HKSAR v. Mansare Alphonse

CACC 292/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 292 OF 2011

(ON APPEAL FROM HCCC NO. 375 OF 2010)

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BETWEEN

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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.This is an application for leave to appeal conviction. There was previously an application in relation to sentence, but that has been abandoned and therefore stands dismissed.

2.The applicant was charged on an indictment that contained one count of trafficking in dangerous drugs, in respect of which he was convicted in July 2011 after trial before Bokhary J and a jury.  He was sentenced to 22½ years’ imprisonment.

3.The applicant is a national of Guinea.  He arrived on a flight from Bangkok on the evening of 24 May 2010.  He was taken by Customs officers to the Queen Elizabeth Hospital for observation and between 2 a.m. the following morning and 2:40 p.m. on 26 May he passed, through his rectum, 68 pellets which contained 0.95 kg of a mixture containing 0.62 kg of heroin hydrochloride and 0.11 kilograms of monacetylmorphine hydrochloride; the street value of which was HK$872,100.  All of this was common ground at the trial.

4.His defence was that he was a businessman and in that connection had been in Thailand.  There he met a person called Marco whom he had never met before.  It was a chance encounter.  Marco discovered that the applicant was a businessman who purchased a variety of goods from South East Asian Countries to sell in Africa and one of the goods in which the applicant was interested was used car parts.  Marco offered to buy him a ticket to Hong Kong as an inducement to the applicant to buy car parts from Marco’s brother in Hong Kong. 

5.According to the applicant’s defence the arrangement was that Marco’s brother would meet the applicant at the Hong Kong International Airport.  No telephone numbers or addresses were exchanged and no contact details of Marco’s brother provided, facts which stood strongly against the inherent likelihood of the applicant’s account. 

6.According to this account, on the evening before his trip to Hong Kong from Bangkok, Marco as well as another man and a woman went to the applicant’s hotel room with some food and drinks.  The applicant consumed the drinks which were offered to him but could not remember what happened thereafter.  The next day, the day of the trip to Hong Kong, Marco gave the applicant a ticket to travel to Hong Kong and told the applicant that his, Marco’s brother would meet him in Hong Kong at the Arrival Hall of Hong Kong International Airport. 

7.Upon his arrival, the applicant was apprehended by Customs Officers who took him to hospital.  The applicant said that he was surprised when he was taken to hospital and even more surprised when he there excreted the pellets.  He suspected that Marco had drugged him and that whilst he was under the influence of the drugs, which must have been placed in the drinks which had been given to him at his hotel room, the pellets were inserted into, or consumed by, him.

8.The applicant called one witness on his behalf, a medical expert who testified that it was possible for a person to be drugged and have no memory of what then happened.  The expert mentioned that Rohypnol had this effect; yet Rohypnol carried with it dizziness, confusion and headaches afterwards, none of which symptoms the applicant had exhibited.

9.In his home-made grounds of appeal, the applicant makes a number of complaints: first, that his case was not properly investigated; second, that he had requested a blood test when he was at the Queen Elizabeth Hospital, because of his suspicion that he had been drugged, but no blood test had been carried out; third, that he was a businessman who could prove that he came to this part of the world on business; fourth, that the conviction was against the weight of the evidence; and fifth, that he was unfairly prejudiced by a question about a second passport of his which was suggested by the prosecutor to be forged or invalid.

10.We have studied the summing-up in this case and see no misdirection in it.  The judge invited the jury to consider whether it was in the least likely that the applicant would not know of the pellets of considerable individual size and combined weight in his body; and whether other persons would take the risk of inserting them into the body of a dupe.  Looking at the matter in that obvious light, the applicant’s account was, in our judgment – and no doubt in the judgment of the jury as well – impossible to believe; and the case against him was overwhelming.  As for the question of requesting a blood test, this was an issue fully canvassed at trial and none of the medical team who gave evidence remembered any such request.  Further, the jury knew full well of his allegations of being a businessman and, further still, the weight of the evidence was entirely one way.

11.In relation to the passport issue, when the matter first came before us, we had no transcript of the applicant’s testimony or the speeches of counsel, so we adjourned for that transcript to be prepared. We have studied it. 

12.There was never a suggestion of forgery of a passport.  What this was all about was that in the applicant’s possession were two passports, the first of which was full or almost full; the second in current use.  Also in the applicant’s possession were a large number of invoices.  

13.The prosecution’s case was that the invoices were false, a bogus cover used by the applicant in case he was apprehended, in order to suggest that he was a genuine businessman.  The very fact of his possession of these invoices was said by the prosecutor to support that postulation; as well as a number of other indicia of falsity, including but not restricted to, the fact that on one or more of the invoices, so it was alleged, the number of the earlier of the two passports was inserted on a date or dates when the earlier passport was suggested by prosecuting counsel to have expired.  There was no suggestion that the earlier passport was forged.  

14.The question whether the earlier passport was valid at the date of the entry of its number on the invoices was a permissible question to pursue but, in any event, we note that the contrary assertion, namely, that the earlier passport was not invalid was an assertion made by the applicant’s counsel and by the applicant in course of his evidence with emphasis placed on the fact that the earlier passport had not been stamped cancelled and therefore was valid.  It is important for the applicant to understand that this was but a small part of the case and it is clear from the tenor of the cross-examination and of re-examination that this question formed but a minor part of the case and in any event the judge directed the jury that the matter of the passports was not one that could advance the prosecution case.  In the event, we see nothing in this particular point.

15.There is a further suggestion by the applicant that certain comments by the judge had the effect of directing the jury to convict.  We do not agree.  The judge did not go beyond matters which a judge is entitled to draw to a jury’s attention for its consideration.

16.In the event, there is no merit in this application and it is dismissed.

Ms Agnes Chan, SADPP, of the Department of Justice, for the Respondent, on 13 December 2012

Ms Virginia Lau, ADPP (Ag.), of the Department of Justice, for the Respondent, on 17 September 2013

Applicant – acting in person