HKSAR v. MUKASERA ESTINA

CACC 38/2021

[2024] HKCA 106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2021

(ON APPEAL FROM HCCC NO. 302 OF 2019)

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REASONS FOR JUDGMENT

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

Background

1.  The appellant was convicted of one count of trafficking in a dangerous drug[1], namely 2,091 grammes of a crystalline solid containing 1,393 grammes of methamphetamine hydrochloride (commonly known as “Ice”), following her trial before Andrew Chan J (“the Judge”) and a jury on 1 February 2021. Upon conviction, the Judge sentenced the appellant to 24 years’ imprisonment on 11 February 2021.

2.  The appellant filed a notice to appeal against her conviction and sentence on 18 February 2021, which was dealt with on the papers. While leave was granted on Grounds 1, 2 and 3 in relation to conviction, her application for leave to appeal against sentence was refused[2]. Before us, Mr DavidBoyton, for the appellant, only relied on the grounds in respect of which leave was granted. He did not seek to renew any of the grounds on which leave had been refused. Nor did the appellant seek to renew her application for leave to appeal against sentence.

3.  At the conclusion of the hearing, we dismissed the appeal, saying that we would hand down our reasons in due course, which we now do.

The prosecution case

4.  The appellant is from Malawi. She flew from Malawi to Kenya on 27 July 2018. After missing her scheduled flight to Dubai, she eventually left Kenya on 2 August 2018, with a connecting flight from Dubai to Hong Kong. The appellant arrived at Hong Kong airport on 3 August 2018. She walked through the “nothing to declare” channel but was intercepted for a baggage search by Customs officers. As a result, three boxes of chocolates containing the Ice particularised in the indictment, with a street value of about HK$1.1 million, were found in her backpack.

5.  After her arrest and during the preliminary enquiry, the appellant told the officer that she came to Hong Kong for seven days for sightseeing and would stay in a hotel, the name of which she had forgotten. She also stated that she had bought the chocolates in a supermarket in Kenya at US$150 as a gift for her fiancé. However, in a subsequent video-recorded interview (“VRI”), the appellant said that the chocolates were given to her in Kenya by her fiancé’s brother, Frank, as a gift for her fiancé. She further corrected her answer in the preliminary enquiry and said that she came to Hong Kong to meet her fiancé. According to the appellant, her fiancé, who was Kenyan, was in London at that time. She spelt his name as “Emmueal Phiri Banda”.

6.  Amongst the appellant’s personal property were two Hong Kong hotel booking confirmations. One was from “Canadian Hostel”, which showed that a single room had been reserved for “Mrs Mukasera Estina” between 3 August 2018 and 8 August 2018 for one guest. Another was from “Sea View Hotel”, which showed that a double bed room had been reserved for “Banda Phiri” between 3 August 2018 and 9 August 2018 for one guest.

7.  At trial, some WhatsApp messages, one photographic image and six Facebook messages, which were retrieved from the appellant’s mobile telephone, were put before the jury. The photographic image was of a hotel receipt dated 27 July 2018 purportedly issued by Smart Hotel to “Miss Mukasera Estina and Mr Banda Phiri” for HK$500 (the “Smart Hotel Receipt”).

8.  When the interviewing officer (PW3) testified, he was asked about the investigation conducted by Customs and Excise officers and he said that: (1) the Smart Hotel Receipt was a false receipt as no one in the names stated had checked into the hotel in July 2018; (2) the bookings with the Canadian Hostel and Sea View Hotel were valid; and (3) no passenger flying to Hong Kong from Dubai or London on 3 and 4 August matched the name of the fiancé given by the appellant.

The defence case

9.  The appellant elected not to testify. She relied on the explanations given in her VRI and called a psychiatrist as well as a clinical psychologist to suggest that she is a person of low intelligence, which made her easy prey for drug syndicates.

