Case Detail

CACC 112/2019

[2024] HKCA 548

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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	HKSAR	Respondent
	v
	Conte Gaoussou	Appellant

_______________

Before:

Hon Zervos, M Poon JJA and Andrew Chan J in Court

Date of Hearing:	21 June 2024
Date of Judgment:	21 June 2024
Date of Reasons for Judgment:	11 July 2024

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1. On 2 April 2019, after a trial before Toh J (the Judge) and a jury, the appellant was convicted of a single count of trafficking in a dangerous drug, namely, 931.40 grammes of a solid containing 696.90 grammes of cocaine. He was sentenced to 20 years’ imprisonment.

2. On 11 April 2019, the appellant applied for leave to appeal against conviction. After filing perfected grounds of appeal against conviction on 24 September 2019 and 20 January 2020, Mr John Hemmings, for the appellant, advanced eight grounds which were addressed by the Single Judge in his leave judgment dated 23 October 2020.[1] He refused the appellant leave to appeal on those grounds except for one (Ground 4), which was a question of law and did not require leave.

3. At the conclusion of the hearing, we dismissed the appellant’s appeal and ordered two months loss of time. We said we would hand down our reasons for our decisions in due course, and these are our reasons.

The prosecution case

4. The prosecution case was that the appellant, a Form 8 recognizance holder, had gone to Kam Tin Post Office at about 9:30 am on 25 July 2016 to claim a parcel by presenting a Speedpost Notification card (Exhibit P46) and his own Form 8 identification document (Exhibit P72). The parcel, which arrived in Hong Kong from the Philippines on 18 July 2016, contained motor spare parts with the cocaine in question concealed inside (worth more than $1 million). The parcel was addressed to Muroki Esther Wambuku at an address in Sham Shui Po, Kowloon. An officer of Kam Tin Post Office (PW1) refused the appellant’s claim because he did not have a photocopy of the valid identification of the addressee named on the Speedpost Notification card. About five minutes later, the appellant returned to the Post Office and requested PW1 to answer his mobile telephone. PW1 refused, and the appellant left.

5. The appellant located and went to a cyber cafe, the Yuen Fat Company, situated opposite the Post Office. He asked the technician at the cafe (PW3) to give him the email address of the cafe and to print out an incoming email for him. While the appellant was waiting for the incoming email, a man came into the cafe at 1:17 pm and asked PW3 to make a photocopy of a document. That man spoke to the appellant 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 printout of an incoming email, which included a copy of a passport document with the typed name, Muroki Esther Wambuku, and gave it to the appellant. The appellant went back to the Post Office.

6. The photocopy of the passport handed to the appellant by the man who arrived in the cafe, which was later seized from the appellant, showed the name of Muroki Esther Wambuku handwritten over Tippex in two places on the photograph and particulars page of the passport (Exhibit P45). However, the appellant did not use this photocopy but waited for another copy (Exhibit P42) to arrive by email in the cafe. This second copy (Exhibit 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 Kenathunan Mwanakombo Mohamed. It was apparent that both Exhibits P45 and P42 were false.

7. The appellant eventually obtained the parcel by presenting Exhibit P46, Exhibit 42 and his own Form 8 identification document, which was four hours since he first attended the Post Office. At about 1:45 pm, the appellant was arrested by a Customs officer (PW5) as he left the Post Office carrying the parcel (Exhibit P40) and Exhibit P42. The appellant was also found to be in possession of Exhibit P45 , Exhibit P46, two pieces of paper with handwriting (Exhibit P44), two mobile telephones (Exhibit P47 and Exhibit P51) and $665 in cash. Under caution, he stated that he did not know the contents of the parcel. He further stated that it was his friend who asked him to collect the parcel and that he was supposed to call his friend after he had collected the parcel.

8. While the appellant was being interrogated by PW5, his mobile telephone rang several times. He asked if he could answer the call. PW5 told him that unless he spoke in English rather than Igbo, the appellant’s native tongue, he could not do so. Consequently, none of the telephone calls were answered.

