HKSAR v. RIZANIA NOVIYANTI

CACC 315/2018

[2022] HKCA 803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 315 OF 2018

(ON APPEAL FROM HCCC NO 454 OF 2017)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  With leave granted by the Single Judge on 23 July 2021,[1] the appellant appeals against her conviction on a single count of trafficking in a dangerous drug, namely 1,990 grammes of a solid[2] containing 1,617 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, following her trial before Deputy High Court Judge Woodcock (the Judge) and a jury on 12 October 2018. The Judge sentenced the appellant to 23 years and 5 months’ imprisonment.

2.  On 2 September 2021, Mr Phillip Ross, on behalf of the appellant, filed Amended Perfected Grounds of Appeal, in which he advanced two grounds. At the hearing of this appeal, he refined his argument in respect of the first ground and abandoned the second ground.

3.  The appellant had been apprehended by Customs officers carrying a plastic bag which contained a carton of milk and a box of cornflakes with four bags of cocaine concealed inside them. The quantity of drugs was about 2 kilogrammes and it was argued under the first ground that prosecuting counsel was wrong to submit to the jury that the plastic bag containing the drugs would have seemed much heavier to the appellant than if it contained a full carton of milk and a box of cornflakes when there was no evidential basis as to the difference in weight between the two; and the Judge failed to correct this submission and appropriately direct the jury on the matter.

4.  Mr Ross decided to abandon the second ground because the complaint that the Judge had erred in directing the jury that the appellant was a targeted person was speculation could not be sustained when he realised a photograph referred to in the proceedings was not a photograph of the appellant on a Customs officer’s mobile telephone as he had believed.

5.  In light of the issue raised in the first ground it is necessary that we set out a brief summary of the evidence and the relevant arguments in respect of the weight of the plastic bag.

The evidence at trial

6.  At about 8 pm on 15 May 2017, two plainclothes female Customs officers, (PW1 and PW2), were on duty at Nathan Road, near Saigon Street in Kowloon. PW1 observed the appellant behaving suspiciously,[3] in that she was walking very quickly.[4] She was also carrying a handbag over her shoulder[5] and holding in her hand a plastic bag (“the plastic bag”) (exhibit P1), containing two paper boxes, namely a carton of milk (exhibit P2) and a box of cornflakes (exhibit P5). The two officers followed the appellant and eventually intercepted her. PW1 took hold of the plastic bag and saw that the boxes inside the bag were already opened. Inside the milk carton was a single ziplock bag and inside the cornflakes box were three ziplock bags, containing the drugs in question. PW1 arrested and cautioned the appellant, who denied any knowledge of the contents of the ziplock bags. Another Customs officer, (PW3), attended the scene and was assigned as the exhibits officer.

7.  After the appellant was cautioned, PW1 questioned her about the two boxes and their contents. She said that a male asked her to go to Hung Hom to find a woman, who would give her the plastic bag, which she was to deliver somewhere. The male also paid her $200 and said he would call her to tell her where to deliver the plastic bag.[6]

8.  The estimated retail value of the total quantity of cocaine at the time was $1,920,350.

9.  In a subsequent video recorded interview, the appellant, an Indonesian national, denied knowing that the milk carton and cornflakes box contained dangerous drugs. She said she was told it was foodstuffs and saw package(s) of food.[7] She first came to Hong Kong to work as a domestic helper in 2009, but ceased working in that capacity in 2013. She lived in accommodation in Tsim Sha Tsui and the rent of $4,500 was paid by her boyfriend who lived in the United States. She said that they had been together for about 3 years and he would remit to her $10,000 each month. She explained that she was given the plastic bag by a woman in Hung Hom and did not know what was inside. She said she only saw food or biscuits. The woman had called her and asked to meet her in order to convey some food to the woman’s boyfriend. The boyfriend was an African man whose name was Edwin. She knew Edwin as she had met him twice before. Edwin contacted her at around 7:00 pm and asked her to meet him at K11 to give her taxi money to meet the woman. Edwin told her that he could not pick up the food himself as he was busy at work and he would wait for her to deliver the food to him in Jordan.

