HKSAR v. Nguyen Anh Nga

CACC 424/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 424 OF 2012

(ON APPEAL FROM HCCC NO. 110 OF 2012)

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JUDGMENT
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Hon Lunn VP (giving the Judgment of the Court) :

1.The applicant sought leave to appeal against her conviction after trial on 11 October 2012 by Barnes J and a jury of trafficking unlawfully in a dangerous drug on 6 September 2010, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing we reserved our Judgment, which we said that we would hand down in due course. That we do now.

The Trial

2.There was no dispute at the trial that the applicant, a Vietnamese national, arrived at Hong Kong International Airport from Nairobi, Kenya in the early morning of 6 September 2010.  She had been booked to fly to Phnom Penh, Cambodia on 5 September 2010, but missed the flight.  Arrangements were made for her to fly to Phnom Penh on a flight due to depart at 8:55 a.m. on 6 September 2010.  As a result, it was necessary to retrieve the suitcase that she had checked-in at Nairobi through to Phnom Penh.  When it was retrieved, it was subjected to an X-ray examination, which suggested that there was something at the bottom of the suitcase.  Also, the suitcase tested positive in an ionisation test.  Having been emptied of its contents of clothing, a Customs officer judged that it did not feel like an empty suitcase. So, as a result Customs officers decided to examine the suitcase in the presence of the applicant in the Arrival Hall.  When the suitcase was opened in her presence it was found to contain a package concealed in the bottom of the suitcase.  The package contained the dangerous drugs the subject of the indictment.  It was an admitted fact that in September 2010 the dangerous drugs had a retail street value of $2,345,220.[1]

The prosecution case

3.It was the prosecution case that when the applicant arrived at the Arrival Hall so that a search could be made of the suitcase, in full view of the suitcase she was asked first of all in English by Customs Officer Ma “Is it your baggage?”  A number of persons who were present testified to her reaction.  They all agreed that she began crying and squatted down next to the suitcase.  Madam  Ip said that the applicant screamed out “Wah!”  Customs Officer Ng said that the applicant looked nervous and was shaking and trembling.  Customs Officers Ma and Ng said that the applicant unzipped the suitcase.  Customs Officer Ma said that the applicant rummaged around in the suitcase before she was stopped from doing so.  Customs Officer Ng said that at first the applicant stood and watched as the search of the contents of the suitcase, but she sat down when the bottom of the suitcase was lifted out and the package, containing what were found to be the dangerous drugs, removed. Customs Officer Ng said that at this stage the applicant was expressionless.  Customs Officer Ma performed a test with crystals on the contents of the package to confirm suspicions that they were dangerous drugs.  Then, Customs Officer Ng arrested and cautioned the applicant in both English and Chinese.  He said that the applicant did not appear to understand and made no response.

4.In the early afternoon, with the assistance of a Vietnamese interpreter, Customs Officer Ng made a written post-record of the circumstances of the arrest and cautioning of the applicant in the morning.  When asked if she had anything to add the applicant said, “The name tag on the black suitcase is mine.  But the articles inside are not mine.”[2]  In an interview conducted of the applicant in the evening of 6 September and the early morning of 7 September 2010 the applicant said:[3]

“ The suitcase is mine. The South African asked me to take it to Cambodia. I did not know the South African.”

5.Of the contents of the suitcase, she said:[4]

“ In the hotel, I put a pair of black jeans and one set of red top and trousers into the suitcase. I saw that there were tops, trousers, shoes and slippers inside the suitcase. I knew nothing else. I closed the suitcase and a zipper without taking a look at its contents.”

6.Of the methylamphetamine found in the package found in the suitcase, the applicant said:[5]

“ I do not know what the dangerous drug methylamphetamine is. At 18 ‘Square’, Vietnam, my younger sister opened a coffee shop. I saw a person called Mai-Ka in the coffee shop. He/she asked me to take US dollar from South Africa to Cambodia. He/she will give me US$1,500 upon arrival. As I have liver disease, I need the money for treatment.”

