HKSAR v Silva Barba Alexander Alberto
Court of Appeal
Criminal Appeal No. 12 of 2015
Lunn V-P, Macrae and McWalters JJA
2 September 2016

Trial – directions to jury – misdirections as to drawing of inferences and approach to prosecution witnesses – prejudicial effect capable of being redressed – stay of prosecution rightly refused – retrial ordered

D was convicted after trial of unlawfully trafficking in dangerous drugs, namely 5.03 kg of cocaine. D had been intercepted by a Customs officer on arrival at Hong Kong Airport. According to the prosecution witnesses’ evidence, those dangerous drugs were found concealed in the lining of D’s computer bag and suitcase. Prior to that, a wipe test of the zips and handles of D’s luggage with a cloth had indicated the presence of cocaine, and an X-ray of that luggage had showed suspicious objects. Giving evidence, D said that the Customs officers had removed his possessions from his luggage and had placed them in the computer bag and suitcase in which they said the dangerous drugs were found. The cloth, X-ray images and needles were not preserved. Nor was any CCTV footage of the relevant area. Arguing that the unavailability of the cloth, X-ray images, needles and CCTV footage rendered a fair trial impossible, D sought a permanent stay of the prosecution. The Trial Judge refused a stay. Seeking leave to appeal against conviction, D: (a) contended that a stay should have been granted; (b) complained that prosecuting counsel had in his final speech invited the jury to conclude that Customs officers were more unlikely than others to fabricate evidence and were more likely than others to be credible; (c) contended that the Trial Judge had misdirected the jury on the drawing of inferences; and (d) contended that the Trial Judge had misdirected the jury as to why contact might not result in traces of DNA and/or fingerprints.

Held, granting leave to appeal, treating the hearing as the appeal, quashing the conviction and ordering a retrial, that:

  • A permanent stay was rightly refused by the Trial Judge. Any disadvantage from the unavailability of the cloth, needles, X-ray images and CCTV footage was capable of being redressed by cross-examination of the prosecution witnesses and directions to counteract such disadvantage.
  • As for prosecuting counsel’s invitation to the jury to conclude that Customs officers were more unlikely than others to fabricate evidence and more likely than others to be credible, the Trial Judge’s direction to the jury to treat all the witnesses equally in their assessment of credibility cured any risk of prejudice to D and prohibited any impermissible line of reasoning.
  • The Trial Judge’s direction had left it open to the jury, notwithstanding that they were wary of doing so, to draw an inference adverse to D even if other possibilities and scenarios giving rise to other reasonable inferences could not be excluded. But, as D’s counsel conceded, if the prosecution’s evidence were accepted, no reasonable inference other than that D knew that his luggage concealed dangerous drugs could be drawn. If the complaint against this misdirection were the only ground of appeal, the Court of Appeal would have been prepared to apply the proviso.
  • There was no evidence as to why contact might not result in traces of D’s DNA and/or fingerprints on the computer bag and suitcase in which the prosecution said that the dangerous drugs were found. In the absence of evidence as to why contact might not result in traces of DNA and/or fingerprints, it was impermissible for a judge to direct the jury, as the Trial Judge had done here, that “there are many reasons why contact may not result in traces of DNA and/or fingerprints”, for to do so was, in effect, to endorse speculation as to what evidence there might have been. The present case was different from HKSAR v Law Wing Hong (unrep., CACC 169/1998, 11 November 1998) in which it was said at p.8 that “where there is no fingerprint evidence at all that proves nothing either way”. It was also different from HKSAR v Oswaldo (unrep., CACC 428/2012, [2013] HKEC 975), which concerned fingerprints and where there was evidence as to why contact might not result in fingerprints.
  • Given the seriousness of the case and the strength of the evidence, it was appropriate to order a retrial.
Jurisdictions: 

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