HKSAR v. Kouame Emmanuel

CACC 48/2024

[2024] HKCA 1165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 2024

(ON APPEAL FROM HCCC NO. 108 OF 2022)

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REASONS FOR JUDGMENT

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Introduction

1.The applicant was convicted of two counts of trafficking in dangerous drugs[1] (counts 1 and 2) and one count of obstructing a police officer in the due execution of his duty[2](count 3) after trial before Deputy High Court Judge Tony Li (“the judge”) and a jury. For count 2, the applicant was charged together with D2 and it was an admitted fact[3]that D2 had pleaded guilty to the charge.

2.The applicant, by way of Form XI filed on 27 February 2024, applied for leave to appeal against his convictions.

The prosecution case

3.All three counts related to an anti-narcotic operation conducted by the police in the early morning of 2 April 2020 at a guesthouse in Chungking Mansion, Tsim Sha Tsui. It was not disputed that the applicant and D2 were found inside Room 7 of the said guesthouse which they had rented since July 2019. The police searched Room 7 as well as Room 6 (rented by D2) and found therein packets of drugs forming the basis of counts 1 and 2. Count 3 alleged that the applicant and D2 obstructed a police officer during the said operation.

4.The prosecution case was that when the police banged on the locked door of Room 7 and revealed their identities, they heard the noise of broken glass inside. Having given prior warnings, the police broke in. At the time, the applicant was standing in the toilet and D2 was near the door. Both put up a struggle but were later subdued. The police searched Room 7 and found that the window in the toilet was broken, and there was a rucksack underneath the water basin containing packets of drugs forming the basis of count 1. DNA which could have originated from the applicant was found on the outer packing of a packet of drugs inside the rucksack.

5.The police found on a bed in Room 6 the drugs in count 2. DNA which could have originated from the applicant was found on the outer packing of a packet of drugs which was placed inside a can. Moreover, the applicant’s fingerprint was found on the display screen of one of the electronic scales in Room 6.

6.The applicant subsequently attended video-recorded interviews during which he provided some exculpatory statements. He claimed that the rucksack did not belong to him and he had no knowledge about its contents. The applicant also said that he knew nothing about the drugs in Room 6 and he had never been there.

The defence case

7.The applicant elected to give evidence. He said that he came to Hong Kong in 2018 and was a Form 8 recognizance holder. He contributed to the rental payment of Room 7. He had not been to Room 6. The rucksack was given to him by “Chy” the night before and he was asked to keep it in Room 7. The applicant said he was told that the rucksack contained Chy’s clothes and he never opened or looked into it.

8.On the morning of 2 April 2020, the applicant said that he was awaken by some loud noise and he helped D2 push the door against the people outside whom he believed to be intruders. Then, he fell on the ground by the toilet door when the people broke in and he did not struggle.

9.In respect of the fingerprint found on the electronic scale, the applicant explained that the said scale was once placed on his bed and he had moved it to the cabinet.

Grounds of appeal

10.The applicant, acting in person, complained that:

(1)  the prosecution made a serious harmful remark before the jury when cross-examining him, which was highly prejudicial to his case;

(2)  D2’s guilty plea and his sentence were mentioned and that was harmful to his case; and

(3)  the judge failed to give adequate directions to the jury on how they should approach the DNA evidence.

Consideration

11.As to ground (1), the applicant submitted that prosecuting counsel’s suggestion, when cross-examining him, that the reason why he had left his apartment in Jordan and went to live in a guesthouse in Chungking Mansion was for the purpose of drug trafficking was not supported by evidence and it invited speculation from the jury and caused him prejudice.

12.This ground is without merit. During cross-examination, a party is entitled to put to a witness, including a defendant, suggestions relevant to the issues in the case. As it was the prosecution’s case here that the applicant used Rooms 6 and 7 for drug trafficking, which was supported by the large amount of drugs and the electronic scales seized therein, prosecuting counsel was entitled to put the impugned suggestion to the applicant.

13.More importantly, as pointed out by Mr Kelvin Tang, Senior Public Prosecutor, for the respondent, the judge gave clear directions to the jury on how they should approach oral evidence and emphasized that the suggestions put to witnesses by counsel were not evidence[4]. This direction was repeated when the judge summarised the applicant’s evidence. He reminded the jury that questions asked by counsel were not by themselves evidence[5].

14.Concerning ground (2), D2’s guilty plea was an agreed fact placed before the jury and there was never any mentioning of D2’s sentence, whether by the judge or in the Admitted Facts. The judge gave correct and clear directions to the jury as to how they should approach D2’s guilty plea[6]. The directions were in line with the relevant specimen directions. No complaint could be made about the judge’s handling of this matter.

15.Finally, as to ground (3), the applicant contended that since the expert evidence showed that it would be possible for DNA to be transferred indirectly, the judge should direct the jury to completely ignore the DNA evidence if they accepted the defence case that the DNA might have been contaminated by the police at the scene. The applicant further submitted that the judge should direct the jury that the DNA evidence, on its own, was not probative of the applicant’s guilt.

16.The judge had repeated in detail the expert evidence given by PW5[7]and had reminded the jury of the parties’ respective cases on the DNA evidence.

17.In the present case, as the prosecution did not only rely on the DNA evidence but on a number of other matters to prove the charges, including the applicant’s admission of having brought the rucksack into the room; the value of the drugs; and his fingerprint on one of the electronic scales in Room 6, the more pertinent question for the jury was whether the prosecution evidence, when considered as a whole, would allow them to draw the only inference that the applicant was guilty.

18.In this connection, the judge had carefully directed the jury on how to approach circumstantial evidence and the drawing of inferences[8]. The directions could not be flawed.

19.Moreover, on the second day of the summing-up, the judge again reminded the jury that they must not draw the inference against the applicant if that was not the only reasonable one[9].

Conclusion

20.I do not consider any of the grounds advanced by the applicant to be reasonably arguable. The application for leave is refused.

21.I have reminded the applicant that he is entitled to renew his application for leave to appeal but if the Court finds the renewal application unmeritorious, the Court may order loss of time against him.

Mr Tang Ming Chung, Kelvin, SPP, of the Department of Justice, for the Respondent

The applicant appeared in person