9. In a subsequent video recorded interview on 26 July 2016, the appellant said that on 24 July 2016 his friend “Jude”, a Nigerian, mentioned he had something to be collected in Kam Tin. At about 8:00 am the following day, Jude gave a notification card to the appellant and asked him to collect the parcel, which he said contained samples of motor parts, on his behalf. Jude told the appellant that he would buy him food and drink afterwards. The appellant arrived in Kam Tin at about 9:00 am. After the appellant informed Jude by telephone that the staff of the Post Office had refused to let him collect the parcel and that he was leaving, Jude pleaded with him to wait and asked him to go to a cyber cafe near the Post Office and collect an identification document, which he would send by email. While the appellant was waiting for the printout of the document (Exhibit P42), a friend of Jude’s, whom the appellant did not know, arrived and gave him Exhibit P45.

10. The prosecution, in support of its case, relied on, amongst other things, CCTV footage from the Post Office and the cafe situated opposite. A forensic examination on one of the appellant’s mobile telephones revealed that a telephone call was made to 24017954, the Sham Shui Po Delivery Office of Hong Kong Post, at 8:43 am on 25 July 2016. This telephone number was shown on one of the pieces of paper together with other contact numbers of post offices found on the appellant (Exhibit P44). At about 9:54 am on the same day, the same telephone received a call from the telephone number, 64601847, shown on the address label of the parcel, which lasted for about 99 seconds.

The defence case

11. The appellant elected to testify and called a defence witness, Ms Ngugi Sarah Muthoni (DW2). The appellant’s evidence corresponded with his account in his video recorded interview. He maintained that he was just helping a friend collect the parcel and had no knowledge of the presence of cocaine. He 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 then, he has been a Form 8 recognizance holder. In July 2016, he was receiving International Social Services (ISS) coupons but his transport money of $200 per month had already stopped for two months.

12. 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 met up with him at a K11 shop in Tsim Sha Tsui. At about 7:00 to 8:00 am, at K11, Jude gave the appellant another piece of paper with four lines of numbers and words (Exhibit P44), together with Exhibit P46. The appellant 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 9:00 am. In cross-examination, he accepted that he had been in Kam Tin for some four hours in order to collect the parcel.

13. As for Exhibits P42 and P45, the appellant said he did not check the particulars on either copy of the passport. He said he merely looked at the respective photographs. He denied knowledge of the presence of the cocaine concealed inside the parcel. He also denied waiting for Exhibit P42 because he thought the staff at the Post Office might not accept Exhibit P45 as genuine.

14. DW2 gave evidence on behalf of the defence. She was from Kenya and serving a sentence of 9 ½ years’ imprisonment for trafficking in dangerous drugs. She testified that she knew the person called Esther, who was dealing in dangerous drugs. Through her, she met a man called KC, whom she identified as the person in a photograph adduced into evidence (Exhibit D2). She said that several days before she was arrested on 28 July 2016 she had gone to Kam Tin with Esther. When they arrived, Esther showed her the location of the Post Office and told her to go there to find KC. She did as she was told and saw KC inside the Post Office. She said KC told her to get out of the Post Office as there were people following her. She then left. The defence suggested that she was there to collect the parcel that was eventually collected by the appellant.

The grounds of appeal

15. As summarised by the Single Judge, the original grounds were as follows. In Ground 1, nine particulars in the summing-up were set out, in which it was suggested that the Judge failed to deliver a fair and balanced summing-up by making numerous detrimental comments about the defence case and the appellant’s evidence, whilst failing to highlight those points in his favour. Ground 2, averred that the Judge gave the jury an erroneous good character direction, which was accepted was a slip of the tongue but nonetheless may have misled them. Ground 3, complained that the effect of the various directions and omissions seriously undermined the credibility of the appellant and his case, which effect could not be cured by directions to the jury that it was a matter for them. Ground 4, complained 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. Ground 5, complained that the Judge wrongly directed the jury that the appellant taking a taxi to the Post Office, his lengthy wait for the parcel, and his use of one passport copy rather than the other were matters from which the jury could draw an inference against the appellant on the issue of his knowledge. At the same time, the Judge failed to direct the jury on how these matters could give rise to an irresistible inference that the appellant had the requisite knowledge. Ground 6, alleged that the Judge mistakenly summarised the evidence as to the period of time the appellant had waited for the passport copy to arrive. Ground 7, alleged that the Judge wrongly directed the jury on the evidence as to whether the appellant looked at the passport with the handwritten name. Ground 8, averred that the Judge omitted to direct the jury not to draw any adverse inference against the appellant in respect of the false passport copy which the appellant showed to the Post Office staff, since neither PW1 nor the supervising Customs officers apparently noticed its falsity at the time either.

