HKSAR v. THUO PENINAH WANGARI

CACC 29/2021

[2022] HKCA 1515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 29 OF 2021

(ON APPEAL FROM HCCC NO 32 OF 2020)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant was convicted after trial for one count of trafficking in a dangerous drug[1], namely 768 grammes of a solid containing 644 grammes of cocaine, before Deputy High Court Judge Bruce, SC (“the judge”)  and a jury by a majority verdict of 6:1 on 28 January 2021; and was sentenced to 21 years’ imprisonment on 1 February 2021.

2.  The applicant seeks leave to appeal against her conviction on four grounds.  Leave to appeal is granted on Grounds 1 and 2.  I shall now state my reasons.

Prosecution Case[2]

3.  The applicant, a Kenyan national, flew into Hong Kong from Nairobi of Kenya via Addis Ababa of Ethiopia and arrived on 19 November 2018. She was on her way to Macau and was intercepted by customs officers at the transit lounge.  During a body search a packet of cocaine fell out from her underpants.  After being arrested and cautioned, she was sent to hospital for further medical examinations.  The applicant subsequently discharged 65 packets of cocaine.   The street value of all the cocaine was about HK$916,224.  The Prosecution relied on the WhatsApp messages retrieved from a Nokia telephone carried by the applicant, to show that she was a knowing party to this drug trafficking[3] and that she voluntarily imported the cocaine into Hong Kong.

Defence Case[4]

4.  The applicant testified on a defence of lack of knowledge and duress[5]. She told the court as to how she came to be on this journey into Hong Kong with Macau as her final destination for being a domestic helper.  She said that pursuant to the instructions of the employment agent she met with a man after she arrived in Addis Ababa, and was taken to a hotel where she was threatened and raped at knifepoint.  She was forced to swallow the pellets and place some into her vagina and was ordered not to tell anyone, otherwise she and her children would be killed[6]. She did not know the nature of the pellets but knew they were “not nice things”. She felt she had no option other than to comply.  She genuinely believed that she and her children were in danger[7].

Grounds of Appeal

5.  4 grounds were advanced by Mr Trevor Beel on behalf of the applicant.

Ground 1 (infringement of the right of silence)

6.  The judge erred in allowing the prosecution to cross-examine the applicant on her failure to inform the authorities of the circumstances of her duress after she had been stopped and arrested which infringed her right of silence and upon the burden of proof,  thus constituting a material irregularity: HKSAR v Lee Fuk Hing[8]; and HKSAR v Ata Asaf[9].

Ground 2 (wrong direction on duress)

7.  The judge erred in law in giving the third question in the specimen direction on duress by threat[10], i.e. whether the applicant had an opportunity to avoid the threats, as this did not arise from the factual matrix of the present case.  In the alternative, if given, that should have been limited to the time from the applicant’s returning to her hotel in Addis Ababa and up to the time she departed for Hong Kong.

Ground 3 (misuse of medical report to disprove rape)

8.  The judge erred in allowing the prosecution to cross-examine the applicant on the basis that there was no medical evidence of any injury to her vagina to suggest that she lied about the rape and to assert that in closing. This issue was detrimental to the applicant’s credibility and the failure of the judge to address this issue properly in his summing up gave rise to a material irregularity.

Ground 4 (wrongful suggestion the applicant had changed her testimony)

9.  The judge made a wrong comment that the applicant had changed (slightly)  her testimony from making an assertion to asking a question to the customs officers as to whether she would die after she had been stopped and arrested thus usurping the functions of the jury.

Discussion

10.  I will first deal with Grounds 3 and 4, to which leave has been refused.

11.  For Ground 3, the applicant gave evidence that she was raped one day prior to the arrival in Hong Kong.  The medical report inter alia stated, “Per vaginal examination showed no foreign body. Per rectal examination showed hard object in rectum.”[11]  The prosecution contended that the applicant lied about being raped[12].  The judge intervened[13]. An explanation was offered by the applicant pursuant to the judge’s question[14]. Although the prosecutor did comment in the closing submission that “the doctor found no evidence of rape” ^[15] and went on to say that “it was simply all part of a made-up story”[16], the judge dealt with this part of the evidence fairly and admirably, that it would be “close to impossible to derive any information about that” and stressed that he did not know whether the underlying assumption of the prosecution, namely, that all victims of rape are somehow injured in their private parts, was a valid one[17].  This ground is not reasonably arguable.

12.  In respect of Ground 4, the officers were recalled after the applicant’s testimony and they all denied they heard the applicant saying “I will be killed” or words to that effect.  In her testimony,  the applicant at first said, “I asked them, “I’m going to be killed”[18]. She later said, “I asked them, “I will be killed.  I will be killed.”[19]  When the judge clarified with her, she confirmed that was what she said to the officers twice.[20]  Then she told the judge what she was saying was “I was asking them, ‘Will I be killed?’”[21] The judge in the summing-up described her testimony “changed slightly” and left the jury to decide whether it was significant.”  ^[22]  The applicant argues as that all along the applicant was putting the matter as a question, the unfair closing remarks on this aspect coupled with the judge telling the jury that the applicant’s evidence in that aspect “changed slightly” would be materially detrimental effect on the applicant’s credibility.

