HKSAR v. MORROW JR, CHARLES RAYMOND

CACC 266/2021

[2024] HKCA 161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 266 OF 2021

(ON APPEAL FROM HCCC NO 292 OF 2020)

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J U D G M E N T

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1.  On 19 August 2021, following a trial before Deputy High Court Judge Bruce (the Judge) and a jury, the applicant was convicted of trafficking in a dangerous drug, namely 3,963 grammes of a solid containing 3,372 grammes of cocaine. On 17 November 2021, the applicant was sentenced to 25 years and 9 months’ imprisonment.

2.  On 24 November 2021, the applicant applied for leave to appeal against conviction.  He stated that the evidence did not support the conviction.

3.  On 8 February 2022, the applicant was refused legal aid to appeal his conviction.  The decision was reversed on 4 August 2022, when he was granted legal aid.  He was assigned Mr Franco Kuan, of counsel, with Mr Colin Cohen as the instructing solicitor.  However, on 14 October 2022, legal aid was discharged for reasons that were not disclosed.  He appears in person, having filed homemade grounds of appeal and various written submissions.

The prosecution case

4.  On the morning of 1 January 2020, the applicant, a citizen of the United States of America, was intercepted by a Customs officer at Hong Kong International Airport, having arrived on a flight from Paris, France.  The officer arranged for an X-ray screening of the applicant’s hand carry suitcase and briefcase, which revealed abnormal images.  He conducted an examination of the two items and, after removing the personal items, found that they were unusually heavy.  He confirmed with the applicant that the two items belonged to him.  He cut open the compartments of the two items.  He found in the suitcase three sealed false compartments containing a total of 6 plastic packets of a white substance, and in the briefcase four sealed false compartments containing a total of 8 packets of a white substance.  A preliminary test was conducted, which was positive for cocaine. 

5.  The applicant was arrested and cautioned.  The officer pointed to the false compartment and its container.  He asked the applicant, “Do you know what is it?”  The applicant answered, “I don’t know, I thought it is a protection of laptop”.  The applicant was asked where he was going to take the baggage and said he would take them to the United States. The officer then asked, “Where did you buy your suitcase?”  The applicant answered, “I bought it in front of a shopping mall in Brazil.”  The officer asked the applicant, “How much is it?”  The applicant answered, “Two hundred reais for two.”  The officer clarified that the reference to “two” was a reference to both the suitcase and the briefcase.[1] 

6.  In a subsequent video recorded interview, he answered questions relating to his personal background and financial status, but in exercising his right of silence, he declined to answer other questions.[2] 

7.  The applicant set off on a flight from Minneapolis, in the United States, on 26 December 2019, to Miami, then to Sao Paulo, Brazil, where he stayed overnight.  On 28 December 2019, he took a flight to Belem, Brazil, and after staying there for 12 hours, he took another flight to Cayenne, French Guiana, staying there for about 5 hours.  On 29 December 2019, he took a flight to Paris, France, before flying to Hong Kong on 31 December 2019.  He had a return flight from Hong Kong to Chicago scheduled for 3 January 2020.[3]

8.  An examination by the Government Chemist revealed that the suspected drugs consisted of a total of 3,963 grammes of a solid containing 3,372 grammes of cocaine.  As at the time of the offence, the estimated street value of the dangerous drugs was HK$4,446,486.

Defence case

9.  The applicant testified and gave an outline of his background.[4] He said he was born in 1964 and was a construction worker specialising in concreting and had worked from an early age.  He had acquired a degree in environmental science.  He said he had some minor traffic convictions but otherwise had not got into trouble with the law.  He was a religious person and went to church.  He had nothing to do with drugs.  However, it was later established he had a prior conviction for a drug offence.  He said that he did not know there were dangerous drugs inside the suitcase and briefcase.  He knew about the secret compartments but believed there were documents hidden inside. 

