HKSAR v. Rashidi Mdenge Rukia Yusufu

CACC 187/2019

[2022] HKCA 936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 187 OF 2019

(ON APPEAL FROM HCCC NO 311 OF 2018)

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BETWEEN

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Before:  Hon Macrae VP and Zervos JA in Court

Date of Hearing:  21 June 2022

Date of Judgment:  21 June 2022

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The applicant was sentenced in the High Court by Deputy Judge Bruce (“the judge”)  to 15 years’ imprisonment, following her plea of guilty to a single count of trafficking in a dangerous drug, namely 1.99 kilogrammes of a solid containing 1.69 kilogrammes of cocaine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. The plea had first been entered in the magistrate’s court, upon the applicant’s committal to the High Court, on 18 November 2017.

2.As part of the sentence, the judge further ordered the sum of US$1,870 cash found in the applicant’s possession upon arrest to be forfeited. 

3.The applicant applied for leave to appeal against sentence, which was refused by a Single Judge of the Court of Appeal[1] on 27 July 2021.  She subsequently renewed her application for leave to appeal but, by letter of 3 March 2022, made clear that her appeal only related to the order for forfeiture of the US$1,870 cash.

The facts

4.On 16 November 2017, the applicant, a Tanzanian national, arrived in Hong Kong on a flight from Dar es Salaam in Tanzania, via Addis Ababa in Ethiopia.  Upon interception by Customs officers, she was found to be in possession of the cocaine particularised in the count, which was discovered hidden in a secret compartment of her hand-carried suitcase, and duly arrested. Other items found on her person included the US$1,870 in question, as well as cash of HK$634.60 and 10,000 Tanzanian shillings, a mobile telephone, the itinerary for her return flight and a booking confirmation for a guesthouse in Hong Kong.

5.Under caution, the applicant stated that the suitcase was given to her by a man in Addis Ababa.  She was to stay in a guesthouse in Tsim Sha Tsui whereupon someone, whose contact details would be sent to her in Hong Kong, would arrange for the disposal of the suitcase.  The applicant agreed to participate in a controlled delivery and, although contact was established, the operation ultimately proved unsuccessful.

6.In a subsequent video recorded interview, the applicant said that she ran a small supermarket in Tanzania but owed a debt of about US$2,000, which she was repaying off at US$150 per month.  She had to support her mother and a 4-year-old child and had no savings.  She had been given the suitcase by a Nigerian acquaintance called “Frank”, who sought her help in taking a traditional Ethiopian dress to a friend in Hong Kong, for which she would be given US$7,000.  Although she did not trust Nigerians, she was prepared to believe Frank after seeing the clothes inside the suitcase. She also thought that Frank was a mature and decent.

7.The street value of the cocaine in question was agreed to be over HK$1.82 million.

The judge’s sentence

8.We do not propose to set out the applicant’s mitigation or the judge’s full reasons for sentence, since it is not contended that the sentence of 15 years’ imprisonment was otherwise than an appropriate sentence for the quantity and circumstances concerned.  Nevertheless, since an appeal against a forfeiture order is also an appeal against the sentence as a whole[2], we observe that the applicant received a 40% discount for her plea and participation in an unsuccessful controlled delivery operation, plus a further discount of 3 months for assisting the “campaign” of Father Wotherspoon against drug-trafficking. The overall discount may be said to have been generous and no complaint is, or could be, made about the sentence of imprisonment.  The applicant’s renewal of her application for leave to appeal is now only concerned with the forfeiture order in respect of the US$1,870 found in her possession.

The forfeiture order

9.The judge conducted a separate hearing in relation to forfeiture.  Although submissions were made by the applicant’s counsel as to why the money should be returned to her, the applicant did not give evidence in support of her claim.  It was asserted on the applicant’s behalf that the US$1,870 seized from her was for the applicant to buy clothing to take back to Tanzania to sell and had nothing to do with the drug trafficking allegation; the applicant was yet to receive her reward, which would only be given to her on successful delivery of the drugs. 

