HKSAR v. Sithole Palesa Donetie Yvette

CACC 111/2022 [2025] HKCA 504

On appeal from [2022] HKCFI 2359

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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J U D G M E N T

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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.  She appeared in person at the leave hearing on 27 February 2024, having had legal aid refused.  At the conclusion of the hearing, the Single Judge granted her an appeal aid certificate regarding the Judge’s handling of a question from the jury on the phrase “beyond reasonable doubt” and any other matter arising from the applicant’s enquiries regarding her airline ticket and the discussion with the jury at the close of the summing-up. 

3.On 26 April 2024, the applicant filed a notice of application for leave to appeal against sentence out of time and an affirmation stating that she had been advised by her assigned counsel, Mr James Sherry, to appeal against his sentence.  Mr Sherry has been assigned to represent the applicant in relation to her leave applications against conviction and sentence out of time. 

4.On 27 August 2024, Mr Sherry filed the perfected grounds of appeal against conviction and sentence.[1]

The conviction appeal

5.Mr Sherry submits that the applicant’s conviction should be set aside on the following grounds:

Ground 1

“The Judge erred in allowing the prosecution to pursue a line of questioning in front of the jury which forced the applicant to speculate, guess, or even accept theories as to what others might have been thinking.”[2]

Ground 2

“The Judge erred in that she failed to:

(1) stop the exhibit produced as P10 from being used in the trial for an impermissible purpose; and/or

(2)direct the jury that because P10 had only been produced as an item seized from the applicant, they were not permitted to use it for a hearsay purpose.”  

Ground 3

“When the jury asked the Judge what evidence could be used to draw an inference, the Judge erred in that she:

(1) failed to excuse the jury so that she could discuss with counsel whether the jury would, in all the circumstances, be assisted by a further direction on the matter;

(2) failed to discuss with counsel if any further direction might confuse the jury having regard to the issue of knowledge which they had to decide, the other evidence in the case, and the directions they had already been given; and

(3) failed to properly direct the jury on what was evidence from which they could draw an inference.” 

The prosecution case

6.On 8 February 2020, the applicant, a South African national, departed from São Paulo in Brazil, travelled to Addis Ababa in Ethiopia on flight ET 507 and arrived in Hong Kong via Manila in the Philippines on flight ET 645. She was intercepted by a Customs officer at the Customs Arrival Hall of the Hong Kong International Airport when she was transporting three pieces of luggage through the “Nothing to Declare, Green channel”.[3]  Upon a body search, the applicant was found to be wearing a beige coloured brassiere underneath a black sports bra. A quantity of cocaine was concealed in the black inner layer pads sewn onto the brassiere.[4]  Other items seized from the applicant included an E-ticket (ET 507) (Exhibit P10)[5]; E-ticket (SA 222); boarding pass (ET 645) with baggage tag; some clothing items with traces of cocaine; a hotel booking; two mobile telephones with SIM cards; and US$882 in cash.[6] At the time of the offence, the total quality of cocaine seized had a street value of about HK$1.8 million.[7]  

7.The applicant was arrested and cautioned, and in response, she said she did not know what the substance was in the brassiere, but acknowledged that she had been promised 30,000 South African rands as a reward if she succeeded in bringing the substance into Hong Kong.  She confirmed her cautioned statement in a post record.[8]

8.In a subsequent video recorded interview, which was not challenged, the applicant stated the following under caution:^[9]

(i)    She lived in Durban, South Africa, and operated a small business selling clothing and natural human hair, earning 10,000 to 30,000 rands per month.[10]  

(ii)   In December 2019, she first met a man named “Joe” in Brazil through her friend named “Mike”, who was in the clothing and trading business in South Africa[11]. Joe offered to help her negotiate her purchase of hair in Brazil.  She had his number on her mobile telephone with a Brazilian SIM card, but she did not know his full name or address.[12]   

(iii)  Between December 2019 and February 2020, she had not communicated with Joe. Before her trip to Brazil on 2 February 2020, she asked Mike for Joe’s contact number, wanting Joe to take her to the local hair markets and assist her negotiations there, as she did not speak Portuguese.[13] 

(iv)  On 2 February 2020, she travelled from South Africa to São Paulo in Brazil, intending to purchase hair there and then return to South Africa.[14]