10.  The applicant explained that in 2011, he received an email from a young girl called Rachel Koffi (Koffi) from the Republic of Cote d’Ivoire (also known as the Ivory Coast), West Africa, requesting his assistance in obtaining her inheritance in the amount of US$10.5 million.  He was promised a commission of 15% and an additional 5% for expenses and taxes if he agreed to invest US$150,000 and become the beneficiary of the estate and guardian of Koffi.  He thought it was a scam and refused to invest, but he stayed in contact with Koffi and a person called Mike Brown (Brown).  He was also introduced to Anthony Campbell (Campbell), who was said to be a human rights barrister, and Jimmy Roland (Roland), who claimed to be a travel agent. He was told that as he was on record as the beneficiary, he would receive 5% if he agreed to pick up some documents pertaining to the inheritance in Sao Paulo, Brazil. 

11.  In 2018, the applicant travelled to Sao Paulo, where he met a contact, Richard, in a hotel and received a suitcase from him in exchange for the applicant’s own suitcase.  He insisted on examining the documents sealed inside the suitcase before signing them.  He suspected the documents had something to do with tax evasion but still followed instructions to carry the suitcase to Paris, where he handed it over to someone else (the first trip). 

12.  Upon his return to Minnesota, Campbell congratulated him on his trip and gave him some details about an account with the Raiffeisen Bank.  He checked the account which was in his name and found that there was US$2 million in it but he could not access the funds.  He needed one more password and some identification and Campbell told him that he had to pick up more documents from Brazil.

13.  In February 2019, the applicant went from Minnesota to Miami and then to Sao Paulo, where he met Richard in a hotel.  He was told that the documents were in secret compartments sealed in a bag.  He expressed concern to Roland about taking the substituted bag and suspected that what was in the secret compartments were not documents but other illegal commodities, such as drugs.  He was reassured by Campbell and Roland that they were not drugs but confidential documents that might have tax and money-laundering implications.  He took the bag to Chicago via Miami, where he handed it over at a hotel, and was paid US$2,000 (the second trip).

14.  After the second trip, the applicant found that an additional US$1 million had been deposited into his account with the Raiffeisen Bank.  Campbell told the applicant that he had to pick up more documents in Sao Paulo for a third trip to bring the inheritance to a conclusion.  He initially refused but eventually was persuaded to go to Sao Paulo again, where he stayed in a hotel as arranged by Roland.  He purchased a suitcase and a briefcase in a mall opposite the hotel but had to exchange luggage with a man called William, who turned up at the hotel with two bags.  He checked the bags but could not find any compartments and documents.  Campbell and Roland once again reassured him that the documents were sealed in secret compartments in the luggage and were safe.  He was alert to the issue of scams but travelled to Hong Kong thinking there were documents in the luggage (the third trip).

The grounds of appeal

15.  The applicant filed grounds of appeal against conviction on 15 December 2022.  They are as follows.

Ground 1: the Judge misdirected the jury when answering their questions.

16.  During the course of their deliberations, the jury asked two questions.  The first question was if the applicant believed the bags contained dangerous drugs but nevertheless convinced himself he was not transporting dangerous drugs, would he satisfy the requirement of knowledge. The second question was if the applicant was not 100% but 99% of the belief or knowledge that it was dangerous drugs, would he satisfy the requirement of knowledge. 

17.  After consultation with counsel, the Judge correctly directed the jury that they should focus on knowledge rather than belief that there were dangerous drugs in the bags and emphasised that they needed to decide if the applicant knew rather than suspect what was in the bags.  He also told the jury not to think in terms of percentage but to bear in mind the burden and standard of proof when deciding the issue in the case.[5] 

18.  It is complained that the Judge was prejudiced in the answers he gave and misdirected the jury.  There is no merit in this ground whatsoever.  The Judge’s handling and answering of the questions was impeccable. 

19.  This ground is not reasonably arguable.

Ground 2: the Judge failed to direct the jury in relation to uncharged acts.

20.  This ground concerns the evidence of the first and second trips, which was central to the defence case that the applicant genuinely believed he was assisting Koffi in securing her inheritance.  It is submitted that the first two trips were not related to the third trip, the subject of the charge, and that the jury should have been directed in relation to uncharged acts and instructed not to use this evidence.

21.  The applicant testified that he trusted Koffi and Brown, having verified their identifications and their signatures with the Wells Fargo Bank.  On the first trip, he demanded to see the documents, which he checked, believing that they were designed to avoid paying tax.  He thought money laundering was involved as well.  After the first trip, he was provided with particulars of a bank account in his name, which he found had a deposit of US$2 million but was unable to wire transfer the amount pending document verification.  This resulted in the second trip to collect additional documents in Brazil and bring them back to Chicago.

