HKSAR v. HUANG RUIFANG

CACC 330/2018

[2022] HKCA 108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 330 OF 2018

(ON APPEAL FROM HCCC NO 455 OF 2017)

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	HKSAR	Respondent
	v
	HUANG RUIFANG	Appellant

________________________

Before:  Hon Macrae VP, Zervos and M Poon JJA in Court

Date of Hearing:  21 January 2022

Date of Judgment:  21 January 2022

Date of Reasons for Judgment:  11 February 2022

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REASONS FOR JUDGMENT

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

Introduction

1.  On 6 November 2018, following a trial before Deputy High Court Judge Lugar-Mawson (the judge)  and a jury, the appellant was unanimously convicted of a single count of trafficking in a dangerous drug, namely 6,960 millilitres of a liquid containing 4,770 grammes of cocaine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  The judge sentenced the appellant to 28 years and 4 months’ imprisonment.

2.  With leave granted by a Single Judge,[1] the appellant appeals her conviction on the sole ground that the defence case in relation to a video film in a WeChat message extracted from the appellant’s mobile telephone, depicting the use of slippers to conceal dangerous drugs (the “slippers video”), was not appropriately addressed by the judge in his summing-up to the jury.  It was the defence case that the “slippers video” was a warning video that had been distributed amongst smugglers of contraband.  At her trial, the appellant claimed she dealt in smuggled goods not dangerous drugs.  This ground of appeal essentially complained that the judge had failed to properly put the defence case to the jury.

3.  At the hearing of the appeal, we allowed the appeal, quashed the appellant’s conviction and set aside her sentence.  We also ordered that the appellant be retried on a fresh indictment before another judge.  We indicated that we would hand down the reasons for our decision in due course.  These are our reasons.

The background facts of the case

4.  The appellant is a Chinese female holding a Chinese passport who at the time of the offence was 48 years of age and residing in Brazil.

5.  On 6 April 2017, the appellant took a flight from Sao Paulo, Brazil to Johannesburg, South Africa, arriving there on 7 April 2017.  She then took a further flight to Hong Kong, arriving at 12:25 pm on 8 April 2017.  At about 1:37 pm, she entered the Green Channel at the Customs Arrival Hall of the Airport.  She was seen on CCTV footage pushing a baggage trolley in which there was a purple hand carry bag and two suitcases which were encased in orange plastic wrapping.  She was stopped at customs clearance by a Customs officer, who conducted an X-ray and baggage examination of the two suitcases in her possession.  It was claimed the appellant said to the Customs officer that she was in a hurry, but she denied she made this comment.  Upon the request of the Customs officer, the appellant provided a key to unlock the padlocks on the suitcases.  Each suitcase was filled with dried seafood, mainly fish maw and sea cucumber, two boxes of chocolate and a small number of cans of fruit juice.  There was no clothing in either suitcase.  An ion scanner test of the cans in one of the suitcases proved positive for cocaine.  A narcotic test using drug reagents of the liquid in one of the cans also proved positive for cocaine.  As a result of what had been found, the appellant was arrested and cautioned. 

6.  There were a total of nine cans which contained 6,960 millilitres of a liquid, containing 4,770 grammes of cocaine.  The estimated street value of the cocaine narcotic at the time of the offence was $3,830,310.[2]

7.  After the appellant had been taken into custody, she was briefly interviewed under caution.  She said she was carrying canned food and sea cucumbers for a friend and her destination was Guangzhou.  She explained she was to contact a Mr Lee by telephone on 51580504, who would pick her up from the airport.  She would then hand over to him the baggage with the canned food and sea cucumbers.  She said this had been arranged by a friend in Brazil by the name of “Jing Jie”, whom she had known for 10 odd years, and who gave her $500 in Brazilian currency.[3]

8.  The appellant participated in a video record of interview at 10:26 pm on 8 April 2017.[4] She said she lived in Sao Paulo, Brazil, and that she regularly returned to China to visit her mother.  She said she would transport items for people on these trips.  On this occasion, she was asked by a friend, Ching Tse (also known as Helen Leung)  to bring some items back to Hong Kong for her family members who ran a dried seafood store.  It was noted that she had made several trips in March 2017 and it was queried how she could afford the air ticket.  She said this was the second time she brought goods for friends, the first time being on 31 March 2017.  She said she only brought a few packs of dried fish maw and received $300 odd from Ching Tse for doing so. 

