HKSAR v. A person unknown alias BRAIN ALFRED HALL

CACC 343/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 343 OF 1998

(ON APPEAL FROM HCCC 22 OF 1998)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant was convicted after trial before Saied, J. and a jury in the Court of First Instance on one count of trafficking in dangerous drugs. The drugs involved were 873.39 grammes of a powder containing 794.17 grammes of cocaine hydrochloride. He was sentenced to 18 years imprisonment. He now seeks leave to appeal against conviction.

2. The prosecution case which is mainly based on the admitted facts is this:

3. In the morning of 14th September 1997, the applicant arrived at the Hong Kong International Airport from Sao Paulo, Brazil. When he went through customs, a customs officer asked him where he came from. He said "Canada". But when the officer examined his plane ticket, it showed that he came from Sao Paulo, Brazil. This arouse suspicion. On a search of his person, two plastic bags of substance were found, one in each of his shoes. The substance in the plastic bags was tested with a reagent and it was suspected to be cocaine. The applicant was cautioned. A search of his belongings was made and customs officers found a toothpaste tube in his travelling bag. The tube when cut open was found to contain two pellets. At about 10.50 a.m. that day, the applicant complained of stomach pain. He told the officers he had similar pellets in his abdomen and he excreted 20 pellets similar to those found in the toothpaste tube. The applicant was taken to the hospital and medical examination showed that he still had multiple tubular opacities along his intestinal track. Between 14th and 18th September 1997 while he was in hospital, the applicant excreted a further 8 pellets. The substances in the plastic bags and the pellets were subsequently found by the government chemist to be cocaine. Their total quantities formed the subject matter of the charge against him.

4. The applicant did not deny he took the cocaine into Hong Kong but his case is that of duress in that he was forced by threats of death or serious harm to him to commit the offence.

5. The applicant gave evidence as to how he was forced to commit this offence.

6. The applicant said he was a soccer player in Gambia. In 1996, a man called Kinsgley offered to help him to go to America to play professional soccer. He agreed and both of them then went to Caracas, Venezuela. There Kingsley asked him to carry dangerous drugs in exchange for help to go to America. He refused because he knew it was a serious crime. Kingsley then threatened him. As a result, he left Kingsley and went to stay with his friend Francis who was working in Colombia. Meanwhile, he met a Bulgarian woman Dima. Dima had refused to carry dangerous drugs for the people who brought her to Venezuela and she was beaten up by these people. With the help of the applicant and his friends, Dima escaped to Bogota. Kingsley some how found the applicant in Bogota told him to go to an address there to get the documents for going to America. When the applicant went to this address with Francis, they were detained in the house by Kingsley and his men. They tied him up and told him that until he returned the money spent on him to Kingsley, neither of them could leave the house. Kingsley told them that this was to teach them a lesson for running away. Eventually they asked for Kingsley's forgiveness and Kingsley freed them. Kingsley then told the applicant to go to Japan and gave him a Canadian passport, an air ticket to go to Hong Kong via Sao Paulo first. At the airport in Bogota, Kingsley gave him a contact number in Hong Kong and introduced him to a Brazilian whom Kingsley said would accompany him and look after him in Sao Paulo where he would transfer to the flight to Hong Kong. At Sao Paulo, he was taken to a house where two men tied him to a chair and questioned him on the whereabouts of the Bulgarian woman Dima. When he said he did not know he was put on the phone to speak to Kingsley. Kingsley asked him about the woman and warned him that his life and Francis' life were in his own hands. Francis also told him on the phone that his life, that is Francis' life, was at risk. That evening, the applicant said, the Brazilian took out a bag of cocaine and told him to take it to Hong Kong. When he refused, he was tied up and confined to the house for five days.

7. After that, he was told to swallow the pellets which were found inside his body. He refused because he knew they were cocaine but he was beaten and threatened with a pistol pointing at his temple. He was told to choose between the bullets and swallowing the drug pellets. As a result he swallowed the drug pellets.

8. They then took him to the airport. Just before they left for the airport, they blew up a flower pot in front of him. They gave him a toothpaste tube and told him that it contained explosives. This was the toothpaste tube found in his luggage by customs officers in Hong Kong. He was warned that he should do as he was told or otherwise he would be blown up like the flower pot. For the safety of others as well as for his own life he did as they told him. He said during the flight from Sao Paulo, the man who escorted him constantly reminded him of the instructions they had given to him. But this man disappeared after the stopover at Thailand. When he arrived in Hong Kong, he was searched by customs officers. Then he felt pain in his abdomen and he told the officers that he had drugs in his stomach and the toothpaste tube contained explosive. He also told the officers that he was not carrying the drugs for money but was forced by a group of people to carry the dangerous drugs. The applicant said when Kingsley first threatened him for refusing to carry dangerous drugs, he did not take the fact seriously enough to go to the police. But when Kingsley threatened to kill him, he took it seriously. He feared not only for his own life but also for the safety of his friend Francis who he said was still in the hands of the henchmen and therefore he did as he was told.

9. The applicant has submitted a number of letters since November 1998 and these letters have been placed before this court. In these letters which we have read, he complained among other things, that the court did not investigate the ordeal he had suffered in South America and that the prosecution had used a similar case involving a Colombian woman named Buitrago to influence the court to convict him. But his more substantial grounds are those contained in the formal grounds of appeal which have been typed written out and dated 16th March 1999.