22.  When the applicant collected the suitcase in Sao Paulo on the second trip, Richard told him that the documents were sealed inside to avoid being detected by scanners at the airport.  The purpose was to “prevent double taxation, money laundering and the eagle eye of the government”.[6]  He was concerned about the suitcase because it did not feel like documents when he squeezed the compartments.  After he was given certain assurances, he was convinced that what was sealed in the suitcase were documents, thinking that the worst that could happen to him was to be arrested for financial fraud, a risk he was willing to take.[7] Upon his return to Minneapolis, he found that an additional US$1 million had been deposited into the bank account, but he was informed that the account was not yet fully active and he had to collect more documents from Brazil.[8]  He initially did not agree to make the third trip because he had doubts but he was reassured that what would be concealed inside the suitcase were documents.[9] 

23.  The applicant mentioned for the first time in his oral testimony the two previous trips he made for the persons involved in the third trip.  On each occasion, he was told he was carrying “documents” in a secret compartment of the suitcase.  The purpose of smuggling these documents was to activate a bank account purportedly in his name that had US$2 million and later US$3 million.  He variously said he thought that the concealed documents were for the purpose of tax evasion and money laundering.  At one stage, he queried the persons involved about the contents of the secret compartment as it did not feel like documents to him.  He asked them if they were drugs, and he was assured they were not. 

24.  The first and second trips were part and parcel of the defence case to show the applicant’s state of mind in respect of the third trip.  He thought he was carrying documents that may be involved in tax evasion or money laundering as he did on the two previous trips.  This evidence was not used, and could not be used, to show that the applicant had trafficked in dangerous drugs before, or that he had trafficked in dangerous drugs on the occasion on which he was arrested.  In the circumstances, there was no need for a direction by the Judge on uncharged acts, nor was one requested by defence counsel: HKSAR v Kwok Hing Tony [10].

25.  This ground is not reasonably arguable.

Ground 3: the Judge failed to properly direct the jury about circumstantial evidence and inferences.

26.  It is complained that the Judge’s directions on circumstantial evidence and inferences were confusing and did not follow Specimen Direction 21. 

27.  Whilst the Judge did not specifically discuss the subject of circumstantial evidence, he nevertheless gave a clear and accurate direction to the jury on inferential reasoning, which was all that was necessary.[11] He correctly instructed the jury that they could not draw an inference against the applicant unless it was the only reasonable inference to be drawn from the facts that they accepted.[12]  It was sufficient that the jury were directed, as they were, that they could not convict the applicant unless they were sure of guilt: Tang Kwok Wah v HKSAR [13]. 

28.  This ground is without merit.

Ground 4: the Judge failed to deliver the “lies direction” to the jury.

Ground 5: the prosecution failed to disclose the Drug Enforcement Administration email.

Ground 6: the Judge used a judgment downloaded from the Internet for his ruling.

Ground 7: the Judge accepted hearsay information in the Drug Enforcement Administration email.

29.  These grounds can be dealt with together as they are interrelated. 

30.  When answering questions from his counsel, the applicant presented himself as a person of good character with no prior conviction for a drug offence.  His evidence was as follows:[14]

“Q. All right. And are you active in the community there in any way?

A. I’m active in the community. I am involved with the schools and the churches, and I’m involved with the law enforcement and making sure that our children are safe from drug trafficking or drug dealers or pushers.

Q. Right.

A. Also any kind of violators that would come round.

Q. Yes, and what kind of work do you do with the schools and churches?

A. Mostly contribute to being just a good community member, but answer questions, maybe help pass out pamphlets or, you know …

Q. All right, okay. Now, I want to ask you this. We know you’ve got no criminal record in Hong Kong. Do you have a criminal record in the United States?