9.  The appellant was then questioned about the present trip on 6 April 2017 and the items found in her possession.  She confirmed that she brought the two suitcases to Hong Kong for Ching Tse, who had arranged for someone to pick them up in Hong Kong.  After this was done, she was intending to go to Guangzhou by vehicle.  She described her relationship with Ching Tse and the arrangements she made with her in bringing the two suitcases to Hong Kong.  She said she checked the items in the suitcases.  She was told by Ching Tse that there were a few additional cans of things which were for Ching Tse’s nephews.  She said she looked at the cans and there was no trace that they had been opened.  She explained that she would use her own suitcases to make sure that nothing was hidden inside them.  She went to a hotel where the items were given to her to put into her suitcases.

10.  The appellant was then questioned about her WeChat messages with Ching Tse concerning the arrangements for the present trip.  As she did not have cans on the last trip she made for Ching Tse, she queried her about them.  Ching Tse told her it was nothing but “Ah Sai Yi” water and to have a look at them.  The appellant checked them and saw that they were intact with no sign that they had been opened.  She was questioned why the cans had alphabetical letters on them but she explained she did not pay attention to them and did not know what that meant.  She said she was not suspicious.  She confirmed she was to be paid 500 Brazilian currency for taking the items for Ching Tse.  She said that Ching Tse had given her telephone number of a Mr Lee, which was 51580504, and that she was to call him after she had exited immigration control. 

11.  The appellant was asked if she would cooperate in a controlled delivery to Mr Lee and she agreed to do so.  She asserted she was innocent, and at the time she was stopped she thought it was just a normal inspection.  She confirmed that she made several calls to Mr Lee but failed to reach him.  She had several voice messages with Ching Tse who told her that Mr Lee may be parked somewhere at the Regal Hotel.  She said she began to worry because of the relatively large quantity of dried seafood she had brought which could have been taxed or confiscated.

12.  The appellant was asked about her messages with another person by the name of Rosa Lau, who was a friend in Brazil (Rosa Lau Yan-yi was DW2 at trial).  She explained that Rosa knew she was carrying things for Ching Tse and they discussed the appellant bringing back counterfeit sports clothes to Brazil.  In their conversations with each other, she explained they used certain expressions, such as “gambling if overweight” and “mess up once” because of overweight luggage and the risk of the goods being confiscated. 

13.  The appellant reiterated that many people had asked her to bring things for them but did not imagine that anything like this would happen with Ching Tse.  She was queried about Rosa’s message telling her to have a pleasant journey and “may everything go smoothly”.  She said Rosa knew she was bringing things for Ching Tse and because of the quantity of items involved she was worried.  She was told by Ching Tse that it would be okay in Hong Kong and there was nothing illegal.  When asked if she had previously seen dangerous drugs in liquid form she said she had not and that she would not have brought them if she knew what they were.

14.  When the appellant was formally charged, she said, “I do not know what I brought was cocaine.  But I really do not know.  I was framed by someone.”[5]

15.  It was an admitted fact that the interview had been recorded accurately and that exhibit P57 was a table listing the WeChat text and voice messages shown and played to the appellant during the interview.  As noted by the judge, the messages in question were found on the appellant’s mobile telephone and were mirrored in the defence schedule of WeChat messages, which were produced as exhibit D6, consisting of transcripts of all of the WeChat messages for the period from 3 March to 8 April 2017.  The defence exhibit gave a more complete and contextual account of the conversations that took place between the relevant parties.

The summing-up of the case

16.  Having directed the jury as to the elements of the offence, the judge went on to address the evidence and the issues.  He referred the jury to the appellant’s out-of-court statements and briefly summarised the statements she had made in her video record of interview.  He reminded the jury of the appellant’s claim that she was unaware that there were dangerous drugs in the nine cans, and then went on to describe the incorrect statements that she made in her video record of interview as stressed by the prosecution.  These mainly concern peripheral matters, such as how much money, if any, she owed to Rosa Lau; the fee she received from Ching Tse for the trips; the number of trips involved; and the circumstances in which the goods were passed to her in the lobby of the hotel.  He noted that the prosecution alleged that the statements were lies and accordingly gave a lies direction to the jury. 

17.  We note at this stage that the judge mainly focused on the alleged lies as contained in the video record of interview without reflecting the statements she made that were consistent with the defence case.  Although it has to be said, defence counsel accepted that what the appellant had said were lies as they were inconsistent with what was said in the WeChat messages.  The judge also emphasised that it was an essential part of the appellant’s case that the jury see the entirety of the WeChat messages from 3 March to 8 April 2017.[6]

18.  The jury were told that the only issue in the case was whether the prosecution had proven beyond a reasonable doubt that the appellant knew dangerous drugs were in the nine cans. 

