HKSAR v. CONTE GAOUSSOU

CACC 112 /2019

[2020] HKCA 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 112 OF 2019

(ON APPEAL FROM HCCC NO 38 OF 2017)

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J U D G M E N T

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1.  The applicant faced an indictment containing a single count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; the particulars being that, on 25 July 2016, at Kam Tin Post Office in Kam Tin, New Territories, the applicant unlawfully trafficked in a dangerous drug, namely 931.40 grammes of a solid containing 696.90 grammes of cocaine.

2.  The applicant pleaded not guilty and stood trial before Toh J (“the judge”) and a jury.  On 2 April 2019, he was unanimously convicted by the jury and sentenced to 20 years’ imprisonment.  Having filed a Notice of Application for Leave to Appeal (Form XI), the applicant now applies for leave to appeal against his conviction only.

The prosecution case

3.  The prosecution called seven witnesses, comprising two members of staff of the Kam Tin Post Office (PW1 and PW2), one attendant of a cyber-café in Kam Tin (PW3) and four Customs officers (PW4 to PW7).  The prosecution further relied in support of its case on, inter alia, CCTV footage from the Post Office and the cyber-café shop situated opposite.

4.  On 18 July 2016, a parcel containing motor spare parts but also the cocaine in question, worth more than HK$1 million, arrived in Hong Kong from the Philippines (the “parcel”).  The parcel was addressed to a recipient by the name of “Muroki Esther Wambuku” at an address in Sham Shui Po, Kowloon.  The parcel was accordingly transferred to the Kam Tim Post Office for collection in accordance with a Speedpost notification card (Exh P46)^[1].

5.  On 25 July 2016, the applicant, who was a Form 8 recognizance holder, entered Kam Tin Post Office at about 9:30 am and attempted to claim the parcel by presenting Exh P46 and his own Form 8 identification document.  PW1 refused the applicant’s claim because he did not have a photocopy of the valid identification of the addressee named on Exh P46.  A few minutes later, the applicant returned again to the counter in the Post Office where he requested PW1 to answer his mobile telephone.  PW1 refused and the applicant left the Post Office.  

6.  The applicant subsequently went to a cyber-café situated opposite the Post Office, which opened at 10:30 am.  There, he asked the technician (PW3) to give him the email address of the cyber-café and to print out an incoming email for him.  While the applicant was waiting for the incoming email, a man came into the cyber-café and asked PW3 to made a photocopy of a document. That man spoke to the applicant in English and then handed him a document, although PW3 was unable to tell if it was the one he had photocopied.  About half an hour later, PW3 made a print out of an incoming email, which included a copy of a passport document with a typed name Muroki Esther Wambuku, and gave it to the applicant.  Having remained in the cyber-café for about an hour and a half in total, the applicant then went back to Kam Tin Post Office.

7.  One significant aspect of the prosecution case was that the photocopy of the passport handed to the applicant by the man who arrived in the cyber‑café, which was later seized from the applicant, showed the name of Muroki Esther Wambuku handwritten in two places on the photograph and particulars page of the passport (Exh P45[2]). However, the applicant did not use this photocopy but waited for another copy (Exh P42[3]) to arrive by email in the cyber-café.  This second copy (Exh P42) had the name of Muroki Esther Wambuku apparently typed in the particulars of the passport holder; however, the name of the passport holder in the computerised name and number details (also typed) on the same page was Mwanakombo Mohamed.  Clearly, both Exh P45 and P42 were forgeries.

8.  The applicant eventually obtained the parcel by presenting Exh P46, his own Form 8 identification document and Exh P42; by which time it had been some 4 hours since he had first attended the Post Office. The applicant was arrested by a Customs officer (PW5) as he left Kam Tin Post Office with the parcel at about 1:45 pm.  Exh P45 was then seized from him.

9.  Under caution upon arrest, the applicant said that he did not know the contents of the parcel.  He further said that it was his friend who asked him to collect the parcel and he would call his friend after he had collected the parcel.  While the applicant was being interrogated by PW5, the applicant’s mobile telephone rang several times.  The applicant asked if he could answer the call.  PW5 told him that unless he spoke in English rather than Igbo, the applicant’s native tongue, he could not do so.  In the event, none of the telephone calls were answered.

10.  In a subsequent video recorded interview, on 26 July 2016, the applicant said that on 24 July 2016 his friend “Jude”, a Nigerian, mentioned he had something to be collected in Kam Tin.  At about 8 am the following day, Jude gave a notification card to the applicant and asked him to collect the parcel, which he said contained samples of motor parts, on his behalf.  Jude told the applicant he would buy him food and drink afterwards.  The applicant arrived in Kam Tin at about 9 am.  After the applicant informed Jude by telephone that the staff of the Post Office had refused to let him collect the parcel and he was leaving, Jude pleaded with him to wait and asked him to go to a cyber-café near the Post Office and collect an identification document, which he would send by email.  While the applicant was waiting for the print out of the document (Exh P42), a friend of Jude’s, whom the applicant did not know, arrived and gave him Exh P45^[4].  The applicant did not look at the print out of the passport or the notification card used to collect the parcel.  He denied knowledge of the presence of the cocaine concealed inside the parcel.

