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Hksar v Zhou Limei

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date16 February 2017
Year2017
Citation(2017) 20 HKCFAR 71
Judgement NumberFACC10/2016
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC10/2016 HKSAR v. ZHOU LIMEI

FACC No. 10 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2016 (CRIMINAL)

(ON APPEAL FROM CACC NO 81 OF 2014)

____________________

BETWEEN

HKSAR Respondent
and
ZHOU LIMEI （周禮梅） Appellant

_____________________
Before : Mr Justice Ribeiro PJ, Mr Justice Tang PJ Mr Justice Fok PJ, Mr Justice Chan NPJ and Lord Millett NPJ
Date of Hearing: 13 January 2017
Date of Judgment: 16 February 2017

___________________________

JUDGMENT

___________________________

Mr Justice Ribeiro PJ and Mr Justice Chan NPJ:

1. This appeal raises questions concerning the proper approach to statements relied on by the prosecution as admissions made by a defendant where the statements are equivocal or ambiguous.

A. The relevant events

2. In the afternoon of 15 November 2012, the appellant arrived in Hong Kong from Kuala Lumpur. At the airport, an X-ray examination of her suitcase raised suspicions and a Customs Officer, Mr Chan Wai-kei, searched it in her presence. After emptying the suitcase and unzipping the lining, he found concealed within it two packets wrapped in cardboard, tinfoil and paper. He sliced open the tinfoil and some white powder fell out. A rapid test-tube test revealed that it was heroin.

3. At that point, having confirmed that the appellant understood the local dialect, Officer Chan arrested and cautioned her. In his testimony at the trial, he said that the appellant responded in Cantonese, saying: “This suitcase is not mine. It belongs to an African male called Ah Sam.” And when asked what the white powder was, she said in Cantonese: “我諗呢一啲係毒品啩”, translated as “I suppose this is dangerous drug”.

4. Later that day, Officer Chan prepared a post-record, accepted as accurate by the appellant, in which her response was stated to be: “我諗係毒品”, translated as “I think it is drug”. This differed from what the Officer stated at the trial in that the final particle “啩”[1] was omitted, a matter to which we will return.

5. Some hours later, the appellant took part in a video-recorded interview in which she recounted in detail the circumstances leading to her arrival in Hong Kong with the suitcase. When she was asked why she had answered “我諗係毒品”, translated as “I think it is drug” as mentioned above, her explanation was as follows:

“Er, it was because, because, because those, those people were checking with a straw on the spot. He said er, it was positive. He said this was, was, was, was, was drug. Well, I, well, well, I myself was stupefied then. He said it was dangerous drug”.

6. She added:

“Mm, mm. It was because, it was because the officer on the spot took out, took out a few bottles. There was also, also some colour in there. There was some colour, or, or it could be seen that he was also there --- you, it was because you spoke Cantonese. I could also understand the Cantonese spoken by all of you.”

7. The appellant was charged with a single count of unlawful trafficking in 1.79 kilogrammes of a mixture containing 0.80 kilogrammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

B. The Trial Judge’s summing-up

8. At her trial, in a careful summing-up, Deputy High Court Judge A Wong[2], told the jury that the most important factual issue in the case was whether the appellant knew of the existence of dangerous drugs in the suitcase and pointed out that the defence case was that she had no such knowledge.[3]

9. He gave the jury a detailed summary of the evidence regarding the circumstances leading up to and surrounding the appellant’s arrest. This included evidence of the appellant’s background and her account of how she had met an African man in Guangzhou where she resided and owned three small shops selling cosmetic products; of how she was persuaded by him to go first to Nigeria and subsequently to Kuala Lumpur to bring back sample goods; of her having been given the suitcase containing such samples by another African man in Kuala Lumpur and how she landed in Hong Kong on the way back to the Mainland. An important part of the evidence related to the search of her suitcase, the discovery of the concealed packages, the testing of the white powder, her being cautioned and arrested, followed by the verbal exchanges between herself and Officer Chan, her acknowledgment of the accuracy of the post-record and the explanations given by her in the video-recorded interview.