(v)   On 4 February 2020, she met Joe in São Paulo.[15] Joe said he knew about her financial struggles to pay for her stepfather’s funeral, and offered her a reward of 30,000 rands to transport a chemical to Hong Kong.[16]  She asked Joe, "if it is not drugs, as long as it is legal", to which he replied that it was not drugs and the substance was a common chemical that was legal in Hong Kong. However, she had to conceal the chemical on her body as they did not have a licence for it. He told her that the scientific name or formula of the chemical started with an “H”, but did not mention its usage. She thought that it would not be something that would put her in jail. The only reason she accepted Joe’s proposal was for the quick money, so that she could pay her stepfather’s funeral expenses.[17] Joe had asked for her particulars to book her flight and hotel for her trip to Hong Kong and she had given him her passport.[18]

(vi)  On 6 February 2020, she took a bus with Joe to the Hotel Palace, during which he asked for her bra size.  Inside the hotel, Joe gave her a brasserie with the chemical concealed in liquid form, claiming it was not drugs.  She felt that it was liquid, which was tied up inside a balloon.  Joe told her it was not drugs, adding that he would have made her swallow it if it were.  Joe then put the brasserie on her and gave her a sports bar which she put on by herself.  He also provided her flight tickets from Brazil to Hong Kong via Ethiopia and a hotel booking in Hong Kong, which he had paid, and US$500 in cash for her to spend.[19]   

(vii) On 7 February 2020, during her stopover in Addis Ababa, Ethiopia, she noticed that the left cup of the brasserie was leaking a liquid which smelled like nail polish remover.  She sent a message to Joe asking him what she should do. He advised her to use socks to cover up the hole.  She then took a flight from Ethiopia to Hong Kong. [20]   

(viii)On 8 February 2020, she was instructed by Joe to avoid contact with anyone upon her arrival in Hong Kong, take a taxi directly from the airport to Shamrock Hotel, pass the brasserie to a man there, and collect her reward.[21]

The defence case

9.The applicant gave evidence in her defence but did not call any witnesses.  She testified that she had been deceived by Joe and Mike into transporting the drugs to Hong Kong.  She did not know the brasserie contained dangerous drugs, nor that her flight tickets from Brazil to Hong Kong had been booked before her trip from South Africa to Brazil on 2 February 2020.[22]

10.In respect of Exhibit P10[23], the applicant said she was unaware of the flight tickets from Brazil to Hong Kong via Ethiopia (on Exhibit P10).  She explained that those tickets first came into her possession on 6 February 2020, when Joe handed them to her along with the hotel booking at the Hotel Palace. She placed the documents into her bag without looking at them.[24] In cross-examination, when she was referred to Exhibit P10 that the E-tickets were booked on 31 January 2020, prior to her departure from South Africa to Brazil on 2 February 2020, she said she did not know anything about the booking.[25] 

11.Whilst accepting that the E-tickets had already been booked as pointed out by the prosecution[26], the applicant said that she did not know about the pre-booking of the tickets and how Mike had her passport details to make the booking, apart from the personal particulars including her full name, address and telephone number, which she had previously provided him for the purpose of sending her clothes via DHL prior to this incident.[27] She also said she gave her passport to Joe on 4 February 2020 when he asked her for her particulars to make the booking.[28] 

12.It was also highlighted in the applicant’s defence that she was not involved in planning the trip to Hong Kong. It was submitted that if she had been so involved, she would have ensured that the return date of 13 February 2020 from Hong Kong to São Paulo via Ethiopia would not have clashed with her flight booking from São Paulo to Johannesburg on 12 February 2020. [29]

The summing-up

13.The Judge gave standard directions to the jury in her summing-up, explaining the elements of the offence[30], the functions of the jury[31], and the burden and standard of proof[32], in that the jury must be sure of the applicant’s guilt.  The Judge also summarised in detail the evidence for the prosecution[33] and the defence[34], and explained the basis of the drawing of inferences.[35]  As to the issue of knowledge, the Judge emphatically directed the jury that they had to be sure the applicant knew she was transporting dangerous drugs in her bra:[36]

“Mere suspicion is not enough. So suspecting I have got a dangerous drug in my bra is not sufficient for knowledge. To convict the accused you must be sure she knew the bra contained dangerous drugs, and there may be many factors, if you find them proved, which help you to decide whether or not you can be sure that the defendant knew that the drugs or a product in her bra was dangerous drugs. So in summary, you must on the evidence as you find it, as the sole judges of the facts, be sure she knew of the existence of the drugs. And unless you are sure, you must acquit the defendant.”