10.  The defence case was that the three boxes of chocolates were placed inside the appellant’s backpack by Frank and the appellant was asked to take the drugs to Hong Kong on the pretext that they were chocolates for her fiancé. In short, the appellant claimed that she was a victim of the drug syndicate and had been duped or tricked into this drug delivery.

Grounds of appeal

11.  The grounds in respect of which leave was granted are:

(1)  The Judge erred by directing the jury to use inadmissible hearsay evidence to infer the appellant’s guilt;

(2)  The Judge erred by directing the jury to use the appellant’s alleged out-of-court lies to infer her knowledge of the dangerous drugs and, in turn, her guilt; and

(3)  The Judge erred by directing the jury to use inadmissible hearsay evidence from the Customs officer (PW3) to the disadvantage of the appellant.

Parties’ submissions

Ground 1 (place of origin)

12.  Ground 1 complains that the judge wrongly directed the jury as to the place of origin of the chocolates based on the label “Made in China” printed on the boxes. The impugned direction reads:

“Members of the jury, you may have already noticed that the big heart plastic box and the two paper boxes of chocolates, these chocolates were made in China and in Egypt. Have a look at the boxes, all right? Well, I do not think both countries are famous for producing chocolates, right, so you know, use your common sense. You may -- you may want to buy, I do not know, Swiss chocolates, Belgium chocolates, but Chinese chocolates made in Guangzhou? Right? The defendant was heading -- the defendant was heading to Hong Kong, part of China, and the logical -- the logical question that you may wish to ask yourself is why would one bring Chinese chocolates from Kenya and carry them to Hong Kong that is China?”[3]

13.  Mr Boyton submitted that given this direction, there was a real danger the jury might accept that the chocolates were in fact made in China and used it as a primary fact to draw the adverse inference that the appellant knew she was carrying dangerous drugs.

14.  Relying on Patel v Comptroller of Customs[4]and Comptroller of Customs v Western Lectric Co Ltd[5], Mr Boyton submitted that printed words on the packaging of a product could not be used to prove the place of origin. He also sought to distinguish the present case from HKSAR v Brucis Kristaps[6]as the appellant had elected not to testify. Further, Mr Boyton submitted that as prosecuting counsel did not raise the matter and it was the Judge who mentioned it in the summing-up, the appellant was taken by surprise and was unfairly deprived of the opportunity to offer an explanation.

15.  Ms Claudia Ng, on behalf of the respondent, contended that the Judge and the jury were entitled to examine physical exhibits and they would be able to observe the “purported” countries of origin as printed on the boxes of chocolates. The Judge only invited the jury to consider whether a person in Kenya would purchase chocolates “purportedly” made in China and bring them all the way to Hong Kong. Essentially, it was a question of the application of common sense. Ms Ng also pointed out that defence counsel, in his closing address, similarly relied on the weight printed on the boxes to advance the argument that there was nothing suspicious about the weight of the chocolates[7]. In the circumstances, the Judge’s comment did not offend the hearsay rule[8].

Ground 2 (lies)

16.  Ground 2 avers that the Judge should not have referred to the appellant’s “lies” - the inconsistent statements made by the appellant in the preliminary enquiry and the VRI.

17.  Mr Boyton suggested that, without a proper direction, the jury might have equated such “lies” with guilt, which amounted to a material irregularity: see HKSAR v Bian Zhenju[9] and Yuen Kwai Choi v HKSAR[10]. Mr Boyton’s specific complaints are that the Judge had wrongly highlighted the following:

(1)  the appellant’s inconsistent answers as to who purchased the chocolates in her possession[11], namely the appellant or Frank;

(2)  the appellant’s inconsistent answers as to the purpose of her visit and whether she was meeting anyone[12], namely for sightseeing and meeting no one or for meeting her fiancé;

(3)  the appellant’s claim that she was to meet her fiancé in Hong Kong when PW3’s (hearsay) evidence was that no passenger bearing the fiancé’s name came to Hong Kong on 3 or 4 August[13]; and

(4)  the appellant “would have plenty of time to come up with her story” before giving her VRI[14].