10. As the Judge explained to the jury, the prosecution placed substantial reliance on the appellant’s answers as constituting a confession:

“[Officer Chan] told you, when he testified, that the defendant said, ‘I suppose this is dangerous drug’ - ‘我諗呢一啲係毒品啩’. Later, [Officer Chan] made a post-record of the statement made by the defendant. ... In this document, it was recorded that the defendant said, ‘I think it is drugs’ - ‘我諗係毒品’. The prosecution asks you to treat this as a confession of the defendant, that she knew the substance was dangerous drug, and asks you to give this confession full weight.”[4]

11. His Lordship instructed the jury that they had accordingly to decide three matters:

“(1) what exactly did the defendant say; (2) what was the effect of her statement; and (3) is what she said true”.[5]

12. The jury were told that, having decided what the appellant had actually said, when they came to consider the effect of her statement, they had to:

“... exercise care and examine whether it is a confession on the part of the defendant in the sense that she all along knew the substance was a dangerous drug or whether, having regard to the circumstances, in particular at that time - the substance in powder form had been found and a rapid test yielding a positive result of heroin had been conducted - whether it would have been possible that the defendant made the statement only as a response to her understanding of the finding of the test, only as a reaction to the situation rather than reflecting that she all along had the knowledge that the dangerous drug was inside her suitcase. [Recalling that defence counsel had pointed out that] ... when the defendant made the statement, the officer had already told her that she was arrested for an offence contrary to the Dangerous Drugs Ordinance.”[6]

13. The jury were thus left to decide whether the appellant’s answers amounted to a confession that she had all along known of the drugs found in her suitcase. If the answer was “Yes”, they had to decide whether what she said was true and then decide, in the light of the whole of the evidence, whether she was guilty of trafficking.

14. The appellant was convicted on a five to two majority verdict.

C. The decision of the Court of Appeal[7] and leave to appeal to this Court

15. The first two grounds of appeal advanced in the Court of Appeal are relevant for present purposes. They were that there had been a material irregularity in that the trial judge had erroneously failed to hold a voir dire to determine the admissibility of the appellant’s answers to Officer Chan and had wrongly left it to the jury to determine their legal effect when admissibility ought to have been a matter for the Judge.[8] As Poon J,[9] giving the judgment of the Court, noted, counsel then appearing for the appellant:

“... placed much emphasis on the Chinese word ‘啩’ used in the oral statement, which he said, indicated suspicion rather than knowledge on the applicant’s part. Thus what the applicant said orally, Mr Wong reasoned, did not amount to a confession.”[10]

16. That argument was rejected, Poon J pointing out that:

“... the Judge’s directions to the jury...were:

(1) to have regard to the possibility that the statement was said in response to the positive result of the rapid test;

(2) the fact that Officer Chan told the applicant that she was arrested for an offence contrary to the Dangerous Drugs Ordinance;

(3) to take into account the explanation given in the VRI;

(4) to exercise care before treating the statement as a confession;

(5) only consider the third question (‘is what she said true?’) if they were sure that the applicant meant by her statement that she all along knew dangerous drug was contained in the Suitcase; and

(6) otherwise, they should ignore this evidence altogether.”[11]

17. The Court of Appeal concluded that:

“... the way in which the Judge dealt with the oral statement and the post-record was entirely correct. It was plainly a matter for the jury to decide which version they accepted, and having made that decision, to give effect to the oral statement as they found to have been made by the applicant according to the natural meaning of the words used. Contrary to Mr Wong’s argument, no voir dire was required to deal with these matters which fell squarely within the province of the jury. There is no substance in Grounds 1 and 2.”[12]

18. Leave to appeal to this Court was granted by the Appeal Committee[13] on the basis that “it is reasonably arguable that a substantial and grave injustice arose from the appellant being treated as having made an admission regarding knowledge of the presence of dangerous drugs found on the search conducted on her baggage at the airport”.

D. The applicable principles

19. The hearsay rule makes out-of-court statements inadmissible as evidence of any fact or opinion stated. But if such a statement[14] constitutes an admission by the accused of some fact in issue, it is admissible in evidence against him as an exception to the hearsay rule.

D.1 Where not reasonably capable of being an admission

20. Where it is disputed whether a statement does or does...

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