HKSAR v. Montano Alma Putong and Another

CACC 137/2023

[2024] HKCA 1180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 137 OF 2023

(ON APPEAL FROM HCCC NO 127 OF 2021)

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J U D G M E N T

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1.The 1^st applicant was charged with attempting to traffic in a dangerous drug (Count 1)  and the 2^nd applicant with trafficking in a dangerous drug (Count 2). On 30 June 2023, they were convicted after trial of the count each faced before Deputy High Court Judge D Yau (as he then was)  (the Judge)  and a jury. The Judge sentenced the 1^st applicant to 25 years’ imprisonment and the 2^nd applicant to 26 years’ imprisonment.

2.On 21 July 2023, the 1^st applicant filed a notice of application for leave to appeal against conviction.  On 27 July 2023, the 2^nd applicant likewise filed a notice of application for leave to appeal against conviction.

3.The 1^st applicant appears in person, having had legal aid refused on 18 October 2023 and legal assistance refused by the Clinical Legal Education Office of the University of Hong Kong on 4 November 2024.  The 2^nd applicant also appears in person, having had legal aid refused on 18 October 2023 and 25 June 2024, and legal assistance refused by the Bar Free Legal Service Scheme on 8 March 2024.

The prosecution case

4.On 11 December 2019, the 1^st applicant collected a parcel that was addressed to her at her former employer’s address.  Customs officers intercepted the parcel and found it contained 2,971 grammes of Ice and 418 grammes of ketamine.  The 1^st applicant was arrested by the Customs officers after she signed for the parcel.  She claimed that she did not know the contents of the parcel and that she was collecting it for a friend called “Baby Loves”.  She participated in a controlled delivery and arranged for Baby Loves, who was the 2^nd applicant, to collect the parcel.  When the 2^nd applicant physically took possession of the parcel, Customs officers apprehended him.  He initially resisted but was eventually subdued.

5.An examination of the 1^st applicant’s mobile telephone revealed WhatsApp messages with Baby Loves suggesting that they were more than casual acquaintances, the delivery of the parcel was well-planned and the shipment was referred to as “our shipment”.[1]  An examination of the 2^nd applicant’s mobile telephone in his possession revealed WhatsApp messages with a person called “Maers”, who appeared to be the 1^st applicant[2].  The messages related to the importation of the drug parcel into Hong Kong with a person named “lk imo”[3].

6.At around 5:15 pm, the 1^st and 2^nd applicants participated in an identification confirmation, during which they denied knowing each other, with the 1^st applicant stating that the 2^nd applicant was not Baby Loves.  In a subsequent video recorded interview, the 1^st applicant changed her position, and confirmed that the 2^nd applicant was Baby Loves.  She explained that she was too scared to identify him at the scene.

7.At trial, the sole issue in respect of both counts was whether the 1^st and 2^nd applicants had knowledge of the dangerous drug in the parcel.  The prosecution’s case was that, based on all circumstantial evidence, the irresistible inference was that both of them knew of the drugs in the parcel.

The defence case

8.The 1^st applicant testified but did not call any defence witnesses.[4]  The 1^st applicant claimed that the 2^nd applicant was Baby Loves, who had befriended her at a playground.  He asked her to help collect a parcel and used the 1^st applicant’s name and address without her knowledge.  The 1^st applicant was unaware of the parcel’s contents.  She was not in a romantic relationship with the 2^nd applicant, but agreed to help him as she was a humble person.  The postal address was not a false address.  It was the address of her former employer and was given to the 2^nd applicant sometime ago.  She did not allow or consent to the 2^nd applicant using her old address to deceive others.  She did not lie to the decoy officers as she really did not have the key to the flat of the parcel address, nor did she lie to her employer as she was just making an excuse to help the 2^nd applicant.

