Forbidden Reasoning, Fingerprints and Uncharged Acts

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.

Forbidden Reasoning

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: 

“Here, the evidence was admissible but only for the limited purpose of attacking the credibility and challenging the good character of the applicant; and for establishing that she was not an inexperienced traveller.  There was nothing in the evidence that was probative of her involvement in the trafficking of dangerous drugs, as alleged in the indictment.” (para. 50).

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.

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:

“It is also accepted that there is no DNA evidence nor fingerprints on either the bags or the wrappings of the drugs. You must consider how significant the lack of such evidence is in reaching a verdict. However, I should say there are many reasons why contact may not result in traces of DNA and/or fingerprints. Again, this is a matter for yourselves.” [Italics added] (para. 72).

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 our judgment, it was not permissible in the circumstances of this case, in the absence of evidence, for the judge to direct the jury simply that “there are many reasons why contact may not result in traces of DNA and/or fingerprints.”  To do so was, in effect, to give a judicial imperator to speculation as to what evidence there might have been.  Certainly, in the absence of evidence, the judgment of this Court in HKSAR v Oswaldo gave no support to the judge’s direction.  With respect, the judge was in error in giving that direction.  It was a material misdirection. (Lunn VP) (para. 81)

Uncharged Acts

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 [2010] 3 HKLRD 769:

In our view, the principles of law on evidence of “uncharged acts” derived from the above Australian cases and other English cases are as follows:

(a) The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M & Ors [2000] 1 WLR 421, 426–7. Citing R v Pettman (unrep. English Court of Appeal 2 May 1985), R v M & Ors was followed in HKSAR v Chan Pui Mun (unrep., CACC 514/2006, [2008] HKEC 2071).

(b) Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or is deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following: 

  • to prove the setting and context in which the offence occurred, or
  • to explain the defendant’s confidence in repeating the offence, or
  • to explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence), or
  • to explain why the complainant is unable to recall the specific date and details of the offence charged.

In summary, the court may admit evidence of “Uncharged Acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.

(c)   Of course the court should refuse to admit evidence of “uncharged acts” if it considers that the prejudicial effect on the defendant outweighs its probative force.”

(para. 48)

The trial judge in summing up said to the jury:

“The fact that the defendant supplied drugs to others within the mah-jong parlour may be relevant to your consideration of whether it was in his interests to traffic in dangerous drugs.”

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.

Key Takeaways

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.

Jurisdictions: