HKSAR v. CAMARA KANDJA

CACC 247/2021, [2025] HKCA 1050

On Appeal From [2021] HKCFI 3825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 247 OF 2021

(ON APPEAL FROM HCCC NO 171 OF 2020)

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REASONS FOR JUDGMENT

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

1.  On 26 October 2021, the applicant was convicted in the High Court of one count of trafficking in a dangerous drug, namely 1,459.3 grammes of a solid containing 1,252.7 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, following a trial before Deputy Judge Derek Chan, SC (“the judge”) and a jury. She was sentenced to 22½ years’ imprisonment.

2.  By her original Notice of Appeal (Form XI), dated 4 November 2021, the applicant sought leave to appeal against both her conviction and sentence. It is worth noting that the applicant was initially granted legal aid, albeit by an apparent oversight on the part of the Director of Legal Aid, in respect of both her appeal against conviction and sentence. However, her legal aid certificate was subsequently amended on 15 June 2022, by which legal aid was granted only in respect of conviction. Two weeks later, on 29 June 2022, the applicant purported to abandon her application for leave to appeal against sentence by way of a Notice of Abandonment and, by operation of Rule 39 of the Criminal Appeal Rules, Cap 221A, her appeal in relation to sentence was deemed dismissed by the Court of Appeal. The leave application regarding conviction proceeded and was subsequently refused by the Single Judge on 14 May 2024, with full reasons being given on 23 May 2024[1].

3.  On 20 May 2024, the applicant filed a notice seeking to renew her application for leave to appeal against conviction (Form XIII) and, on 12 June 2025, 7 July 2025 and 7 November 2025, appeared in person at the hearings of her renewed application. On 27 June 2025, the applicant applied by way of an affirmation to set aside the abandonment of her appeal against sentence and, for this purpose, was represented by counsel on 7 November 2025. Having heard from both parties, we acceded to her application to treat the abandonment of her sentence appeal as a nullity and in due course allowed her appeal against sentence, thereby reducing the sentence to 20½ years’ imprisonment. We further indicated that we would hand down the reasons for our decision in due course, which we now do.

The prosecution case

4.  It was not disputed that on 15 July 2019, the applicant arrived at Hong Kong International Airport on a flight from Addis Ababa in Ethiopia[2]. She was intercepted at the airport by a Customs officer and a body search was conducted on her. A large pellet of suspected dangerous drugs was discovered in the applicant’s underwear. The applicant was accordingly transferred to North Lantau Hospital and, subsequently, Queen Elizabeth Hospital, where X-ray examinations revealed foreign bodies inside her abdomen[3].

5.  Over the next few days, the applicant discharged 51 pellets of dangerous drugs at the detention ward of Queen Elizabeth Hospital and one last pellet at Tai Lam Centre for women[4]. On the last occasion, Correctional Services officer Lo Ka-yan (PW26) asked the applicant what the pellet was, to which she responded, “maybe cocaine”[5].

6.  The 53 pellets seized from the applicant were examined and together found to contain 1,459.3 grammes of a solid containing 1,252.7 grammes of cocaine, the street value of which was estimated at the time to be HK$2,072,206[6].

7.  The applicant is a national of the Republic of Guinea in West Africa, having been born in the capital Conakry. She is now 42 years old and has 3 children aged 15, 9 and 8. She previously had a clear record in both Guinea and Hong Kong. When she was arrested, her personal belongings included a mobile telephone, multiple Sim cards and various amounts of cash in different currencies, namely, US$3,055; INR1,100 (Indian Rupees) and GNF30,500 (Guinean Francs)[7].

The defence

8.  The applicant elected to testify at trial. She accepted that she was knowingly carrying narcotics into Hong Kong[8]. However, she claimed that this was done under duress. In light of the course this appeal has now taken, it is not necessary for us to discuss the facts giving rise to her conviction in any detail. It is sufficient to note that notwithstanding the defence run at trial, the applicant made an oral request of the Court to abandon her appeal against conviction. This request was made in open court, and was evidently discussed with her counsel on appeal beforehand, who communicated her decision to us at the outset of the hearing. We duly confirmed her intention with the applicant herself and she formally abandoned her appeal against conviction, which we accepted. Accordingly, the appeal against conviction stands dismissed.