10.  The defence case was that the appellant had no knowledge of the contents inside the plastic bag and that she was set up. It was contended that the first officer who approached the appellant was PW3 and that the other two officers were deployed to the case because the appellant was a known target. It was also contended that the two boxes inside the plastic bag were not opened at the time the appellant was arrested, otherwise PW1 would not have recorded in her notebook that she had “opened the two boxes”. No question had been asked of the appellant in her video recorded interview about the boxes having been already opened.

11.  The prosecution made an issue as to the weight of the contents of the plastic bag and it was the defence case that there was no reason for the appellant to doubt that the contents inside the boxes were anything other than milk and cereal.

12.  The appellant gave evidence in her defence. She stated that through a friend, she was contacted by Edwin because she was looking for part-time work. They met at McDonald’s on 13 May 2017 to discuss doing part-time house cleaning work for him. She said that a Filipina, who claimed to be Edwin’s girlfriend, telephoned her at 5:30 pm on 15 May 2017 to arrange to meet her in Hung Hom. Edwin then called her at around 5:45 pm and they met at K11 at 6:00 pm. He told her to pick up the food from his girlfriend in Hung Hom because he was busy. He gave her $200 to take a taxi to Hung Hom because she did not know how to get there. She arrived there at 7:30 pm where Edwin’s girlfriend gave her a 7-Eleven white plastic bag containing what she variously described as biscuit, milk, and food. The appellant opened the plastic bag and took a quick glance at the contents.[8] She saw there were boxes of food inside, consisting of a carton of milk, a box of biscuits and a bag of potato chips.[9] She said that the boxes were not open and that she thought she was picking up milk and cereal. After she picked up the food, Edwin called her and told her to go to Exit B at Jordan MTR. She said she took a taxi from Hung Hom to Jordan and after alighting whilst on her way there she was approached by a male Customs officer. The two female officers arrived later. PW1 took the plastic bag but she did not see what she did with it, although she saw PW1 cut open the two boxes inside the bag with a knife, and show her the contents. When PW1 asked if she knew what was inside the plastic bag, she said she did not and started to cry. She was taken back to her residence for a search and while there she saw on the officer’s telephone a photograph of herself in Hung Hom carrying the plastic bag.

The weight of the plastic bag

13.  In cross-examination, the appellant was questioned about the contents of the plastic bag and how much they weighed:[10]

“Q. All right. At that time you could see the green box say, ‘Milk.’ You knew, is that right, the carton of the green box, marked ‘Milk’?

A. Yes.

Q. All right. And also the red big cartons and then did you see what -- were you aware what that was at that time?

A. Like cornflakes.

Q. So you’re aware that it was cornflakes?

A. Yes, because the box is like cornflakes, I presume it’s cornflakes.

Q. All right.

COURT: Did you recognise it?

A. Yes.

COURT: All right.

Q. From your past or your own experience of them, well, you have come across boxes of cornflakes, is it correct?

A. Yes.

Q. All right. So why did you say it’s biscuits in the interview then?

A. Because to me with everything that was on it, it looks like biscuits.

Q. Sorry, I don’t understand. You just mentioned that at that time you were aware that the box was cornflakes which you have come across before.

A. I said biscuits.

Q. Any reason? Any explanation why you said biscuits? I tried to ask you that.

A. No.

Q. All right. Crisps, you have come across obviously and it’s not -- it’s quite light, small package, right?

A. Yes.

Q. All right. And now we know that in -- there was one small package of drugs inside the milk packet -- the milk carton and then three bags of drugs inside the cornflakes box.

A. Yes.

Q. All right. So with the three packets of drugs in there, the cornflakes box was quite full, right?

A. Yes.

Q. And, in fact, just by holding it, holding a plastic bag, could you feel the weight? It was much heavier.

A. It was not too heavy.

COURT: So much heavier than...

MS LEE: Much heavier than the normal milk...

COURT: ...than if it was cornflakes and milk, you mean?

MS LEE: And the crisps.