19.  The judge set out the prosecution case, reminding the jury of the events that took place when she arrived in Hong Kong on 7 April 2017, including the finding of the drugs and the arrest and caution of the appellant as well as her out-of-court statements.[7]

20.  The judge next set out the defence case, which was mainly a description of the appellant’s evidence followed by the points made against her in cross-examination.[8]  He noted that the appellant testified that she moved to Sao Paulo with her husband in 1996 and ran her own business selling artificial jewellery.  She divorced her husband because he was a drug addict and gave up her business in 2015.  She then worked in other people’s shops and sold MTR and telephone cards for her friend, Rosa Lau.  She said that since March 2017 she had been engaged in smuggling fish maw and other seafood products to Hong Kong via South Africa before going on to China and smuggling counterfeit goods and other items back to Brazil.  

21.  On 5 March 2017, she and a friend, Ah Ling, had taken fish maw to Hong Kong and plastic Melissa brand and H brand slippers to China via Hong Kong and brought back fake jumpers and trainers, and some bottles of shampoo.  On arrival back in Brazil, she and Ah Ling had been stopped by the Brazilian Customs and those goods were confiscated.

22.  On another occasion on 19 March 2017, she had taken a quantity of fish maws to Hong Kong, travelling via South Africa before going to China to see her mother and younger sister.  The fish maw belonged to her friend, Ching Tse (Helen Leung), whom she had known in Brazil.  At the time, both legs of the journey were uneventful and she had not been stopped for customs examination.  She said the fish maw were packed into her suitcase in a coffee shop of the lobby of the Man Lee Hotel in Sao Paulo and Ching Tse had brought it there.  She explained that the fish maws had been collected in a carpark at the Hong Kong Airport by a man sent by a Mr Chan.  Mr Chan’s name and telephone number had been given to her by Ching Tse in Sao Paulo as the contact person in Hong Kong.  After she handed the items over she went to see her mother in the Mainland.  She said that Ching Tse paid her 3000 Brazilian Real as a consignment fee for the journey as well as US$100 to buy two new suitcases.  She arrived back in Sao Paulo on 1 April 2017, again via Hong Kong and South Africa, bringing back with her some fake clothing, some cigarettes and a stove for another person.[9]  In describing the defence case, the judge put it this way to the jury:

“Now, ladies and gentlemen, the defendant wanted you to know this. She wanted you to know that she was a low level smuggler of fish maws. As far as I am aware, and I stand to be corrected, you can bring as many fish maws into Hong Kong as you want. And she wanted you to know that she was a low level smuggler of counterfeit goods for others and she wanted you to know that because it is consistent with her evidence that on 8 April last year, 2017, when she brought those nine cans into Hong Kong along with a large quantity of dried seafood and four boxes of chocolate in her two suitcases, that she was unaware that a dangerous drug, cocaine, was in the cans.”[10]

23.  The judge continued with his summary of the appellant’s evidence and turned to the arrangements she made with Ching Tse to bring the two suitcases to Hong Kong and how she was told by Ching Tse that the cans contained Acai water, which she checked and saw were sealed.  He also referred to her evidence as to how she had unsuccessfully tried to telephone Mr Lee and the contact she had with Ching Tse via WeChat.  He told the jury that they could find the transcripts of the WeChat messages at the particular pages in Exhibit D6.  He finally reminded the jury of her account as to what happened when she collected her luggage and was taken by Customs officers to have her luggage inspected. 

“‘So I contacted Ching Tse via WeChat. Why is it not possible to contact Mr Li? She replied, “Just go outside and wait for him.” She couldn’t remember if the number was correct. She would ask Mr Li to contact me. I collected the luggage at the belt. Ching Tse contacted me. Had I got the luggage? I was the last person to get luggage. I enquired of the counter staff where it was. They said it was probably going through random examination downstairs.’

  Now, can I just pause there to say, ladies and gentlemen, there is no evidence whatsoever in this trial that the defendant’s two suitcases were examined before they were loaded onto the luggage belt.  The only evidence you have heard of examination is that conducted by Customs Officer Lee.

