HKSAR v. Sithole Palesa Donetie Yvette

CACC 111/2022

[2024] HKCA 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 111 OF 2022

(ON APPEAL FROM HCCC NO 321 OF 2020)

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D E C I S I O N

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1.On 12 July 2022, following a trial before Campbell-Moffat J (the Judge) and a jury, the applicant was convicted of a single count of trafficking in a dangerous drug, namely, 1,721 grammes of a solid containing 1,007 grammes of cocaine, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). On 15 July 2022, the Judge sentenced the applicant to 24 years’ imprisonment.

2.On 29 July 2022, the applicant applied for leave to appeal against her conviction, complaining that her conviction was against the weight of the evidence.

3.The applicant, a South African national, arrived in Hong Kong on a flight from Sao Paulo, Brazil, via Addis Ababa, Ethiopia, on 8 February 2020. She was found to have a quantity of cocaine concealed in her brassiere. She gave evidence in her defence that she would travel to and from Brazil to purchase human hair for the business she operated in South Africa. She said she was tricked into transporting the drugs to Hong Kong by a person called “Joe”, who told her that the substance she was transporting was a common chemical that was legal in Hong Kong but had to be concealed on her body because they did not have a licence for it.

4.The applicant appeared in person at the leave hearing, having had legal aid refused on 26 October 2022. She applied for an adjournment of the hearing because she was awaiting a response to inquiries that her previous solicitors had undertaken regarding who purchased her airline ticket and whether her passport details had been disclosed when the ticket was purchased. As I understand, the relevance of the inquiry is that the ticket was purchased in Brazil when the applicant was in South Africa, and this would lend support to her defence that she had been tricked into transporting the drugs to Hong Kong. Mr Simon Cleves of Messrs Krishnan & Tsang, solicitors, attended today’s hearing and produced correspondence with Ethiopian Airlines regarding this matter.

5.I raised a matter with the parties that took place at the end of the Judge’s summing-up to the jury. The Judge, having given the jury the standard direction that they had to be satisfied beyond reasonable doubt or sure of the applicant’s guilt, was asked a question by the forewoman regarding the phrase “beyond reasonable doubt”. Instead of receiving a written question from the jury, which would be discussed with counsel to provide an appropriate response, she invited the forewoman to address her orally in respect of her question. The forewoman asked, “When you say ‘beyond reasonable doubt’ what is the percentage we are looking at? 60/40, 70/30, 80/20 or 90/10?”[1]

6.The Judge did not discuss the question with counsel but answered it straightaway, giving a perfectly correct answer by stating that it was not a question of percentages and that they had to be sure. However, she concluded by saying, “So the bar for the prosecution is high, but it is a simple enough phrase, really, and that is why we moved on from ‘beyond reasonable doubt’ because that is a slightly more difficult case. But all it means is: be sure. All right?”[2]

7.There was a further question from another juror concerning the drawing of an inference, and there was discussion with the juror by the Judge and counsel on this matter and some queries about the evidence. It was after a lengthy discussion that the Judge said, “That will be you now discussing evidence. I cannot get involved in that. All right?”[3]

8.Ms Angel Yuen, for the respondent, submitted that the Judge had correctly directed the jury on the standard of proof in her summing-up and that the jury would have been in no doubt that they had to be sure of the applicant’s guilt. Moreover, the Judge’s comment caused no prejudice to the applicant.[4]

9.While Ms Yuen has provided a comprehensive written submission dealing generally with the applicant’s case and an explanation of the Judge’s comment, I still feel that the applicant should have the benefit of legal counsel to argue the matter to determine whether it is a reasonably arguable ground of appeal and any other matter that may arise from the applicant’s inquiries regarding the airline ticket or the discussion with the jury at the end of the summing-up. I have therefore decided to grant the applicant an appeal aid certificate to be legally represented in her leave application under Rule 12(3) of the Legal Aid in Criminal Cases Rules, (Cap 221), in particular whether there is a reasonably arguable ground of appeal in respect of the Judge’s concluding comment that “we moved on from ‘beyond reasonable doubt’ because that is a slightly more difficult case.”

Ms Angel Yuen, SPP, of Department of Justice, for the respondent

The applicant appeared in person