14.The Judge then reminded the jury that the applicant in her evidence suggested that “she had no knowledge of what it was that she possessed in her bra that day other than that it was a liquid chemical”.[37] She directed that, if they were to reject her evidence, they must consider the prosecution evidence as to knowledge, and that the only reasonable inference to be drawn from the proven facts was that the applicant “knew she was trafficking in dangerous drugs if not from the very beginning, from before she ever left South Africa, then at least by the time she was in Addis Ababa and seen the leak and looking in the mirror.”[38]

Ground 1: unfair question

15.Mr Sherry complains about a single question from prosecuting counsel when cross-examining the applicant.  Admittedly, it was convoluted, but there was nothing in the question to make it the subject of a ground of appeal.  He complains that prosecuting counsel was asking the applicant to comment on how Joe and Mike were able to deceive her to bring an illegal substance into Hong Kong.  There was no objection to the question and she answered it.  Moreover, it was her defence that she had been deceived by Joe and Mike to smuggle a substance into Hong Kong. 

16.This ground of appeal is without merit.

Ground 2: the admissibility of Exhibit P10

17.Exhibit P10 was the booking document of the applicant’s E-tickets, which was adduced into evidence under the admitted facts.  It was recorded in the document that the booking was made on 31 January 2020, which included her flights to Hong Kong.  Mr Sherry complains that the date on the document was hearsay and inadmissible, and yet numerous references were made to the jury regarding the significance of the booking date shown on this exhibit.  None of the references he has referred to in the Judge’s summing-up are linked to the date on the booking document.  It was the applicant’s case that she was unaware how the booking of her flights was made without providing her passport particulars.  She claimed she had only given her name, address and telephone number for sending a parcel of clothing. 

18.When directing the jury, the Judge referred to the applicant’s evidence regarding the booking of the E-tickets:

“She booked her online ticket to return, we all know, on 29 January through the travel agency that was in Maputo, but she booked it online. You can see it for yourselves. It is, obviously, just one of the types of ticket that you would get if you did this. Mr Ross or somebody had raised the point about the fact that on these tickets her marital status is “Mrs”, and she was saying, “No, I would never put Mrs.” But the Mrs is on both the tickets. It’s not just on the Ethiopian Airline ticket, it is on both. I do not know whether that is of any relevance to you.

The same day she booked it, she told Mike and she told you, “I told Mike because I wanted to meet up with Joe because Joe was going to be taking me to look for hair shops.” … She has told you she knew not a thing about the Ethiopian E-ticket at tab 8, which was booked only two days later. Then she left for Brazil not knowing any of that.

She also told you she could think of no reason why Mike would have all of her passport details -- this was her words -- to make such a booking. She told you, under cross-examination, so in examination-in-chief she said that. Under cross-examination she said, “I can’t remember any reason that would give me, apart from my address, when he would send -- when I moved to Durban he would send some clothes. I can’t remember him giving -- giving him any. There would be no reason to give him my particulars.” But under re-examination by Mr Ross she said that she thought she would have given her address, full name and telephone number to Mike for the purpose of him sending clothes via DHL.”[39]

…

“One might wonder, why on earth she needed to give the passport to Joe because Joe had already booked the ticket, so why did he ask for it? But, anyway, she gave her passport to Joe. When she gave the passport to Joe he told her he would make the arrangements the following day which was the Wednesday.”[40]

…

“She did not know about the other E-ticket date. She thought he wanted her passport on the Tuesday in order to actually book the ticket that she had – that she – and she had given him her passport on the 4^th. So he then had her passport for the further two days, Tuesday, Wednesday, and then Thursday when he finally gave her the ticket that you can now see, because that is the first time she came into possession of it on the Thursday.

If she was in on it, she told you, why did the return dates clash? Surely she would have ensured that the return dates were the same.”[41]

19.The Judge also referred the jury to what inference the prosecution invited them to draw from this booking information:

“Mr Percy pointed out that the defendant accepted that her E-ticket to Hong Kong had already been booked. In fact, at that stage, and that showed that she was to travel on Thursday, the 7^th, so presumably he had already got all of the details that he needed in order to book the ticket. But she, again, did not see how Mike would have had anything other than her name, address and telephone number.” [42]

…

“The E-tickets, you find those at tab 8 and 9, P10 and 11, which shows that her ticket to Hong Kong was booked prior to her even leaving to go to Brazil. Those may have required not just her name and address, but other personal particulars. Those could not have been in the possession of Mike merely because he sent her parcels. She only gave him her name, address and telephone number. The defendant told you she had never given Mike her passport details.”[43]

20.Defence counsel raised no objection regarding Exhibit P10, nor to the references referred to in the summing-up.[44] When the applicant testified, she gave evidence regarding this document and its contents, explaining she did not know how the booking was made at that time.

