HKSAR v. HENAO TORRES OSCAR OSWALDO

CAC C 428/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 428 OF 2012

(ON APPEAL FROM HCCC NO. 49 OF 2012)

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R E A S O N S   F O R   J U D G M E N T

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Hon Yeung Acting CJHC (giving the Reasons for Judgment of the Court):

Introduction

1. On 10 March 2010, the applicant (Henao Torres Oscar Oswaldo) arrived at the Hong Kong International Airport from Moscow carrying a checked-in blue suitcase and a hand-carry green suitcase.  The applicant only had 11,700 pesos (HK$48) and US$36 on his person and he was intercepted and searched.  The applicant co-operated with the Customs Officers fully and never tried to prevent or hinder their investigation of his luggage.

2. The green suitcase contained items of clothing, some personal hygiene items and two pairs of new sport shoes.  There were also a Bible and a number of documents relating to the applicant’s travel, showing his routing to come to Hong Kong and return to Colombia.  The booking record indicated that the applicant was due to leave Hong Kong for Moscow on 22 March 2010.

3. The applicant’s travel record did not show the identity of the person who made the bookings for him, but a hotel reservation for the Cosmo Hotel showed that it was intended that the applicant would stay in the hotel from 24 February to 3 March.

4. The blue suitcase was wrapped with plastic wrapping and came with a combination lock and a baggage tag that corresponded with the baggage receipt found on the applicant’s person. 

5. The appearance of the blue suitcase was suspicious as there was a difference between the interior and the exterior depth and it was cut open by Customs Officers for examination.

6. There were, concealed inside the blue suitcase, three plastic bags each with about 600 grammes of a powder containing cocaine. The total quantity was 1,754.44 grammes of a powder containing 608.76 grammes of cocaine with a retail value of HK$1,582,504.88.

7. The three plastic bags that were used to contain the cocaine were sent to the Advanced Technology Section of Identification Bureau of the Hong Kong Police Force for fingerprint uplifting and comparison. Five marks were found on the plastic bags and they were sent for comparison with the fingerprints of the applicant.  Four of the marks were found not to belong to the applicant and the fifth one did not have sufficient characteristics for search and identification.

8. The applicant was charged with trafficking in the 608.76 grammes of cocaine in question.  The applicant pleaded not guilty to the charge and appeared before McWalters J (the judge) sitting with a jury for trial.  The applicant was not legally represented as he chose to act in person.

9. On 12 September 2012, the applicant was convicted by the jury as charged and he was sentenced to 20 years and 3 months’ imprisonment on 10 October 2012.

10. The applicant sought leave to appeal against conviction.  On 14 June 2013, we dismissed the application and indicated that we would hand down our reasons in due course and this we now do.

The Defence Case

11. The applicant accepted, under the Admitted Facts signed by him, the prosecution case relating to his interception and the discovery of the cocaine in the blue suitcase.  His defence was that he did not know that there were drugs in the blue suitcase.

12. The applicant emphasized that he was cooperative with the Customs Officers and that his fingerprints did not appear on the plastic bags containing the cocaine.

13. In his evidence, the applicant, aged 40 and with a clear record both in Hong Kong and Colombia, detailed his backgrounds and working experience.

14. The applicant said he commenced working as a salesman in 1990 in an area called San Androcito 38 in Colombia.  In 1999 he set up his own business (Hyper Sports) selling sporting goods and in particular sports shoes.

15. In 2000, the applicant opened a second store in San Androcito 38 and in 2011 he moved his first shop to the Kimberley Commercial Centre in an area called San Androcito of the Americas.  He then closed his second shop in San Androcito 38 and effectively merging his business into one shop in San Androcito of the Americas.  The applicant admitted that he was selling counterfeit goods of famous shoe brands and other items.

16. The applicant said his business generated a net annual profit of about US$35,000.  He said he had to close his shop in 2006 because the landlord evicted all the tenants in order to refurbish the commercial centre.

17. Between 2006 and 2010, the applicant, together with two others, started the business of selling goods wholesale in Bogota and other cities in Colombia to earn a commission.  The goods included counterfeit shoes sourced from China, Panama and Venezuela and that his customers would be people operating shops of the kind that he previously operated.