A. I do not have any criminal record anywhere.

Q. United States? Grenada?

A. No.

Q. Hong Kong?

A. No.

Q. No criminal record. Have you ever been in trouble with the police? Have you ever been?

A. Just minor driving offences, traffic stuff, speeding ticket, parking ticket.

Q. All right. Nothing to do with drugs?

A. Nothing to do with drugs or any other criminal activity.”

31.  As a result of the applicant’s evidence, prosecuting counsel informed the Judge that there was a WhatsApp message from the applicant to Roland that in 2003 he travelled for someone and there was hidden 8 pounds of drugs for which he was convicted and sentenced to 91 months’ imprisonment.[15] The defence produced two defence jury bundles which contained screenshots from the applicant’s mobile telephone the prosecution originally provided as part of its disclosure obligations.  Some screenshots were redacted and contained messages in which the applicant acknowledged a prior conviction for a drug offence.  The message prosecuting counsel referred to was part of the evidence, but reference to a prior conviction had been redacted by agreement of the parties.  One matter of concern is that defence counsel knew of the applicant’s drug convictions.  This was mentioned by the Judge in his ruling.[16]  It raises the question on what basis he asked the applicant in examination-in-chief that he had “nothing to do with drugs”.

32.  The prosecution sought permission to cross-examine the applicant on his previous convictions pursuant to s. 54(1)(f)(ii) of the Criminal Procedure Ordinance (Cap 221).  The basis of the application was that the applicant in his testimony asserted that he was of good character, not involved in drugs and a person with only minor road traffic convictions.  However, he had a previous conviction for possession of methamphetamine (which the prosecution submitted was for manufacturing methamphetamine), attracting a penalty of 81 months’ imprisonment, and a substantial number of road traffic convictions which were so serious that they attracted significant terms of imprisonment. 

33.  The Judge appropriately described the significance of the redacted screenshots in his ruling as follows:[17]

“24. The first part of what is relevant are the redacted screenshots in the exchanges between the accused and the person said to be Jimmy Roland. The first is in the notified bundle of additional evidence at page AE 279. At line 187, the accused sends a WhatsApp message to Jimmy Roland on 4 March 2019 which is during the second trip from Minnepolis to Sao Paulo to pick up the second batch of documents said to be necessary to finalise the inheritance. The context from the testimony of the accused is that while he was told that he could not see what the documents were in the secret compartments in his luggage, he did feel the secret compartments and they did not feel like documents. The further pertinent fact to provide context is that it was intended on this second trip that he take the ‘documents’ to Chicago. At line 187, the accused writes by WhatsApp ‘I hope to God it’s documents, I’m on a drug watch list in USA from my past, I just thought I should be honest with you before I travel into US.’ More pertinently at line 200 on the same day, the accused is recorded as sending a WhatsApp message to Jimmy Roland as follows: ‘if it’s documents I’ll be okay, but I travelled in 2003 for someone and they hid 8 pounds of drugs, I was convicted and sent to prison 91 months. That’s why I need to be honest, because bag feels different.’

25. The entry at line 200 on AE 279 had, by arrangement between the parties, been redacted in the version given to the jury bundle.

26. The next relevant entry, which, viewed by itself somewhat marginal, is to be found at AE 496 in a WhatsApp communication between the accused and Jimmy Roland at line 353.  The entry is dated 28 December 2019 and must have occurred when the accused was in Brazil. In that entry, the accused writes, ‘It’s hard to know what or where to eat every place looks like ghetto I’m not use to Brazil food, it taste different, like when I was in prison many years ago.’”

34.  For the purposes of the ruling, the prosecution also produced a message from the United States Drug Enforcement Administration (DEA) dated 3 January 2020, which set out the following criminal history of the applicant:[18]

“(1) 1^st Arrest Date: 7 January 1992 for drug offences. Convicted and sentenced to five (5) year’s probation.

(2) 2^nd Arrest Date: 8 May 1992 for carrying weapons without permit and driving while under the influence of alcohol or controlled substances. Sentenced to 90 day in jail, and one (1) year of probation.

(3) 3^rd Arrest Date: 16 July 1992 for driving while the influence. Sentenced to 30 day in jail, and two (2) years’ probation.

(4) 4^th Arrest Date: 23 April 2003 for manufacturing mathamphetamine. Convicted, sentenced to 81 months of prison. MORROW was released earlier than 81 months (DEA investigation).

(5) 5^th Arrest Date: 14 March 2008 for driving under the influence. Driving on the wrong way of traffic recklessly. Sentenced to one (1) year of prison and six (6) years’ probation.