11.  The provenance of the CCTV footage capturing events in Kam Tin Post Office and the cyber-café were not disputed.  At the time of his arrest, the applicant was in possession of HK$665 in cash and two mobile telephones.  Forensic examination on one of the mobile telephones^[5] revealed that a telephone call was made to the Sham Shui Po Delivery Office of Hongkong Post at 8:43 am on 25 July 2016.  At about 9:54 am on the same day, the same telephone received a call from the telephone number shown on the address label of the parcel; which call lasted for 99 seconds.

The defence case

12.  The applicant elected to testify at trial and called a defence witness (DW2).  The applicant’s evidence corresponded with his account in his video recorded interview.  He maintained that he was just helping a friend to collect the parcel and had no knowledge of the presence of cocaine. The applicant explained that he had been educated in Ghana.  He had been in the business of trading motor parts for about 10 or 11 years before he came to Hong Kong in 2015, since when he had been a Form 8 recognizance holder.  In July 2016, he was receiving ISS coupons but his transport money of HK$200 per month had already stopped for two months.  

13.  On 25 July 2016, when he returned a missed telephone call from Jude, he was asked to write down two sets of numbers and a name on a piece of paper and meet up with him at a K11 shop in Tsim Sha Tsui.  At about 7 to 8 am, at K11, Jude gave the applicant another piece of paper with four lines of numbers and words, together with Exh P46.  The applicant then set off for Kam Tin Post Office, firstly by train to Kam Tin and then by taxi.  He arrived at the Post Office at about 9 am.  In cross‑examination, he accepted that he had been in Kam Tin for some four hours in order to collect the parcel^[6].

14.  So far as Exh P42 and P45 were concerned, the applicant’s evidence was that he did not check the particulars on either copy of the passport: he merely looked at the respective photographs.  He denied waiting for Exh P42 because he thought the staff at the Post Office might not accept Exh P45 as genuine.

The summing-up

15.  The judge, following a brief introduction, directed the jury that the only issue in the case was whether the applicant knew there were dangerous drugs inside the parcel when he claimed it and took it out of Kam Tin Post Office^[7]. The applicant’s case was that he was an innocent party, who was used by Jude, and that he genuinely believed he was collecting motor parts on Jude’s behalf. If the jury thought that what the applicant had said was or may be true, he could not be found guilty of the count on the indictment^[8].

16.  In respect of circumstantial evidence, the judge directed the jury in the following terms[9]:

“Now, circumstantial evidence can be powerful evidence. Indeed, it can be as powerful or even more powerful than direct evidence, but you must examine it with care as with all evidence and consider whether the evidence upon which the prosecution rely in proof of its case is reliable and whether it does prove guilt or whether, on the other hand, it reveals any other circumstances which are or may be of sufficient reliability and strength to cast out upon or destroy the prosecution case.”

17.  Since the applicant had a clear criminal record, the judge gave a good character direction in respect of both credibility and propensity in the following terms:

“And you have also heard that he has a clear record, both in Hong Kong and around the world. Although good character cannot, by itself, provide a defence to a criminal charge, it is evidence which you should take into account in his favour in the following ways. In the first place, the defendant has given evidence. And as with any man of good character, his good character supports his credibility. So it is a factor to take into consideration when deciding whether you believe his evidence. And secondly, the fact that he is of good character may mean that he is likely (sic) than otherwise, might be the case, to commit this crime now.”^[10] (Emphasis supplied)