10.However, the judge observed that the money in question “isn’t going to go far as a capital sum for the purchase of clothing to make the trip even vaguely worthwhile”[3], before finding that the money was needed to enter Hong Kong and support herself while she was here[4]. He accordingly ordered the forfeiture of the applicant’s telephone and the US$1,870[5]:

“My reason for doing so is that I am satisfied it was intended that the phone be used for criminal purposes, even if it did have other purposes. Essentially, that is the same reason for the US dollars in question that whilst it may have had multiple purposes, one of the purposes was to assist in drug trafficking…”

Grounds of appeal (in relation to the forfeiture order)

11.The applicant’s renewed application is essentially the same as that put forward before the Single Judge, where the applicant sought to adduce fresh evidence in the form of a loan facility letter, dated 15 August 2017, in the sum of 1 million Tanzanian shillings (about HK$4,000), which was issued to a borrower bearing a name other than that of the applicant.  She has explained to us this morning, however, that she was also known by this name. 

12.In her 3 March 2022 letter renewing her application for leave to appeal, the applicant reiterated that the money had nothing to do with the drug trafficking offence: it represented part of a bank loan to be used for a legitimate purpose.  Before us today, she has claimed that she wanted to buy telephone(s)  for her business.  However, no mention was made of this purpose during mitigation or the forfeiture hearing:  it was then said that she wanted to use the money to buy clothing.

The respondent’s submissions

13.Ms Janice Cheuk, on behalf of the respondent, submitted that even if the loan facility letter was genuine, there has been no evidence that the beneficiary’s name is that of the applicant.  Moreover, the applicant’s explanation that the facility letter was not adduced at trial because she did not realise that her money would be forfeited, was not reasonable, in circumstances where she had been represented throughout the proceedings by experienced counsel.  Accordingly, the conditions under sections 83V(1)  and (2)  of the Criminal Procedure Ordinance, Cap 221 had not been satisfied.

14.As for the forfeiture order itself, since the applicant had not given evidence, the judge correctly considered the relevant legal principles set out in HKSAR v Ngoma Juma Shabani[6], to which he had been referred[7]; and which he applied[8].

Discussion

15.This is yet another unfortunate case, in which a foreign national in financial difficulties has been found bringing into Hong Kong in a hidden compartment of his/her suitcase a very large quantity of dangerous drugs, worth an enormous amount of money at street value.  Yet the defendant/applicant is also in possession of what would, for such a person, be a substantial amount of cash in US dollars, which is hardly commensurate with their normal financial state, but which is claimed to be for a legitimate purpose.

16.In Ngoma Juma Shabani, which concerned another Tanzanian national entering Hong Kong on a flight from Dar es Salaam via Addis Ababa with dangerous drugs and US$4,500 in his possession, money he claimed was for purchasing second-hand mobile telephones for his business at home, it was pointed out that[9]:

“No international drug trafficker, especially a foreigner from another continent, could conceivably expect to carry out his purpose of trafficking a valuable consignment of dangerous drugs into and through Hong Kong without the means to achieve it and support himself in the process”.

The same may be said of this applicant.

17.We have said before that the time for evidence concerning orders for forfeiture is the trial, not the appeal.  Not only was the evidence now sought to be placed before us not adduced at the trial, where it could have been properly tested in cross-examination, but the applicant chose not to testify in support of her claim, despite being ably represented. Moreover, the bank facility letter, bearing a different name from the applicant, is purportedly dated some 22 months before she appeared before the judge for sentence.  Indeed, there was no mention by her counsel of the source of the US$1,870, other than “she was here with her own money or money she’d been given by her boyfriend…”[10].

18.We are not prepared to admit this evidence now, which is of very doubtful provenance in any event.  But even if the evidence were true, it does not mean that the applicant did not use the money in question to enter Hong Kong under the guise of a bona fide businesswoman, when in truth she was a drug trafficker.  And that is what the judge found.  We can see no error in his reasoning.

19.This application is refused and the appeal against sentence dismissed.

Ms Janice Cheuk SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person