21.There is no substance to this ground of appeal.

Ground 3: the Judge’s comments

22.The jury asked the Judge two questions.  The first queried the phrase “beyond reasonable doubt”.  The second concerned the drawing of inferences. 

23.Having given the jury the standard direction that they had to be satisfied beyond reasonable doubt or sure of the applicant’s guilt, the Judge was asked the following question by the jury:[45]

“When you say ‘beyond reasonable doubt’…What is the percentage we are looking at? 60/40, 70/30, 80/20 or 90/10?”

24.The Judge answered the question straightaway, giving a perfectly correct answer by stating that it was not a question of percentages and that they had to be sure.  She concluded by saying: [46] 

“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?”

25.The jury asked a further question, regarding what evidence could be relied on for the drawing of inferences.  The Judge detailed the evidence on which the jury could draw inferences.  She said:[47]  

“And then you have the evidence of any oral witness, and that would include the defendant, so the four customs officers and the defendant. What they say is evidence for you. Questions from counsel are not evidence. Speeches of counsel are not evidence. My summing-up is not evidence. It is only evidence when a witness agrees with something that is suggested. “You were out late that night, weren’t you?” “Yes, I was.” That becomes evidence. “You were out late that night, weren’t you?” “No, I wasn’t.” That does not become evidence. You are restricted purely to the evidence, and of that evidence you must then decide what you are sure of. You might not be sure of all of the evidence for all sorts of reasons. You pick from that spread of evidence that which you find proven, you find you are sure of. Then, once you have got that list, and it might be a list of prosecution related evidence, it might be a list of defence related evidence, it might be something that seems to be in the middle of both. When you have got that, then and only then, can you look at Mr Percy’s argument which, is, you may from that, draw the only reasonable inference that the defendant knew. Is that all right?”

26.Mr Sherry’s complaint regarding the Judge’s answer to this question is the suggestion that a negative answer is not evidence.  He was critical of her example that when a person is asked the question if he was out late that night, and he said no, this would not be evidence.  It is evident from the whole of her answer that she was emphasising the importance of the evidence of the witness.

27.At the time, there was no confusion by what the Judge meant, nor was any objection raised regarding her answer.  Moreover, she was answering a query regarding inferential reasoning, which answered the jury’s question.

28.This ground of appeal is without merit.

The sentence appeal

29.Mr Sherry submits that the sentence of 24 years’ imprisonment was manifestly excessive and wrong in principle.  He argues that the Judge fell into error by automatically enhancing her sentence by a further 2 years on account of there being an international element, without considering the extent of her involvement in the trafficking operation.

30.In mitigation, counsel submitted that the applicant was 32 years old, a single mother with a 16-year-old daughter at the time of the offence.  Having completed high school, she was the breadwinner of the family, supporting her mother and siblings.  The Judge was urged to treat her as a courier who was directed by Joe and Mike.[48]

31.The Judge adopted a starting point of 22 years’ imprisonment based on the total quantity of cocaine, which was 1,007 grammes: HKSAR v Abdallah.[49]  Taking into account the aggravating factor for the international element, she then enhanced the starting point by 2 years to reach a sentence of 24 years’ imprisonment.[50]

32.In oral submissions, it was noted that in accordance with the new guidelines laid out in HKSAR v Huang Ruifang[51], the starting point adopted by the Judge would be significantly lower - 18 years’ imprisonment for 1,007 grammes of cocaine.  Additionally, while the international element under HKSAR v Lee Ming Ho[52] might warrant some enhancement, the final sentence would still be substantially less than the applicant’s current term. 

33.It was during the currency of her appeal proceedings and after counsel was assigned to her that she applied for leave to appeal against her sentence out of time.  I am satisfied that the applicant should be granted leave to appeal her sentence even though she is out of time.  Refusing the applicant leave to appeal against her sentence, would be denying her the chance to argue a substantial and plainly arguable ground of appeal that has a reasonable prospect of success, which would result in a substantial reduction to her sentence. 

Conclusion

34.For the reasons stated, I refuse the applicant leave to appeal against her conviction but grant her leave to appeal against her sentence.

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

[1]  Perfected Grounds of Appeal against Conviction and Sentence (Out of Time), pp 5-7.