13.  The judge stressed in the summing up that the jury is the sole finders of fact:

“… You and you alone decide what evidence you accept, what evidence you do not accept and what evidence you are not sure about. You and you alone are the people who will come to the conclusions based on the evidence, not me, not anybody else.”[23]

14.  As to counsel’s speeches and the judge’s own views:

“…They have given you arguments and submissions from their perspective as prosecutor and defence counsel…you are by no means bound to accept any or of what they had to say. …”[24]

“…in the course of my review of the evidence, I may appear to express my views concerning the facts or I may emphasise a particular aspect of the evidence. Please do not adopt my views unless you agree with them.”[25]

15.  Although the judge did use the phrase “changed slightly”, he went on to stress twice that “whether it is significant is a matter entirely for you”.[26]  The jury, having seen and heard how the testimony of the applicant was given, was not precluded to form their own view and as to how to make use of this part of the applicant’s evidence.  This ground is not reasonably arguable.

16.  In relation to Ground 1, the applicant’s claim that she was under duress when she swallowed the pellets was never mentioned when she boarded the plane to the aircrew, nor was it mentioned to the customs officers when she was searched and arrested.  It was only mentioned for the very first-time at trial[27]. The applicant, in cross examination, explained that she could not have told the customs officers because both she and her kids were in danger.  At the hearing for leave, it was conceded that the cross examination on those lines was proper, and that the applicant only complaints about the prosecution highlighting her failure to tell the customs officers of her dire situation when she was stopped and arrested closing speech.  It is submitted that once the applicant was arrested and cautioned her right of silence is engaged and any comments and attack along that line infringed that right.  This was indeed an area which the judge showed concern about.[28]

17.  The respondent submits that the purpose of the cross examination and the parts in the prosecution closing was to show that these were not consistent with someone who was under threats or duress, or who thought that her children were in danger.  This could only show that the applicant was not under duress when she committed the offence. Furthermore, Ms Ng submits that this line of questioning was not challenged by the defence and was reinforced further in re-examination.

18.  In my view, it is reasonably arguable that whilst trying to discredit the applicant’s defence of duress, the cross examination and comment in the closing in respect of the applicant’s failure to tell the customs officers of her dire situation after she was arrested and cautioned, encroached her right of silence.

19.  For Ground 2, The impugned question reads[29]:

“Now, the next question is whether, before acting as she did, the accused had the opportunity to avoid the threats without death or serious injury being caused to her or her children and that a reasonable person in the position of the accused would have taken the evasive action as the accused did not. I will talk about the detail of this a little bit later on, but you will remember that the prosecution says the accused could have done any number of things to avoid the consequences of the threats, including telling the customs officers who intercepted her. (Emphasis added by the applicant)

On the other hand, and again I will talk about this in a little more detail later on, the accused says that even when she was speaking to the Customs and Excise officers, she was so afraid she did nothing.  So members of the jury, if the accused had an opportunity to avoid the threats, or that a reasonable person would have avoided the threats, then the defence of duress does not apply.”

20.  The applicant complains that these directions conflated the actions to avoid the threats before embarking on trafficking the drugs to Hong Kong with actions that the applicant could have taken after she had been stopped by customs officers.  Mr Beel submits that the offence was already completed by the time the applicant landed in Hong Kong.  The time frame of Question 3 in that direction is the time before one embarks on a criminal enterprise, whether he or she could have done anything to avoid the threats.  Mr Beel argues that the judge, giving the direction he did, would engage the jury to embark upon an impermissible line of reasoning to reject the defence of duress. (See R v  Hanson)[30]

21.  The respondent, argues that the trafficking of drugs was a continuing offence involving importing into and exporting from Hong Kong, for further importing into Macau.  The applicant could only avail herself of the defence of duress if the alleged threat still existed at the time of the applicant’s interception in Hong Kong.  With the defence concession in their closing that  “it was a continued threat”[31], the question asked by the judge did arise and call for the jury’s consideration.

22.  In R v Hasan, it is said:

“28. …It should, however, be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.”

23.  Question 3 of the direction is premised upon “to avoid commission of the crime”.  In the present case, whether the commission of the crime is restricted to the time from the applicant’s returning to her hotel in Addis Ababas and up to the time she departed for Hong Kong, as asserted by the applicant; or whether it is a continuing offence up to the time when the whole trafficking modus is completed as asserted by the respondent, and so whether Question 3 should be included is a ground which is reasonably arguable.

24.  I grant leave on Grounds 1 and 2.

25.  For Grounds 3 and 4 which I have refused leave, the applicant is reminded of her right to renew her application for leave to the Court of Appeal.  If the Court were to conclude that there was no justification for the renewal of her application, the applicant may face the consequences of a direction for any loss of time spent in custody pending her appeal.