HKSAR v. Rehan Mariam Abdalla

CACC 48/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 2009

(ON APPEAL FROM HCCC NO. 240 OF 2008)

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BETWEEN

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Before: Hon Stock VP, McMahon J and Lunn J in Court

Date of Hearing: 28 October 2009

Date of Judgment: 28 October 2009

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.On 5 February 2009, the applicant was convicted after trial on indictment before Deputy Judge Line (as he then was) and a jury of an offence of unlawfully trafficking in a dangerous drug, namely, 1592.74 grammes of a mixture containing 981.73 grammes of heroin hydrochloride and she was sentenced to 22½ years’ imprisonment. The applications before the court are for leave to appeal against conviction and sentence.

2.It was common ground that the applicant was in possession of a suitcase when she entered Hong Kong at the International Airport on 25 June 2008 after a flight from India via Kuala Lumpur and that the drugs were in a concealed compartment of the suitcase. The sole issue at trial was whether the prosecution had proved that she knew that the drugs were there.

3.Her defence was that she was on a business trip from Kenya to India and to the Chinese Mainland. She said that whilst in India she stayed with a person called John and on the day she was due to leave India the zip of her own luggage bag broke and John gave her the suitcase from which he emptied his own belongings and into which her own were placed. She asserted that she never held the suitcase when it was empty. John had told her that once she was in Hong Kong he would send someone to pick up the suitcase from her. In this regard she had asked herself why he was so keen to retrieve the suitcase but she had not posed that question to him. She said that she did not know that there were drugs in the case.

4.A piece of evidence of importance to the prosecution case was the fact that before she cleared immigration in Hong Kong, she sent John an SMS message that was retrieved from her mobile telephone saying: “Am in Hong Kong immigration. When I clear I will text you”: a telling message, said the prosecution, since it sat more naturally with the act of a courier than with the story she had given. Her explanation was that this was a reply to a message from John. Yet that message was never found and she was driven to assert that the immigration officers had deleted it.

5.The application for leave to appeal against conviction concentrates on only one point, which is the contention that the judge erred in permitting the prosecution to adduce in evidence a suitcase similar to the one carried by the applicant, for the purpose of enabling the jury to compare the weight of that suitcase when empty, with its weight when it contained the drugs. The second suitcase was of the same weight as the first and in it was placed salt to a weight identical to that of the heroin found in the suitcase which the applicant carried at the time of her arrest. Furthermore the weight of each of the suitcases was almost the same as the weight of the drugs.

6.Mr Mackay, for the applicant, originally contended that this evidence should not have been admitted since its prejudicial value outweighed its probative value not least because it was the applicant’s account that she had never lifted the suitcase when it was empty. He appeared in oral submissions to change his tack to alleging that a comparison exercise between the suitcases was acceptable but only if the clothes were in the case but he then changed back to his original submission.

7.In his closing submissions to the jury, Mr Mackay had emphasised that there was no evidence that the applicant had lifted up the empty suitcase before it was filled with clothing and in his summing-up the judge took particular pains to point out to the jury that that was the applicant’s case.

8.Nonetheless, the jury was not hidebound by the facts asserted by the applicant. They were entitled – as no doubt they did – to disregard the applicant’s account that the suitcase was not hers or that she had never lifted it before she packed her own belongings; in which case it was incumbent upon them to determine whether the prosecution had, on its own evidence, proved its case. For that purpose, a comparison of weight between the suitcase(s) when empty, and the suitcase with the drugs in, might have been of some assistance in assessing whether the presence of a significant extra weight would have been apparent. In this regard, one of the points made by the prosecution was that a trafficker was unlikely to have slipped the drugs into the suitcase of an innocent traveller because the extra weight in this case was such as was likely to alert the traveller, thereby putting at risk the enterprise and the trafficker. It is noteworthy as well that the drugs in this case were as heavy, approximately, as the case itself. The weighing exercise might or might not have assisted the jury. But we do not agree that the prejudicial effect of the evidence outweighed its probative value. It may be that the exercise would have been more complete had there been a further test with the clothes in, but that was not asked for and is in any event a matter which in full context does not render the admission of the evidence unsafe or impermissible. Nor is this a case in which it is suggested that there was an irregularity in the trial such as where impermissible experiments are conducted in the jury room after retirement. The evidence was produced, and the comparison exercise was carried out, in open court and in the course of the prosecution case counsel was given an opportunity to conduct cross-examination of the witness who produced the second suitcase, but no such cross-examination was conducted.

9.In all these circumstances, the application for leave to appeal against conviction is dismissed.

10.In relation to sentence, the applicant represents herself. She has today notified the court that she does not pursue the application, recognising, correctly in our judgment, that the sentence is not impeachable. Accordingly, the application for leave to appeal against sentence is also dismissed.

Mr. Arthur LUK, SC, DDPP & Mr. Ira LUI, SPP of Department of Justice for the Respondent

Mr. Graeme A. Mackay instructed by M/s. Krishnan & Tsang for the Applicant (re: conviction)

Applicant Rehan Mariam Abdalla - acting in person (re: sentence)