18.  In reply, Ms Ng stressed before us that, when the Judge referred to the impugned remarks, he was encapsulating the points made by prosecuting counsel[15]. The jury were clearly told that those were the facts, evidence or circumstances relied on by the prosecution[16] and the Judge did not make any reference to the appellant’s “lies”.

19.  Further, Ms Ng referred us to the discussion between the Judge and the parties prior to the summing-up in which a consensus was reached that there was no need to give a “lies” direction[17]. Ms Ng also emphasised that the judge had, both before and after summarising the prosecution case, told the jury that it was for them to decide what evidence to accept or reject and that the views of counsel and the Judge were not binding on them[18].

Ground 3 (enquiries by the authorities)

20.  Ground 3 complains that the Judge wrongly emphasised the investigation findings of Customs officers (in PW3’s evidence), which were in fact hearsay:

(1)  no person in the name of the appellant’s fiancé came to Hong Kong from London or Dubai on 3 or 4 August[19];

(2)  the Smart Hotel Receipt was a false receipt[20]; and

(3)  the bookings with the Canadian Hostel and Sea View Hotel were valid[21].

In particular, Mr Boyton drew our attention to the Judge’s comment on the Sea View Hotel booking: “Interestingly, the Seaview Hotel booking indicated that Banda Phiri was living in Malawi, the country of residence as stated on the booking, not Kenya, not London”[22].

21.  Mr Boyton also stressed that insofar as computer records are concerned, section 22A of the Evidence Ordinance, Cap. 8, had not been complied with.

22.  On the other hand, Ms Ng submitted that Mr Boyton’s reference to section 22A of the Evidence Ordinance[23] was incorrect, contending that the proof of a negative assertion was outside the hearsay rule. Ms Ng also drew our attention to the fact that no objection was raised by the defence when the witness was asked the questions and that there was no cross-examination on the matter now complained of.

23.  As regards the Smart Hotel Receipt, Ms Ng relied on Mr Boyton’s acceptance that the evidence was adduced to establish the falsity of the receipt, thereby not offending the hearsay rule.

24.  Finally, Ms Ng suggested that since the defence relied on the boarding passes, the itinerary and the hotel bookings to support the appellant’s version in her VRI that she came to Hong Kong for a vacation, it was entirely proper for the Judge to invite the jury to also consider the place of residence of Banda Phiri as indicated on the Sea View Hotel booking.

Discussion

Ground 1 (place of origin)

25.  In addressing complaints such as that in ground 1, it is necessary to distinguish between reception of oral evidence and examination of real exhibits. Zervos JA pointed out in HKSAR v Rizania Noviyanti[24]:

“27. … 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.

…

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.”[26]

26.  We make the same observation in the present case. The chocolate boxes were real exhibits produced before the jury - exhibits which they could examine and on which they could make findings based on common sense and their life experience. Equally, the Judge, when summing-up the case, could invite the jury’s attention to the general outlook of the real exhibit or a particular part thereof (e.g. its shape, condition, colour, and material) as well as its weight or printed words thereon insofar as such is relevant to the issues at trial.

27.  In this particular case, the Judge referred the jury to the labels which showed the purported places of origin of the chocolates and raised two points. Firstly, whether China and Egypt are famous for chocolates and secondly, whether one would carry a box of purportedly China-made chocolates across the continents back to Hong Kong. Both were common sense questions and did not depend on the truthfulness of the asserted places of origin but on the fact that that was what they purported to show. What the jury had to consider, using their common sense, was whether or not such labels were what purchasers would normally examine before shopping; whether anyone would get chocolates with such labels as a wedding gift; and whether, given all the circumstances, the appellant would bring or would agree to bring to Hong Kong chocolates with such labels.

28.  The question was not whether the chocolates were indeed made in China/Egypt. The focus was not on the actual place of origin – what the jury were asked to examine were the physical exhibits and the labels showing the purported places of origin.

29.  In the circumstances, we do not find it objectionable for the Judge to have made those comments. The hearsay rule was not engaged.