(6) 6^th Arrest Date: 5 August 2009 for not stopping after being involved in a motor vehicle accident. Sentence to 90 days in jail.

(7) 7^th Arrest Date: 9 May 2010 for driving violation. Sentenced to 90 day in jail.

(8) 8^th Arrest Date: 17 May 2017 for driving while impaired.  Sentenced to 90 day jail and two (2) years’ probation.”

35.  The applicant complains that Customs and Excise had this document for 18 months and only disclosed it during his cross-examination.  There was no obligation to disclose this information as the applicant would be well aware of his criminal record, and in any event, the prosecution is not under a duty of disclosure of material that is relevant only to the credibility of a defence witness or of the accused: R v Brown (Winston)[19].

36.  As explained by the Judge, he was able to download a judgment of the State of Minnesota v Charles Raymond Morrow Jr, the applicant was initially charged with manufacturing methamphetamine because he was found very near a truck to which he had the keys in which was found a mobile methamphetamine manufacturing laboratory.  It appears the charge was downgraded to possession of methamphetamine, and the judgment of the court affirmed that conviction.  The applicant complains that the Judge relied on a downloaded judgment of the Minnesota Court of Appeal.  He mentioned the downloaded judgment in his ruling which was not before the jury.  There is no issue as to its authenticity and accuracy.  The applicant made reference to it when he was cross-examined on this matter.[20]

37.  The Judge ruled that the prosecution was permitted to cross-examine the applicant on the conviction for possession of methamphetamine but not in respect of the other convictions in the DEA memorandum.[21]

38.  Prosecuting counsel cross-examined the applicant regarding his prior drug conviction, which he eventually confirmed was true.[22]

“Q. Now, Mr Morrow, do you recall in your evidence in chief last week...

A. Pardon me?

Q. ...you said you have no criminal record in Hong Kong, right? Do you recall you told the members of the jury in court...

A. Yes.

Q. ...last week that you have no criminal record in Hong Kong, right?

A. Yes.

Q. In fact, it’s in the Admitted Facts.

A. Yes.

Q. You appreciate that, right? And that you further told the members of the jury you have no criminal record anywhere?

A. Yes.

Q. Apart from Hong Kong, you have no criminal -- no record anywhere except for some minor traffic or driving offences, right?

A. That’s correct.

Q. And then you further told the members of the jury that you never have anything to do with drugs before?

A. That’s correct.

Q. Now, do you accept, first of all, in the state of Minnesota, the state where you were living before your arrest in Hong Kong, back in 2003 you were convicted by the court of law in Minnesota for possession of methamphetamine, which is commonly known as ‘Ice’ and were sentenced to 81 months’ imprisonment, do you agree?

A. Yes.

Q. So that’s a criminal record in the state of Minnesota for drugs, right?

A. Yes.

Q. So you accept you lied to the members of the jury last week when you said you have no criminal record outside Hong Kong and had nothing to do with drugs?

A. I did not lie to the jury. I did not disclose my situation. I have an appeal that was filed in the State of Minnesota State Supreme Court and then I testified against Roger Weishalla and Heath Stolp, and I was supposed to be protected against having to go through this and testimony. I tried to talk to my attorney, but I can’t. And the record should be sealed. If you can find the record, good luck.

Q. The point is you still have a conviction record yourself for drugs.

A. My record should be overturned, sir.

Q. No, my record is that you went to the Supreme Court of Minnesota for appeal, and it was dismissed, do you agree?

A. Well, I testified for the DEA and the federal government, and I was taken both in the Supreme Court to take care of this case in the State of Minnesota. Judge Stoneburner ruled against me and then I turned it over. They came and told me in 2006 if I turned state’s evidence and testify against the driver -- the owner of the truck, Heath Stolp and Roger Weishalla, the driver, that they would work my conviction to be overturned.

Q. Now, may I show you the defence bundle, tab 3, the bundle A? It’s AE, page 279.

A. Where are you at, sir?

Q. Bundle A.

A. Yes.

Q. Tab 3, the WhatsApp message that you had with Jimmy Rowland.

A. What line, sir?

Q. The entry counter 200.

A. It’s been redacted.

Q. It’s been vetted.

A. But it says that I was...

Q. Let me -- just wait. Let me read to you what was stated in this counter before it was deleted, see if you agree or disagree first of all. You said...

