:00 p.m., after 4½ hours of deliberation, the jury requested the judge to be provided with transcripts of the evidence of four prosecution witnesses who identified the appellant. The judge informed jury that it was not possible to comply with their request and advised them that, having had the benefit of having heard the evidence and summations of significant portion that they must “try to consider everything that you have heard without the benefit of the transcript.” At the hearing of the appeal, it having been conceded by the respondent that transcripts of the evidence of three of the witnesses were available at the time of the jury’s deliberation and that the fourth transcript was only 15 pages in length, the Court determined that the judge’s refusal of the jury’s request was an error in law: [5]
21.Of course, the appropriate response identified in the case of the judge reading his note to the jury, once a particular portion of the testimony was identified, was the very solution that this judge suggested to the jury. However, the jury did not avail themselves of that offer. 22.In the context of the consideration of whether or not it was permissible for a jury to view a video recording of the evidence-in-chief of a complainant after retiring to consider their verdict, in the judgment of the Court of Appeal in England and Wales in R v Rawlings Lord Taylor CJ adverted to the general practice by which a judge may assist a jury in response to their request to be reminded of evidence:[6]
23.Given that the jury’s wide-ranging request for the provision of the audio recordings was made within minutes of their retirement and, most particularly, that it was not followed up by any further requests notwithstanding the repeated offers of assistance from the judge to remind the jury of the evidence, it is most probable that the request was made in the abstract, rather than with particular evidential concerns in mind. It is to be noted that during cross-examination of the applicant the audio recording of her evidence was replayed in court in front of the jury.[7] So, the jury was aware of that court facility. The judge’s response to the jury’s wide-ranging request was entirely sensible: if the jury had a concern, then they were to identify it and the judge would provide them with a reminder of that evidence. They made no such request. 24.In all the circumstances, we are satisfied that there is no merit in this ground of appeal. Lies 25.In the course of her review of the applicant’s testimony in her summing up the judge gave the jury a direction in respect of lies:[8]
26.Immediately before giving that direction, the judge reminded the jury of matters put to the applicant in cross-examination by counsel for the prosecution in respect of her description in her evidence, as opposed to the account given in the video record of interview, of her relationship with Dahai and its significance in her travelling to Kuala Lumpur and returning with the black suitcase:[9]
27.At the conclusion of the defence case discussions ensued between the judge and counsel as to the directions to be given to the jury in the summing up, in the course of which the following exchange occurred between the judge and counsel for the prosecution:
28.As is obvious, counsel for the applicant did not articulate any disagreement. Rather, immediately afterwards he asked that the judge give the jury a ‘good character’ direction in favour of the applicant. No further discussion ensued on the issue of a ‘lies’ direction. For example, no request was made for an explanation as to what was meant by a ‘semi-lies’ direction or that the parties be provided in advance of the summing up with a written copy of the proposed direction, let alone a submission by either counsel, but in particular on behalf the applicant, that no lies direction was required in the circumstances of this case. 29.In his closing speech for the prosecution, Mr Wong submitted to the jury:[10]
30.As was made perfectly clear in that closing speech of counsel, whilst the jury was invited to determine that the applicant had lied in giving her account of events, so that account could not be relied upon, no suggestion was made that the mere fact of her lies proved the applicant was guilty. On the contrary, counsel suggested to the jury that the effect was to require them to examine “the other circumstances”, in particular that the black suitcase was “packed with drugs” and that, on the evidence of Mr Fan, the applicant had prevaricated in the face of the attempts of the Customs officers to open the suitcase. 31.Notwithstanding the way in which the prosecution put its case in its closing speech, after the judge had given the jury a direction in respect of the applicant’s lies, no further submissions were made by counsel to the judge of the appropriateness of that direction to the jury. 32.As noted earlier, the context in which the issue of the applicant’s alleged lies arose was the difference in her account in her record of interview and her testimony in court of her relationship with her knowledge of Dahai. In the former account, the applicant explained that she had gone to Malaysia in the first place at the instigation of “a friend over here in Guangzhou”[11] who had written a letter of introduction and made a telephone call to a woman in Malaysia, whom she came to know as Abby. She said that it was Abby’s boyfriend, together with Abby, who had given her the black suitcase, together with some of its contents, which she brought to Hong Kong. Of the name of her friend in Guangzhou, she said “No idea what his name is, because he had a means of contact”.[12] She said that the “…the Guangzhou guy” had given her a piece of paper, which she identified from her possessions, with a telephone number in Guangzhou, which she was to call on arrival in Malaysia. 33.When pressed for his name, the applicant said “(his) Chinese name is ‘Dahai’.[13] Having described him as a foreigner with dark complexion, she said of his nationality that he had told her that he was British-Filipino Chinese. Having come to know each other on the Internet[14], she had met him several times[15] and had known him for “two to three months”.[16] He lived in Qifu and told her that he worked in a trading company.[17] He had paid for her airline ticket to Malaysia, which he gave to her on the evening of 7 January 2011. 34.In her evidence-in-chief, the applicant asserted for the first time that she enjoyed a sexual relationship with Dahai, whom she liked, whilst he had expressed his love for her.[18] In cross-examination, she agreed that at the time that the video recorded interview was conducted Dahai was her boyfriend.[19] In that context, she was asked repeatedly why it was that she had not described Dahai as her ‘boyfriend’ in the video record of interview.[20]
