HKSAR v. Camara Kandja

CACC 247/2021

[2024] HKCA 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 247 OF 2021

(ON APPEAL FROM HCCC NO 171 OF 2020)

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REASONS FOR JUDGMENT

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1.The applicant pleaded not guilty to a single count of trafficking in a dangerous drug, namely 1,459.3 grammes of a solid containing 1,252.7 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Following a trial in the High Court before Deputy Judge Derek Chan, SC (“the judge”) and a jury, she was convicted of the offence by a majority verdict of 6:1. Subsequently, on 28 October 2021, the judge sentenced the applicant to 22½ years’ imprisonment.

2.By a Notice of Appeal (Form XI) dated 4 November 2021, the applicant initially sought leave to appeal against both her conviction and sentence. However, a legal aid certificate was only granted in relation to conviction. On 29 June 2022, the applicant abandoned her application for leave to appeal against sentence by way of a Notice of Abandonment and, by operation of Rule 39 of the Criminal Appeal Rules, Cap 221A, her application in relation to sentence was formally dismissed.

3.The leave application regarding conviction proceeded. On 14 May, I refused leave to appeal against conviction and said I would hand down my reasons for doing so in due course. These are my reasons.

The prosecution case

4.It was not disputed that on 15 July 2019, the applicant arrived in Hong Kong on a flight from Addis Ababa, in Ethiopia[1]. She was intercepted at the airport by a Customs officer and a body search conducted. A large pellet of suspected dangerous drugs was found in the applicant’s underwear. The applicant was accordingly transferred to North Lantau Hospital and Queen Elizabeth Hospital, where X-ray examinations revealed foreign bodies inside the applicant’s abdomen[2].

5.Over the next few days, the applicant excreted 51 pellets of dangerous drugs at the Detention Ward of Queen Elizabeth Hospital and one last pellet at Tai Lam Centre for Women[3]. On the last occasion, Correctional Services officer Lo Ka-yan (PW26) asked the applicant what the pellet was, to which she answered, “Maybe cocaine”[4].

6.The total of 53 pellets seized from the applicant were examined and together found to contain 1,459.3 grammes of solid containing 1,252.7 grammes of cocaine, the street value of which was estimated at HK$2,072,206[5].

7.The applicant is a national of the Republic of Guinea, having been born at Conakry in that country. She is now 42 years old and has 3 children aged 14, 8 and 7. She had a clear record in both Guinea and Hong Kong. When she was arrested, her personal belongings included a mobile telephone, multiple sim cards and various amounts of cash in different currencies (3,055 US Dollars, 1,100 Indian Rupees and 30,500 Guinean currency)[6].

The defence

8.The applicant accepted at trial that she was knowingly carrying narcotics into Hong Kong[7]. However, her defence was that she was forced to do so and, at the time of the commission of the offence, she was acting under duress.

9.The applicant lived with her family in Ratoma, a town in Conakry. She left secondary school when she was 16 years of age and took up a variety of jobs, including working in hair salons, being involved in trading and working in a laundry shop. From 2013, the applicant traded and sold jewellery, apparel, honey and palm oil. Her trading would take her to India to source wigs for sale in Guinea[8].

10.While she was working in the laundry shop in 2011, the applicant met a customer named Djone, who frequented the place (sometimes with his two children), and who struck the applicant as an honest and serious man. In late 2018, the applicant encountered Djone in Addis Ababa airport during a stopover on her way back to Guinea from India. On this occasion, the two talked about a number of things, including Djone’s business of selling electrical items in Addis Ababa and the nature of the applicant’s trade. During this conversation, Djone proposed that: (1) the applicant could work with him and purchase merchandise from a contact he had in Hong Kong, which she could then sell in Guinea; (2), since she did not have enough money, he would pay for all her expenses related to the journey, including hotel, aeroplane ticket and money for the trade; and (3) the applicant would share in profits from the business. Before continuing on their journeys, the applicant and Djone exchanged telephone numbers[9].