A. I admit that I made that statement that’s been redacted.

COURT: Well, let’s hear the statement that was redacted.

Q. Just let me read out the statement.

A. I know what it is.

COURT: Thank you.

A. Okay.

COURT: Let the prosecutor ask the question.

Q. Yes. It was on 4 March 2019. You sent out a WhatsApp message to Jimmy Rowland at counter 200. ‘If it’s documents I will be okay, but I travelled in 2003 for someone and then they hid 8 pounds of drugs. I was convicted and sent to prison 91 months. That’s why I need to be honest because the bag feels different.’ First of all, do you agree you did say that to Jimmy Rowland at the time in 2019, 4 March, at counter 200?

A. I made that statement and it’s correct.

Q. Pardon me?

A. I did not lie.

Q. Pardon me?

A. I made the statement.

Q. Yes.

A. I sent the message, and I did not lie. I told the truth.

Q. So you accept that you were convicted...

A. Yes.

Q. ...for drugs, and sentenced to prison, right?

A. Yes.

Q. And that’s true, right?

A. Yes.”

39.  It is not without significance that there was no re-examination by defence counsel at all, particularly on the topic of the applicant’s prior drug conviction and his evidence on the matter.[23]

40.  The Judge, in the written handout for the jury, appropriately directed them to limit their consideration of the previous conviction to assess the credibility of the applicant only.  He said:[24] 

“16. You have heard that the Accused asserted in his testimony that he was a person who had a few minor road traffic convictions. He said he had nothing to do with drugs. In cross-examination, you heard about a previous conviction of possession of methamphetamine. If you accept that the Accused was convicted upon that charge, then it would be open to you to consider whether that affects the credibility of the Accused. If that was so, it would be open to you to conclude that the Accused was not quite the person he portrayed himself to be and if you think it is right to do so, you could conclude that this affected is credibility as a witness of truth. Whether that is your conclusion is entirely something for you to decide. The issue of how you assess the credibility of the Accused is part of your role as jurors. However, that is as far as it goes. If you accept as true that he was convicted, you can use that information to assess the credibility of the Accused but I direct you that what you may not do is conclude that he has a propensity to commit drug crimes.”

41.  Prosecuting counsel, in his closing speech to the jury, mentioned the applicant’s inconsistent evidence about his criminal record and telling the Customs officer that he had purchased the luggage when he testified it had been given to him by William.  However, prosecuting counsel stressed that the lies only went to the applicant’s credibility and should not be equated with guilt.  Defence counsel had also emphasised this in his closing speech. 

42.  The Judge addressed the issue of lies in the following passage of his summing-up:[25]

“Indeed, one of the consequences of the principles of our law relating to the burden and standard of proof is that even if, after careful and conscientious examination of his testimony, you came to the view that you did not believe the accused or did not believe some of what he said, or even if you thought he was a shameless liar, the consequences would be that all you could do at that stage would be to put his evidence to one side and then say to yourself, ‘Looking at the whole of the evidence, does the prosecution case stand up?’

  It is very tempting, as a matter of human experience; I do it and I am sure some of you do it; that when somebody has lied to you, if that is what you think, there is a natural reaction to say, ‘Well, that’s it, he’s guilty.’  You can’t do that under our law.  If you say, ‘He lied, I don’t believe him’, you then put that evidence to one side.  You then say, ‘Did the prosecution case stand up?’  And that is absolutely critical, particularly I suggest, to this case.”

43.  The Judge gave a perfectly adequate direction on lies, tailored to meet the circumstances of the case.  Moreover, there was no risk that the jury may have regarded the lies told by the applicant as probative of his guilt: Yuen Kwai Choi v HKSAR [26] and Jim Fai v HKSAR [27].

44.  The complaints under these grounds are not reasonably arguable.  

Ground 8: the Judge stopped defence counsel from properly deploying the applicant’s defence.

