HKSAR v. Sithole Mandisa Nolizwe

CACC 103/2022 [2024] HKCA 101

On appeal from [2022] HKCFI 2905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 103 OF 2022

(ON APPEAL FROM HCCC NO 147 OF 2020)

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J U D G M E N T

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1.On 29 June 2022, following a trial before Recorder Mr Derek Chan, SC (the judge)  and a jury the applicant was convicted of one count of trafficking in a dangerous drug, namely a total of 683 grammes containing 557 grammes of cocaine. The judge sentenced the applicant to 18 years and 6 months’ imprisonment.

2.The applicant applied for leave to appeal against conviction and sentence.  At the leave hearing, she explained that she did not intend to apply for leave to appeal against sentence.  Accordingly, the application for leave to appeal against sentence was abandoned, and the appeal was dismissed.

The brief facts

3.On 30 June 2019, the applicant, a South African national, arrived at Hong Kong International Airport on a flight from Johannesburg, South Africa.  She was intercepted by Customs officers and searched.  They found concealed in her underpants a transparent plastic bag that contained 218 grammes of a solid with 184 grammes of cocaine (Exhibit Pl). They also found on her person, a mobile telephone with a SIM card, cash of US$2,400, a boarding pass for the flight and hotel booking receipts from 30 June to 9 July 2019.  She was medically examined, and it was noticed that she had foreign objects inside her body.  She eventually discharged 60 pellets that contained 465 grammes of a solid with 373 grammes of cocaine (Exhibit P2).

4.The applicant gave evidence in her defence.  She explained that she contracted the Human Immunodeficiency Virus (HIV)  in 2009 when she was pregnant with her second son, who also contracted HIV.  Over the years, they had been receiving treatment for their medical condition.  She met a person called “Sandy”, who told her that a cure for HIV was being developed between Scientology and South African traditional healers.  The remedy had yet to be formulated, and she was asked to transport the product to Hong Kong for final processing.  The product was concealed to hide it from the South African authorities.

The leave application

5.In her original notice, the applicant did not articulate any grounds of appeal against conviction.  She merely stated that the verdict was not fair because she had no knowledge of the dangerous drugs. 

6.In a letter filed on 2 December 2022, the applicant advanced grounds of appeal that she elaborated upon in the leave hearing.  The grounds of appeal can be summarised as follows:

Ground 1:  On the day of the verdict, the applicant was not feeling well and was due to attend a medical appointment. The applicant’s physical appearance would have given the jury a wrong impression, which they may have held against her.  The jury had not been told that she was to attend a medical appointment. 

Ground 2:  The interpreter did not properly interpret the proceedings to the applicant.  She did not complain about the matter because she was scared. 

Ground 3:  The prosecuting counsel discussed the applicant’s case before the jury in an unprofessional manner.

7.As to Ground 1, there is no basis to suppose that the jury would have been influenced by how the applicant looked when deciding its verdict.  It was a central feature of the defence case that the applicant had HIV, and it was in pursuit of a cure that she smuggled the substances into Hong Kong.  The jury were, therefore, aware of her condition.  The judge directed the jury to decide the case based on the evidence before them and not engage in speculation.  He also directed them not to be influenced by any feelings or emotions to the prejudice of the applicant[1].  The judge also gave the applicant a good character direction, reminding the jury of the community work she had done in the past[2].

8.As for Ground 2, there was no substance to the applicant’s complaint under this ground.  The applicant was unable to provide any instances of incorrect interpretation that prejudiced her in any way.  She referred to the interpretation of the name she used on her website but acknowledged that it was not significant.  She confirmed that she had a reasonable command of English and could, if she wished, correct the interpretation but did not find the need to do so.

9.As for Ground 3, the applicant very frankly acknowledged that she did not know how a criminal trial is conducted or the role of a prosecuting counsel.  She explained that her criticism of prosecuting counsel’s conduct was based on a general impression, which appears to stem from her lack of understanding of the adversarial nature of our criminal justice system.

10.The applicant could not provide any particulars of the matters she complained about nor how they acted to her prejudice.  None of these matters constitute reasonably arguable grounds of appeal against her conviction.

An overview of the judge’s summing-up

11.I have also carefully examined the judge’s summing-up and can find no fault with it.  He fairly summarised the evidence and the issues that the jury had to consider.  He explained that there was no dispute that on 30 June 2019, the applicant arrived at Hong Kong International Airport from Johannesburg, South Africa.  Customs officers intercepted her for inquiry.  They searched her and found a packet of white powder inside her underwear.  It was later confirmed that the white powder weighed 218 grammes and contained 184 grammes of cocaine.  She was arrested and taken to North Lantau Hospital and then to Queen Elizabeth Hospital.  Over the next several days, she excreted a total of 60 pellets from her body.  It was later confirmed that the 60 pellets contained 465 grammes of a white powder containing 373 grammes of cocaine.

12.The judge gave a comprehensive summary of the applicant’s evidence that addressed the following matters.  She said she did not know she was carrying cocaine in her underwear and body.  She described in her evidence that she was diagnosed with HIV in 2009.  On about 20 June 2019, the applicant met Sandy and was brought to Sandy's home in Johannesburg.  Sandy convinced her to join Scientology in the hope of finding a cure for her and her son’s condition.  She believed she was carrying something which was collaborated between Scientology and traditional South African healers, specifically to cure HIV or AIDS, which had to be carried to Hong Kong for final processing.  She volunteered to help carry the substances to Hong Kong because she wanted her son and herself to be the first beneficiaries of the end product.  The substances had to be concealed inside her body and in her underwear in order to hide it from the South African authorities.  She said that she did not think the substance she was carrying into Hong Kong was illegal.