10. The first of these grounds complains that the interpreter at the trial was incompetent and because of his incompetence, the jury were unable to understand his evidence fully and in this regard, the applicant today also complains that the Judge did not allow the tape to run its length and the Judge's repetition of the evidence was not accurate. The transcripts before us indeed recorded that after the applicant had started his evidence in chief for some time, the jury expressed concern that they were unable to follow the applicant's evidence through the interpreter. After some discussions and after listening to some parts of the tape of the proceedings, it was agreed by all parties concerned in these proceedings that it was best for the Judge to read out from his notes to the jury that part of the evidence which the jury said they did not understand. As a result the Judge did so. Thereafter, the jury, counsel for the prosecution and counsel for the defence all indicated that what evidence that was earlier unclear and not understood was then clarified. The interpreter was thereafter changed and there was no more complaint on interpretation as proceedings went on. The applicant neither himself nor through his legal representative had made any complaint that he was prejudiced in any way because of this unfortunate incident during the trial. The first ground of his appeal therefore has no substance.

11. The second ground is that the Judge was inaccurate and incomplete in his summing-up when he recounted the applicant's evidence to the jury. The applicant has listed out all the errors he says he has found in the Judge's summing-up to make good his point. In particular, he complains that the Judge did not refer to his friend Francis being held hostage in Colombia and that exerted pressure on him to agree to carry the dangerous drugs for Kingsley. He submits that the cumulative effect of all these errors is that the jury were not clear of his defence and could have been misled, thereby rendering the conviction unsafe and unsatisfactory.

12. Regarding his concern on the safety of Francis, the applicant's evidence is when he arrived in Hong Kong, he told customs officer that he was forced by a group of people to carry dangerous drugs and when he was interviewed, he indicated he would volunteer all the necessary information in connection with drug trafficking. One would expect if he had any fear for the safety of his friend Francis, he would not have been forthcoming in volunteering such information. In any case the Judge in his summing-up did refer to Francis telling the applicant on the phone that his life was at risk. The Judge's omissions, if any, did not prejudice the defendant's case.

13. We do not think it necessary, to deal with every one of these allegations of inaccuracies. Suffice to say, the applicant has not shown that they were such as to amount to misleading the jury. There may be discrepancies between the applicant's evidence and what the Judge recounted to the Jury, but it has not been demonstrated to us that they have distorted the applicant's evidence or his defence. After all, the jury heard all the evidence and it was for them to decide on the issues according to the evidence they heard. At the beginning of his summing-up the trial Judge had emphasized this point to the jury by saying this:

"As I have said, you are the judges of fact. I am not. What I say in my summing-up is to assist you in reaching your verdict. It is not designed to take away your function and responsibility. Equally, if I stress in my summing-up matters which you think on due consideration are unimportant, you go on thinking that they are unimportant. And I leave out material which you think is important, you go on thinking that it is important."

14. Thus the jury were left in no doubt that they should conclude on the evidence they heard and not on the evidence that the trial Judge referred to in the summing-up. This ground must also fail.

15. The third ground is that the Judge failed to direct the jury on their approach to possible lies told by the applicant and the trial Judge should have given a full "lies" direction.

16. The authorities are clear that it is not incumbent in every case where it has been shown that the defendant has told a lie that a full "lies" direction is necessary. The present case is one where such a direction is unnecessary. The only lie, if there is any, is the applicant telling the customs officer that he came from Canada instead of Brazil. This has no relevance to the only issue in this case which is whether the applicant's assertion that he was forced through threat of death or serious bodily injury into taking drugs into Hong Kong which, if not disproved by the prosecution, would have constituted a valid defence. This is not a case where the prosecution case depends on a lie of the applicant to prove guilt. This ground also fails.

17. The applicant before us in a passionate plea for sympathy, has asked this court to require an investigation to be made into his ordeal in South America. He says that he has a diary containing information on the drug trafficking scheme. He had handed it to the customs officer for investigation into his ordeal. However the customs officer did not use it for that purpose. He says that at present his family does not know where he is and since his arrest he has not been able to communicate with them and he wants his diary back. He says that he has done his best to bring out proof and if his evidence has been investigated, it would show his story of ordeal is true and there are records of his departures from the various places in South America to substantiate what he says. Mr. Lam for the prosecution informs us that there was never such a diary in the properties of the applicant. It is not in the list of exhibits nor in his personal properties. There has been contacts with the Inter-pol but no materials relevant to the allegations have been unearthed.

18. As regards this complaint, the short answer is this:

19. His evidence on what he had encountered in South America was put before the jury by the Judge at length and in great details. It was for them to decide where the truth lies. Clearly by convicting the applicant, the jury had rejected his claim of ordeal and that was a conclusion they were entitled to reach. Further investigation into the allegations is not a matter for this court. The conviction of Buitrago, as the applicant himself pointed out in his letter of 7th December 1998, was quashed on appeal and that case was irrelevant and could not have been used in any way against the applicant. The true identity of the applicant is far from clear from the material presented to the court. He has no documents apart from the Canadian passport given to him and he has given no home address. Any investigation could not have been viable under these circumstances. These complaints have no substance.

20. In our opinion, the comprehensive and detailed summing-up of the trial Judge on the defence case and the Judge's clear direction on the defence of duress and the burden of the prosecution to disprove that defence, leave us in no doubt that the jury were fully aware of the defendant's evidence and the issues they had to consider. Their verdict of guilty clearly shows that they had rejected the applicant's assertion that he acted under duress. The conviction cannot be regarded in any way is unsafe or unsatisfactory. The application for leave to appeal against conviction must be dismissed.