  She went on to say, ‘I waited at the belt.  Ching Tse sent me a WeChat comforting me.  “Don’t worry.  Wait for Mr Li in the lobby”.  I waited for quite some time.  Then I saw my two pieces come out.  I put them on the trolley and pushed them to the Customs control point.  It was the Green Channel.  I was intercepted by a Customs Officer, a man.  He told me to produce my identity document.  I took out my document and gave it to him.  He spoke in Punti.  He said, ‘We have to carry out inspection.’  I was told to push the trolley into the room.  It’s all on the CCTV.  I told the Customs Officers the cans were a Brazilian speciality, a kind of fruit juice.  He said, ‘So many of them.’  He was speaking of the seafood.  And I don’t remember what else was said.’ So that is what she said in her evidence-in-chief.”[11]

24.  We will come back to this part of the judge’s summing-up later in the judgment, but it is important to note two things at this stage.  First, he remarked there was no evidence whatsoever to support the appellant’s contention that she had been told by counter staff that her luggage was being checked before collection.  Secondly, he emphasised to the jury what had been said by the appellant and Ching Tse at the relevant time without putting a complete picture of what was actually said, which was arguably favourable to the appellant as well as a key aspect of the defence case.

25.  The judge continued by focusing on the cross-examination of the appellant and the challenge to her evidence about the cans and their contents.[12]  He interposed this part of the summary with a reference to the message the appellant had with Dicky, where Dicky said that people will play bad tricks by getting someone to bring drugs or prohibited items and her reply that the most important thing was reliability.  However, the exhibit records that the purported reply from her was in fact a message received from Dicky.  The message she actually sent appears to be a reference to Ching Tse and to an arrangement for the appellant to examine the goods and take her own suitcases when transporting goods for her.  The appellant and Dicky seemed to be concerned about goods being in powder form.  It was after she sent her message that Dicky sent her the “slippers video”.[13] 

26.  The judge went on to summarise in some detail the cross-examination of the appellant followed by a selection of the questions and answers given in the appellant’s video record of interview.  The matters mentioned all went to suggest that the appellant knew that she had packaged cans that contained a dangerous drug.[14]

27.  The judge referred to the “slippers video” but without putting the defence case that it was a warning circulated amongst contraband smugglers.  He said:

“I want to deal with one or two of the WeChats. The first one relates to that little film clip you have seen which shows somebody breaking open a pair of slippers and it is the conversation the defendant had with the man called ‘Daan Fan’. Now, we find the Daan Fan WeChats, they are very short and they are in Chinese transcript of page 63 and in the English translation a page 136. Apart from the video, they are all text messages.

So we have the video sent to Daan Fan on 30 March, that is while the defendant is in China, at 11:26 am. Then we have a text from her at 12:31 pm, ‘I am not referring to you, but there are always some people.’ Daan Fan replies, 9:43 pm is the timing, ‘This shows Brazilians wearing slippers to for drug-trafficking.’ And he continues, ‘But you guys do need to pay attention. We won’t do this. We do business in a disciplined way.’ And the defendant replies at 9:49 pm, again by text, ‘Only to remind each of us we both should be careful.’

She was questioned about this in cross-examination. Mr Hui said, ‘“I’m not referring to you,” what do you mean?’ And again, I have it down as a record of some confusion in her answer, but she then replied, ‘I’m saying it to Daan Fan.’ Mr Hui said, ‘doing what?’ She said, ‘to make use of shoes to traffic in dangerous drugs.’ Mr Hui said, ‘“There are always some people”, what did you mean?’ Her answer, ‘There were people doing this.’ He said in reply, ‘it was Brazilians trafficking in such a way.’ Mr Hui continued, ‘“Only to remind us both that we should be careful’, careful of what?” And her answer was, ‘To be careful of people who traffic drugs in shoes.’

I asked her a question, ‘Why did you send that video?’ ‘Because I was carrying slippers for Daan Fan and it was to hint to him that we should be careful. As couriers, we would circulate it amongst ourselves. Most important of all, the goods were his.’ And Mr Hui asked her a question after I had asked questions, ‘Why did you need to hint to Daan Fan?’ ‘Because someone sent me the clip and there was no need to ask him.’ Mr Hui, ‘So you did not confront him?’ ‘I know him. I just sent it to him. He subsequently told me that these type of shoes were worn by Brazilians, not Chinese.’ ‘Why did you need to hint?’ ‘How could I possibly ask him? I had no proof. I was still in China. I wanted to find out what his response was.’

Mr Cheung asked her, ‘Did you receive the clip from Gigi?’ And referred you to a WeChat at page 53 in Chinese transcription, 125 in translation, and she said ‘Yes.’ Mr Cheung asked, ‘What did you do with it?’ And she said, ‘I sent it to my friends, to Dickie, to Rosa, to Jason and to Ah Sa.’ So that is what she had to say about the Daan Fan WeChat.

Then we come on to the WeChats with Rosa Lui. If we can just look at the Rosa Lui transcripts. The Chinese, page 44, ladies and gentlemen, and English, 137, 138.