30.  We also find no substance in Mr Boyton’s complaint that the appellant had been taken by surprise as she might have opted to give her explanation if she had realised that the matter was going to be raised by the Judge. The fact was that the real exhibits were always there for the defence to inspect. If there was anything they wished to deal with, whether by way of evidence or submission, there was no bar for them to do so as long as the applicable principles were observed. For example, if the prosecution relied on, or the judge commented on, an awkward shape of a suitcase to make the point that such shape must have aroused the accused’s attention, the defence could not suggest that there had been unfairness simply because they did not consider the shape to be material and did not address that point at the time.

31.  This ground failed.

Ground 2 (lies)

32.  First of all, the Judge never used the word “lies” in his summing-up. Secondly, neither did prosecuting counsel nor the Judge say anything which suggested to the jury that if they found the appellant had lied, then her lies would strengthen the prosecution case.

33.  As a matter of fact, the impugned remarks were made when the Judge was summarising the prosecution arguments for the jury at the end of which he said,

“… Members of the jury, these are just some of the facts, evidence, circumstances, I have just outlined. Right? They are by no means exhaustive and binding on you in any way. So these are just some views expressed by Mr Ng or perhaps even expressed by me. If you are not with Mr Ng or me, do not follow. Right? If there are facts, evidence, circumstances that have not been mentioned by me and you think they are important, relevant, please, consider those matters. It is your view that matter[s]. It is not his view or my view, right? It is your view.”[27]

34.  Immediately after the Judge had dealt with the prosecution case and when the hearing resumed after the morning break, the Judge then proceeded to summarise the defence arguments, one by one[28].

35.  When read in context, that part of the summing-up was no more than a repetition of the parties’ respective arguments for the jury’s consideration. The Judge did not refer to, nor lay emphasis on, any “lies” told by the appellant. We should also point out that when the Judge mentioned the appellant’s VRI, he said:

“… Essentially, I think, the prosecution asked you to be very careful of what she said in the interview in light of, you know, say, in one area, the conversation that the defendant exchanged with Jane.”[29]

It was clear from the above that the Judge was dealing with the issue of credibility regarding the seeming inconsistency between the WhatsApp conversations and the contents of the VRI, not guilt as suggested by Mr Boyton.

36.  Finally, Mr Boyton, also trial counsel for the appellant, had, prior to the summing-up, discussed with the Judge as to the need for a “lies” direction and had come to the conclusion that it was unnecessary[30]. We do not doubt the correctness of that view as trial counsel would be familiar with the case and the issues. We also do not find anything which would render that consensus questionable.

Ground 3 (enquiries by the authorities)

37.  In relation to this ground, we note that when the impugned evidence was adduced, Mr Boyton did not object to its reception, nor did he cross-examine on it[31].

38.  When Mr Boyton addressed the jury, he said, inter alia:

“… but remember what the Customs officer said, ‘It’s fake. Nobody booked it’. So is it not the plan of the people who were tricking Estina to make her catch a taxi to this location and then when she gets there, there is no such booking and she has to make a phone call. Why pass her a fake voucher, hotel voucher?”[32] (emphasis added)

39.  Clearly, the impression one would get from a reading of the transcript of PW3’s evidence and the defence closing speech was that PW3’s evidence, although not first-hand knowledge, was not in dispute. In fact, we doubt if any objection would or could be raised if admitted facts were prepared to cover these matters, especially the travel movement or immigration records.

40.  In any event, since this would appear to be a rather peripheral matter and in view of Mr Boyton’s stance at trial, we do not consider that any unfairness had been caused to the appellant. Nor do we consider it necessary to deal with any of the provisions in the Evidence Ordinance.

Conclusion

41.  Accordingly, for the reasons given above, we dismissed the appeal against conviction.

Ms Claudia Ng, SPP, of the Department of Justice, for the Respondent

Mr David Boyton, instructed by M/s TANGS Solicitors, assigned by the Director of Legal Aid, for the Appellant