[2]  Mr Sherry cited the applicant’s evidence in cross-examination on 6 July 2022 (16:21:40 to 16:23:02) [Applicant’s Written Submission dated 13 September 2024, at [3]]:

“So, these two men who you now believe are both criminals and had every intention of deceiving you into being a courier for their drugs… they made all these preparations between them knowing that you would be deceived and willing to transport chemicals to Hong Kong. They must have believed that they could deceive you into carrying chemicals, illegal substance into Hong Kong. And that you would be so deceived because they would sweeten the deal by paying for all your expenses on the trip for 6 days in Hong Kong and your accommodation and a reward for a successful delivery of the chemicals, is that right? So, they had planned all that in advance before you arrived in Brazil, do you agree? Ans: ‘Looks Like it’. Looks Like it”.

[3]  AB, pp 5-6, at [1]-[3].

[4]  AB, pp 6-7, at [4],[5] and [7].

[5]  Exhibit P10 was adduced by way of an admitted fact pursuant to section 65C of the Criminal Procedure Ordinance (Cap 221) as one of the items seized from the applicant.  (AB, p 7 at [6j] and p 127). The respondent submits that the prosecution had obtained a computer certificate from the airline company in accordance with section 22A of the Evidence Ordinance (Cap 8), producing the computer records of the flight booking, which was included in the Committal Bundle but not produced at trial: Respondent’s Written Submission, at [24], in response to Ground 2.

[6]  AB, pp 6-7, at [6].

[7]  AB, p 9, at [15].

[8]  AB, pp 7-8, at [9]-[10].

[9]  AB, p 8, at [11] and pp 58-125.

[10]  Counters 39-53 and 127-129.

[11]  Counters 180, 388-397, 527-551, 566-569 and 676-678.

[12]  Counters 376-383 and 501-512.

[13]  Counters 570-576.

[14]  Counters 168-182.

[15]  Counters 183-193.

[16]  Counters 133-143.

[17]  Counters 195, 198-251, 581-598 and 603-632.

[18]  Counters 482-498.

[19]  Counters 255-355 and 472-489. 

[20]  Counters 357-371. 

[21]  Counters 147-149 and 453-461. 

[22]    AB, 17N-U, 25K-M, 45L-N and 46A-B.

[23]  Exhibit P10 shows a booking record of four E-tickets issued (or two sets of return tickets) on 31 January 2020 by Ethiopian Airlines and booked under the applicant’s name via an agency called King Agencia. The four E-tickets included scheduled flights: (i) from São Paulo, Brazil to Addis Ababa, Ethiopia on 7 February 2020 (ET 507); (ii) from Addis Ababa, Ethiopia to Hong Kong on 8 February 2020 (ET 645); (iii) from Hong Kong to Addis Ababa, Ethiopia on 13 February 2020 (ET 645); and (iv) from Addis Ababa, Ethiopia to São Paulo, Brazil on 14 February 2020 (ET 506). 

It is noted that at the hearing on 27 February 2024, the applicant’s trial solicitors produced to the court their correspondence with Ethiopian Airlines to support her claim that she was not involved in planning the trip from Brazil to Hong Kong.  However, the airline’s email response indicated that the ticket information was “too old” to be retrieved from their system.

[24]  AB, 34K-L and 46F-J.

[25]  AB, 25H-M.

[26]  AB, 30P-S.

[27]  AB, 25M-S and 43G-K

[28]  AB, 46G-H.

[29]  AB, 46J-K.

[30]  AB, 15Q-18T.

[31]  AB, 12L-U.

[32]  AB, 13H-S.

[33]  AB, 11Q-12K.

[34]  AB, 19G-38J and 45C-47A.

[35]  AB, 18T-19D.

[36]  AB, 18N-T.

[37]  AB, 40I-K and 45L-M.

[38]  AB, 40R-U.

[39]  AB, 25B-S.

[40]  AB, 31K-N.

[41]  AB, 46F-K.

[42]  AB, 30P-S.

[43]  AB, 43G-L.

[44]  Respondent’s Written Submission dated 19 December 2024, at [25].

[45]  AB, 50E-G.

[46]  AB, 50H-N.

[47]  AB, 51G-R.

[48]  AB, 135-142.

[49]  HKSAR v Abdallah [2009] 2 HKLRD 437.

[50]  AB, 132-134.

[51]   HKSAR v Huang Ruifang [2025] 2 HKLRD 138.

[52]   HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.