18. The applicant said he also worked as salesman in the shop of a friend of his in San Androcito 38 and he was able to earn a total income of US$46,000 which was a comfortable income by Colombian standards.  He also worked for six to eight months in 2008 for an association of taxi owners and he said he always lived well.

19. The applicant said in 2004, he came to know Luis Gabriel Garcia (Mr Gabriel) who was a wholesale trader, selling shoes in Putamayo and his close associate Mr Parmenio when they were his customers.  The applicant said Mr Gabriel was a very good customer and when he closed his shop in 2006, Mr Gabriel brought half of his remaining stock.

20. The applicant said after he closed his shop and became a wholesaler, he still did business with Mr Gabriel who would come or send his employee (Jose) to Bogota with an order for merchandise and the money to pay for it.  He said Jose would pay him in advance and that the money entrusted to him was sometimes substantial.  The applicant said Mr Gabriel trusted him and he also trusted Mr Gabriel.

21. According to the applicant, Mr Gabriel suggested in mid-2009 that they should buy shoes directly from China, saying that Mr Parmenio had been living in China for one year, buying women’s clothes and materials.  The applicant said he was interested, but did not have sufficient money.

22. Mr Gabriel then suggested that the applicant would do the buying trip and he would fund it and that they could share the profit.  Mr Gabriel also said that Mr Parmenio owed him money and he would use the money to fund the purchases.

23. According to the agreement with Mr Gabriel, the applicant would travel to China to source and purchase the shoes before shipping them back and selling them in Colombia and that they would share the profit.

24. The applicant said Mr Gabriel told him that he would sort out everything, including getting the airline ticket, a visa and even a suitcase and money to buy clothes.  The applicant said he hoped Mr Gabriel would invest US$200,000 so that he could purchase Converse shoes from Putian in China and other shoes from a place known as “The Ball” in Guangzhou.

25. According to the applicant, he discussed with Mr Gabriel in mid-2009 and then in August 2009 when Mr Gabriel said he would only invest US$100,000, which was the money that Mr Parmenio owed him and that Mr Parmenio would take him to “The Ball” and to the Colombian transportation company owned by Mr Urio for the shoes to be transported back to Colombia.  Mr Gabriel assured the applicant that Mr Parmenio would be his guardian angel and would look after him.

26. The applicant said as there was only US$100,000 to invest, he decided to purchase only Adidas and Nike shoes.  The applicant said he met Mr Gabriel in November 2009 and Mr Gabriel told him that the money would be ready in December 2009 or January 2010.

27. There was then a meeting at the applicant’s house with Mr Gabriel and Jose when the trip to China started to finalise.  The applicant obtained his passport on 20 January 2010 at Jose’s suggestion, he handed the passport to Jose for him to get a visa for China.

28. In Mid-February 2010, the applicant met Jose in the car park in San Androcito 38 when he was talking to a friend and Jose, who happened to pass by, said, “If God allows us, you will travel on Monday.”

29. The applicant then asked the friend to lend him a suitcase and the friend agreed and that was the green suitcase that he carried when he was intercepted at the Hong Kong International Airport.

30. The applicant said he then packed the green suitcase with his personal items including a few items of clothes and two sample shoes as he was told that he could buy new clothes in China.

31. The applicant further said that on Sunday 21 February 2010, Jose came to his house to give him his passport with the visa, the hotel booking and his flight ticket, saying that the applicant was travelling to Hong Kong.  Jose told the applicant that Hong Kong is right next to Guangzhou.  Jose also told the applicant that he was to stay in Hotel Cosmo and that Mr Parmenio or his representative would pick him up at the airport.

32. However, the applicant was not feeling well and also the money was not yet ready, the trip scheduled for Monday 22 February 2010, was postponed.

33. The applicant further said that about 10 days later, he was told that he would be travelling on Monday 8 March 2010.  Jose came to his house on 7 March 2010 and told the applicant that he would give him a bigger suitcase that he would bring the following morning when he brought the new airline ticket and took the applicant to the airport.  The applicant said he had been drinking for two days and continued to drink after Jose left although Jose told him to stop.

