HKSAR v. MUKASERA ESTINA

CACC 38/2021

[2022] HKCA 1141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2021

(ON APPEAL FROM HCCC NO 302 OF 2019)

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J U D G M E N T

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1.  The applicant was unanimously convicted of one count of trafficking in a dangerous drug, namely 2,091 grammes of a crystalline solid containing 1,393 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on 1 February 2021, following her trial before Andrew Chan J (the “judge”) and a jury; and, on 11 February 2021, sentenced to 24 years’ imprisonment.

2.  The applicant now seeks leave to appeal against conviction and sentence by way of Form XI filed on 18 February 2021. Mr David Boyton of counsel appears on the instructions of the Director of Legal Aid in respect of her appeal against conviction. The applicant acts in person in relation to the appeal against sentence.

3.  This application is being dealt with on paper.

Appeal against conviction

4.  The central issue at trial was whether the applicant knew she was bringing dangerous drugs into Hong Kong[1].

Admitted facts[2]

5.  The applicant flew from Malawi to Kenya on 27 July 2018, arriving on the same date. She was scheduled to fly from Kenya to Dubai on 28 July 2018 for a connecting flight to Hong Kong. However, she missed the flight to Dubai on 28 July 2018, and instead took the flight on 2 August 2018. She arrived in Dubai shortly before midnight on 2 August 2018, and flew to Hong Kong on 3 August 2018. She arrived in Hong Kong at about 3 pm and cleared Hong Kong Immigration at 4:03 pm[3].

6.  At 4:37 pm on 3 August 2018, the applicant was intercepted for a baggage search by Customs officers in Hong Kong at the “nothing to declare”[4]. The Ice particularised in the indictment, with a street value of about HK$1.1 million at the time of her arrest, was found in her backpack[5].

7.  The applicant was arrested at 4:53 pm on 3 August 2018[6]. Customs Inspector Wong (PW3) conducted a preliminary enquiry interview with the applicant under caution between 5:40 pm and 5:55 pm, which he then reduced into writing (Exhibit P60)[7]. In the preliminary enquiry interview, the applicant claimed that she came to Hong Kong for seven days for sightseeing and would stay in a hotel whose name she had forgotten, but the “booking” was in her bag[8]. She bought the chocolates in a supermarket in Kenya at US$150 as a gift for her fiancé. (In her subsequent video recorded interview, she said the chocolates containing the ice were given to her by her fiancé’s brother Frank in Kenya, as a gift from Frank to her fiancé[9].) In response to the question “Will you meet anyone in Hong Kong?”, she answered “No, I don’t have any friend.” (In her subsequent video recorded interview, she said she came to Hong Kong to meet her fiancé and wanted to correct the answer in the preliminary enquiry[10]).

8.  Between 3:51 pm and 6:44 pm on 4 August 2018, PW3 conducted a video recorded interview (“VRI”) with the applicant under caution and its contents were duly transcribed (Exhibit P64)[11]. In the VRI, the applicant claimed that the chocolates found containing Ice were given to her by her fiancé’s brother Frank, as a gift from Frank to her fiancé.[12] She said that her fiancé, who was a Kenyan, was in London at that time. She spelt his name as “Emmueal Phiri Banda”[13].

9.  Photographs were taken from the contents of the backpack and the personal property seized from the applicant (Exhibit P66).[14] Amongst her personal property were two Hong Kong hotel booking confirmations[15]. One was from “Canadian Hostel” which showed that a single room had been reserved for “Mrs Mukasera Estina” between 3 August 2018 and 8 August 2018 for 1 guest. Another one was from “Sea View Hotel” which showed that a double bed room had been reserved for “Banda Phiri” (the name of the applicant’s purported fiancé), between 3 August 2018 and 9 August 2018 for 1 guest.

10.  Some WhatsApp messages, one photographic image[16] and six Facebook messages were retrieved from the applicant’s mobile telephone (Exhibit P69B). The photographic image was of a hotel receipt dated 27 July 2018 purportedly issued by Smart Hotel stating that HK$500 was received from Miss Mukasera Estina and Mr Banda Phiri[17] (hereinafter referred to as the “Smart Hotel Receipt”).