9.The 1^st applicant’s defence case was that she was a victim who was used by the 2^nd applicant to collect the parcel and had no knowledge of its contents.[5]

10.The 2^nd applicant testified but did not call any defence witnesses.[6]  The 2^nd applicant claimed that he bumped into a Nigerian acquaintance named “Dozie” shortly before his arrest.  Dozie, who was late for a job interview, asked the 2^nd applicant to collect a red white blue bag from a female friend, handing the 2^nd applicant one of his mobile telephones to communicate with her, if necessary.  Dozie also mentioned that his brother would be arriving soon and would contact the 2^nd applicant to collect the bag and telephone afterwards.  The 2^nd applicant agreed to help as it was on his way, and he expected it to be quick.  Upon reaching the pick-up point, the 2^nd applicant did not initially see the woman and sent a message “am here baby” at 4:43 pm as Dozie instructed.  Soon after, the 2^nd applicant spotted the 1^st applicant approaching with a bag.  The 2^nd applicant asked if she was the one, but the 1^st applicant silently dropped the bag off and left.  At that point, Dozie’s brother called to say he had arrived.  Just as the 2^nd applicant picked up the bag, he was unexpectedly apprehended by Customs Officers, which startled him, leading to a brief resistance.  Once the 2^nd applicant realized their identity, he cooperated fully.  The 2^nd applicant had never met the 1^st applicant prior to this incident.

11.Defence counsel for the 1^st applicant, during cross-examination, questioned the 2^nd applicant’s previous conviction records and suggested that the 2^nd applicant was dishonest and lying, which was denied by the 2^nd applicant.[7]

12.It was the 2^nd applicant’s defence case that, he was not Baby Loves and did not know the drug contents of the bag or parcel.  The 1^st applicant was lying to protect the real Baby Loves.  Even if the 2^nd applicant’s evidence was disbelieved, the prosecution evidence did not support an irresistible inference that the 2^nd applicant had knowledge of the dangerous drugs involved.[8]

The 1^st applicant’s application

13.The 1^st applicant, in her notice for leave to appeal against conviction, set out three grounds of appeal.  By Ground 1, the 1^st applicant complained about the time the jury took to deliberate its verdict.  There was nothing unusual about the time taken by the jury, who returned a unanimous verdict.  By Ground 2, the 1^st applicant complains that there was no alternative charge on the indictment.  She faced a charge of attempting to traffic in dangerous drugs, and her defence was that she did not know the parcel she had agreed to collect contained dangerous drugs.  The only issue at trial was whether the 1^st applicant knew the parcel she was collecting contained dangerous drugs.  Based on the facts of the case, there was no obvious alternative charge.  By Ground 3, she complains that she was a victim acting on 2^nd applicant’s instructions to collect the parcel, repeating her defence at trial that she did not know the parcel contained dangerous drugs.

14.The 1^st applicant filed five additional grounds of appeal the day before the hearing.  She listed the following grounds of appeal: “(1)  misrepresentation; (2)  insufficient evidence; (3)  not proven; (4)  miscarriage of justice; and (5)  unfair.”  She claimed that she was a victim of a drug operation involving “a football gang”.  She relies on two letters dated 29 November and 10 December 2024 submitted by Father John Wotherspoon on her behalf in which he stated that there was a group of Nigerian men who belong to the same football team using women from Indonesia and the Philippines to traffic in dangerous drugs.  He listed scant particulars of cases allegedly involving women in such circumstances where the case against them had been dropped by the prosecution or resulted in an acquittal after trial.  Additionally, she emphasised that there was no direct evidence to show that she knew there were dangerous drugs inside the parcel.  She repeated that she merely signed the receipt of the parcel on the 2^nd applicant’s instructions, which she was to pass on to him.  She confirmed that 2^nd applicant was Baby Loves, who was the mastermind of this crime.

15.This was a circumstantial case[9], but the incriminating evidence against the 1^st applicant mainly came from her WhatsApp messages with the 2^nd applicant and the use of her former employer’s address. The messages reveal that the applicants were working together to arrange to collect the parcel, which was addressed to her at her former employer’s address.  In messages with the 2^nd applicant, there are references to “the shipment” or “our shipment” and a series of exchanges regarding her collection of the parcel.[10] She had initially denied that she knew the 2^nd applicant or that he was Baby Loves.  The 2^nd applicant’s mobile telephone contained corresponding WhatsApp messages as contained in the 1^st applicant’s mobile telephone.

