R. v. OLIVER JERRY

IN THE COURT OF APPEAL

1992, No. 386
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court:

1. The applicant was convicted after trial by jury in the High Court on one count of trafficking in dangerous drug and was sentenced to 20 years' imprisonment. He now seeks leave to appeal against the conviction and sentence.

2. The facts admitted at the trial pursuant to section 65C of the Criminal Procedure Ordinance are to this effect: (1) On the 26 November 1991 at about 12.30 p.m. this applicant arrived at the Hong Kong International Airport from Bangkok by air. After clearing with Immigration, he was selected at the arrival hall for routine search. (2) Upon being searched, a Customs Officer found a packet of dangerous drug between his buttocks inside two pairs of underpants. (3) The applicant was later taken to the Queen Elizabeth Hospital for medical examination and Customs Officers were assigned to guard him round-the-clock. (4) During his stay in the hospital he excreted in his bowel 52 pellets of dangerous drugs wrapped in plastic and adhesive tapes. (5) Those matters were taken to the Government Laboratory for analysis and the total weight of the dangerous drugs found from the applicant was a mixture of 938.39 grammes containing 854.38 grammes of salts of esters of morphine. On those facts he was charged with the count of trafficking in dangerous drugs.

3. The defence at trial was duress, which was to this effect: although he did bring the amount of heroin hidden in his body into Hong Kong as alleged, his mind did not go with the act; it was overborne by threats made against him and he was forced against his will to bring the heroin into Hong Kong. He gave evidence with much detail to that effect. To corroborate his story, he also put in written material. The duress was in effect (1) a threat to kidnap his son and (2) threats on his life reinforced by fear as a result of actual beatings he had received.

4. The issue was put squarely to the jury by the judge in his summing up. The judge said this to the jury :

"Unless you are sure that he intended to bring the drugs of his own free will, you cannot convict him. Only if you are sure that he did it can you convict."

5. He has in this application for leave to appeal put in very detailed grounds of appeal which rehearse much of the details of the threats and acts of duress which were allegedly practised on him in Nigeria and in Bangkok. He had elaborated upon those matters in his own testimony at trial. There was no reason for the judge to repeat the details to the jury in his summing up. The essence of the defence of duress was properly put by the judge.

6. In our judgment there are no grounds whatever to think that the verdict of the jury was unsafe and unsatisfactory and his application for leave to appeal against his conviction should be dismissed.

7. As regards the appeal against sentence, the judge quite rightly applied the guidelines in the case of Lau Tak-ming [1990]2 HKLR 370 and said that in the circumstances of this case, there were no mitigating factors. The judge said:

"You do not have the benefit of a plea of guilty nor of assistance to the authorities as to where the drugs came from and to whom you were to deliver them. In all the circumstances I can see no reason to depart from the starting figure in Lau Tak-ming and sentence you to a period of 20 years' imprisonment."

8. In our view this approach cannot be faulted and the application for leave to appeal against sentence must be dismissed.