The sentence appeal

9.  Although her application for leave to appeal against sentence appeared to have been abandoned by way of a Form VII notice on 29 June 2022 and was deemed dismissed the following day, the applicant has since sought to reinstate her sentence appeal. In various letters she wrote to the court in 2024 in relation to conviction, the applicant continued to complain that the sentence was too long[9], and that she had never abandoned her appeal against sentence[10]. We would note, therefore, that the applicant had herself queried whether she in fact abandoned sentence long before this Court engaged her on the issue in 2025.

10.  At the time of the filing of the Form VII Notice of Abandonment on 29 June 2022, the governing sentencing guidelines in relation to cocaine were this Court’s decisions in HKSAR v Abdallah[11] and HKSAR v Herry Jane Yusuph[12].

11.  When passing sentence on 28 October 2021, the judge, guided by these particular authorities, took into account the quantum of the cocaine concerned and the applicant’s role as a courier. Accordingly, he arrived at a starting point of 23 years’ imprisonment, which he then enhanced by 2 years to 25 years’ imprisonment, in accordance with Abdallah, for the aggravating factor that the drugs had been imported into Hong Kong from Ethiopia. Whilst finding that the personal circumstances of the applicant could not constitute any significant mitigation, the judge nevertheless reduced the sentence by 6 months to 24½ years’ imprisonment for the “sensible way” in which she had conducted her trial, in particular that she had admitted possession and knowledge of the dangerous drugs in question[13]. He then considered that the applicant was facing a “crushing” sentence[14] and, in purported reliance on the 6^th step in Herry Jane Yusuph, reduced the sentence by a further 2 years. Accordingly, the applicant was ultimately sentenced to 22½ years’ imprisonment[15].

12.  More than 2 years after the filing of the Notice of Abandonment, this Court heard the arguments in HKSAR v Huang Ruifang (No 3)[16] on 6 December 2024 and handed down its decision on 5 March 2025, revising the guidelines for trafficking in heroin, cocaine and “Ice”. As the law currently stands under these revised guidelines, the trafficking of between 500 grammes and 1,500 grammes of cocaine attracts a starting point of between 16 and 20 years’ imprisonment. Had she not filed the Notice of Abandonment, the applicant would by virtue of the continuing existence of her appeal have been entitled to benefit from the revised guidelines.

Nullity

13.  Given the allegations made in the applicant’s letters sent to the Court in 2024 in relation to the abandonment of her sentence appeal, the Court directed, at the renewal hearing on 12 June 2025[17], that the applicant should provide a further explanation in writing as to why she filed the Notice of Abandonment. Having done so, we would agree with Mr Wong, for the respondent, that the applicant’s various explanations have not always been entirely consistent. However, it should be remembered that she may not have had access to the various documents she has signed along the way during her incarceration, some of which documents are in English and all of which were signed without the presence of a lawyer. There will inevitably be some confusion in her own mind as to what she did and when.

14.  What does become reasonably clear, however, is that the applicant had wanted to appeal against sentence from the outset, having initially contended, through a French interpreter in her Form XI Notice of Application for leave to appeal, dated 4 November 2021, that “I would like to apply to appeal against conviction and sentence. The sentence is too long”. Her Notice of Application was filed well within time following her conviction and sentence. It is also clear, and we have no difficulty in this regard in accepting her affirmation dated 24 October 2025, that “I do not understand legal procedures. I do not understand spoken or written English language well”. We have no doubt that the applicant’s understanding of court procedures and the English language would have been even more limited three years ago when the purported abandonment of her sentencing appeal took place.

15.  Accepting, therefore, the scope for confusion and misunderstanding, we have carefully examined the original documents by which the applicant purported to abandon her appeal against sentence; since abandonment is very much a matter of form and the contents of these documents may shed light on the applicant’s actual intention at the time. There are three relevant documents.

16.  The first is a hand-written document (“the 1^st document”) prepared by a registered High Court interpreter, now retired, who had sometimes provided interpretation services for prisoners, one of whom was the applicant, in, among other languages and dialects, French, English and Putonghua. The document is addressed to the judge in French, with an ensuing English translation, which reads in both languages:

To Judge

I, CAMARA KANDJA, Reg No 423808 of Tai Lam Centre for Women. I would like to apply for Abandonment for Sentence [HCCC 171/2021] because Legal Aid inform me that I do not have sufficient grounds to appeal against sentence.

