Court of Final Appeal
Ribeiro, Tang and Fok PJs, Chan and Millett NPJs 16 February 2017
Admissions – equivocal or ambiguous statements
Read full judgment HERE
The Appellant was directed to go through a customs inspection when she arrived at Hong Kong International Airport from Kuala Lumpur in 2012. During the inspection carried out in her presence, white powder was discovered in the lining of her suitcase. Tests conducted on the spot revealed that the white powder was heroin and the Appellant was arrested and cautioned. Upon being asked what the white powder was, the Appellant responded orally in Cantonese, “我諗呢一啲係毒品啩”, translated in English as “I suppose this is dangerous drug”. Before the Court of First Instance, whether the Appellant’s response was capable of an admission as to knowledge was left to the jury. The jury convicted the Appellant of trafficking in a dangerous drug by a 5–2 majority.
Held, allowing the appeal and ordering a re-trial:
- The Appellant gave her response after her suitcase had been searched in her presence and had heard the drug results of the white powder testing positive. Furthermore, the addition of the “啩”(gwa) final particle was a non-committal response by the Appellant and was not intended to be an admission of knowledge.
- The Appellant’s response was incapable of being an admission. Even if the statement was treated as possibly being an admission, it was so equivocal and qualified that the probative value would be extremely limited and outweighed by risk of unfair prejudice from leaving it to the jury. Thus, the trial judge should have considered exercising his residual discretion to exclude the ambiguous statement as a possible admission.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: HKSAR v Zhou Limei