COURT: All right.

MS LEE: Even if there was...

COURT: So if it was, we can see from the packet how heavy it will be, but if it was cornflakes and was UHT milk, did you not feel the weight was much heavier than those items?

A. Yes.

COURT: You did feel that weight? You did feel?

A. As far as I know it’s just the milk and the cereal that I carried.

Q. So you did find it strange it’s so heavy the bag?

A. No.” (Emphasis added)

14.  It was put to the appellant by prosecuting counsel that just by holding the plastic bag (containing the four bags of drugs), it would have been “much heavier”, to which she responded, “It was not too heavy”. The Judge clarified with prosecuting counsel that the plastic bag was “much heavier” than if it contained normal milk, cornflakes and crisps. The Judge then said that “we can see from the packet how heavy it will be”, and asked “but if it was cornflakes and was UHT milk, did you not feel the weight was much heavier than those items?” The appellant answered in the affirmative but in light of the questions and answers that followed it would see that she was acknowledging the Judge’s comment that the weight of the items was on the packaging. And that is how the Judge and prosecuting counsel treated that answer by their later remarks about the appellant’s evidence, namely she did not find it strange that the bag was so heavy. Although, the appellant did say, “As far as I know it’s just the milk and the cereal that I carried.”

15.  Prosecuting counsel in her closing address to the jury noted that she had cross-examined the appellant as to whether she found the contents of the plastic bag heavy or “more heavier” than usual for these items, to which the appellant responded that she did not think so. She invited the jury to consider this point and even asked them to try and weigh the items for themselves:[11]

“… And at the time she received the food, she could recognize from the box that it was cornflakes, she knew what that was. And then, she carried as well as crisps and the milk. And according to her, I asked her did she find it heavy, a bit, more heavier than the usual, these items. And she say that she did not think so. Of course, that’s very personal but again I would ask you to consider, if you like, take the drug and then put in the box or bag or whatever, try to weigh it yourself, whatever way you want to examine it, please do so if you feel necessary. But I would suggest that, in fact, it would be quite obvious to anyone that that is not just milk or it’s cornflakes.” (Emphasis added)

16.  Defence counsel in his closing speech to the jury, responded to prosecuting counsel’s submission that the items containing the drugs would have been much heavier by pointing out that a person when given a plastic bag with items in it would not have noticed the weight and the drugs in question were not all that heavy. He said:[12]

“[Prosecuting counsel] said, although, she must have known the weight of the bag she carried. Yes, I suppose, in the cold hard light of day, that’s something that you might do but if someone gives you a bag and it’s got some things in it, and it’s not dreadfully heavy, why would you think that this might be different from the – why on earth would you think – I mean, you’ve lifted the drugs, they’re not all that heavy. Right? Any they were in a shopping bag. Why? Why would that raise alarms? In my submission, it was another invalid criticism.” (Emphasis added)

17.  The Judge in her summing-up to the jury noted that the prosecution were relying on circumstantial evidence to prove that the appellant knew there were drugs in the plastic bag. This included, amongst other factors, a reference to the weight of the plastic bag. She said:[13]

“So what is the circumstantial evidence that the prosecution relies on to show or prove that the defendant knew there were drugs? They say that the circumstantial evidence is this: the defendant was carrying the white plastic bag which contained the boxes stuffed with cocaine. The defendant was walking down Nathan Road very quickly and looking all around her. The drugs weighed 1.99 kilogrammes in total or about 4.4 pounds, in a plastic bag, when a carton of milk and a box of cornflakes should have weighed much less. The value of the drugs that were entrusted to her, if sold on the open market, was at that time HK$1.92 million.

Under caution immediately after her arrest, she denied knowledge of the drugs. She also gave an explanation of how she came to be in Jordan with that bag to take to somebody but was waiting for a telephone call. Even if you think the defendant should have been suspicious about the food boxes that she had been asked to take from Hung Hom to Jordan, I have to tell you that suspicion does not amount to knowledge. It is not enough by itself. It is a factor but it does not prove that she knew the drugs were in the bag.