The 1^st document is signed by both the applicant and the interpreter and is dated 28 June 2022. Of course, as a hand-written document, not in the Form VII specifically prescribed by Rule 39 of the Criminal Appeal Rules, it would not have been sufficient for the Court to deem her appeal dismissed.

17.  The second document (“the 2^nd document”) and the third document (“the 3^rd document”) were both type-written documents signed by the applicant and the same High Court interpreter on the following day, 29 June 2022. The 2^nd document is in French and appears to be a French version of the prescribed Chinese/English Form VII as it appears in the Criminal Appeal Rules, and is accordingly headed:

FORMULAIRE VII

CODE DE PROCÉDURE PÉNALE

(Chapitre 221)

RÉGION ADMINISTRATIVE SPÉCIALE DE HONG KONG contre

Avis de désistement

There is no certified translation of the document, presumably because it is a French translation of the Form VII in the Criminal Appeal Rules. Nevertheless, we have gone through the body of this document with the French interpreter assigned to this appeal and her translation from French into English of the relevant part of the 2^nd document is as follows:

Having been found guilty on a sole count – Trafficking in a dangerous drug on 26.10.2021, and having sent a notice of appeal to the Court of Appeal against my conviction (or sentence of 22 years 6 months pronounced against me upon conviction) (I) advise you of my decision to abandon all proceedings with regard to the appeal.

We will return to the construction of the 2^nd document shortly.

18.  The 3^rd document, also signed on 29 June 2022, is the English Form VII itself, as stipulated and set out in the Criminal Appeal Rules. So far as is relevant, the form states:

I, CAMARA KANDJA, Reg No 423808 of Tai Lam Centre for Women have been convicted of Sole Count – Trafficking in a dangerous drug at the High Court on 26.10.2021, and having sent notice of appeal to the Court of Appeal against sentence of imprisonment for 22 Years 6 Months passed upon me on my said conviction give you notice that I abandon all further proceedings in regard to the appeal. The appeal against conviction still proceeds. (Original emphasis)

19.  It will immediately be noticed that the 2^nd document and the 3^rd document say different things. The 3^rd document, the English Form VII, makes clear that it is the appeal against sentence that is being abandoned: the appeal against conviction is expressly stated to continue. Had this been the only form in existence and had it been signed by someone who sufficiently understood English, it would have amounted to an unequivocal abandonment of the applicant’s appeal against sentence only. However, the 2^nd document, the French version of Form VII headed ‘FORMULAIRE VII’, seems to refer to the appeal against conviction being abandoned and makes no mention of the statement in bold print in the 3^rd document (above) to the effect that the appeal against conviction will still proceed. Because of the apparent inconsistency and possible ambiguity between these two documents, we invited the French interpreter to translate the 2^nd document for us. The exchange with the Court was as follows:

“COURT:	Reading [the 2nd document], is that an abandonment of the appeal against conviction? Or is it an abandonment of the appeal against sentence? Or is it an abandonment of both? Or is it ambiguous?
FRENCH INTERPRETER:	Okay, I have to read it…
COURT:	Do you understand my question?
FRENCH INTERPRETER:	I understand the question. I have to read it again. It should be abandon the appeal against conviction.”
	(Emphasis supplied)

20.  We agree with the French interpreter’s translation. And if that was the applicant’s understanding, we are satisfied that it was the only type-written form that she would have been able to read and understand. Mr Wong invited us to have regard to the 1^st document (signed on 28 June 2022), in conjunction with the 3^rd document (signed on 29 June 2022), which it is contended was interpreted to the applicant independently of the 2^nd document (also signed on 29 June 2022), in order to find that the applicant must have understood that what she was abandoning was her appeal against sentence, which she then did formally by way of the 3^rd document. To support his contention, he relies on the statement of the High Court interpreter who assisted the applicant at the time and signed alongside her signature on all three documents.