The applicant went on to explain that she understood that the United States dollars were inside the suitcase, but she had not checked to see if that was the case.

7.At 01:35 on 7 September 2010, having been charged with the offence of unlawfully trafficking in 3.142 kg of methylamphetamine, the applicant responded: [6]

“ I did not know there were dangerous drugs in the suitcase. I was deceived by others. I know I am wrong. I hope the judge will pass a lenient sentence so that I can go home soon as possible.”

The defence case

8.The applicant did not avail herself of her right to give evidence, but did call a witness in the defence case.  Ms Tran was a fellow Vietnamese who was also a fellow prisoner with the applicant.  She said that the applicant was a kind person and produced a letter written to her by the applicant after she had been transferred to the Correctional Services Department facility at Lo Wu.  The grammatical mistakes in the letter spoke to the applicant’s limited level of literacy.

9.As the judge reminded the jury, the applicant relied on the exculpatory parts of her out-of-court statements made to various Customs and Excise officers.  In particular, she relied on her denial that she knew that there were dangerous drugs inside the suitcase.[7]  Rather, she thought it contained United States dollars, which she had agreed with Ma Kai, her younger sister’s boyfriend, to take to Cambodia from South Africa with a payment of US$1,500. She was told that the United States dollars were placed inside it, but she was not told where they were.  Further, she was told that they would be collected from her on her arrival.  For her part, she placed a red top and some trousers in the suitcase, noticing that it contained tops, shoes, slippers and trousers.

Grounds of appeal against conviction

10.By the original single ground of appeal against conviction advanced by Mr Philip Ross, who represented the applicant at trial, it was submitted that the judge erred in failing to direct the jury that counsel for the prosecution was incorrect to invite the jury in her closing speech, “… to use the applicant’s silence to convict her”, namely that the  applicant’s silence, in the face of the positive test for dangerous drugs of the concealed substance in the suitcase, was indicative that the applicant knew that her suitcase contained dangerous drugs and not money as she claimed.

11.Mr Ross raised a second ground orally during the hearing on 27 November 2014, in consequence of which the hearing was adjourned and the provision of additional transcript was ordered.  Subsequently, amended Perfected Grounds of Appeal were filed with the Court on 2 February 2015, namely that in respect of the same conduct of the applicant the judge failed to direct the jury that, in light of what counsel for the prosecution had said in her closing speech, before they could conclude that the conduct amounted to a “consciousness of guilt”, they had to be sure that the conduct had or may have had no innocent explanation.  Further, that the judge failed to direct the jury that even if satisfied that the conduct amounted to a consciousness of guilt, that conduct alone was not a sufficient basis to convict the applicant, rather it could only be supportive of other incriminating evidence.  He invited the court to have regard to the judgment of the Court of Appeal of Victoria in R v Ciantar [8] as relevant to the directions to be given by a judge where reliance is placed on ‘post-offence’ conduct as establishing consciousness of guilt.  In that case, the appellant had left the scene of an accident, in which the car in which he was driving struck and killed a pedestrian, and driven to his father’s home.  There, his father made a report to the police.  On their arrival, he claimed that he had drunk a third of a bottle of whiskey.  Forensic evidence at trial led by the prosecution showed that to be a lie.  The Court determined that the judge had erred in failing to give a full lies direction in respect of the claim of having drunk whiskey.[9]  However, in dismissing the appeal the court applied the proviso.[10]  Moreover, the court said that “… post-offence conduct is not to be left to the jury as evidence of consciousness of guilt unless it has first been precisely identified together with the circumstances and events that are said to indicate that by engaging in the conduct the accused demonstrated a consciousness of having committed the offence which is charged”.

12.Although Mr Ross was counsel for the applicant at trial, he accepted that he had made no application to the judge at the end of the prosecution’s speech, or after the summing up, that any particular direction be given to the jury in respect of the issues which he raised in the application for leave to appeal against conviction.

