HKSAR v. CONDE MAMADY

CAC C 118/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 118 OF 2012

(ON APPEAL FROM HCCC NO. 220 OF 2011)

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REASONS FOR JUDGMENT

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Hon Yuen JA (giving the Reasons for Judgment of the Court):

1.  This was an application by Conde Mamady (“the Applicant”) for leave to appeal against his conviction on 8 March 2012 by Deputy High Court Judge Lugar-Mawson and a jury of one count of trafficking in dangerous drugs.  At the conclusion of the hearing, we dismissed the application and indicated we would provide written reasons for our judgment.  We do so now.    

Prosecution case at trial

2.  The prosecution case against the Applicant, a 35 year old businessman from Guinea, was that on 18 February 2011, he arrived at Hong Kong International Airport in transit from Nairobi, Kenya to Cambodia.  Customs officials questioned him and his luggage (a soft suitcase) was retrieved from the baggage handling area for examination.  The suitcase was put through an X-ray scanner which revealed that something was concealed at the bottom.  The bottom was then taken apart in the Applicant’s presence and there was found a package containing 2.9 kg of methamphetamine hydrochloride (commonly known as “Ice”), with a street value of more than $1.8m.  At the time of his arrest, the Applicant had US$874 on him.

3.  The Applicant was interviewed by Customs officers and the record of interview was produced at the trial.  In summary he said he had been in the business of selling mobile phones in Nigeria for 5 years but he bought them domestically only.  He intended to travel to Cambodia in order to buy mobile phones.  He had US$6,000 but his friend Chuma had told him that he needed to present US$10,000 to the authorities before he could be issued a business travelling document, although he only needed US$1,000 for a holiday visa.  However Chuma said he could assist him by introducing him to his (Chuma’s) friend Sunny in Cambodia.  Sunny would go with him to the market to buy the goods.  The Applicant then gave US$6,000 to Chuma who organized the trip.  He said he went by road from Nigeria to Cameroon, and from there flew to Nairobi, and from Nairobi to Hong Kong.  However by the time his flight arrived in Hong Kong, his flight to Cambodia had left, so he had to wait for another flight. 

4.  The Applicant said he did not know about the drugs inside the suitcase.  He had originally left Nigeria with his own bag, but when he arrived in Cameroon, Chuma bought him a jacket saying it was very cold in Cambodia.  As the jacket could not fit into his own bag, Chuma lent him the suitcase.  The Applicant then put the jacket and transferred his clothes and articles to the suitcase, leaving his original bag in Cameroon.  He had not noticed anything unusual about the suitcase Chuma lent him, he saw it was empty and he felt it was light for its size.

Defence case at trial

5.  The Applicant did not give evidence at trial, nor did he call any witnesses.

Issues at Trial

6.  The Applicant was represented at trial by a senior member of the Bar, Mr Paul Loughran.  The issues were whether the Applicant knew there was something concealed in the false bottom of the suitcase and whether he knew that something was a dangerous drug.

Conviction

7.  The Applicant was found guilty by the jury.  The judge sentenced him to 27 years imprisonment.

Application for leave to appeal

8.  The Applicant has applied for leave to appeal against conviction.  He has sent a number of documents to the court, but essentially his grounds were as follows:

(1) He had no intention of coming to Hong Kong.  He was simply waiting for his onward journey to Cambodia.    

(2) The defence was not ready.  Mr Loughran had taken up the defence only on the first day of trial (1 March 2012).

(3) The trial judge implicitly directed the jury that he should be found guilty because there was no evidence from the defence.

(4) The trial judge was unfair as he had directed the jury to speculate about facts which were not material.   

(5) Even if the judge’s directions were correct, the jury’s verdict was perverse.

Discussion

9.  As for the first ground, it is well-established law that the offence of trafficking in dangerous drugs includes the importation of drugs into Hong Kong even though only in the course of transit.  In Secretary for Justice v Lau Suk Han [1998] 2 HKLRD 14, the defendants were travelling from Cambodia via Hong Kong to Canada. Dangerous drugs were found in their baggage whilst they were in transit.  It was held by this court (Chan CJHC, Leong and Stuart-Moore JJA) that the terms of s.4(1) Dangerous Drugs Ordinance Cap.134 (the offence with which the Applicant is charged) included drugs in transit, particularly where the amount of the drug was large and was destined for other countries.

10.  As for the second ground, it is not correct that Mr Loughran had taken up the defence only on the first day of trial (1 March 2012).  A Legal Aid Certificate filed in court shows that Mr Loughran was appointed on 15 February 2012, two weeks before the trial started.  Moreover, prior to Mr Loughran’s appointment, Mr Chan Siu Ming of counsel had represented the Applicant and Mr Chan had on 30 August 2011 attended a Pre-trial review at which an order was obtained from the court to vacate the original trial dates (starting on 7 September 2011) for documents to be obtained from Nigeria which it was hoped would assist with the defence.  In the event there was a 2^nd Pre-trial review on 9 January 2012 in which Mr Adams of counsel was instructed for the Applicant.  No further adjournment was sought then or at the start of trial on 1 March 2012.  In fact by the time of trial, more than a year had elapsed from the date of arrest, and one would have thought that whatever evidence was required for the defence would have been obtained.  Indeed the Applicant has not specified in what respect the defence was not ready.  At the hearing before this court the Applicant said in fact he had no objection to Mr Loughran.  What he meant was that he had a list of counsel whom he wished to represent him and Mr Loughran was not on that list.  However that does not mean the defence was not ready and the fact that a defendant on legal aid did not get his own choice of counsel is clearly not a ground of appeal. 

11.  As for the third ground, it is not correct to say that the trial judge implicitly directed the jury that he should be found guilty because there was no evidence from the defence.  In his directions to the jury, the judge had expressly said: “The defendant does not have to prove his innocence” (p13P) and “Let me make this very clear to you, ladies and gentlemen; the defendant does not have to give evidence, neither does he have to call witnesses.  The defendant is entitled to sit in the dock and require the prosecution to prove its case.  You must not assume that the defendant is guilty because he has not given evidence.  The fact that he has not given evidence proves nothing one way or the other.  It does nothing to establish his guilt” (p17M-Q). 

12.  As for the fourth ground, the trial judge had explicitly directed the jury not to speculate.  He said “You must decide the case only on the evidence that you have heard and seen in this courtroom in the course of this trial” (p11O) and “you must not look for evidence which is not there and you must not speculate about what other evidence there might have been.  Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them and neither the prosecution, the defence, nor you, the jury, should do that” (p12R-U).   

13.  As for the fifth ground, we see nothing that would indicate that the jury’s verdict was perverse.

14.  In the circumstances discussed above, we did not consider that there were any merits in the intended appeal and we duly dismissed the application for leave to appeal against conviction.