21.  However, the difficulty with the respondent’s contention is that the High Court interpreter who signed the three documents could not remember, given the passage of time, whether she had seen the 2^nd and 3^rd documents on 29 June 2022, and could only say what she would have done as part of her duty at the time. Yet, in relation to the 2^nd document, she stated, “If the document is in French, I would read it aloud to the prisoner and then ask her if she understands the document”; which begs the question of what exactly was translated, given its differences with the 3^rd document. Moreover, the High Court interpreter further declared that the 2^nd document “is a full and accurate translation of the terms of the English version (the 3^rd document)”, when clearly, with respect, and as we have shown, it is not.

22.  Two questions thus arise for the Court’s consideration: what was actually translated to the applicant on 29 June 2022; and what did she understand she was abandoning? The answer to the first question is that we cannot be sure because of the inconsistency between the 2^nd document and the 3^rd document and the fact that the High Court interpreter cannot now recall whether she actually translated both documents; while the answer to the second question is that it is infected with confusion engendered by that inconsistency. And since the abandonment of a right of appeal is an important step for any prisoner, which affects his/her liberty, and for which specific forms have been devised for use in order to avoid confusion, we are in some doubt whether the applicant realised the full impact and effect of what she was being asked to do. Essentially, it has always been the applicant’s position that she did not, or did not intend to, abandon her application for leave to appeal against sentence, even though some parts of her more recent affirmation are not consistent with her earlier statements.

23.  Whilst it would be wrong to treat this matter simply as one of form over substance, the reality is that the prescribed Form VII Notice of Abandonment in the Criminal Appeal Rules, which a defendant or applicant is required to sign, is a very important part of the process concerned because it triggers the formal abandonment of the appeal, which is then deemed dismissed by the Court of Appeal. Once that happens, the Court is normally thereafter functus officio, and has no inherent jurisdiction to hear an appeal that has been dismissed, unless the abandonment can be treated as a nullity. Whether the abandonment may be treated as a nullity depends on “the applicant’s understanding of the effect or consequences of the document he is signing or perhaps, misapprehending the effect at law of an appeal were he to persist”[18]; the Court must ultimately be satisfied “that the abandonment was not the result of a deliberate and informed decision, in other words, the appellant’s mind did not go with the act of abandonment”[19]. One can conceive of circumstances, for example, where an appellant might be genuinely mistaken, tricked or given demonstrably wrong or bad advice so that he/she signs a form abandoning an appeal he/she would otherwise have intended to pursue.

24.  An authority of some interest on its facts is R v Zakarian[20], where the applicant prisoner requested the assistance of the Chief Prison Officer to formally abandon his appeal against sentence only. Accordingly, the Officer prepared a Notice, in the form prescribed by the applicable Criminal Appeal Rules, wrongly stating that the applicant was abandoning his application for leave to appeal against conviction rather than sentence, which the applicant duly signed. The Court of Appeal of Victoria was satisfied that it was a genuine mistake on the applicant’s part and that, therefore, his mind did not go with his act because he had only ever intended to abandon his appeal against sentence, not conviction, which is what he thought the form he had signed was designed to achieve. Zakarian was subsequently referred to with approval by the five-member Court of Appeal of Western Australia in Bridges v The Queen[21], which reasoned that in Zakarian “[t]he misapprehension related to the effect of the notice”.

25.  The position in the case before us is more one of confusion than mistake because the applicant signed two forms on 29 June 2022, one in her own language apparently abandoning her application for leave to appeal against conviction, another in a language she does not understand abandoning her application for leave to appeal against sentence, in circumstances where it is not clear what of each form was actually translated to her. Given the consistent theme of her various letters to the court that she had always intended to appeal against her sentence, we are left in some doubt as to whether the applicant realised she was abandoning her application for leave to appeal against sentence. We are inclined to accept that she may not have understood the effect of the forms she was signing. In these rather unusual circumstances, we cannot say her mind went with her act and we must accede to her application to treat her purported abandonment in the 3^rd document as a nullity.

26.  We should add that we are aware the Correctional Services have prepared forms in various foreign languages, which are translations of Form VII as it is set out in the Criminal Appeal Rules. That is obviously helpful to prisoners. It is important, however, that if those forms (in whatever foreign language) are used and signed in addition to the Chinese/English Form VII as it appears in the Criminal Appeal Rules in order to abandon conviction or sentence (or both), the foreign language form must say so explicitly and be consistent with what is stated in the prescribed Form VII, which is the form conveyed to the Court and by which the Court will then deem the appeal dismissed.

