HKSAR v. Shoki Fatuma Ramadhani

FAMC No.34 of 2018

[2018] HKCFA 51

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 34 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 187 OF 2014)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.At the hearing, we dismissed this application for leave to appeal for reasons which we now provide.

2.The applicant pleaded guilty to trafficking in a dangerous drug (500 gm of heroin hydrochloride). She had arrived in Hong Kong from Tanzania after having swallowed some 84 pellets of the drug.  When cautioned, she said that she had done so for a reward of US$4,000.  Toh J sentenced her to 12 years’ imprisonment and ordered forfeiture of US$2,600 found on her. 

3.Her appeal, which was only against the forfeiture order, was dismissed by a majority in the Court of Appeal (Lunn VP and Macrae JA, McWalters JA dissenting) on the merits and as being out of time.[1]

4.Although her application is put forward on the basis of two points of law,[2] Mr Richard Donald, now appearing for her, accepts that it is actually an application on the substantial and grave injustice basis.  He submits that the essential complaint is that she was deprived of the chance of giving or calling evidence to show that the US$2,600 was her own money and not money used in connection with or received or possessed by her as the result or product of her drug trafficking activities, so as to justify forfeiture under section 56(1) of the Dangerous Drugs Ordinance.[3]

5.As held in R v Lai Chin Hung [4] and Wong Hon Sun v HKSAR,[5] the prosecution has the initial burden of showing a prima facie case for forfeiture and, if discharged, the claimant has the burden of proving on the balance of probabilities that the property falls outside the forfeiture provisions in question.  The majority in the Court of Appeal found that a prima facie case was established given that the applicant had admitted to trafficking in the drugs; that she had swallowed 80 pellets in a hotel in Tanzania for a reward of US$4,000; and that she was found to be in possession of a substantial amount of money in the currency stipulated for the reward.[6]   The applicant therefore bore the burden of rebutting that prima facie case.

6.As appears from the transcript, Counsel then appearing for her said that the applicant “instructs [him]” that “she was only to be paid on successful delivery of the drugs” and that “that money in fact is nothing to do with the drugs; it was her money, she brought it for possibly to do some trading [sic] while she was in China, or possibly in Hong Kong”.  He did not call her to give evidence of these matters.

7.Instead, he sought to suggest that it was inherently improbable that the US$2,600 was the reward paid to her for trafficking, stating:

“... it would be most unusual for a drugs courier to be paid in advance. That would give the people organising this type of trade no leverage over her at all, give her no incentive to take the risk of delivering the drugs to China or wherever else, and she could quite easily abort the deal and walk away with the money. So I would suggest that it’s more likely than not that this money is not connected with the drugs and is her own property.”

8.Regarding the applicant’s admission that she had been given US$4,000 as reward, counsel submitted that “that was in fact a misunderstanding” and that “she was promised $4,000”. Again, he did not call her to testify to such a misunderstanding, merely reiterating that:

“... it would be most unusual for a drug trafficker to be paid before delivering the goods. If you’re entrusting somebody with $600,000 worth of drugs, but you also give them money for delivering in advance, then you have no hold over them.”

9.It is unsurprising that the prima facie case was not rebutted.  If her admission was indeed based on a misunderstanding; if she had not in fact received any money for acting as a drug mule; and if it was indeed her own money to be used in trading, it was up to her to give evidence to that effect.  There was nothing to stop her counsel from putting her in the witness-box.  For whatever reason, that was not done. There is no question of her having been deprived of the opportunity of giving evidence.

10.Her case as to the money found on her was in any event most implausible.  Thus, counsel had said that she was from a very poor farming family and being “desperately in need of money and obviously extremely vulnerable”.  This was quite inconsistent with the suggestion that the money was hers (said to have been borrowed from a bank) to do “some trading while she was in China, or possibly in Hong Kong”. 

11.Counsel’s suggestion that it was inherently probable that couriers are paid only when the drug is successfully delivered was less than compelling.  As the Judge pointed out, traffickers might have various other means of maintaining a hold on the courier who has been paid to do the smuggling:

“... these drug traffickers would know where her family lives, etc, so there is certainly a lot of ways and means.”

Indeed, it could be said to be at least as probable that a “mule” would not be prepared to swallow the pellets and undertake the trip without being paid at least part of the reward.

12.There is no reasonably arguable basis for granting leave to appeal. 

Mr Richard Donald, instructed by Tanner De Witt, assigned by the Director of Legal Aid, for the Applicant

Ms Catherine Ko, SADPP, of the Department of Justice, for the Respondent