The applicant went on to explain her responses by saying:
35.As is readily apparent the judge’s summary of aspects of cross-examination of the applicant, which immediately preceded her direction in respect of lies, in large part was based on the above cross-examination of the applicant. With respect to the judge, there was no need at all to give a ‘lies’ direction. It is most regrettable that the issue was not canvassed properly in the very brief exchange between the judge and counsel. 36.In a judgment of Chan PJ, as he was then, with which all the other judges agreed, in the Court of Final Appeal in Yuen Kwai Chun v HKSAR the limited circumstances in which a lies direction is appropriate was addressed :[21]
37.This was not a case where the prosecution relied upon the applicant’s alleged lies as supportive of the prosecution’s case. If they had not been directed to the contrary there was no danger that the jury might misuse the applicant’s answers, if they determined it/them to be lies, as proof of guilt. Clearly, the judge ought not to have given the lies direction. 38.It is to be noted that in addressing the jury as to the approach to be taken to the applicant’s account in the record of interview and in testimony in respect of the role played by Dahai and her description of him, at the outset the judge merely invited the jury to consider whether or not in giving that account in the record of interview the applicant “had deliberately been less than truthful” as being relevant to “assessing her credibility generally.” With respect to the judge, that was the limit of its relevance. Furthermore, it is be noted that in giving her remaining directions to the jury the judge did not identify the issues in the manner set out in the Specimen Directions[22] provided in the judgment of this Court in HKSAR v Mo Shiu Shing[23] and approved specifically in the judgment of Chan PJ in Yuen Kwai Choi.[24] Specimen Direction 42.2 provides that the jury is to be told:
39.No doubt, if the alleged lies had been identified in that way, it would have made it obvious that the lies direction was wholly inappropriate. One issue concerned whether or not the applicant had lied in the record of interview by failing to identify the person, she described as her friend in Guangzhou, as her boyfriend with whom she enjoyed a sexual relationship. It was a material misdirection that the jury was invited to consider whether that failing, or the other matters identified by the judge, was a lie that supported the prosecution case. They did not do so and the prosecution did not suggest otherwise. Conclusion 40.In the result, we were satisfied that the applicant’s conviction was unsafe. 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. Consequential orders 41.Although Mr Wong opposed the respondent’s application that the Court order that the applicant be retried we were satisfied that it was in the interests of justice that we make such an order. 42.We were mindful of the fact that the applicant had stood trial before Macrae J and a jury on two occasions from 30 January to 21 February 2012. On the first occasion, the jury was unable to reach a verdict. On the second occasion, Macrae J discharged the jury without them returning a verdict. Then, between 6 and 9 November 2012 the applicant was tried and convicted after trial before Line J and a jury. This Court quashed the conviction on 13 December 2013. Finally, as noted earlier, the applicant was convicted after trial before Poon J and a jury on 7 April 2014. The applicant has been detained in custody since her arrest on 13 January 2011. 43.On the other hand, there was no dispute that the offence with which the applicant was charged, unlawfully trafficking in 3.45 kg of heroin hydrochloride by importation into Hong Kong, is extremely serious. Given that we have ordered a retrial we propose to say nothing about the strength of the prosecution case. Costs 44.The respondent opposed the application made on behalf of the applicant for an order for costs of the appeal, arguing that the applicant’s argument in respect of the judge’s refusal to provide the jury with the audio recording of evidence was without merit and the contention that the judge had failed to give the full lies direction was incorrect, so that the applicant was only entitled to a portion of such taxed costs. We were satisfied that the applicant was entitled to the costs of the appeal, to be taxed if not agreed. Orders 45.We ordered that:
Ms Jasmine Ching, SPP of the Department of Justice, for the respondent Mr Philip Wong, instructed by Damien Shea & Co., for the applicant [1] Appeal Bundle, pages 511 R - 512 H. [2] Appeal Bundle, pages 49 R - 50 O. [3] The Queen v Dorset (1980 ABCA 246; unreported, 5 September 1980). [4] R v Rawlings [1995] 2 Cr. App. R. 222. [5] The Queen v Dorset, paragraph 15. [6] R v Rawlings, page 225. [7] Appeal Bundle, page 417 P. [8] Appeal Bundle, page 40 I-U. [9] Appeal Bundle, pages 39 O - 40 I. [10] Appeal Bundle, page 493 L-S. [11] Appeal Bundle; pages 214-5, counter #s 358 and 368. [12] Appeal Bundle; page 217, counter # 380. [13] Appeal Bundle; page 225, counter # 434. [14] Appeal Bundle; page 231, counter # 485. [15] Appeal Bundle; page 227, counter # 457. [16] Appeal Bundle; page 229, counter # 472. [17] Appeal Bundle; page 230, counter #s 477-481. [18] Appeal Bundle; pages 374 T - 375 F. [19] Appeal Bundle; page 406 F-G. [20] Appeal Bundle, page 408 A-T. [21] Yuen Kwai Chun v HKSAR (2003) 6 HKCFAR 113. [22] Specimen Direction 42.2 of ‘The Specimen Directions in Jury Trials’ issued by the Judicial Institute. [23] HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155, at page 169 B-F. [24] Yuen Kwai Chun v HKSAR; page 130 A-B, paragraph 39. |
Cases cited in this judgment