Mr Hui said, ‘Did you send these?’ She said, ‘Yes.’ ‘“Walking a tightrope”, what did you mean?’ She said, ‘On one occasion it was confiscated. I considered it not worth it and very dangerous. I was telling Ah Yu I could not make money. I was thinking of not doing this.’ ‘When did you send out this message?’ ‘It should be the 5^th.’ It says 6 April, Brazil time is 11 hours behind Hong Kong time. ‘I don’t recall when I sent this on WeChat. I’m not sure.’ Mr Hui said, ‘On 5 April, had you bought your air ticket to Hong Kong?’ And she said, ‘Yes.’ And he said, ‘And you made your arrangement with Helen – Ching Tse, to bring fish maws to Hong Kong.’ ‘Yes.’ Mr Hui said, ‘Is it the case that this message relates to that trip?’ And she said, ‘No.’”[15]

28.  When the WeChat messages are viewed as a whole, it was open to the jury to find that the “slippers video” was a warning between contraband smugglers.  Whether that was accepted to be the case or, as put by the prosecution, it in fact evidenced that the appellant was trafficking in dangerous drugs, was a matter for the jury.  However, the defence case was not articulated by the judge.  Even the manner in which the WeChat messages with Rosa Lau was dealt with by the judge did not properly reflect their communications with each other and fairly put the defence case.

29.  The appellant called Rosa Lau as DW2, who had come from Brazil to testify on her behalf.  She testified that she and the appellant had both worked as couriers of goods.  She had introduced Daan Fan to the appellant, for whom the appellant would bring back slippers to China, and they had exchanged the warning video about drugs being concealed in slippers. She also gave evidence about a loan to the appellant.  At this stage, it is appropriate to note the summary of her evidence by the judge as we will come back to it later in the judgment.  After briefly referring to Rosa Lau’s reference in a WeChat message about “Walking a tightrope,” which she explained in cross-examination concerned occasions when the goods may be confiscated, the judge said:

“Then we come to the question of the evidence of Rosa herself. Now, Rosa Lui told you that she had made a loan to the defendant of 2,000 Brazilian Real and she went on to say that that had only been repaid recently by the defendant’s family in Brazil. Recall in the video recorded interview the defendant said there was no such loan from Rosa. She spoke nothing about the loan.

Rosa said that the defendant is not a smuggler. Given the defendant’s own evidence, you must ask yourself this, can that claim be credible? Rosa was aware that the defendant brought counterfeit goods back to Brazil.

However, Rosa was not present when Ching Tse gave the defendant the 9 cans and the defendant packed those nine cans into her two suitcases at the Man Lee Hotel on the evening of 6 April last year.

As she was not present, Rosa can say nothing about what was said by Ching Tse or by the defendant on that occasion, or what, if anything the defendant did with the cans whether she inspected them or not. And she can say nothing of the thoroughness of her inspection, if there was one.

And neither was Rosa with the defendant in the car on the way to Sao Paulo Airport. And neither was Rosa with the defendant at the airport before she boarded the plane to Johannesburg.

Now, it is a matter for you, it is a matter Mr Hui addressed you on, you may consider that Rosa’s evidence is of little help, indeed you may even consider it to be irrelevant. It is an entirely a matter for you.”[16]

30.  We note that there was no mention of Rosa’s evidence about how she and the appellant worked as couriers and that they exchanged the “slippers video” because of concern the goods they were carrying may conceal dangerous drugs.  Indeed, the judge by his remarks was in effect urging the jury to consider disregarding her evidence.

31.  The judge later in his summing-up returned to the subject of the WeChat messages and told the jury:

“I want to make the point that the WeChats show that the defendant was aware of the danger of smuggled goods containing concealed drugs. And you can see that at the WeChats, the text messages with Daan Fan, at the transcript, page 63 and page 136 in the translation.

These were sent to Daan Fan while the defendant was in China, away on the second journey, which was between 19 March to 1 April. And you can see that she received that clip showing the drugs in the slipper from a woman called Gigi. And you can find that in the WeChat at the transcript, page 52, page 125 in translation.

Then there are the points that Mr Cheung made in his closing address, both today and yesterday. He says the defendant relies on the whole of the WeChats to show the whole picture. And he asked you not just to cherry-pick these WeChats and rely on one or two. He asked you to look at them in the round, in the whole.”[17]

32.  In his concluding remarks, the judge said:

“I agree with Mr Cheung that a great part of the WeChats, particularly those with Ching Tse and Rosa, and with Dicky, concern fish maws; concern their quality and their weight and how to pack them.

