HKSAR v. Dramane Mouhamed Saiti

CACC 191/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 191OF 2016

(ON APPEAL FROM HCCC NO. 24 OF 2016)

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D E C I S I O N

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1.The applicant, a Form 8 recognizance holder from Benin, seeks bail pending the hearing of his appeal against conviction, following his trial by Madam Justice Campbell-Moffat and a jury on 1 June 2016 of unlawfully trafficking in 442 grammes of cocaine on 25 September 2015, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The trial

2.The prosecution case was simple.  Mr Sin Chi Kin, a taxi driver, testified that the applicant had boarded his taxi at about 19:30 hours on 25 September 2015 in Sham Shui Po.  He testified that the applicant was carrying a black plastic bag of some weight.  On the applicant’s instructions he had driven him to a Sinopec petrol station in Sheung Shui, the address of which the applicant had shown to him on a WhatsApp message on his mobile telephone.  On arrival at the petrol station, the applicant used his mobile telephone to make a telephone call.  Then, he and the applicant waited.  After a little while two men, who identified themselves as policeman, approached the taxi.  DPC 89 testified that he had searched a black plastic bag which he observed in the footwell between the legs of the applicant.  It was found to contain the cocaine the subject of the count on the indictment.

The defence case

3.The applicant gave evidence in the defence case.  He said that when he boarded the taxi he did not carry with him any black plastic bag or any bag.  There was no plastic bag in the back of the taxi where he sat. He had never seen the black plastic bag, which it was alleged was in his possession in the back of the taxi, until it was shown to him at the police station.

Grounds of appeal against conviction

4.Attached to Form XI, by which the applicant gave notice to the Court on 27 June 2016 of his application for leave to appeal against conviction, were handwritten grounds of appeal against conviction.  The applicant complained that in her summing up the judge should not have asked the jury to choose between the defence and prosecution cases.  Also, he asked why it was that the taxi driver had been permitted to leave?  Why had no fingerprints and DNA samples been taken from the taxi driver?  The applicant pointed out that there was no evidence of his fingerprints or DNA being found on the black plastic bag.  Also, the applicant complained that if the police had acted on information given by an informer that person ought to have been called to give evidence.

5.In affirmations filed with the Court on 22 May and 15 June 2017 the applicant attached letters.  In the 1^st affirmation he attached the letter sent to the Hong Kong Bar Association in which he recited a litany of complaints against his legal representatives for not carrying out his instructions. In the 2^nd affirmation he attached a letter to the Court in which he repeated those allegations.  Following a hearing before Cheung CJHC on 28 June 2017 the applicant has filed yet another affirmation with the Court on 6 July 2017 in which he stated that he waved legal professional privilege in respect of his lawyers and what had happened at trial.  On 4 August 2017 the Court wrote to the applicant’s counsel at trial inviting him to address the applicant’s complaints.  As yet, no response has been received by the Court from counsel.

6.In those circumstances, although it is now more than 14 months since the applicant’s conviction, it is clear why the case has not even been listed for hearing. The gathering of material relevant to the hearing is still underway.

The respondent’s submissions

7.For the respondent, Mr Ned Lai opposes the application.  He submits that none of the grounds of appeal and the complaints identified by the applicant are likely to succeed in the application for leave to appeal against conviction.

A consideration of the submissions

8.Many of the grounds of appeal identified by the applicant are simply and obviously not made out.  The judge did not direct the jury to choose between the prosecution and defence cases.  Rather, she directed the jury that it was for the prosecution to prove its case and directed them that although the applicant had given evidence he did not have to prove his innocence.  Further, she directed them that if his denial of possession of the black plastic bag and its contents of cocaine “is or may be” correct then the applicant was entitled to be acquitted.  She said that, even if they rejected the applicant’s evidence, nevertheless the jury had to be satisfied that the prosecution had proved its case.  The judge directed the jury “the real issue… perhaps is whether there was that bag in the car or not, because the police say he had the bag between his legs when he was arrested and you know the defendant… said ‘the bag was not in the car; it was not there; it was not mine; I first saw it in the video-interview room’.”

9.In cross-examination of DPC 89, it was established that, although fingerprints and a sample of DNA had been taken from the applicant “nothing positive had turned up” linking the applicant.  Clearly, that was a reference to any link with the dangerous drugs. In his closing speech, counsel for the applicant had reminded the jury that there was no forensic evidence and that the case turned on the oral evidence on the one hand of the applicant and on the other hand of the taxi driver and the police officer.

Conclusion

10.None of the grounds of appeal goes anywhere near establishing a good prospect of success in the application for leave to appeal against conviction.  In those circumstances the application for bail pending appeal is refused.

Mr Ned Lai, SADPP, of the Department of Justice, for the respondent

The applicant appeared in person