The 2^nd applicant’s application

16.The 2^nd applicant advances three grounds of appeal.  By Ground 1, he complains that the Judge erred in allowing the 1^st applicant’s counsel to adduce into evidence his previous convictions in order to challenge his credibility.  At trial, the 1^st applicant and the 2^nd applicant ran a cutthroat defence alleging that the other was Baby Loves.[11]  In attacking each other as part of their defence, they were able to utilise as a forensic weapon against the other’s credibility any previous criminal record as provided under section 54(1)(f)(iii)  of the Criminal Procedure Ordinance (Cap 221).  The 1^st applicant had a clear record, while the 2^nd applicant had four previous convictions unrelated to drugs.  When this occurs, it is provided that the jury must be properly directed on how the previous convictions may pertain to the defendant’s credibility or, where appropriate, to their propensity to commit the crime: R v Ng Hang Yee [12].  In the present case, the judge properly directed the jury in line with Specimen Direction 38: Defendant’s Character – Bad, that the 2^nd applicant’s convictions should be considered in assessing his credibility only, not as an indicator of his guilt of the offence.[13]  He fairly summarised the 2^nd applicant’s circumstances and reasons behind his guilty pleas for each conviction and his denial of being a dishonest person or lying in the witness box during cross-examination.[14]  He also emphasised several times that the 2^nd applicant’s previous convictions were not related to drugs.[15]  In the circumstances, the judge appropriately addressed the disclosure of the 2^nd applicant’s criminal record and consequently avoided any adverse prejudice to the 2^nd applicant.

17.By Ground 2, he avers that his counsel and solicitor at trial were flagrantly incompetent.  In support of this ground, he makes two points.  First, his trial counsel failed to put forward the case as he instructed, namely that the 1^st applicant was granted bail by the lower court after the present offence and was rearrested for receiving another parcel intended for Baby Loves, while he was in custody awaiting trial, to support his case that he was not Baby Loves.  Secondly, his solicitor failed to visit him before and during the trial to take instructions.  There is no substance to the 2^nd applicant’s complaint against his legal team at trial.  The 2^nd applicant’s claim that the 1^st applicant received another parcel for Baby Loves while on bail is untrue for two reasons.  First, the 1^st applicant had not been granted bail since the first mentioned date on 14 December 2019.  Secondly, the 2^nd applicant’s claim was contrary to his defence that the 1^st applicant was Baby Loves.  The 2^nd applicant’s complaint that he was not adequately represented by his lawyers at trial, particularly his solicitor, is not supported by the detailed account of the defence case that was presented on his behalf.[16] 

18.By Ground 3, he contends that there was insufficient evidence to prove his knowledge of the dangerous drugs in the parcel.  He submits that there was no evidence that the parcel was destined for him, such as a name, address or telephone number, nor was there any fingerprint or DNA evidence attributed to him found on the parcel.  He further adds that he stated that he had no knowledge of the dangerous drugs and the 1^st applicant nodded when he asked if the bag was for Dozie.

19.The fact that the parcel was not addressed to 2^nd applicant or the lack of his fingerprints or DNA on the parcel had no significance to the case, as it was not the prosecution case that he physically received the parcel.  In any event, the absence of his fingerprints[17] and his lack of knowledge regarding the contents of the parcel were duly presented to the jury[18].  The 2^nd applicant also complains that was insufficient evidence to establish his guilt for the offence.  However, as pointed out by the respondent there was a strong circumstantial case against him.  The evidence included (i)  it was not in dispute that he took possession of the parcel containing the drugs with a street value of $1.8 million on a public street from the 1^st applicant; (ii)  the drug traffickers would not have entrusted such a valuable quantity of drugs to a stranger for delivery; (iii)  the 2^nd applicant was apprehended holding an unlocked telephone that contained drug importation and trafficking messages with lk imo when he picked up the parcel; (iv)  the 1^st applicant identified the 2^nd applicant as Baby Loves, who instructed her to receive the parcel containing the drugs; (v)  the 2^nd applicant’s call records and messages corresponded with those on the 1^st applicant’s mobile telephone and related events.

Conclusion

20.For the foregoing reasons, the applications for leave to appeal against conviction by the 1^st applicant and the 2^nd applicant are refused.

21.The 1^st and 2^nd applicants are reminded of their right to renew their applications for leave to the Court of Appeal, but they are also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending their appeals, if the Court were to come to the view that there was no justification for the renewal of their applications.

Mr Wilson Lam, SPP, of Department of Justice, for the respondent

The 1^st and 2^nd applicants appeared in person