You heard a number of questions in cross-examination about whether the defendant looked properly in the bag and whether she felt it was strange that the bag was so heavy when it supposedly contained a box of cornflakes and a carton of milk. She said she did not find it strange. In addition, she agreed in cross-examination that with three zip-lock bags of cocaine in the cornflake box it was quite full. Her evidence was that she had a quick glance in the bag when she was handed it. This failure to thoroughly examine the contents of the bag is not to be regarded as evidence that she knew what was in the bag.

The prosecution invites you to say if you look at all the circumstances a guilty knowledge can be properly inferred in this case. Ms Lee is saying that if you believe the prosecution witnesses you can put all those facts together and you can draw an irresistible inference from evidence to find the defendant knew she was carrying dangerous drugs. She says you can take into account that the drugs weighed 1.99 kilogrammes, yet the defendant did not think the bag was heavy for its contents. She says it would be quite obvious to anyone that there was not just milk and cornflakes in the bag judging by its weight.

In closing, Ms Lee also asks you to consider that the defendant was in a taxi without even having explored any other mode of transport from Hung Hom to Jordan. She suggests this was because she knew she was carrying drugs of great value and taking a taxi was the least risky way to Jordan. In addition, she would like you to consider the facts that these items were very easy to obtain from supermarkets and convenience stores, so why was there such a fuss for her to pick up these items and why was there a need for her to take taxi to do that.

The defence, Mr McNamara, for the defendant, says the opposite. He says you cannot draw an irresistible inference the defendant had knowledge from those same facts. If the defendant knew she was carrying drugs she would not be carrying 2 kilogrammes of cocaine in a plastic bag during peak hours in such a busy area. She certainly would not be carrying the drugs around in boxes that were open in an open-top plastic bag. She is a victim herself used by others to innocently courier drugs.

He counters the prosecution’s suggestion and says that the weight of the bag was not very heavy so why would it ring alarm bells? The defendant saw ordinary food items which did not make her suspicious. Why would they? She was asked to run an errand and would not necessarily question why. It is perfectly natural that she would not question the contents of the bag but just complete the errand as requested. Mr McNamara says these criticisms are not enough for you to draw an irresistible inference against the defendant.

Members of the jury, in a criminal case, I will repeat, the inference drawn must be the only inference that can be drawn in the circumstances. You must use your common sense and experiences men and women of the world to draw the reasonable inference and only inference in the circumstances. So I stress again, the issue being here the prosecution has to prove to you that the defendant had knowledge of the drugs in the bag.” (Emphasis added)

18.  We note that the Judge summarised the prime circumstances that the prosecution relied on to infer the appellant knew there were drugs in the boxes she was carrying. They were: (1) the appellant was carrying a plastic bag which contained the boxes stuffed with cocaine; (2) the appellant was behaving suspiciously at the time of her apprehension; (3) a carton of milk and a box of cornflakes would have weighed much less than the 1.99 kilogrammes of drugs in the plastic bag; and (4) the appellant had been entrusted with a quantity of drugs of substantial value. In addition, the Judge also referred to two other matters which prosecuting counsel asked the jury to consider, namely (1) the appellant travelled by taxi without exploring other modes of transport, suggesting she was carrying something of great value; and (2) the items could have been very easily obtained from a supermarket or convenience store and did not need all the fuss that took place in order to deliver basic food items.

The submissions

19.  Mr Ross argued that the Judge failed to direct the jury that they could not experiment to decide whether the cocaine, contained in the milk carton and cornflakes box, was too heavy to be mistaken for boxes filled with milk and cornflakes.

20.  Mr Ross made two points. Firstly, the weight of a carton of milk (1 litre) and box of cornflakes (340 grammes) was unjustifiable hearsay and could not be relied on by the jury as being the true weight. Secondly, some jurors might, while some might not, be familiar with the weight of a full carton of milk and box of cornflakes. It was impermissible for them to speculate, or to share their personal knowledge, which was not evidence, on that issue.[14] He contended that the Judge should have directed the jury that there was no admissible evidence as to the true weight of a carton of milk and box of cornflakes and they should not speculate on the weight of these items.