34. The next day, the applicant woke up at 5 am and Jose came with the blue suitcase at 5.30 am.  Jose then took the applicant’s clothes from the green suitcase and put them in the blue suitcase.  He also took clothes from the applicant’s wardrobe and put them in the blue suitcase together with a pair of Caterpillar boots and a pair of shoes.  Jose then locked the blue suitcase with a padlock and instructed the applicant to wrap it in plastic once he was at the airport to prevent anyone from stealing.

35. Jose told the applicant the combination of the padlock before putting a sweater, a cap and a scarf in the green suitcase together with the two Adidas shoes to be used as samples.  Jose instructed the applicant to take the green suitcase as hand luggage.

36. Jose also gave the applicant US$200 as spending money and 400,000 pesos as payment for the penalty arising from the changing of flight schedule.  They then went for some breakfast of bread and beer before heading for the airport.  The applicant said the beer was a mixture of beer and some other liquid which was used as a kind of hangover remedy.

37. At the terminal entrance, Jose destroyed the old airline ticket and gave the new one to the applicant before putting it together with the hotel reservation form inside the applicant’s passport.  Jose then gave the applicant 30,000 pesos for the plastic wrapping of the blue suitcase and the applicant paid 18,000 pesos to a person at Bogota Airport to wrap plastic around the blue suitcase.

38. The applicant then had the blue suitcase laminated before finding out that he had to pay 608,000 pesos as penalty for the altered flight.  He then asked his friend to change US$120 to pay for the additional penalty and that explained why he had such little money on his person when he arrived in Hong Kong.

39. The applicant said he almost missed his flight to Moscow when he was at Havana Airport in Cuba.  The applicant suggested that he had been drinking alcohol during the journey and he was so intoxicated that he was almost denied entry to the plane.

40. It was the applicant’s evidence that he was badly hung over, suffering from a headache and dehydration when he arrived in Hong Kong.  He also said he had met up a fellow Colombian on the plane, Gustavo whose luggage failed to arrive in Hong Kong and he had to exchange some money.  The applicant suggested that was why he approached a Customs Officer inquiring about exchanging money when he was directed to the Customs area where his luggage was checked.  He also said another Customs Officer gave him some water and a Coca-cola and allowed him to use the toilet as he was drunk.

41. According to the applicant when the drugs were found in the blue suitcase, Gustavo shouted out “Drugs”, and he said, “This is not mine.”  It was the applicant’s case that he did not know that the blue suitcase contained drugs and that he was a victim of others.  He said that he had relied on and had trusted Mr Gabriel who arranged everything for him.  He also suggested that he did not recognize the blue suitcase.

42. The applicant emphasized that he only had a visa to go to China and that he was feeling unwell and that was why the Customs Officer gave him water, Coca-cola and allowed him to go to the toilet.

43. The applicant pointed out that he had a clear criminal record and he produced references from his relatives and a previous employer to show that he is a person of good character.  He also produced documents to show that he was a legitimate businessman as a seller of sports shoes.  He emphasized that at the material time, he was too drunk to notice Jose’s unusual way of dealing with the two suitcases in question.

The Judge’s Direction

44. The judge had given detailed directions to the jury on all relevant issues on law and on facts.  The judge pointed out that the main issue was whether the applicant knew the presence of the drugs in the blue suitcase.  The judge took great care to explain the applicant’s evidence to the jury and pointed out his emphasis on what was considered to be favourable to his case.

45. The judge emphasized to the jury that the issues for their determination were issues of facts and that if what the applicant said was or might be true, they must acquit him of the charge.

Grounds of Appeal

46. The applicant raised no serious issue with the way that the judge had directed the jury.  The applicant however repeatedly suggested that he was innocent of the charge against him and that he was a victim of circumstances.

47. The applicant emphasized that he had given detailed evidence to support his claim and referred in particular to the visa to China and the presence of the two pairs of sport shoes in the green suitcase to support his contention that his trip to Guangzhou was business related.