I should make the point, however, the fact that there was conversation in the WeChats about fish maws and indeed that fish maws were concealed in the suitcases when the Customs examined on 8 April is not inconsistent with the defendant also being concerned in smuggling or bringing dangerous drugs into Hong Kong knowingly. She could have been dealing both in fish maws and in dangerous drugs. That is entirely a matter for you.

But what I must stress, and it is a point that Mr Cheung made, is that nowhere in the WeChats between the defendant and the woman, Ching Tse, is there any mention of drugs or anything that could be referable to drugs.

Mr Cheung made a very valid point that all the WeChat conversations were found on her mobile phone and none have been deleted or erased. He asked rhetorically had the defendant been knowingly engaged in drug smuggling, would she have left such a very clear evidence trail.

He points out to you that suspicion is not enough. And I agree with him on that.”[18]

Discussion

33.  As stated by the Court of Final Appeal in Tang Siu Man v HKSAR (No 2) (1997-1998)  1 HKFCAR 107, when it comes to the summing-up, the fundamental rule is that this must be fair and balanced, so that the jury can properly weigh up the true issues.[19] 

34.  A summing-up should be tailored to the particular circumstances of the case and should include a reference to the way the parties have put their case in relation to the material issues.  It must not only be fair and balanced, but also accurate.  A judge should be careful not to misrepresent the evidence in any way, or use language that may cause the jury to think they are being directed to find the facts in a particular way.  When it comes to putting the defence case to the jury, a judge should appropriately refer to any items of evidence necessary to understand the defence case.  However, it does not oblige a judge to put to the jury every argument or point advanced by a defendant, as long as the defence case is put fairly and properly.  As a matter of course, a judge should be careful not to make disparaging or adverse comments when explaining the defence case.  If a judge fails to present the defence case fairly and properly this will result in a miscarriage of justice. 

35.  These principles are essentially premised on the different constitutional functions of the judge and the jury. As juries are constantly reminded by trial judges, it is their responsibility to judge the evidence and decide all the relevant facts of the case.  Whilst a judge may make comments about the evidence or the cases put before the jury, they must be fair and appropriate, and of course balanced to ensure that the jury is not deprived of an adequate opportunity of understanding or giving effect to the defence case and the matters relied upon in support of it. 

36.  The essence of the complaint by Mr Andrew Raffell, for the appellant, is that the judge gave no directions to the jury on how they should consider and evaluate the video film evidence in the unusual factual circumstances of this case and hence the defence case was not fairly and properly put to the jury. 

37.  Mr Raffell made the point that the cocaine in the sealed cans was in liquid form rather than in its usual form of powder. The drugs were therefore not ordinarily observable or detectable.  He submitted that from an overall assessment of the WeChat messages, it was clear that the appellant was engaging in conversation with friends who were involved in the international courier business and that the “slippers video” was a warning they were spreading amongst themselves about how drug traffickers would hide drugs in, for example, consignments of slippers.

38.  Mr Raffell noted that the appellant had all along denied any knowledge of the drugs in her luggage and when she gave evidence she testified that she had shaken the cans to satisfy herself that it contained only liquid.  He submitted that this evidenced that the appellant associated cocaine only with a powder and had no reason to believe it could be in liquid form.  He argued that this was not addressed at all in the appellant’s trial.

39.  Mr Raffell also argued that it was incumbent upon the judge to give a full and balanced direction to assist the jury in their assessment of the WeChat messages, particularly in respect of the “slippers video”.  He complained that the judge should have told the jury how they were to assess the “slippers video” in the context of the unusual facts of this case, drawing the jury’s attention to the fact that it concerned cocaine in powder form, with no reference in any of the messages to cocaine in liquid form.  He submitted that the judge should have directed the jury as to the difference between powder and liquid form cocaine, which was a major and important difference between the warning received by the appellant and the facts of the prosecution case.  He also submitted that the judge should have emphasised with the jury the favourable interpretation that the “slippers video” provided the appellant; that she was concerned about how it was possible to be unwittingly used by drug traffickers and how to take care in trying to avoid being exploited in this way.

40.  We have already referred to the judge’s summary of Rosa Lau’s evidence, which did not encapsulate her testimony about how she and the appellant had in the past worked as couriers of goods and had exchanged between them the “slippers video”.  We have also viewed the full body of the WeChat messages, which disclosed numerous messages between a group of people who obviously act as couriers of goods, discussing the types of goods that they are to carry, and making or confirming arrangements to transport certain goods.  There was also the exchange between them of the “slippers video” and discussions to be careful of drugs being concealed in the goods they were transporting. 

