Recent Court of Appeal Judgements allowing the appeals on three drug-trafficking convictions demonstrate the difficulties in addressing juries on how to deal with evidence put before them.
In HKSAR v Muramova (CACC 420/2014)(31 August 2016), the applicant had been arrested entering Hong Kong with 8 kilogrammes of cocaine on a journey which originated in Sao Paulo. The applicant’s passport was seized following her arrest. That passport, which had been issued to her in Russia shortly after she had turned 19 years of age, depicted an extensive pattern of travel in Southeast Asia during the intervening years. The passport was exhibited as part of the prosecution case by way of an admitted fact. During cross-examination of the applicant, prosecuting counsel put it to the applicant that one trip (demonstrated by chops in her passport and unrelated to the charge on the indictment) was “one of your work to travel and to carry drugs for others for money”. In delivering the judgement Macrae JA said:
In summing up to the jury, the judge did not spell out what the probative significance of the evidence was or what it was not; and there was therefore a danger of “forbidden reasoning” by the jury. The appeal was allowed and a re-trial ordered. This appeal was handled by our Christopher Morley instructing Mr. Richard Donald.
NOTE: At the subsequent re-trial in June 2017 the Defendant was acquitted. The re-trial was handled by our Eric Tang and Christopher Lee instructing Mr. Kelly Lam.
No DNA Evidence or Fingerprints
In HKSAR v Silva (CACC12/2015) (2 September 2016), the applicant had been convicted of trafficking in 5 kilogrammes of cocaine. It was an admitted fact that no fingerprints or DNA belonging to the applicant had been found on the prosecution exhibits, which exhibits included the wrapping of the cocaine and the suitcase in which the cocaine had been found. Of this admitted fact, the judge directed the jury:
No evidence had been produced in the trial of the applicant of the circumstances in which traces of DNA or fingerprints might or might not be left by contact with exhibits. The Court of Appeal in allowing the appeal said this:
In HKSAR v Cheung Kim Shing (CACC 439/2015)(8 November 2016), the applicant had been convicted of trafficking in 1.45 kilogrammes of “Ice”. The Prosecution case was that the applicant had controlled and directed a Ms. Lee to bring the drugs into Hong Kong. The applicant had entered Hong Kong shortly before Ms. Lee who was arrested at Lo Wu with the dangerous drugs strapped to her body. The applicant’s fingerprints were found on the dangerous drugs. Ms. Lee gave evidence at the applicant’s trial explaining how she met the applicant. She said that she had come to know the applicant at a mah-jong establishment. She had fallen into debt, which, at the end of the day, she owed to the applicant. In those circumstances, she accepted his offer of a monetary reward to act as a courier of dangerous drugs. However, during the course of her evidence, she also said that the applicant supplied drugs to customers at the mah-jong establishment.
At the appeal, Lunn VP cited Yuen JA in HKSAR v Kwok Hing Tony  3 HKLRD 769:
The judge did not direct the jury that they were required to be sure of the occurrence of the uncharged acts. The judge did not direct the jury specifically that they may not infer from the evidence of the uncharged acts that the applicant had “committed similar offences, or that he is the sort of person with a propensity to commit the offence.” These were material non-directions and misdirections. The appeal was allowed and a re-trial ordered.
These appeals illustrate the need for circumspection before placing evidence before a jury which is not probative of the charge on the indictment. They also demonstrate the care to be taken in directing the jury what use they can make of the evidence if such evidence is introduced.
This article by MCS also appears exclusively online in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: Forbidden Reasoning, Fingerprints and Uncharged Acts