The grounds of appeal

18.  In his “Amended Substituted Perfected Grounds of Appeal Against Conviction”, dated 20 January 2020, Mr Hemmings has advanced no less than eight substantive grounds of appeal on behalf of the applicant.  By Ground 1, he sets out nine particulars in the summing-up^[11], in which it is suggested that the judge failed to deliver a fair and balanced summing‑up by making numerous detrimental comments about the defence case and the applicant’s evidence, whilst failing to highlight those points in his favour^[12]. Ground 2 avers that the judge gave the jury an erroneous good character direction, which Mr Hemmings accepts was obviously a slip of the tongue but nonetheless may have misled them^[13]. Ground 3 complains that the effect of the various directions and omissions was seriously to undermine the credibility of the applicant and his case, which effect could not be cured by directions to the jury that it was a “matter for you”.  By Ground 4, the applicant complains that the judge in her directions in respect of circumstantial evidence suggested that there was an onus on the defence to cast doubt on the circumstantial evidence relied upon by the prosecution^[14]. Ground 5 complains that the judge wrongly directed the jury that the applicant’s taking of a taxi to Kam Tin Post Office, his lengthy wait for the parcel and his using one passport copy rather than the other were matters from which the jury could draw an inference against the applicant on the issue of his knowledge.  At the same time, the judge failed to direct the jury how these matters could give rise to an irresistible inference that the applicant had the requisite knowledge^[15]. Ground 6 alleges that the judge mistakenly summarised the evidence as to the period of time the applicant had waited for the passport copy to arrive^[16]. Ground 7 alleges that the judge wrongly directed the jury on the evidence as to whether the applicant looked at the passport with the handwritten name^[17]. Ground 8 avers that the judge omitted to direct the jury not to draw any adverse inference against the applicant in respect of the false passport copy which the applicant showed to the Post Office staff, since neither PW1 nor the supervising Customs officers apparently noticed its falsity at the time either^[18].

Consideration

19.  I shall deal first with Ground 4.  It seems to me that the attack on the judge’s direction about circumstantial evidence, which Mr Hemmings accepts is in conformity with the Specimen Directions issued by the Hong Kong Judicial Institute, is a pure question of law, which does not fall within my province.  It must be a matter of law for the Court of Appeal whether Specimen Direction 21 is correctly drawn, or whether it reverses the onus of proof in respect of cases dependent upon circumstantial evidence.  I do not need to say anything further about that aspect.  However, inasmuch as the argument engages the proposition that the Specimen Direction (if correct in law) should not have been given in the circumstances of this particular case, which seems to me a question of mixed fact and law, I do not think this aspect of the ground is reasonably arguable.

20.  In respect of Ground 2, the judge’s direction was plainly a slip of the tongue, as Mr Hemmings sensibly recognises, which would not have confused anybody, especially as the whole context of the direction to the jury was that the applicant’s good character “is evidence which you should take into account in his favour”[19].  Neither counsel at trial sought to bring this matter to the attention of the judge, no doubt because the slip was so obvious that no one could conceivably have been misled. This ground of appeal is not reasonably arguable.

21.  In addressing the remaining grounds, Mr Hemmings concedes that the judge did not in fact misstate the evidence.  Insofar as Ground 6 might suggest that the judge has summed up the evidence incorrectly, I do not regard it as reasonably arguable that there has been any misstatement of the evidence. The applicant was, on the evidence, in Kam Tin for more than 4 hours, having remained in the cyber-café for 1½ hours.  The judge did not say that the applicant was in the cyber-café for 4 hours and the evidence as to how long he had been there was clear from the witnesses and the CCTV evidence.

22.  Since Mr Hemmings accepts that the judge did not misstate the evidence anywhere else in her summing-up, Ground 1 really comes down to an allegation that the summing-up, by virtue of what the judge said or did not say, was unbalanced or unfair.  That, as both counsel agree, necessarily requires an appellate Court to look at the summing-up as a whole.  Having done so, and without addressing each and every particular in Ground 1, I do not regard it as reasonably arguable that the summing-up was either unbalanced or unfair on any of the bases put forward, individually or cumulatively.  When, for example, the judge explained the law on inferences, she described the facts and evidence on which the prosecution were relying to draw the only reasonable inference that the applicant knew exactly what he was collecting.  She then contrasted this by repeating defence counsel’s argument that from the way the CCTV footage depicted the applicant sitting and behaving in the cyber-café, which was totally relaxed and not at all anxious, his conduct was consistent with someone innocently collecting an innocuous parcel for another.  Accordingly, it was the defence case that one could not draw the only reasonable inference that the applicant must have known he was collecting a valuable consignment of dangerous drugs[20].

23.  The authority of Lin Ping Keung v HKSAR[21], on which Mr Hemmings places such strong reliance, was a very different case.  There the judge had misunderstood and misstated the evidence and then posed two rhetorical questions for the jury based on his misunderstanding.  The error was obviously significant because, following their retirement, the jury asked questions derived from the judge’s very misstatement of the evidence. 

24.  As for the case of HKSAR v Umali[22], to which reference was also made, the circumstances of the judge’s summing-up seem to me to have been so entirely different that the authority has no application to the present case.  Even Mr Hemmings acknowledged in his oral submissions that the judge’s impugned directions were really a matter of emphasis.  Once one accepts that much, then it is imperative that the summing-up be looked at as a whole to see whether, in its overall effect, it can properly be said to be unfair and unbalanced.