The respondent’s submission

13.Mr Jonathan Man for the respondent submitted that the evidence of the applicant’s reaction when the drugs were discovered was relevant to and probative of the central issue of her knowledge.  It was submitted that the jury was entitled to take into account the applicant’s response and the lack of it in those circumstances in considering whether or not the applicant knew the suitcase contained a dangerous drug.  In support of that submission, Mr Man relied on the judgment of the High Court of Justiciary of Scotland in McGill (David Alexander) v HM Advocate.[11]

A consideration of the submissions

The prosecution closing speech

14.In her closing speech to the jury, Ms Campbell-Moffat SC invited the jury to dismiss the applicant’s assertions made in her out-of-court statements that she was a party to the smuggling of money only and that she knew nothing of the presence of dangerous drugs.[12] Of the former, she suggested to the jury that it was “rubbish”.  In inviting them to determine that they were sure that she knew of the presence of dangerous drugs, she said:[13]

“ And one other reason why I suggest to you that you are sure she committed this offence, and this, I suggest, is overwhelming.

When she’s brought through the red channel, she goes, “Ahhh” and she starts to sob or cry, doesn’t she? That’s the evidence, when the suitcase is pointed to her. And then she immediately opens it up, so she clearly knows it’s not locked, and she rummages around. Now, if those aren’t hers, why is she rummaging around? If they are hers, there’s no purse in there, there’s no documents in there, there’s no underwear in there, right. Why is she rummaging around immediately?”

She’s rummaging around because she wants to see if the drugs have come out the bottom of the suitcase. She wants to see if they’re already discovered. And that’s not my overwhelming point, that’s my second overwhelming point, I’ve got a better one. She stopped. She’s been crying. She’s not crying and sobbing throughout. She’s obviously very nervous, and so would you be in her shoes, we’ve got to accept that. We’d all be terrified; innocent or guilty, we’d be terrified in her shoes.

But when it comes to the stage at which this suitcase is taken apart, if you were innocent, what’s the stage that you would go again, “Ahhh”? She’s done it once. It’s a natural reaction. You might think everybody would notice if all of a sudden, the bottom of your suitcase is peeled open and there was a bulky package. Not a flat, linear package that you might pack money in, but a bulky package that you saw.

And even if she was a cool cucumber, even if she was very cool and calm and didn’t react to that, at the stage that somebody sticks a knife into the package and pulls out a crystal and sticks it into some fluid that turns blue, where was her reaction to that?  And it is that, ladies and gentlemen, that convicts this woman.  You can be sure that her lack of response to that is indicative of the fact she knew what was inside her suitcase was drugs, it wasn’t money, it was drugs.”

The defence closing speech

15.In his closing speech to the jury, Mr Ross acknowledged that the applicant was a smuggler of money:[14]

“ From her position, she is a smuggler of money but not of drugs and definitely not a drug trafficker. If it was Hong Kong, she could bring money in and out as she wished but, presumably, the position is different in other countries.”

16.Of the evidence of her differing reactions to the fact that her suitcase had been selected for examination, the ensuing examination, the discovery of the powder in the concealed bag and the positive testing of the dangerous drugs that had been found concealed in the bottom of the bag, Mr Ross said to the jury:

“ You may recall that when she was first taxed with just the simple question, “Is this your bag?”, she let out a call and squatted down, unzipped it with the intention of going into the bag.”

17.Of that conduct, he offered the jury an alternative explanation to it being a reaction born from her knowledge that the suitcase contained dangerous drugs:

“ Is that the act of a drug trafficker that’s trafficking in $2 million worth of drugs? It looked like she was apparently trying to proffer up something to them, like the money, for example. It’s not the kind of act you’d expect from a cool and calm drug trafficker.” [Italics added.]

18.Of the applicant’s reaction to the subsequent events as they unfolded, Mr Ross said :

“ Later on - you heard that she was sobbing, crying - and then later on, before she’s actually cautioned and arrested, one of the officers uses the ‘narco test’, do you remember, he put some chemicals on the powder and they turned blue. No reaction. She cries, squats down and looks in the bag when they simply ask her is it her bag. Later on, when, to the officer’s point of view, something really serious had happened, they’d found a positive test for drugs, she has no reaction.”