21.  Mr Ross submitted that there was no evidential basis to suggest that the contents of the plastic bag, if it contained a litre carton of milk and a box of cornflakes with cereal, would have weighed less or noticeably less than 1.99 kilogrammes (the weight of the four packets of drugs). It was therefore inappropriate to invite the jury in the circumstances to make such a comparison purely based on guesswork: R v Stewart and Sappleton[15] and R v Kozul[16]. He further submitted that this was inviting the jury to carry out an out-of-court experiment which was not permissible: Hodge v Williams[17] and R vMcCrea[18]. He pointed out that after the jury retired to consider its verdict, they requested to see a number of exhibits, which included the plastic bag (exhibit P1), the milk carton (exhibit P2) and the cornflakes box (exhibit P5). However, it was not known for what purpose the jury requested to see these exhibits.[19]

22.  Ms Audrey Parwani, for the respondent, placed emphasis on the appellant’s affirmative answer in response to the Judge’s question about whether she felt the weight in the plastic bag was much heavier than if it were milk and cornflakes. She contended that whether the weight of the cocaine in question was heavier than that of the milk and cornflakes was something that the jury could decide by drawing on their everyday experiences. She submitted that there was no issue of hearsay as there was no challenge against the correctness of the weights printed on the packaging.

23.  Ms Parwani argued that the question relevant for the jury’s consideration was whether it was reasonable for the appellant to believe she was carrying milk and cornflakes, not dangerous drugs. She submitted that the Judge had given fair directions to the jury on all matters concerning this issue.

Discussion

24.  It was initially complained that the Judge had failed to direct the jury that they could not, contrary to the invitation by prosecuting counsel, “experiment to decide” whether the drugs contained in a carton of milk and a box of cornflakes was too heavy to be mistaken for a full carton of milk and a box of cornflakes. Mr Ross referred to various cases in support of his argument that juries should not perform experiments with exhibits.[20] In those cases, the juries appeared to conduct experiments with exhibits in order to resolve a crucial issue at trial. Whilst a jury is entitled to examine and evaluate exhibits, it is not entitled to conduct an experiment with the exhibits which might yield conclusions not based on the evidence at trial.

25.  In his oral submissions, Mr Ross did not pursue this point. Whilst the jury had asked to see the exhibits, he accepted they had not been given the bags of drugs to take with them when considering their verdict and could not have made the comparison as he initially suggested.[21] There was another issue at trial as to whether the carton of milk and the box of cornflakes had been cut open with a knife by the arresting officers and it could have very well been in respect of that issue that the jury requested to see those exhibits.

26.  The weight of the plastic bag was one of a number of matters that the jury were asked to take into account in order to infer that the appellant knew she was carrying a substantial quantity of drugs in the plastic bag. The total weight of the drugs was 1.99 kilogrammes which was packaged in four bags: one concealed in the carton of milk and the remaining three concealed in the box of cornflakes. The appellant’s complaint about this issue raises for consideration (1) what was the actual evidence of the nature and weight of the purported contents in the plastic bag in order to compare them with the fact that they contained a total of 1.99 kilogrammes of cocaine; and (2) was this a matter the jury could employ its common sense and everyday experiences in making this comparison?

27.  There may be occasions when the weight of a bag or similar item with a substantial quantity of dangerous drugs concealed inside is noticeably heavier than one would expect, taking into account its contents, but there must be an evidential foundation for a jury to use its common sense in making such a finding. Take the example of a bag, backpack or suitcase produced as an exhibit which contains several kilogrammes of dangerous drugs. The evidence usually comes in the form of oral testimony or real evidence. The concept of real evidence includes material objects produced for the inspection of the court as an exhibit, and accordingly the court can evaluate and reach conclusions on the basis of its own perception in respect of such exhibit.