The prosecution case

11.  The prosecution case was that the applicant was on a “drug run”[18]. Dangerous drugs were found concealed inside three boxes of chocolates, which were placed inside a backpack the applicant was carrying at the time of arrest. The applicant, being a member of the drug syndicate and knowing that dangerous drugs had been put into the chocolate boxes, deliberately trafficked them into Hong Kong[19].

12.  The prosecution called three witnesses. The intercepting Customs officer (PW1) gave evidence as to how the dangerous drugs were detected and the initial reaction of the applicant, who denied any knowledge of the drugs[20].

13.  The exhibits officer (PW2) gave evidence that the ice was found inside two paper boxes and the big heart plastic box[21].

14.  The interviewing officer (PW3) conducted interviews with the applicant under caution in the preliminary enquiry and in two subsequent VRIs. PW3 testified that the applicant told him that her fiancé was called “Banda Phiri”, a Kenyan national, and that he would come to Hong Kong on 4 August 2018[22]. PW3 also gave evidence on the results of subsequent investigations, which revealed that: (1) the Smart Hotel Receipt retrieved from the applicant’s mobile telephone[23] was a false receipt, and no one in the names stated therein had checked into the hotel in July 2018[24]; (2) the bookings with the Canadian Hostel and Seaview Hotel were valid[25]; and (3) no passenger flying to Hong Kong from Dubai or London on 3 and 4 August matched the name of the applicant’s fiancé, as claimed by the applicant[26].

The defence case

15.  The defence case was that the three boxes of chocolates were placed inside the applicant’s backpack by Frank, the brother of the applicant’s fiancé. The applicant was simply asked to carry the chocolates to Hong Kong, which she did. The applicant did not know that dangerous drugs had been placed inside the chocolate boxes and she was duped or tricked into this delivery by a member of the drug syndicate. The defence claimed that the applicant was not a member of the syndicate, but rather its victim[27].

16.  The applicant did not testify and relied on the explanations she had given to Customs officers[28]. She called a psychiatrist and a clinical psychologist to give their opinions that she has low intelligence, which made her an easy prey target for the drug syndicate[29].

Grounds of appeal against conviction

17.  Four grounds of appeal against conviction have been advanced on the applicant’s behalf.

Ground 1 (place of origin)

18.  Ground 1 complains that the judge wrongly directed the jury as to the truth of the place of origin, namely “Made in China”, printed on the box of the chocolates. It is alleged by Mr Boyton that there was a real danger the jury may have accepted that some of the chocolates were in fact made in China and used this as a primary fact to draw an adverse inference that the applicant knew she was carrying dangerous drugs[30].

19.  The impugned direction reads as follows:

“Members of the jury, you may have already noticed that the big heart plastic box and the two paper boxes of chocolates, these chocolates were made in China and in Egypt. Have a look at the boxes, all right? Well, I do not think both countries are famous for producing chocolates, right, so you know, use your common sense. You may -- you may want to buy, I do not know, Swiss chocolates, Belgium chocolates, but Chinese chocolates made in Guangzhou? Right? The defendant was heading -- the defendant was heading to Hong Kong, part of China, and the logical -- the logical question that you may wish to ask yourself is why would one bring Chinese chocolates from Kenya and carry them to Hong Kong that is China?”[31]

20.  Mr Boyton emphasises that the place of origin was not relied on by prosecuting counsel in his closing speech and no specific hearsay warning was given by the judge in relation to the alleged place of origin[32]. He relies on Patel v Comptroller of Customs[33]and Comptroller of Customs v Western Lectric Co Ltd[34] to support the argument that printed words on the packaging of a product cannot be used to prove the place of their origin.

Ground 2 (out of court lies)

21.  Ground 2 complains that the judge expressly referred the jury to the alleged lies[35] in the applicant’s out of court statements (whether in the preliminary enquiry or VRIs), which went beyond an issue of credibility and had the effect of equating lies with guilt.

22.  The impugned passages appear in the summing-up where the judge named eight points of fact, evidence or circumstances which the prosecution relied on to infer the applicant was doing a drug run[36]. Mr Boyton complains of four out of the eight points cited:

(1)  In “Number 2”, the judge highlighted the applicant’s inconsistent answers as to who purchased the chocolates in her possession[37], namely the applicant or Frank;

(2)  In “Number 3”, the judge highlighted the applicant’s inconsistent answers as to the purpose of her visit and whether she was meeting anyone[38], namely for sightseeing and meeting no one or for meeting her fiancé;

(3)  In “Number 4”, the judge contrasted the applicant’s claim that she was to meet her fiancé in Hong Kong with PW3’s hearsay evidence that no passenger of the fiancé’s name came to Hong Kong on 3 or 4 August[39];

(4)  In “Number 8”, the judge commented that the applicant “would have plenty of time to come up with her story” before giving her VRI[40].