19.Of the latter lack of reaction, Mr Ross again suggested an alternative explanation for her lack of reaction or response other than it was born from knowledge that suitcase contained dangerous drugs:

“ She simply doesn’t know what’s going on.

If she’d cried like she did before when she was simply asked the question “Is this your bag?”, wouldn’t we have expected her to have gone berserk when the drugs turned the wrong colour and gave off a reaction to show that these really were dangerous drugs?  But no, she just simply stands there.  She has no idea what that substance is, I’d suggest, ladies and gentlemen.”  [Italics added.]

The law

20.In McGill, at issue was whether the judge erred in ruling that there was a case to answer, in circumstances where dangerous drugs had been found concealed behind the dashboard of the appellant’s motorcar, which he was driving and in which there was also a passenger.  In the judgment of the Court, Lord Prosser described as “significant” and “perhaps crucial”, evidence of the appellant’s reaction when police stopped the car and embarked on searching it, namely “one of shock; whereas when the drugs were found, he showed no surprise.”  Of that evidence, he said “… these reactions are matters which it would be open to a jury to take into account”.

21.In Ciantar, the Court of Appeal of Victoria sat as a Full Bench.  In that case, the appellant had left the scene of an accident, in which the car which he was driving struck and killed a pedestrian, and drove to his father’s home.  There, his father made a report to the police. Having gone to the police station shortly thereafter, the appellant claimed that whilst at his father’s home he had drunk a third of a bottle of whiskey.  Forensic evidence at trial led by the prosecution showed that to be a lie.  Clearly, issues of flight and lies arose.  The Court determined that whilst the judge had not erred in his direction in respect of flight, he had erred in failing to give a full lies direction in respect of the claim of having drunk whiskey.[15]  Nevertheless, the Court dismissed the appeal, applying the proviso.[16]

22.The judgment of the Court addressed the issue of the need to give a special direction in respect of a defendant’s conduct, in respect of which reliance was placed that it evidenced a “consciousness of guilt”.  The Court did so under the ambit of the rubric “post-offence conduct”.  The Court said, “… post-offence conduct is not to be left to the jury as evidence of consciousness of guilt unless it has first been precisely identified together with the circumstances and events that are said to indicate that by engaging in the conduct the accused demonstrated a consciousness of having committed the offence which is charged.”[17]

23.In R v Dupas (No 3)[18]the Court of Appeal of Victoria addressed, inter-alia, the issue of the directions to the jury required of a trial judge in circumstances where, after the murder of a woman, the applicant had sought to change his appearance, by purchasing new spectacles and changing his hair style.  In his closing speech, counsel for the prosecution referred to a number of acts of post-offence conduct, which evidence he submitted was “… piece after piece after piece which, added to the whole picture, provide an overwhelming case of guilt of the murder” of the woman.

24.Nettle JA, with whom Ashley JA agreed, accepted the submission of counsel for the applicant “that the logical subtext of the prosecutor’s submission was that the applicant was conscious of his guilt of the deceased’s murder and was seeking to change his appearance in order to avoid detection”.  They agreed that, in consequence, the judge was required to direct the jury that they were not to treat that conduct as evidence of consciousness of guilt unless satisfied that it occurred and that the only explanation for it was consciousness of guilt.[19]  For his part, in dissenting on that point, Weinberg JA said:[20]

“ …the change of appearance was nothing more than circumstantial evidence, of the most ordinary kind, on which the Crown relied in order to strengthen its case. Where, as happened in this case, the jury were correctly directed as onus of proof and as to the principles governing circumstantial evidence, it was unnecessary, in my view, for an Edwards direction also to have been given. Such a direction could only have confused the jury. Moreover, the need for such direction was obviated by the fact that no such direction was sought.”

25.In answer to an enquiry of the Court, Mr Ross said that he was unable to refer the Court to any authorities in this jurisdiction or in England and Wales in which the Court had said that a full lies/flight direction, modified to meet the circumstances, was required in respect of conduct of the defendant after the commission of the offence other than in cases of flight and lies.