41.  The judge made a number of references to the WeChat messages but an examination of the defence exhibit of all the messages during this period revealed a very different story to the one portrayed in the summing-up.  However, the judge was not greatly assisted by the way defence counsel presented and emphasised the WeChat messages and so their true import was not appropriately summed up to the jury.

42.  Exhibit D6 was a table of WeChat communications between the appellant and several of her associates, all of whom appear to have also been in the business of transporting goods.  These messages reveal the participants were concerned about making the business of transporting goods more profitable, but also showed they were aware of the risk of being duped into being used as drug couriers.  The “slippers video” was also circulated amongst them, with a view to warning each other of being used to smuggle drugs.

43.  In early March 2017, the messages between the appellant and Ching Tse indicated there was an earlier trip that appeared to be a trial as they had not yet worked together.[20]  The appellant seemed anxious to have Ching Tse’s associates pick her up at the airport in Hong Kong as she would have a suitcase filled with shoes that would be difficult to carry.  To avoid any difficulties, the appellant said to Ching Tse that in the future she would solely work for her and would not accept orders from others.[21]  Ching Tse convinced the appellant that the suitcases must be wrapped in plastic packaging because, if they were not, then the fish maws would absorb water and become difficult to sell.[22]

44.  Ching Tse messaged the appellant warning her “my only request is that you must be tight-lipped.  Whoever it may be, don’t you tell others about bringing goods for me or the type of good to be brought … don’t you ever say that (you)  bring (goods)  for me or that it dried fish maw to be brought because many people know that I deal with dried fish maw.  This is to avoid, that is, too many gossips”.[23]  Throughout March 2017, Ching Tse continued to give instructions to the appellant in respect of her trip to Hong Kong on 6 April 2017.

45.  As already noted, Rosa Lau was a close friend of the appellant, who also worked as a courier of goods or contraband, such as fake bags.  She stopped doing this work and operated a restaurant in Brazil instead.  She had introduced Daan Fan to the appellant, for whom the appellant would bring back slippers to China.  She did the same.  She received the “slippers video” from the appellant who was warned about the slippers they received.  A record of their voice messages during this period revealed that they discussed transporting a variety of different goods, such as shampoo, gold earrings, cigarettes, fish maws, and shoes. They discussed the use of a bigger suitcase to take larger and more items. They also discussed the lack of profit that could be made transporting fake hand bags.[24]

46.  Rosa Lau messaged the appellant on 3 March 2017 cautioning her against bringing too many shoes into Hong Kong and the appellant explained that she already weighed four packs of shoes so as to not exceed the luggage allowance of some 60 kilograms.[25] There are messages between them discussing how profit will be decreased if the bags are too heavy because of having to pay excess baggage allowance.[26]

47.  There is a message of some significance, on 13 March 2017, when the appellant messaged Rosa Lau explaining how she thought it strange that Ching Tse had told her not to tell anybody about what she was doing, “Ah Ching Tse, she, is really very strange.  All along she kept on instructing me, asking me not to tell anybody.  What is it all about? Well, I’ve told you and I haven’t told others.  I just can’t figure it out. She’s got two cartons, two cartons of fish maw to (send)  back to Hong Kong.”[27] It was mentioned that Ching Tse was giving the appellant two cartons of fish maw to deliver on 19 March, to which she said, “Externally I tell the (others)  that she’s dealing with fish maw.  I don’t know what she’s up to, acting such a mysterious way.”[28]  We might observe that it is not the sort of communication you would expect from someone who is knowingly involved in trafficking in a dangerous drug for another.

48.  On April 6 2017, the appellant had a number of exchanges Rosa Lau in which they discussed carrying goods for others, such as clothes and shoes.  There is an odd message from Rosa Lau in which she mentioned the weight of the goods was like gambling, although it seemed to be in the context of “jerseys”.  The appellant responded by saying that there were some miscellaneous items together with shoes and jerseys.  Rosa Lau then added that two boxes full of clothes and shoes were “okay” and that “if you are checked (either)  all will be gone, (or)  if you are not all will go smoothly.”  They continued their discussion about the risk of being caught and not having the goods confiscated.[29]  Rosa Lau then messaged the appellant asking her to find out from Ching Tse, if “for next time, there are four boxes of goods?  (For)  two persons to carry?  If so I will come back”.[30]  The appellant replied, “OK, (I)  ask her to see how it is first”.[31]  

49.  There are also messages with Dicky, who was another courier of goods.  The appellant and Dicky discussed the viability of smuggling fish maws.  Dicky said, in one message, that he would like to meet Ching Tse, to see whether or not he recognised her.  He also wanted to make sure there was nothing illegal that was put inside the goods[32] and even warned the appellant that there are people in Hong Kong who may seek to smuggle drugs through couriers.[33]  It was not long after that that Dicky sent the “slippers video” to the appellant.