13.Sandy told the applicant that the whole process of completing the cure for HIV would be finalized in Hong Kong.  The only role available for the applicant was the transportation of the substance to Hong Kong for further processing.  The applicant was asked to swallow baby carrots without chewing.  Sandy explained that the solution would be hidden in something like baby carrots in order to be hidden away from the South African Government to avoid being confiscated. After the applicant showed Sandy that she was able to swallow the baby carrots, Sandy confirmed that the applicant and her second son would be the first beneficiaries of the finalized cure[3].

14.On 27 June 2019, the applicant purchased an air ticket to Hong Kong with her own money through a travel agent in Johannesburg.  Hotel reservations for 2 and 7 nights were also made in her name on the same day.  The accommodation for the first two nights in Hong Kong was paid by Sandy with her credit card[4].

15.In the afternoon of 27 June 2019, the applicant returned to Sandy’s home where she saw the pellets she had to swallow.  She started swallowing them on the morning of 29 June 2019. Sandy gave the applicant a plastic bag and instructed her to conceal it in her underpants, which she did.  Sandy also instructed the applicant that when she arrived at the hotel in Hong Kong, she should excrete the pellets.  Sandy would call her to give her further instructions[5].

16.The applicant thought she was carrying a combination of natural remedies and Western medicine, which would be further developed in Hong Kong to create a cure for HIV[6].  She believed swallowing the pellets was to conceal them from South African authorities.  She believed that if a permanent solution for HIV was found, it would deprive certain officials of the benefits they received in maintaining the status quo.  The applicant did not consider that she was bringing anything illegal into Hong Kong.  She explained that the reason why she did not remove the plastic bag from her underpants when she was on the flight to Hong Kong was because she did not think about it and had not received instructions from Sandy to remove it[7].

17.In his summing-up to the jury, the judge rightly directed them that:[8]

“The main issue that you have to decide in this case is whether the defendant knew that the white powder found in her underwear and in her body were dangerous drugs of some kind.”

18.He gave the standard directions to the jury regarding the burden and standard of proof, during which he reminded them that if the applicant’s evidence was true or may be true, they should return a verdict of not guilty:[9]

“If, after considering all the evidence, you are sure that the defendant is guilty, then you must return a verdict of guilty. If you are not sure, then your verdict must be not guilty.

The defence put forward in this case is that she did not know that the dangerous drugs found inside her body and inside her underwear were, in fact, dangerous drugs. Now, it is not for the defendant to prove that defence. On the contrary, it is for the prosecution to prove that the defendant knew what she carried in her underwear and inside her body were dangerous drugs of some kind, not some cure for HIV or AIDS.

Of course, if the account put forward by the defence is true, then she must be acquitted of the charge.  But she must also be acquitted if that account may be true.  So again, if after considering all the evidence you are sure that the defendant is guilty of the charge brought against her, then you must return a verdict of guilty.  If you are not sure, then your verdict must be one of not guilty.” 

19.The judge next addressed the defence case and importantly directed the jury as follows:[10]

“The defendant has elected to give evidence in this case. She was not obliged to give evidence. She was not obliged to call any witnesses. She does not have to prove her innocence. She does not have to prove anything. However, she has chosen to give evidence. You must take what she has said into account when considering the issues of fact which you have to determine.

It is for you to decide whether you believe the evidence of the defendant or whether that evidence may be true. As I have previously told you, if the account given by the defendant is or may be true, then the defendant must be acquitted. Even if you entirely reject the account given by the defendant, that would not relieve the prosecution of its burden of making you sure by evidence of the defendant’s guilt.

Let me repeat that. If you entirely reject the defendant’s evidence then put it aside and ask whether the prosecution has proved her guilt on the basis of the prosecution evidence, which you do accept.

If, on the other hand, you find in relation to an issue in the case, the defendant’s evidence is or may be true, then you are not entitled to fine against the defendant on that issue, and you must take her evidence into account.

It also follows that if you reject part of the defendant’s evidence, that find that some of it is true or may be true, put aside the part that you reject, concentrate on the defence evidence which you find a be true or may be true, and also concentrate on the prosecution evidence which you are sure is true.” (Emphasis added)

20.The judge by the above remarks, was making sure that the jury understood that even if they rejected the applicant’s evidence, they still had to be satisfied to the requisite standard that the prosecution had proven its case against the applicant.

21.This was a straightforward case.  The applicant was caught bringing drugs concealed in and on her person to Hong Kong.  She gave evidence that she did not know the substances she was transporting were dangerous drugs.  By their verdict, the jury had rejected the applicant’s evidence and were satisfied that the prosecution had proven its case to the requisite standard. 

Conclusion

22.I have carefully considered the applicant’s leave application against conviction and cannot find any reasonably arguable grounds of appeal.  Accordingly, I refuse the applicant leave to appeal against conviction.

23.The applicant is informed that she has the right to renew her application for leave to appeal against conviction to the Court of Appeal, but she is also informed that the Court has the power to order the loss of any time which she has served in custody pending the hearing of her appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Mr Nicholas Wong, SADPP (Ag), of Department of Justice, for the respondent

The applicant appeared in person