11.After returning to Conakry, the applicant received calls from Djone from time to time discussing his earlier proposal. Eventually, Djone told the applicant that he would book a flight for the applicant to Hong Kong; and further, that he had given the applicant’s telephone number to his brother[10].

12.On 12 July 2019, Djone’s brother called the applicant and asked to meet her in Ratoma. He said he had already bought the flight tickets for her and she would have to go to Hong Kong. On this day, Djone’s brother visited the applicant’s family home in Ratoma. He met the applicant and her family, including all of her children, and gave the applicant instructions for the journey, the flight tickets and some related documents. The applicant was instructed to fly to Addis Ababa first, in order to meet Djone’s family. These family visits were necessary, Djone’s brother explained, because the applicant and Djone would be going into business together. Before leaving the applicant’s home on the evening of 12 July 2019, Djone’s brother saved the contact number of a person referred to as “Customer” in the applicant’s telephone. The applicant understood that this person was the contact in Hong Kong for the merchandise[11].

13.The applicant left Conakry for Addis Ababa the next morning. Upon her arrival in Addis Ababa on the evening of 13 July 2019, the applicant used her telephone to call Djone; however, no one answered the call. As Djone was supposed to pick up the applicant at the airport, the applicant asked a taxi driver to help her contact Djone by using his own telephone. Djone answered the driver’s call and gave a particular address. The taxi driver then drove the applicant to an address near the airport[12].

14.When the applicant arrived at the address, she met Djone and two of his male associates. She got into Djone’s car and was driven to a remote house, where she was taken to the third floor. Seeing nobody else around, the applicant asked Djone where his family was and he replied that, since it was late, she would be meeting his family the next day at his home, which was some way away. The applicant was surprised, and began to feel uncomfortable, but spent the night at the house[13].

15.In the morning of 14 July 2019, Djone and his two male associates came to the applicant and said they had a new proposal for her. They opened a door to a room and showed the applicant some capsules. Djone asked the applicant whether she knew what they were. Having seen similar things on the internet and believing them to be drugs, the applicant told Djone that she would rather die than get involved in such a trade. On hearing this, Djone and the two male associates became angry and aggressive, telling the applicant that she must take the drugs to Hong Kong, otherwise Djone would lose a lot of money. He then threatened the applicant that should she refuse, she and one of her children would be killed. Djone showed the applicant a photograph of her children on his telephone, which had seemingly been taken by Djone’s brother. One of Djone’s associates went out and returned with a gun and a pillow[14].

16.Having been shouted at and held at gunpoint, the applicant was frightened and, believing their threats, she agreed to cooperate. She understood that Djone’s brother was still in Conakry and would be able to carry out the threat, if the applicant refused to take the drugs to Hong Kong. For the sake of her children and herself, the applicant felt she had no choice but to cooperate. She was asked to swallow the capsules, which she did. During the process she vomited many times and had to use fruit juice and water to ease the task. At one point she wanted to back out but the men insisted and pointed a gun at her. At another point when the applicant said she could not take any more, she was taken to a toilet and told to put some capsules in her anus and vagina. The applicant explained that she had undergone surgery and could not do so. The men then took out some condoms, lipstick and a sanitary napkin and asked the applicant to place the largest capsule, wrapped in the condom, between her vagina and the sanitary napkin, which was coloured red by lipstick[15].

17.Before leaving the house, Djone searched the applicant’s bag and took away US$2,000 in cash of the applicant’s money. Djone and his two male associates then drove the applicant to the airport. During the journey, Djone told the applicant that he had other people, who would be watching her. He also claimed that he knew people working at the airport and had agents in Hong Kong as well. The applicant was asked not to say anything to anyone. If at the airport, or during the flight, the applicant tried to tell anyone what was happening, Djone would know and his brother in Guinea would kill one of the applicant’s children. Djone instructed the applicant to contact the Customer after arriving at the hotel in Hong Kong, and the Customer would take care of everything[16].