23.  Mr Boyton submits that since the prosecution did not rely on the applicant’s lies, the directions were unfair or amounted to a material irregularity[41]: see HKSAR v Bian Zhenju[42] and Yuen Kwai-choi v HKSAR[43].

Ground 3 (enquiries by the authorities)

24.  Ground 3 complains that the judge wrongly emphasised the investigation findings of Customs officers (in PW3’s evidence), which were in fact hearsay.

25.  The impugned investigation findings were: (1) no person in the name of the applicant’s fiancé came to Hong Kong from London or Dubai on 3 or 4 August[44]; (2) the photograph retrieved from the applicant’s mobile telephone (the Smart Hotel Receipt) was a false receipt[45]; and (3) the bookings with the Canadian Hostel and Seaview Hotel were valid[46], about which the judge made the comment, “Interestingly, the Seaview Hotel booking (Exhibit P41) indicated that Banda Phiri was living in Malawi, the country of residence as stated on the booking, not Kenya, not London”[47].

Ground 4 (mixed statement direction)

26.  Ground 4 complains that in relation to the applicant’s mixed statements to Customs officers, the judge wrongly directed the jury, “So as a matter of law, you may feel that there is less weight to be attached to her excuses”[48], thereby usurping the fact-finding role of the jury and/ or placing a burden on the applicant to testify in her defence. It is also said to have undermined the Berrada direction that the applicant with a clear record was more likely to tell the truth.

The respondent’s submissions

Reply to Ground 1

27.  Ms Claudia Ng, on behalf of the respondent, submits that the judge’s direction in this regard did not demonstrate a reliance on the truth of the country of origin. The judge and the jury were entitled to examine physical exhibits, and were able to observe the country of origin printed on the box of chocolates. Regardless of the truth of the country of origin printed, the judge was merely inviting the jury to consider whether a person in Kenya would purchase chocolates “purportedly” made in China and bring them all the way to Hong Kong. The jury were merely invited to use common sense in considering this matter when they looked at the chocolate box. Ms Ng also pointed out that defence counsel, in his closing address to the jury, had also relied on the weight printed on the boxes to advance the argument that there was nothing suspicious about the weight of the boxes[49]. There was nothing wrong, therefore, for the judge to have referred to what was printed on the boxes.

Reply to Ground 2

28.  The respondent submits that although it is correct to say that the prosecution did not rely on the applicant’s lies to prove guilt, it was not correct to say that the judge had expressly referred to lies not relied on by the prosecution and equated them with guilt.

29.  The judge’s summing-up should be viewed in its proper context. The judge did not raise the four impugned points of his own volition: he was merely encapsulating the points made by prosecuting counsel, namely the applicant’s explanations as to the purpose of her visit[50], the mode of communication[51] and the time available for her to come up with the story before giving the VRI[52]. The judge made it clear that those were the facts, evidence or circumstances relied on by the prosecution[53].

30.  Ms Ng submits that it was right for the parties and the judge to have agreed not to give a lies direction in the present case[54], and the judge was careful enough to direct the jury, both before and after summarising the prosecution case, that the jury alone should decide what evidence to accept or reject and that counsel’s speeches or the judge’s own views on the evidence were not binding upon them[55].

Reply to Ground 3

31.  Ms Ng submits that the judge’s directions did not go beyond the applicant’s credibility and were on the whole fair and adequate in respect of the jury’s duty to assess the evidence. A judge was allowed to point out an obvious deficiency in the defence case, even if not alluded to in prosecuting counsel’s closing speech (See: HKSAR v Umali[56]). The judge did no more than offer for the jury’s consideration an apparent illogicality or implausibility in order to assist them in their analysis.