Summing up

26.In her summing up, the judge directed the jury in respect of the applicant’s exercise of her right to silence.  She did so in the context of the applicant’s refusal to answer any further questions partway through the record of interview conducted under caution.  The judge said:[21]

“   Any person suspected of a criminal offence or charged with a criminal offence is entitled to say nothing when asked questions about it.  So you must not hold the defendant’s refusal to answer further questions against her.  The exercise of the right to silence cannot amount to an admission of any kind, nor can it be taken to reflect a guilty conscience.  The defendant is fully entitled to say “I don’t want to answer questions any more”.  Basically, do not draw any adverse inference from that.”

27.Having summarised the prosecution case overall against the applicant, the judge said:[22]

“ I want to remind you in greater detail of the evidence about her reaction, her demeanour from the time she arrived at the arrival hall to the time she was arrested and cautioned.”

28.Thereafter, the judge recited in some detail the evidence of the various witnesses of her emotional reaction that followed being asked if the suitcase was her baggage, in which they said variously that she cried out, squatted down and rummaged through the suitcase and then she was crying.[23]  By contrast, the judge said that Customs Officer Ng’s evidence was that the applicant viewed the removal of the concealed package from the suitcase in an expressionless manner from a seated position.[24]

29.Subsequently, the judge directed the jury in respect of the drawing of inferences in terms that resonated with the Specimen Direction[25] issued by the Judicial Institute.  She said:[26]

“ You are entitled to draw inferences; in other words, you can find certain facts proved -- if you find certain facts proved, then you are entitled to infer the existence of other facts, that is what is inference. You find certain facts proved, you can then infer the existence of further other facts. But you may only do that if the inference is the only reasonable inference to be drawn from the proved facts.

So if (a) from a set of facts which you found proved, there is a reasonable inference to draw against the defendant as well as one in her favour, then you cannot draw the adverse inference, that is the one against her.”

30.Then, the judge identified the relevant evidence:

“ You may ask, what do you mean by facts found proved. Two types: one, admitted facts, that is already proved; the second type, what evidence you accept; you believe which witness, that would be the facts proved. Then from those facts you can draw inferences.”

31.Immediately before that direction, the judge had reminded the jury that, although there was no direct evidence that the applicant had knowingly brought dangerous drugs into Hong Kong, the prosecution invited the jury to conclude that there was no doubt that was the case having regard to the Admitted Facts and “the evidence adduced in court.”[27]

32.Moreover, the judge repeated her direction in respect of the drawing of inferences adverse to the applicant:[28]

“ If you can draw (an) inference in favour of the defendant and against her, two different inferences, then you cannot use the one that is against her.”

33.She went on to say:[29]

“ I also must warn you this. It is not enough for the prosecution to prove to you that the defendant must suspect that she was carrying dangerous drug into Hong Kong. Suspicion is not enough. It has to be knowledge. The prosecution have to make you sure that, from all the evidence you have heard, the only reasonable inference you can draw is that she must know she was bringing drugs in, not just that she was suspecting it. So please remember that.”

34.Having reminded the jury yet again that there was no direct evidence of the applicant’s knowledge[30] and that she had denied such knowledge of the dangerous drugs in the suitcase, the judge directed the jury to have regard to all of the circumstances in considering whether or not to draw the inference of knowledge:[31]

“ So you have to look at all the circumstances, including how was the dangerous drug packed, how was it concealed, what was its weight.  She had carried it, you see, over 3 kilograms, I think it is 6.6, over 6.6 pounds, quite a big bag, quite bulky, so consider that, inside the luggage, and value over HK$2.3 million.  That is a lot of money, what it is worth.  You can see from the chemist certificate, it is pure.  The 3.03 crystal all containing “Ice”.  It is not to say most of it other substance, a little bit of “Ice”; almost pure “Ice”, worth over $2.3 million.  Bear that all in mind when you consider whether you can draw the inference.”