25.  As for the remaining Grounds, namely Grounds 3, 5, 7 and 8, I do not regard them as affording reasonably arguable grounds of appeal.  These engaged factual matters which were for the jury to consider.  Mr Hemmings made a strong submission that although the judge’s directions on inferences could not be faulted, she did not tell the jury how the matters relied upon by the prosecution were capable of giving rise to an irresistible inference that the applicant knew the parcel contained dangerous drugs.  The complaint is particularly engaged in Ground 5.

26.  With respect, the question of what inferences the jury drew was a matter for them alone, so long as they received correct instructions on the law of inferences from the judge; which they did.  I am not quite sure how the judge was supposed to tell the jury how such matters as they found proved were capable of giving rise to an irresistible inference.  The relevant circumstances here were of a Form 8 recognizance holder going from Tsim Sha Tsui in Kowloon to Kam Tin in the New Territories for someone he had only met a handful of times to collect a parcel for allegedly little or no reward; spending more than four hours hanging around in Kam Tin until he could retrieve the parcel with one of two copies of a purported travel document, both of which were obviously doctored, whether or not he appreciated there were two different names on Exh P42.

27.  The evidence relating to Exhibits P42 and P45 might be thought, as a matter of common sense, to be rather damning.  When Exh P45 was given to the applicant in the cyber-café by someone whom the applicant said he did not know (and who did not himself go to claim the parcel), it must have been obvious that the copy of the original passport had been tampered with. Yet the applicant said he did not notice that Muroki Esther Wambuku had been handwritten on the passport in two places on the same page.  Nevertheless, he then decided to wait for a further copy of the passport (Exh P42) and this time, there was no handwriting on the document: instead, Muroki Esther Wambuku in the upper part of the page was typewritten (whereas on Exh P45 it had been handwritten), while the lower part was also typewritten (whereas on Exh P45 it had been handwritten) but had a different name altogether, namely Mwanakombo Mohamed.  Yet, again, the applicant said he did not notice these changes or differences between the two documents.

28.  Mr Hemmings submits that there was an equally reasonable inference to draw from this evidence in the applicant’s favour, because the applicant said he did not notice the changes on the documents; or, if he did, he may simply have thought the Post Office were not going to accept the handwritten version (Exh P45) and he therefore waited for Exh P42 to come through by email.  Accordingly, it was not fair to leave it to the jury to draw, as the only reasonable inference, that the applicant must have realised the documents were fake.

29.  The problem with this argument is, firstly, that it was the applicant’s evidence he did not notice the changes, or indeed any of the details, on the two documents: he was only interested for some reason in the photographs[23]. Secondly, he testified that the reason he waited for Exh P42 was not because he lacked confidence in the Post Office accepting Exh P45 as a genuine document[24].  Thirdly, it was a matter for the jury what inferences they drew, provided they were correctly instructed as to the law and provided such inferences were properly derived from the evidence.

30.  Applying their common sense to the circumstances, and this aspect of the evidence in particular, it was entirely open to the jury to reject the applicant’s account and find that he must have known he was producing a forged copy of a passport in order to collect the parcel.  I do not find Ground 5 to be reasonably arguable.

31.  Furthermore, the fact that the forgery of Exh P42 was not apparently noticed by either the Post Office staff or the supervising Customs officer (Ground 8) does not seem to me to be material at all.  It was what the applicant believed that mattered and, of course, he had seen the earlier handwritten incarnation of the copy of the passport, Exh P45, which was such an obvious and clumsy forgery. In any event, this matter is not reasonably arguable as a substantive ground of appeal.

Conclusion

32.  I refuse leave to appeal against conviction on any of the grounds which fall for my consideration.  The applicant is duly advised that he has the right to renew his application to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it came to the view that there was no justification for the renewal of the application.

[1] AB, pp 86-87 (Exh P46).

[2] AB, p 85 (Exh P45).

[3] AB, p 84 (Exh P42).

[4] AB, p 75.

[5] Exh P47.

[6] AB, p 287C.

[7] AB, p 14N-O.

[8] AB, p 14R-U.

[9] AB, pp 21T-22D.

[10] AB, pp 23T-24E.

[11] Amended Substituted Perfected Grounds of Appeal, para 3(a)-(i).

[12] Amended Substituted Perfected Grounds of Appeal, para 3.

[13] Amended Substituted Perfected Grounds of Appeal, para 4.

[14] Amended Substituted Perfected Grounds of Appeal, para 6.

[15] Amended Substituted Perfected Grounds of Appeal, para 7.

[16] Amended Substituted Perfected Grounds of Appeal, para 8.

[17] Amended Substituted Perfected Grounds of Appeal, para 9.

[18] Amended Substituted Perfected Grounds of Appeal, para 10.

[19] AB, p 24A-B.

[20] AB, p 21E-J.

[21] Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52.

[22] HKSAR v Umali [2011] 3 HKLRD 55.

[23] AB, pp 280T-281B; p 284E-S; p 285L-M.

[24] AB, pp 285T-286A.