18.Since the applicant believed Djone’s threats to be real, she did not report the matter to anyone. She boarded the flight, knowing she was bringing drugs into Hong Kong, but claiming she had no choice in the matter. Had she refused, Djone and his men would have killed her and one of her children[17].

Whether the applicant was under duress

19.The outcome of the trial hinged on whether the applicant’s account was believable. The prosecution sought to establish that the applicant was lying about her claim of duress and invited the jury to draw an adverse inference against the applicant. The following suggestions were put by prosecuting counsel:

(a)  It was agreed that while working in the laundry shop, the applicant knew nothing about Djone[18] or about trading in electrical goods. Prosecuting counsel suggested that it was strange that Djone should ask the applicant to purchase the merchandise[19] for him when he had already dealt with the Hong Kong contact himself. To this, the applicant said she did not know why but Djone was free to make his own business decisions[20]. Although she had no experience in trading electric items, the applicant believed there was a first time for everything[21].

(b)  The applicant confirmed that before Djone’s brother called her on 12 July 2019, Djone had told her on the telephone that his brother had already bought the flight tickets for the applicant to go to Hong Kong, without confirming with her first. It was suggested that for a mother with three children, such a scenario was very unlikely. For a trip of uncertain length, she would surely have been consulted first as to whether it would be convenient for her. The applicant answered that since Djone had discussed the proposal to purchase merchandise in Hong Kong with her from time to time, she knew she had to be ready at any time. She did not think that this was suspicious[22].

(c)  In the night of 13 July 2019, when the applicant was taken to a remote house in Addis Ababa, the applicant became worried after she realised Djone’s family was not there. Prosecuting counsel suggested the applicant could have used her telephone to hire a taxi and leave. The applicant said she did not have the telephone number of the taxi driver who helped her earlier so he could not be contacted. She was not familiar with this country at all and did not even know where she was.

(d)  Prosecuting counsel suggested that after the applicant left Djone and his associates at Addis Ababa airport, she could have made a telephone call in the Ladies’ washroom to alert her family in Conakry, Guinea, yet the applicant did not even try to do so. She responded that there was no Wi-Fi at the airport; nor was there enough time for her to try.

(e)  Before the applicant was intercepted by Hong Kong Customs, she did not say anything as she passed through Immigration or Customs. She explained that she had never been to Hong Kong before and had no idea whether the law enforcement authorities in Hong Kong were good or corrupt. In any event, the applicant was told and believed that if she could not deliver the drugs to the Customer, one of her children would be killed[23].

The original grounds of appeal

20.In this application for leave, the applicant was originally represented by her previous trial counsel, on the instructions of the Director of Legal Aid but her legal aid certificate was subsequently revoked and she has since been acting in person. However, despite three written requests from the court asking the applicant whether she was intending to adopt the perfected grounds of appeal and written submission prepared by her former counsel and, if not, what her grounds of appeal would be, the applicant has failed to answer any of the court’s enquiries. In the circumstances, I shall deal with her grounds as drafted by her former counsel, since they are still on the record, and also with her Form XI Notice of Appeal as supplemented by what she has said to me orally in court.

The challenge to the Specimen Direction 21.2 (original Ground 1)

21.By Ground 1, the applicant’s former counsel mounted a challenge to the judge’s direction on circumstantial evidence under Specimen Direction 21.2, which was faithfully given to the jury as follows[24]:

“Circumstantial evidence can be powerful evidence. Indeed, it can be as powerful, or even more powerful, than direct evidence. But it is important that you examine it with care, as with all evidence, and consider whether the evidence which the prosecution relies upon to prove its case is reliable and whether it does prove guilt. Or whether, on the other hand, it reveals any other circumstances which are, or may be, of sufficient reliability and strength to cast doubt on the prosecution case, or even destroy the prosecution case.