16. The Single Judge refused leave to the appellant on all the grounds except for Ground 4, which was a question of law and did not require leave. The question of law sought to challenge whether Specimen Direction 21 issued by the Hong Kong Judicial Institute was correctly drawn, or whether it reversed the onus of proof in respect of cases dependent upon circumstantial evidence.[2] The Single Judge gave detailed reasons for finding the refused grounds not to be reasonably arguable. He also informed the appellant that he would be liable to a loss of time order if the appellate court was of the view that there was no justification for renewing the refused grounds.

17. On 30 October 2020, the appellant filed a notice of renewal of application of the refused grounds of appeal. However, the solicitors for the appellant, in a letter dated 20 November 2020, informed the court that they had instructions from the appellant to file grounds of appeal in substitution to the handwritten grounds stated in the notice of renewal and sought leave to file a copy version of reamended substituted perfected grounds of appeal dated 20 November 2020 signed by Mr Hemmings in this document. The previous grounds of appeal were deleted except for Ground 4. On 7 December 2020, the court granted leave to the appellant to reamend the previous grounds of appeal and noted that because the Single Judge granted leave on a question of law, the filing of the renewal application was not necessary, and it was returned. Mr Hemmings filed reamended substituted perfected grounds of appeal against conviction on 14 December 2020, in which he deleted the grounds except for Ground 4, and a written submission in support of this ground on 21 December 2020.

18. The hearing of the appeal was originally listed for 14 July 2021. However, on 16 June 2021, upon a joint application by the appellant and the respondent, the hearing was vacated pending the outcome HKSAR v Khaw Kim Sun [3], which was concerned with the same question of law on appeal. On 7 June 2022, the Court of Appeal handed down its judgment in Khaw Kim Sun, rejecting the argument under this ground and upholding the specimen direction. The issue was taken on appeal to the Court of Final Appeal. On 6 June 2023, the Appeal Committee of the Court of Final Appeal held that the direction was unimpeachable and refused leave to appeal.[4] The Court of Final Appeal’s main judgment in Khaw Kim Sun was handed down on 21 November 2023, allowing the appeal in respect of the trial judge’s treatment of an evidential matter in her directions to the jury.[5]

19. During this period, the appellant had written numerous letters to the court inquiring why the hearing of his appeal was vacated and complaining that he had not heard from his legal representatives as to the progress of his case. He was repeatedly informed to consult the legal representatives assigned to him by the Legal Aid Department. The appellant had legal aid for his appeal on Ground 4 but after subsequent changes to his legal representation and the Appeal Committee’s decision in Khaw Kim Sun, the appellant’s appeal aid certificate was discharged on 7 September 2023. He then continued to act in person.

20. On 18 July 2023, the appellant wrote to the court, stating that in addition to the previous Ground 4 he would be relying on three other grounds. He followed this up with a series of letters to the court dated 31 October 2023, 15 December 2023, 25 January 2024, 2 February 2024, 28 February 2024 and 11 April 2024, in which he repeated or added complaints about his case that he said were grounds he would argue in the renewal application.