35.Then, the judge went on to summarise evidence relevant to a consideration of the kind of person that the applicant was, namely a person who was able to read Vietnamese, but with limited ability to write in that language.  In that context, the judge addressed issues raised in the defence case:[32]

“So think for yourself, was she a naïve, uneducated, unsuspecting, gullible middle-aged woman who was being cheated and used by others?  Was she a person who was duped into believing that she was smuggling US currency when, in fact, US currency was not put inside the suitcase?  You heard there were no US dollars found inside the suitcase at all, but over $2.3 million worth of “Ice” was inside that instead.  Someone put it there without her knowledge, is that the case?”

36.It is to be noted that in neither of the summaries with which the judge provided the jury of the competing issues and evidence raised by the parties relevant to the crucial issue of the applicant’s knowledge of the dangerous drugs in the suitcase, did the judge refer specifically to the applicant’s reactions and non-reaction to being confronted with the suitcase and the subsequent discovery of the concealed substance which tested positively as dangerous drugs.

37.We are satisfied that the evidence of the applicant’s reactions and non-reaction was simply circumstantial evidence and no more.  That conduct was nothing more than circumstantial evidence of the most ordinary kind, relied on by the prosecution to strengthen its case.  In this jurisdiction, in some circumstantial evidence of lies and flight by a defendant may require special directions to a jury.  However, that was not required in respect of the evidence of the applicant’s reactions and non-reaction.  The issue of the applicant’s right of silence was not engaged.  The evidence was of her physical reaction, namely shouting out and crying.  No issue arose of her failure to articulate a verbal explanation.

38.Given that the judge had dealt with that evidence at considerable length and that it has been the subject of competing submissions and the respective closing speeches of counsel, the absence of a specific reference to that evidence in the context of directions as to the drawing of inferences is surprising.  With respect to the judge, specific reference ought to have been made by her to the evidence of the applicant’s reactions and non-reaction from the time that she was confronted with the suitcase.  That ought to have been done as part of the general direction given in respect of the circumstantial evidence and the drawing of inferences.

39.On the other hand, there was no dispute that the evidence of the applicant’s reactions and non-reaction summarised extensively by the judge was circumstantial evidence relevant to the issue of the applicant’s knowledge of the presence of dangerous drugs in the suitcase.  As the judge directed the jury repeatedly, there was no direct evidence on that issue.  Further, that issue was the crucial issue in the case.  As was to be expected, the judge had directed the jury that they were to have regard to “all the evidence”.[33] Also, the judge directed the jury that they should take into account the speeches of counsel.  No complaint was made by Mr Ross in this Court of the judge’s directions in respect of inferences, in particular that if there were competing reasonable inferences to be drawn from a set of facts that the jury could not draw an inference adverse to the applicant.

40.The judge directed the jury repeatedly that they had to be satisfied to the requisite standard that the applicant knew of the presence of the dangerous drugs in the suitcase.[34]  In the context of the direction in respect of inferences, the judge said:[35]

“ The prosecution have to make you sure that, from all the evidence you have heard, the only reasonable inference you can draw is that she must know she was bringing drugs in…”

41.In the same vein, she concluded her summing up, by saying:[36]

“ You will have to consider whether you can draw the only reasonable inference that the defendant knew she was bringing dangerous drugs into Hong Kong. If you are sure that the defendant knew she was bringing dangerous drugs into Hong Kong, then you must find her guilty of this charge of trafficking in a dangerous drug. If you are not sure, if you are not sure she knew that she was bringing dangerous drugs in, then you must find her not guilty.”

42.We are satisfied that the judge’s omission was not material.  The jury was appropriately directed, in particular repeatedly so in respect of the burden and standard of proof and in respect of the drawing of inferences adverse to the applicant.  There was no need to give a further special direction.

Conclusion

43.In the result, we are satisfied that there are no merits in the application for leave to appeal against conviction.  Accordingly, the application is refused.

Mr Jonathan Man, ADPP of Department of Justice, for the respondent

Mr Phillip Ross, instructed by Tse Yuen Ting Wong, assigned by Director of Legal Aid, for the applicant