HKSAR v. GWALA NHLANHLA JOHANNES

CACC 175/2024

[2025] HKCA 751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 175 OF 2024

(ON APPEAL FROM HCCC NO 261 OF 2020)

_______________

BETWEEN

_______________

________________

J U D G M E N T

________________

1.  On 8 August 2024, following a trial before D’Almada Remedios J (the Judge) and a jury, the applicant was convicted of one count of trafficking in a dangerous drug, namely 642 grammes of a solid containing 540 grammes of cocaine. He was sentenced to 19 years and 6 months’ imprisonment.

2.  On 29 August 2024, the applicant filed a notice to apply for leave to appeal against conviction. He appears in person in the leave application, having had legal aid refused. He did not apply for leave to appeal against sentence but during the hearing it was apparent that he would receive a substantial reduction to his sentence under the new sentencing guidelines for trafficking in large quantities of cocaine.

3.  The applicant made a series of complaints against conviction in his notice, and subsequent written submissions dated 14 October 2024, 24 October 2024, 14 November 2024, 7 January 2025 and 12 January 2025. His grounds of appeal can be summarised as follows:

(1) The Judge’s summing-up was unfair and unbalanced, and she failed to properly summarise the defence case.

(2) The Judge erred in directing the jury to apply the “reasonable person” test for considering his defence of duress in the cross-cultural context, and failed to highlight relevant aspects of his social background, such as the higher murder and crime rate, annual number of complaints against police, and crime statistics in Johannesburg.

(3) The jury’s question requesting the conversion of his salary from South African rand (ZAR) to USD was inappropriate.

(4) The jury selection was racially discriminatory against him and the defence was not properly notified of the change of trial judge.

The prosecution case

4.  It was not in dispute that on 3 January 2020, the applicant, a South African national, arrived at Hong Kong International Airport from Johannesburg, South Africa, via Addis Ababa, Ethiopia. He was intercepted for customs clearance, and an X-ray examination confirmed the presence of foreign objects in his body cavity. Upon arrest, the applicant stated under caution that he did not know what was inside his body. He was transferred to hospital, where he discharged 66 pellets, which were subsequently certified to contain the amount of cocaine as particularised in the count. The Customs officers found in his possession boarding passes and a departure card for his flight to Hong Kong, hotel bookings in Addis Ababa and Hong Kong, an itinerary with a return flight scheduled to Johannesburg[1], and US$780. The street value of the cocaine was estimated at HK$720,324.[2]

5.  The prosecution case was that the applicant knowingly and voluntarily brought the cocaine concealed in his body into Hong Kong.[3]

The defence case

6.  The applicant testified on a defence of duress and called his wife (DW2) to give evidence. The applicant said that he lived with DW2 and their five children in Hillbrow, Johannesburg, which he described as a dangerous area with a high crime rate[4]. He also had four children from a previous marriage and had worked as a security guard, earning 17,000 rand (about USD 1,000) per month. In early 2019, he was referred by his friend Thami to a Nigerian man named King to borrow money as he could not afford his children’s school fees. On 5 February 2019, he borrowed 9,000 rand from King but was unable to repay the loan after losing his job in May 2019. In August 2019, King repeatedly visited him to demand repayment and threatened his safety and his family. He later learnt from Thami that King was a drug dealer with police connections. In December 2019, King ordered him to transport drugs to Hong Kong and threatened to kill him or his family if he refused. Having heard that King’s employees had killed a man in the community, the applicant genuinely believed he and his family were in danger and agreed to comply.[5]

7.  The applicant stated that King made him swallow two large peanuts as a test, and a woman named Evelyn arranged his trip to Hong Kong. When he flew to Addis Ababa on 1 January 2020, he saw two of King’s employees on his flight. In Addis Ababa, he was taken to a house where he was forced by a man named Prince and several others to swallow 120 pellets, under threat of being thrown into a crocodile infested river. He managed to swallow 66 pellets and flew to Hong Kong.[6] He claimed he did not know the pellets contained drugs, as he did not pack them, and they could be gold or diamonds.[7] He alleged that Customs officers had inserted a stick into his anus, shouted at him and denied him legal representation.[8]

8.  In cross-examination, the applicant explained that he never considered leaving Hillbrow to avoid the alleged threats due to financial constraints, family ties and better job opportunities in the area where his wife also worked as a waitress. He did not report the threats to local police as he believed King had connections with them and that officers from other areas would not help him. He did not seek assistance from the consulate, human rights office or airline staff, nor did he tell DW2 about the threats.[9]

9.  DW2 testified that she only found out the applicant was in Hong Kong when notified by the consulate and knew he could not repay his debt to King. After King threatened to kill her and her children, she changed her telephone number and moved in with her cousin, but did not report to the police as she believed King would bribe them.[10]

The summing-up

10.  The Judge duly summarised the issues at trial and the defence case at the outset of her summing-up.[11] She comprehensively outlined the applicant and his wife’s evidence[12], highlighting his claim of duress from threats, his description of Hillbrow as dangerous, and his reasons for not relocating or seeking help to avoid the threats[13]. She also highlighted the points challenged by the defence when summarising the evidence of Customs officers in cross-examination.[14] She gave a good character direction regarding the applicant’s clear record in Hong Kong.[15]

11.  The Judge properly directed the jury on the defence of duress by threats, and provided them a written handout outlining the series of questions to be considered[16], in accordance with the specimen direction[17]. She correctly explained the application of the “reasonable person” test in assessing the defence. Although living environment and race are not recognised characteristics for this defence, the Judge instructed the jury to consider the applicant’s educational, social and cultural background when applying the test.[18]