48. The applicant emphasized that he was not legally represented in the court below and claimed to be disadvantaged because of it.  He alleged that there were inconsistencies in the evidence of the prosecution evidence and complained of his inability to call witnesses and the failure on the part of the prosecution to call witnesses for him.  He said that the jurors were very young with little experience in life and that the judge was wrong to tell them to use their common sense and their experience in assessing the evidence.  He even suggested that he was prejudiced because of his nationality.

49. The applicant complained about the lack of DNA evidence and emphasized again that his fingerprint was not found any of the packets of cocaine.  He also complained about the failure to call witnesses who might support parts of his evidence.  He said those matters prejudiced his defence.

50. The applicant repeated his suggestion that he was an honest, upright and honourable person with an unblemished record.  The applicant further emphasized that it was his first international flight.

51. The applicant pointed out that he had never tried to impede the Customs Officers during their search of his luggage and that he did not show any evasive attitude.  He said all those confirmed that he did not know the presence of the cocaine in the blue suitcase that was given to him by Jose.

52. The applicant said he might have drunk a lot of liquor, placed too much trust in others and be irresponsible, but he was not a criminal and not a drug trafficker.  He said he did not even recognise the blue suitcase by just looking at it.  He repeated the suggestion that the Customs Officer gave him water and Coca Cola because he was heavily drunk.

53. The applicant put all the blame on Mr Gabriel and Jose, saying that the evidence supported his claim that he was innocent and was just a victim of circumstances.

Discussion

54. The applicant refused to have legal representation and did not disclose the reason for his decision.  Despite the judge’s repeated exhortations, he insisted on defending himself in person.  The applicant’s lack of legal representation at trial was due to his own-making and he cannot rely on it as a ground of appeal.

55. The applicant’s complaints about the inconsistencies in the prosecution evidence, the “very young and inexperienced jurors”, the judge’s and/or the prosecutor’s telling the jurors to use their common sense and his nationality were completely groundless.

56. The judge, in his direction to the jury, reminded them of the absence of the applicant’s fingerprint on the bags of cocaine, but fairly and correctly reminded them that “there may be many reasons why a person who touches an object with his fingers does not leave his fingerprint on that object” and that “even if you conclude that this defendant did not have physical contact with the plastic bags containing the drugs, you will still have to consider whether he knew those drugs were in the suitcase.  Of course, in considering the issue, you will take into account whatever view you form of the fingerprint evidence”.

57. There was no DNA evidence and it was never the prosecution case that the applicant was the only person who had handled the drugs.  The absence of DNA evidence was not significant and it would not be unfair to the applicant or in any way render the trial unfair.

58. The issue for the jury’s determination was a simple one, namely whether they could be sure that the applicant was aware of the presence and the nature of the cocaine in the blue suitcase that he had carried into Hong Kong and whether he intended to exercise custody or control over them.  It was a simple issue of facts for the jury to decide.

59. The applicant admitted taking the blue suitcase into Hong Kong and that it contained the cocaine in question.  He tried to explain to the jury the circumstances in which he was given the blue suitcase. He tried to impress upon the jury with his evidence that it was given to him by Jose after he had packed or re-packeted it and that he was not aware of what were inside.

60. The judge had repeated in detail the applicant’s evidence, pointing out at the same time what the applicant emphasized to be evidence favourable to him.

61. The judge had also pointed out the absence of the applicant’s fingerprint on the plastic bags that contained the cocaine.

62. The judge’s directions to the jury were comprehensive, fair and correct.  It was a question for the jury to decide if they accepted the applicant’s explanation.

63. Clearly the jury did not accept the applicant’s evidence and they were entitled to do so.  On the evidence, the jury’s conclusion was a reasonable one.

64. Once the jury rejected the applicant’s evidence, they were entitled to conclude that the applicant was aware of the presence and the nature of the cocaine in the blue suitcase and that he intended to exercise custody and control over them.

65. The jury was entitled to convict the applicant on the evidence.

66. We had considered the facts of the case and everything that the applicant had urged upon us.  We were not persuaded that any of the points raised and repeatedly emphasized by the applicant would in any way cast any doubt on the prosecution case against him.

67. We were satisfied that the conviction against the applicant was safe and satisfactory and we therefore dismissed his application for leave to appeal against conviction.