Customs Officers intercepted a parcel arriving in Hong Kong finding that it contained 1.07 kg of cocaine. A name, address and telephone number was written on paper affixed to the parcel. A Customs Officer telephoned the number on the paper posing as a staff member of the delivery company, and talked to a female (“L”) who identified herself as the named recipient on the paper. The Officer later testified at trial that L had said in the telephone conversation “…actually this parcel belongs to Mr. Yau … .” and requested that Mr. Yau collect the parcel instead. The Officer later received a call from the Defendant to discuss the arrangements for the parcel pick-up. The Defendant identified himself to be a friend of L and L had authorised him to collect the parcel. After complying with the Officer’s requirement to produce authorisation documents signed by L, the Defendant met with the Officer, took delivery of the parcel and was then arrested.
During trial, no objection was taken by defence counsel to the admissibility of what the Officer said L had told him. In her summing up, the Judge described in detail the Officer’s testimony including the Officer’s evidence that L had said that the parcel belonged to the Defendant. The Judge directed the jury they should be careful with this evidence and left it open to the jury to treat L’s assertion (that the parcel belonged to the Defendant) as true.
Held, allowing the appeal and ordering a retrial.
The Court of Appeal reiterated the long-standing common law rule against hearsay evidence. The evidence of the testimony of an Officer in relation to L’s statement, was essentially second-hand and out-of-court, could not be tested and should not have been admitted in proving the defendant’s knowledge about the content of the parcel.
L’s statement that the parcel belonged to the defendant went to the critical issue of the defendant’s knowledge of the content of the parcel were dangerous drugs, if the statement was accepted. Hence, consideration as to the purpose for which the evidence was being adduced was important.
It was insufficient for the Judge to leave it open for the jury to accept the evidence as a fact that the parcel belonged to the defendant and to use it to prove the defendant’s knowledge of dangerous drugs in the parcel. The Judge should instead have specifically directed the jury not to use it to prove its truth. The Judge also failed to correct the prosecution counsel’s invitation to the jury to treat the hearsay statements of L as evidence of truth of the facts asserted by her. Notwithstanding neither prosecution nor defence counsel objected to the admissibility of the statements of L, the failure to properly address how to treat the evidence of L amounted to a material misdirection.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: HKSAR v Yau Chung Man