12.  When the applicant referred to the crime rates of Johannesburg in his testimony, the Judge reminded him he was not an expert witness on the matter, but noted that the jury could still consider that he lived in a dangerous place as a relevant factor:[19]

“Well, you’re not here, let me just tell you now, giving evidence as a witness of -- expert witness. You’re not here as an expert witness telling us about South Africa crime rates or Hong Kong’s crime rate. I understand that this will affect your mind in that this is how you feel South Africa is a dangerous place, but it would be as if I was saying, ‘Oh, well, Hong Kong has a crime rate of X’. I can’t give evidence of that, I’m not an expert on this, and nor are you, so I’m going to stop you here. …

Yeah, you’re here, Mr Gwala, to give factual evidence, that is what you know, what happened to you, what you -- and not opinion evidence. All right? Do you understand? You’re here to tell the account of what happened to you and how you came to Hong Kong with -- knowing you had drugs in your stomach. As I say, the jury are well aware that in your mind, you’ve said on Thursday, that South Africa is a dangerous place and violent place, and now you’ve just told them that you know that there are many killings. This is one thing they can take into account.”

The jury’s question

13.  During the course of their deliberations, the jury asked the following question:[20]

“We would like to know the amount defendant owed in USD, and defendant’s monthly salary in USD back in 2019 when he was employed as security (ie between Feb to May 2019).”

14.  After consultation with counsel, the Judge adopted the conversion rate used by the applicant and gave the jury the corresponding amount in USD as follows:[21]

“Now, the defendant’s monthly salary between February 2019 and May 2019, as you know, May 2019 the defendant said he was laid off. So his salary as a security guard, his evidence was it was 17,000 rand. The defendant’s evidence is that he borrowed 9,000 rand.

Members of the jury, there is no evidence before you of any rand to US dollar conversion or exchange rate, except what you do have is the defendant’s evidence telling you that 17,000 rand when converted was about US$1,000. So if you accept what the defendant says, 17,000 rand equals to about US$1,000.

So you heard the defendant borrow or had a loan of 9,000 rand, that is just slightly over half of his salary. Half of his salary would be 8,500 rand. So half of $1,000 is $500. So if it is just slightly over half, it would be slightly over US$500. I am not going to go into the very meticulous mathematics here, but slightly over US$500.”

15.  The defence counsel did not object to the proposed answer[22], and there was no complaint that the Judge misdirected the jury in her response.

Leave to appeal against conviction

16.  The applicant complains that the Judge did not properly address the defence of duress in her directions to the jury, particularly when she referred to the “reasonable person” test. The Judge’s directions on the defence of duress followed the specimen direction[23] and the guidance set out in HKSAR v Thuo Peninah Wangari [24]. In advancing the defence of duress, a defendant should exhibit a level of steadfastness reasonably expected of the ordinary citizen in his or her situation. A “reasonable person” means a sober person of reasonable firmness sharing the defendant’s characteristics. The Judge instructed the jury to consider the race, social and cultural background of the applicant when applying the “reasonable person” test.[25] He also complains that the Judge did not mention the crime statistics of Johannesburg, but there was an inadequate evidential foundation for the statistics relied upon by the applicant. This was addressed by the judge during the applicant’s evidence.[26] This ground is not reasonably arguable.

17.  The next complaint concerns the jury’s question on the currency conversion to US dollars of the monies referred to by the applicant in his evidence. As already noted, there was no objection to the currency conversion in response to the jury’s question. There is no merit in this ground of appeal.

18.  The applicant complains that a change of trial judge constituted an “improper change of venue” without notifying the defence. The change of a trial judge had no bearing on his fair trial. This ground of appeal is without merit.

19.  The applicant finally complains that the jury by its composition racially discriminated against him. This complaint is totally devoid of merit.

Leave to appeal against sentence

20.  The applicant did not apply for leave to appeal against sentence. The Judge adopted a starting point of 18 years and 6 months’ imprisonment and enhanced it by 1 year for the international element to 19 years and 6 months’ imprisonment. According to the new guidelines laid out in HKSAR v Huang Ruifang[27], the starting point would be significantly lower, namely 16 years and 1 month’ imprisonment for 540 grammes of cocaine.

21.  As I noted in HKSAR v Choi Wing Ka [28], as a general principle, an offender should be sentenced on the basis of the laws that applied at the time of the commission of the offence, and this includes any applicable sentencing guidelines. When determining whether to grant leave to an application to appeal against sentence out of time, factors that are taken into account include the relevant sentencing guidelines at the time of the offence, the lapse of time in seeking to appeal a sentence, as well as the change to the sentencing guidelines and whether they would have a significant bearing on the sentence being served by the offender. In the present circumstances, the applicant received a substantial sentence, albeit for a serious crime, which would be significantly reduced under the new guidelines. Refusing the applicant leave to appeal against his sentence out of time, would be denying him the chance to argue a substantial and plainly arguable ground of appeal that has a reasonable prospect of success. Accordingly, I grant the applicant leave to appeal against his sentence.

Conclusion

22.  For the foregoing reasons, I refuse the applicant leave to appeal against conviction but grant him leave to appeal against sentence. I also direct that he be granted an appeal aid certificate to be legally represented in his appeal against sentence.

23.  The applicant is advised that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also informed the Court has the power to order the loss of any time which he has served in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.