21. On 27 November 2023, the appellant filed a notice of renewal of application after refusal by the Single Judge on 23 October 2020, which was almost three years out of time. On 8 March 2024, the court issued a direction that the letters dated 31 October 2023, 25 January 2024, 2 February 2024 and 28 February 2024 would together stand as the appellant’s grounds of appeal in his renewal application. As best we can, we have distilled the appellant’s complaints from those letters into the following grounds and have included in the list the previous Ground 4, for which leave was granted (but subsequently answered by the Appeal Committee’s decision in Khaw Kim Sun on 6 June 2023):

Ground 1: The trial 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 (previous Ground 4 before the Single Judge);

Ground 2: The trial judge failed to deliver a fair and balanced summing-up (previous Ground 1);

Ground 3: The Single Judge did not consider the facts of Ground 5 (the direction on how to draw inference on the issue of the appellant’s knowledge) before finding this ground was not reasonably arguable (previous Ground 5);

Ground 4: It was wrong for the Single Judge to find “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” (previous Ground 8);

Ground 5: The photograph of Jude was adduced into evidence in the first trial (which resulted in a hung jury) but not in the retrial (new ground);

Ground 6: The trial judge did not treat the evidence of Ms Ngugi Muthoni Sarah (DW2) in the same manner as the judge in the first trial. The judges also summed up the case in the two trials differently (new ground);

Ground 7: The judge in the first trial mentioned in the summing-up that Ms Muroki Esther Wambuku (Jude’s girlfriend) had been deported back to Kenya without being prosecuted whereas in the retrial the judge did not (new ground).

22. At the hearing of this appeal, the appellant confirmed that the above seven grounds were correct and that he wished to advance them before us, notwithstanding he was at risk of receiving a loss of time order because of the lack of merit regarding those grounds.

Ground 1: the direction on circumstantial evidence

23. The appellant’s complaint about the specimen direction on circumstantial evidence had been considered in HKSAR v Khaw Kim Sun. In Khaw’s case, the applicant sought certification and leave in respect of the following question of law, namely “whether a direction that good or reliable evidence or evidence of sufficient reliability and strength is required to cast doubt on the prosecution case places a burden on the defendant to prove his innocence?” The Appeal Committee of the Court of Final Appeal held that the direction was unimpeachable, emphasising that:[6]

“the question framed by the applicant fundamentally misrepresents the impugned direction which in fact places no burden on the defendant but quite clearly concentrates on the evidence ‘upon which the prosecution relies in proof of its case’. The direction poses the question whether the prosecution evidence proves guilt or whether on the other hand the prosecution evidence reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.”

24. In his letter dated 25 January 2024, the appellant contended that as the appeal in HKSAR v Khaw Kim Sun[7] was allowed, so should his appeal be allowed. As we have already pointed out, the appeal in Khaw Kim Sun was allowed on an entirely different point. The appellant was fully aware that this was the case but still persisted with the application.

25. In his letter dated 2 February 2024, the appellant attached communications in 2022 and 2023 from his legal representatives, in which he was informed that his case had been placed in abeyance pending the outcome of Khaw Kim Sun’s appeal as this was his “remaining” ground of appeal; and that the appeal in Khaw Kim Sun was unsuccessful on this legal point. Moreover, he was told that there was no merit in this ground of appeal and that his appeal did not have a realistic prospect of success.

26. The appellant unnecessarily persisted with this ground of appeal.

Ground 2: the summing-up was unfair and unbalanced

27. The present case was relatively straightforward and as stated by defence counsel in his closing address to the jury, “the nub of the case”[8] was whether the appellant knew there were drugs in the parcel, where “much of the evidence is not disputed”[9].

28. This ground set out nine particulars in the summing-up, in which it was suggested that the Judge failed to deliver a fair and balanced summing up by making detrimental comments about the defence case, whilst failing to highlight points in the defence’s favour. In particular (a), it was complained that the Judge highlighted the main points relied upon by the prosecution to prove knowledge but only paid lip service to the defence case, even though it had been summarised by the Judge. In particulars (b), (c) and (d), it was complained that the Judge failed to make certain observations and properly direct the jury in respect of the evidence that the Customs officer insisted the appellant speak in English when answering a telephone call after his arrest, but the Judge did no more than summarise the evidence. In particular (e), it was complained that the Judge said of the appellant that he was not an entirely innocent young man when discussing his background as a businessman but this remark in context had no adverse effect, and no issue was taken over it. In particulars (f), (g), (h) and (i), it was complained that the Judge’s comments concerning the appellant’s evidence regarding Jude’s instructions and the receipt and details of the copy passports were inappropriate, but these were reasonable observations for the jury to consider, which the Judge emphasised was entirely for them to decide. We did not consider the matters individually or cumulatively were unbalanced or unfair.