32.  The respondent argues that the prosecution did not, as alleged, go so far as to establish the name and nationality of the fiancé. It was part of the defence case that the applicant voluntarily told the Customs officer the name and nationality of the fiancé[57]. And, it was also part of the defence case that the flight itinerary and hotel bookings supported the applicant’s version in her VRI as to the time, route and place she undertook to go to in Hong Kong and that she was genuinely going to spend a vacation in Hong Kong[58]. Hence, the judge was not at fault in referring to the hotel bookings and inviting the jury to consider what they indicated[59].

Reply to ground 4 (mixed statement direction)

33.  The respondent submits that the judge’s directions, when considered as a whole, did not result in any prejudice to the applicant. The relevant direction reads:

“Insofar as her explanations given to the customs, her utterance, what she said, her explanations contained both incriminating parts and excuses. Incriminating parts, that is parts showing her involvement. Members of the jury, you may feel that the incriminating parts are likely to be true. For example, in this case, the defendant admitted that the three boxes of chocolates had been placed into her backpack and that she knew about that, and also the fact that she was carrying those boxes when entering into Hong Kong. So these are the incriminating parts.

You may on the other hand feel that there is less weight to be attached to her excuses. For example, in this case the defendant claimed that she did not know inside the chocolate boxes there were dangerous drugs. These were her excuses. So as a matter of law, you may feel that there is less weight to be attached to her excuses because they were not made by the defendant on oath. She has not been -- well, the explanations have not been repeated on oath. They have not been tested by cross-examination.

On oath, I mean the defendant elects to give evidence and then be cross-examined by the prosecutor, right. She chose to exercise her right of silence. That is fine. But that means on the other hand when she gave her explanations to the customs, that is entirely up to you, you may feel that less weight should be given to her explanations because she has not -- she has not repeated the explanations under oath and that has not been cross-examined by the prosecution.” (emphasis supplied by the respondent)[60]

34.  Ms Ng submits that the mixed statement direction given by the judge was in line with the relevant Specimen Direction[61]. Coupled with the directions given on the applicant’s good character[62] and her right of silence,[63] the jury were sufficiently directed to deal with the applicant’s out of court explanations.

Appeal against sentence

Mitigation

35.  It was submitted in mitigation that the applicant was 32 years of age and a person of clear record. She had given birth to a son whilst in custody, who would in due course be sent to Po Leung Kuk for adoption on turning 4 years of age. It was accepted that there was an international element since the applicant had imported Ice into Hong Kong[64].

Reasons for sentence

36.  The judge considered that the applicant had acted as a courier for financial reward. In accordance with the sentencing tariff, he adopted a starting point of 23 years' imprisonment. He then enhanced the starting point by 2 years to reflect the international element. As the applicant would have to raise her child in prison, which imposed an additional hardship for her, the judge reduced the sentence by 1 year. The ultimate sentence, therefore, was 24 years’ imprisonment[65].

Ground of appeal against sentence

37.  The applicant acts in person in respect of her appeal against sentence and has not set out any grounds of appeal, other than to ask the Court for mercy and reduce her sentence so that she may be reunited with her child as soon as possible.

The respondent’s reply

38.  The respondent submits that the 23 years starting point adopted by the judge was correct and in line with established sentencing guidelines[66]. The 2 year enhancement reflecting the international element also consistent with HKSAR v Chung Ping Kun[67]. The one-year discount gave effect to the applicant’s special circumstances. The ultimate sentence of 24 years’ imprisonment was reasonable and appropriate.

Discussion

39.  I am prepared to grant leave to appeal against conviction on Grounds 1, 2 and 3 as being reasonably arguable. I refuse leave to appeal on Ground 4, which is neither reasonably arguable nor would such a slip by the judge, assuming it to be one, have made the slightest difference to the jury’s approach to the evidence or the conviction in this case.

40.  I refuse leave to appeal against sentence. The term of imprisonment is in accordance with authority and there is no reasonably arguable appeal that it is either wrong in principle or manifestly excessive. Indeed, it already extended a measure of mercy for the applicant’s predicament within the judge’s discretion.

41.  Whilst I grant leave to appeal on some of the grounds advanced, I advise the applicant that she is entitled to renew her application for leave to appeal against conviction on Ground 4 and/or her application for leave to appeal against sentence, which applications I have refused. However, she is also warned that the Court of Appeal has the power to order the loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the conclusion that there was no justification for the renewal of the particular application which I have refused.