50.  We should add that there are some messages that could be viewed unfavourably against the appellant in that they may be interpreted as suggesting that she was doing something far more illicit than transporting parallel or counterfeit goods.  However, the vast majority of the messages seem to reflect a natural exchange between persons involved in transporting parallel or counterfeit goods.  This was an essential part of the defence case.

51.  The issue at trial was whether the appellant knew there was liquid cocaine in the nine cans that she was transporting or whether she was a courier of goods who was deceived into transporting the nine cans.  We concluded that the judge’s summing-up did not fully and properly put the defence case to the jury.  A crucial aspect of the appellant’s case at trial was that she was a courier of goods who had transported goods and contraband for others on trips between China and Brazil.  She maintained that she had no knowledge of the liquid cocaine in the sealed cans that she was transporting for Ching Tse.  The defence case relied heavily on her WeChat messages which could be interpreted as supporting her case that she acted as a courier of goods and contraband but not of dangerous drugs.  The defence case relied on the general messages with the other couriers to confirm her occupation as a courier of goods and contraband, and the specific messages with Ching Tse and Rosa Lau to show that she believed she was only transporting dried seafood and fruit juice in the cans, not knowing that the cans contained liquid cocaine.  Unfortunately, the defence case was not articulated to the jury in these terms either generally or specifically.

52.  It was only in the context of setting out the prosecution case against the appellant that the judge referred to the “slippers video”, in order to show she was aware of the risk that she could be transporting dangerous drugs.[34]

53.  We also found that certain comments made by the judge about the evidence were not entirely correct and may have worked to the detriment of the appellant.  To take one example, the judge quoted the appellant’s evidence that she was the last person to get her luggage and after she made an enquiry with counter staff she was told that “it was probably going through random examination downstairs.”  The judge immediately told the jury there was “no evidence whatsoever in this trial that the defendant’s two suitcases were examined before they were loaded onto the luggage belt.”[35]

54.  The significance of this evidence is that if the appellant had been alerted to the fact that her luggage was being checked, knowing that it contained dangerous drugs, her reaction may have been entirely different to proceeding normally to collect her luggage and take it through customs clearance.  It was a point that could be made in the appellant’s favour.

55.  There was in fact evidence supporting the appellant’s contention in the contemporaneous text messages she had with Ching Tse.  At 1:32 pm on 8 April 2017, she is recorded saying to Ching Tse, “I still haven’t collected the luggage yet, I’ve asked those female, she said that probably luggage would undergo random checks.  There shouldn’t be any problem, right?”  She repeated the message saying she was still waiting for the luggage to come out and that she had asked people working there who told her that random checks would be conducted.  These were messages at the time before the appellant was arrested, which in the circumstances provided evidence that the defence could legitimately rely upon.

56.  The judge later in the summing-up repeated his comment that there was no evidence that any luggage was checked before the Customs officers examined it, but this time he added, “You have only the defendant’s word, in evidence, and also on the WeChat in speaking to Helen - Ching Tse, that she had been told that there may have been or may be a random check.”[36] However, this did not accurately reflect the state of the evidence on this matter.

57.  When the appellant testified about this matter, she stated that she had to wait for her luggage and after making an enquiry with counter staff she was told that it was probably undergoing a random examination downstairs.[37] This evidence was not challenged in cross-examination.  There was also CCTV footage of the appellant waiting for her luggage.  We were of the view that the judge was inappropriately dismissive of this issue and of the evidence that the defence relied upon to show that the appellant did not know there were drugs in the sealed cans.  It was a point that was firmly advanced by defence counsel in his closing speech to the jury.[38] 

58.  On the whole, the judge failed to summarise the defence case and hence the material issues raised by the defence were not put to the jury for its consideration.  Accordingly, what was said by the judge fell short of putting the defence case properly to the jury.  This resulted in a miscarriage of justice and we found this ground was made out.

Conclusion

59.  For the foregoing reasons, we allowed the appeal.  We quashed the conviction and set aside the sentence.  We also ordered that the appellant be retried on a fresh indictment before another judge. 

(Andrew Macrae)	(Kevin Zervos)	(Maggie Poon)
Vice President	Justice of Appeal	Justice of Appeal

Mr Prakash L Daryanani, SPP, of the Department of Justice, for the respondent

Mr Andrew Raffell, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the appellant