27.  For these reasons, we determined that we could properly treat the applicant’s abandonment of her appeal against sentence as a nullity and entertain her appeal. We have already observed that the applicant was not out of time in her appeal, since she had originally indicated her intention of appealing her sentence only a week after she was sentenced.

Appeal against sentence

28.  Mr Wong had indicated in his written argument that if the Court were to find that there was enough evidential basis to set aside the abandonment of the application for leave to appeal against sentence, he would concede that the applicant could benefit from the revised guidelines under Huang Ruifang (No 3). It will be appreciated that the sentence was passed upon the applicant on 28 October 2021. By that time, the “state of affairs” spoken of by the Court of Final Appeal in Seabrook v HKSAR[22], which led to the revision of the guidelines in Huang Ruifang (No 3), would already have been in existence. We should make clear that we have yet to decide conclusively when that “state of affairs” is deemed to have begun, but for present purposes, we are satisfied that it would certainly have existed at the time the applicant was sentenced in October 2021 and that, therefore, she is entitled to the benefit of the new guidelines. Accordingly, we consider the respondent’s concession is properly made.

29.  The quantity of 1,252.7 grammes of cocaine would now fall, under the new guidelines set out in Huang Ruifang (No 3), into the 500 to 1,500 grammes of narcotic for which the sentencing range would be 16 to 20 years’ imprisonment. The applicant had been sentenced under the former guidelines set out in Abdallah, for which 1,200 to 4,000 grammes of narcotic placed her in the 23 to 26 years’ imprisonment guideline bracket. Viewed strictly arithmetically, such a quantity would have attracted just over 22 years’ imprisonment under the old guidelines and just over 19 years’ imprisonment under the new guidelines. However, as explained in Herry Jane Yusuph, it is no longer a matter of strict arithmetic: the starting point now requires an assessment to be made by the sentencing judge of the role and culpability of the defendant, which includes such factors as to whether the defendant was a local courier or an international courier bringing or taking dangerous drugs across the border.

30.  Mr Sherry, for the applicant, has submitted that, while the judge enhanced the arithmetical starting point by 2 years for the international element in accordance with Abdallah, the enhancement should not have been more than 1 year for this factor. We do not agree. The applicant is an international drugs courier who travelled from Africa to Asia with 53 pellets of cocaine worth more than HK$2 million concealed within or on her person. She must have known exactly what she was doing, as well as the gravity of her actions. We would assess her role and culpability as deserving of a starting point of 21 years’ imprisonment.

31.  Mr Sherry nevertheless does concede that the judge’s reduction of sentence by 2 years for what he conceived to be a “crushing” sentence was wrong in principle, the judge having chosen to follow a line of cases at first instance where judges were misusing the 6^th step in Herry Jane Yusuph to justify reductions of sentence. Counsel’s concession is correct and we have already criticised the misuse of the 6^th step in Herry Jane Yusuph in this way by certain sentencing judges: see HKSAR v Lee Ming Ho[23], at [83]-[86]; Huang Ruifang (No 3), at [19]. A simple reading of the Court’s exposition in Herry Jane Yusuph makes it quite clear that the 6^th step only concerns the issue of totality “[w]here there is more than one count or charge involved, or more than one aggravating feature justifying enhancement of the starting point”[24].

32.  No issue is then taken by the respondent with the further 6 months’ reduction for the way the applicant had handled her defence and trial. We will not interfere with this reduction, although we have to say we regard it as somewhat contrived and generous: the applicant had run a full-blown defence of duress in a trial that occupied the court for 10 working days. The best that may be said is that in putting forward such a defence, she conceded that she knew she was carrying dangerous drugs, even though she still claimed she did not know it was cocaine.

33.  In our judgment, the applicant’s sentence following a contested trial should have been 21 years’ imprisonment for her role and culpability in carrying 1,252.7 grammes of cocaine narcotic across the border into Hong Kong. Honouring the 6 months’ discount the judge gave, the sentence thus becomes 20½ years’ imprisonment.

34.  In the circumstances, and for the reasons we have explained, we allowed the applicant’s application for leave to appeal, allowed her appeal, set aside the sentence of 22½ years’ imprisonment and, in its place, passed a sentence of 20½ years’ imprisonment.