45.  In the course of examining the applicant, defence counsel attempted to elicit evidence of a conversation he had with a fellow inmate, Mr John Milne, to prove that the inmate had been a victim of a similar scam involving Campbell and Roland.  There was an objection from prosecuting counsel on the basis that this was inadmissible hearsay, followed by a discussion by counsel with the Judge in the absence of the jury.  After the luncheon adjournment, defence counsel informed the Judge he would not pursue the issue.[28]

46.  Towards the end of the applicant’s evidence on 16 August 2021, defence counsel indicated to the Judge that the defence may call a prison inmate, Mr Gerald Mickalowski.  He said the defence originally had not planned to call him because it was “highly unlikely” Mr Mickalowski would testify as it might affect his case.  The Judge proposed to issue a body order if the defence decided to call him.[29] At the conclusion of the applicant’s evidence, the next day, on 17 August 2021, defence counsel informed the Judge that after consideration, he decided not to call any other witnesses.[30]  The Judge did not prevent defence counsel from presenting the defence case.  The applicant was represented by an experienced criminal law advocate and he clearly indicated that he was uncertain about the relevance of these matters.  On reflection, he decided not to call evidence in relation to those other two cases.

47.  There is no merit in this ground.

Ground 9: the conviction is unsafe and unsatisfactory.

48.  This is a general complaint that I do not find is reasonably arguable. 

49.  On 14 February 2024, Father John Wotherspoon submitted a letter to the court on behalf of the applicant.  He refers to various cases involving elderly foreign persons, who had been deceived into transporting drugs to Hong Kong and were either not prosecuted or acquitted after trial for trafficking in a dangerous drug.  In an attached letter from the applicant, he mentioned two other cases where the accused were acquitted after trial, having similarly been deceived by Campbell and Roland, namely HKSAR v John Milne[31] and HKSAR v Mickalowski Gerald Jerome[32].

50.  In his letter, Father Wotherspoon acknowledges that it is “very difficult” to believe that the applicant did not know he was carrying drugs.  Nevertheless, he explains that past cases involving elderly drug mules reveal the common personality trait of stubbornly refusing to believe that they are being deceived. 

51.  Whilst there has been a spate of cases involving elderly persons being used as drug mules, the question of whether the case proceeds to trial or results in an acquittal after trial does depend on the particular facts and circumstances of the case.  If the case goes to trial, an accused is put in the hands of the jury to determine, after a consideration of all the evidence in accordance with the legal directions that ensure an accused is given the benefit of the doubt, whether or not the accused knew he or she was transporting drugs. 

52.  The Judge very fairly summarised the evidence and gave the correct legal directions to the jury.  I can find no substance whatsoever in the applicant’s claim that the Judge was prejudiced against him.

Conclusion

53.  For the foregoing reasons, leave to appeal against conviction is refused. The application for a legal aid certificate to appeal his conviction is also refused.

54.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1]  Appeal Bundle (AB), 20F-P. 

[2]  AB, 21D-22P.

[3]  AB, 7, Admitted Facts, at [12]-[13].

[4]  AB, 24S-35H. 

[5]  AB, 111-117.

[6]  AB, 152H-153A. 

[7]  AB, 153D-L. 

[8]  AB, 158E-162C. 

[9]  AB, 162E-K.

[10]  HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769.

[11]  AB, 13N-15O. 

[12]  AB, 13Q-R, 14G-15F and 15L-O.

[13]  Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209, at 217C and 227E-229A. 

[14]  AB, 123E-O.

[15]  AB, 320N-T.

[16]  AB, 391, at [31] and [32].

[17]  AB, 387-388.

[18]  AB, 305 and 388-389.

[19]  R v Brown (Winston) [1998] AC 367, 380C-381C.

[20]  AB, 224I-225I.

[21]  AB, 378-400.

[22]  AB, 224I-226F.

[23]  AB, 303J.

[24]  AB, 407, at [16].  See also summing-up at AB, 37K-38C.

[25]  AB, 24E-N.

[26]  Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113, 128H-129E.

[27]  Jim Fai v HKSAR (2006) 9 HKCFAR 85.

[28]  AB, 205A-O and 326C-328L.

[29]  AB, 370J-372H. 

[30]  AB, 376D-K.

[31]  HKSAR v John Milne (2022) 25 HKCFAR 257.

[32]  HKSAR v Mickalowski Gerald Jerome, HCCC 89/2021.