28.  The Judge very fairly summed up the evidence and the arguments in respect of the weight of the plastic bag with its purported contents. She reminded the jury that prosecuting counsel submitted, amongst other things, that they should consider that a carton of milk and a box of cornflakes would have weighed much less than 1.99 kilogrammes of drugs in the plastic bag. However, she also reminded the jury that the appellant had testified that she did not find the weight of the plastic bag “strange”.

29.  In drawing the jury’s attention to the arguments for and against the weight of the plastic bag, the Judge noted that prosecuting counsel contended that the weight of the drugs would have been quite obvious, while defence counsel submitted that the weight of the plastic bag was not very heavy and would not ring any alarm bells. She also noted that defence counsel had made the point that the appellant saw ordinary food items in the plastic bag which would not have made her suspicious.

30.  It is apparent from the nature and substance of defence counsel’s closing speech on the issue of the weight of the plastic bag that he was inviting the jury to use their common sense. He accepted that “in the cold hard light of day” a person may appreciate the weight of a bag he or she was carrying, but not in circumstances when the person is given a bag of things which were not overly heavy. He argued that the drugs were not all that heavy, and as they were inside a shopping bag it would not have set off any alarms.

31.  The Judge after comprehensively addressing the issue of the appellant’s knowledge that she was carrying a plastic bag containing drugs, directed the jury to use their common sense and everyday experiences to draw the only reasonable inference from the circumstances. She had reminded the jury that the defence case was that the weight of the plastic bag and other matters were not enough for them to draw an irresistible inference against the appellant.

32.  In this case, as in all cases, the jury were reminded that it was their responsibility to judge the evidence and decide all the relevant facts of the case. They were told to decide the case only on the evidence which had been placed before them and not to speculate about the evidence. They were reminded they were to form their own judgment based on an objective appraisal of the evidence and not be influenced by any emotional or moral views they may have about the case.[22] They were urged to use their experience of life and common sense when evaluating the evidence and drawing inferences.[23] In this regard, it is appropriate to refer to the observations of the High Court of Australia in Doney v R[24], that “… drawing of inferences extends beyond circumstantial evidence because the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.”

33.  The items purportedly in the plastic bag were a litre carton of milk and a box of 340 grammes of cornflakes. We do not consider there was a breach of the hearsay rule as the volume of the milk on the carton and the quantity of cornflakes in the box were descriptions on the packaging, which were not relied on to prove the truth of these assertions: Oei Hengky Wiryo v HKSAR (No 2)[25].

34.  The jury had before it evidence as to the circumstances in which the appellant was carrying the plastic bag and the items inside, which had been produced as exhibits. The items in the bag were real evidence being material objects produced for the inspection of the jury. These are everyday items that ordinary people would be familiar with, and have some appreciation as to what they would weigh, particularly when compared with 2 kilogrammes of drugs. It was a matter for the jury to consider and decide whether the weight of the plastic bag would have been noticeably different in the circumstances, and if so, whether or not that was appreciated by the appellant. Even then the jury would further need to consider the significance they attached to this particular matter.

35.  As fairly summarised and explained by the Judge in her summing-up, the jury had the arguments for and against the weight of the plastic bag, which they were asked by the respective counsel to take into account in deciding this issue. In considering the evidence, the jury were being asked to apply their common sense and everyday experiences to compare the weight of the plastic bag containing a carton of milk and a box of cornflakes with 2 kilogrammes of drugs. No objection was raised by defence counsel that the weight of the plastic bag was not a matter for the jury’s consideration. He rightly accepted it was an evidential issue properly before the jury, to which they could apply their common sense and everyday experiences.

36.  As we have already pointed out, the Judge carefully explained to the jury there task and gave them clear directions as to their assessment and evaluation of the evidence, and cautioned them not to speculate.

Conclusion

37.  For the foregoing reasons, we are satisfied that the issue of the weight of the plastic bag was one of numerous other evidential issues that the jury were rightly asked to consider and resolve, and find no reason to interfere with the appellant’s conviction. The appeal against conviction is dismissed.

Ms Audrey Parwani, SPP of the Department of Justice, for the respondent

Mr Phillip Ross, instructed by L & W Lawyers, assigned by the Director of Legal Aid, for the appellant