In HKSAR v Nguyen Anh Nga, FACC 17 of 2016 (on appeal from CACC 424 of 2012), the Court of Final Appeal addressed directions that must be given by a Judge in relation to inferences, holding that specific directions on circumstantial evidence are necessary where competing inferences can be drawn from that circumstantial evidence.
In this case, the Appellant was convicted in the High Court before a Judge and Jury, of trafficking in 3.142 kilogrammes of “ice” and sentenced to 24 years imprisonment. The evidence was that she had been intercepted at the airport and was asked “Is it your baggage?”. She began to cry and squatted down next to the suitcase. She had screamed: “Wah!” and looked nervous, shook and trembled. She had then opened and rummaged around inside the suitcase before Custom & Excise officers stopped her and searched the suitcase themselves. The ice was found in the false-bottom of her suitcase. She was expressionless when the package containing the drugs was removed from the false-bottom. Under caution she had said inter alia, “The name tag on the black suitcase is mine. But the articles inside are not mine”. She later also said that she had been duped into believing she was smuggling money.
In unanimously allowing the appeal, the Court cited Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209 which states that it is normally unnecessary to give the jury any special direction on how they are to approach circumstantial evidence. However there may be exceptional circumstances in which it may be desirable or necessary to give the jury a special direction on the drawing of inferences by telling them that no inference is to be drawn against the accused unless it is the only reasonable inference. In this case, prosecuting and defence Counsel had, in their final speeches invited the Jury to draw certain inferences from the Appellant’s reaction and non-reaction. In summing up, the Judge dealt at considerable length with evidence of the Appellant’s reaction and non-reaction but made no specific reference to that evidence or the arguments thereon in the context of any of her directions on circumstantial evidence or the drawing of inferences. Although the Judge directed the jury that they should take into account the speeches of Counsel, the Court cited Lord Atkin in Lawrence v R  AC 699 who famously observed that “Jurors are apt to be suspicious of law as propounded by the defence; they look to the judge for authoritative statement of it”. The directions on inferential reasoning given by the Judge did not include any direction specifically set in the context of the evidence of the Appellant’s reaction and non-reaction and the rival arguments thereon. The absence of this was fatal to the conviction. A re-trial was ordered.
This case illustrates why the role of the Judge is essential when there may be competing inferences that can be drawn. It is not sufficient for the Judge to direct the jury to take into account the speeches of Counsel – the Judge should direct the jury on the rival arguments specifically in the context of the evidence.