You should be careful to distinguish between reaching a conclusion based on reliable circumstantial evidence and mere speculation. So be careful to distinguish between the two. Speculation amounts to no more than guessing, or making up theories without good evidence to support them. Neither the prosecution, nor the defence, nor you, should do that.” (Emphasis added)

22.Issue was taken with several parts of the above direction. Firstly, it was argued that “circumstances … of sufficient reliability and strength” asked for more than what was required from something that may be true and thus placed an additional hurdle for the jury to acquit[25]. Secondly, the expression “consider whether the evidence which the prosecution relies upon to prove its case” directed the jury only to consider the prosecution case[26]. Thirdly, the prohibition of “making up theories without good evidence to support them” excluded any exculpatory theory that may be true but fell short of “good” evidence[27].

23.Not only were these same complaints raised at trial after the judge gave the impugned direction[28], but the same argument was repeated by the same counsel in another appeal where almost identical directions had been given at trial. In that appeal, namely, HKSAR v Khaw Kim Sun[29], the Court of Appeal roundly rejected this same ground of appeal[30]. Counsel then sought to appeal the Court of Appeal’s decision on this ground but the Appeal Committee of the Court of Final Appeal (“the Appeal Committee”) rejected any of the criticisms of Specimen Direction 21.2, holding that the standard direction was “unimpeachable”[31].

Whether the direction was unnecessary (original Ground 2)

24.Ground 2 is an extension of Ground 1. It was contended that because of the impugned direction, a burden was thereby placed on the applicant to prove her innocence. However, the Appeal Committee has rejected this complaint too[32] on the basis that the direction asked the jury to decide whether the prosecution evidence was reliable: it did not place any burden on the applicant.

25.The law having now been authoritatively clarified by the Appeal Committee, an appeal mounted on the same grounds as the grounds drafted by the applicant’s former counsel is not reasonably arguable.

The catch-all (original Ground 3)

26.Ground 3 is a general ground stating that because of the complaints above, the applicant’s conviction was unsafe and unsatisfactory. For the above reasons, this ground too is not reasonably arguable.

Events following the CFA ruling and hearing of the application

27.Shortly after the Appeal Committee approved of the correctness of Specimen Direction 21.2, the Director of Legal Aid discharged the applicant’s Legal Aid Certificate on 2 August 2023. Since then, the applicant has been unrepresented[33].

28.Due to the applicant’s repeated and continuing failures to reply to and inform the court whether she would still adopt the perfected grounds of appeal of her former counsel and/or what her grounds of appeal would be, one can only refer to the applicant’s initial grounds stated in her Form XI Notice of Appeal, filed on 4 November 2021. There, the applicant stated that “the judge, the prosecutor and the jury” did not take her defence into account, and that “they only consider the drugs all because I am coloured (black)”. Before me, the applicant has continued to protest that since she was forced to do what she did, she should have been found not guilty as a result.

29.However, this was a classic case for the jury to determine. Ultimately, the jury entertained no reasonable doubt about her actions and rejected her defence of duress. That being an essentially factual determination by the jury, who heard and saw the witnesses and evidence, it is not for the Court of Appeal to interfere, provided the jury received correct directions from the judge. In this case, I can see no appealable error on the part of the judge or any other reasonably arguable grounds of appeal.

30.Having examined all the papers in this case, I would observe that the summing-up was extremely fair, entirely correct and in accordance with the law and the evidence. The application for leave to appeal against conviction must, in those circumstances be refused.

31.Accordingly, the application for leave to appeal against conviction is refused. The applicant is advised that she has the right to renew her application for leave to the full Court of Appeal, but she is also warned that the Court has the power to order the loss of any time she has already spent in custody pending the appeal, if the Court were to come to the conclusion that the application should not have been renewed.

Mr Michael Wong SADPP and Mr Michael Ma SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person