29. In determining whether a summing-up was unfair or unbalanced, an appellate court will examine the judge’s impugned instruction or direction in the context of the summing-up as a whole. In her summing-up, the Judge emphasised with the jury that any view she expressed concerning the facts or emphasis she placed on a particular aspect of the evidence they should ignore if they did not agree with it, as they were the sole judges of the facts.[10] She comprehensively summarised the evidence presented for the prosecution and the defence and identified the issues for the jury to consider, highlighting where appropriate the defence case. The appellant was particularly critical of the Judge’s instructions to the jury on the issue of knowledge and the drawing of an inference, which he contended was unfair to him. We did not agree. On the issue of knowledge, she properly directed the jury in accordance with the specimen direction. On drawing inferences, she first explained the law on inferences, then described the facts and evidence on which the prosecution relied and she then contrasted it by repeating defence counsel’s argument that the appellant’s conduct was consistent with an innocent person.

30. There was no merit in this ground of appeal.

Grounds 3 and 4: the Single Judge’s reasoning on drawing an inference

31. We dealt with these two grounds together as they concerned complaints of the Single Judge’s reasoning when addressing the direction on drawing an inference of guilt against the appellant.

32. We should state at the outset that the complaint against the Single Judge’s reasoning in respect of the previous Ground 5 (wrongly directing the jury on how to draw an inference against the appellant on the issue of knowledge) and Ground 8 (omitting to direct the jury not to draw an adverse inference against the appellant since neither the Post Office staff nor the Customs officer noticed Exhibit P42 was false) is neither a ground of appeal nor a renewed ground of appeal. When an applicant makes a renewal application for leave to appeal a refused ground of appeal, he or she is seeking leave afresh on the original ground before the Court of Appeal and therefore needs to address the merits of the ground and, where necessary, any criticism or argument against such ground. The appellant failed to adequately focus on the merits of the renewed grounds by concentrating on challenging the Single Judge’s reasoning in rejecting them. We considered the appellant’s criticism of the Single Judge’s reasoning totally unjustified, and we have come to the same conclusion as the Single Judge in respect of these grounds.[11]

33. It was accepted in the leave hearing that the Judge’s direction on inferences could not be faulted, and the relevant circumstances were before the jury that, if they found proved, were capable of giving rise to an irresistible inference. The Single Judge said:[12]

“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 the 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.”

34. The Single Judge also noted, and we agree, that Exhibits P42 and P45, were particularly incriminating against the appellant. It was entirely open to the jury to reject the appellant’s account and find he must have known he was producing a false copy of a passport in order to collect the parcel.

35. The appellant submitted that the Single Judge was wrong to reject his argument that the falsity of the copy passport (Exhibit P42) was not apparent because it had been accepted by the Post Office staff and the Customs officer. The Single Judge, in rejecting this argument, explained:[13]

“… 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.”

36. The appellant took issue with the Single Judge’s reasoning when addressing the previous Ground 8. He sought to make the point that if the Post Office staff or the Customs officer had not notice that Exhibit P42 was a forgery, he would not have noticed it was a forgery either. There was no substance to this point because the applicant arranged to obtain a copy of a passport in the identity of the addressee of the parcel and had another copy of the passport, Exhibit P45, with the name handwritten on the copy document. He had two copy versions of the passport. It was open to the jury to find that the appellant knew Exhibit P42 was false in light of all the circumstances, including the nature and form of Exhibits P42 and P45 and how he obtained and used them.

37. We did not find the renewed grounds of appeal to be reasonably arguable.

Grounds 5, 6 and 7: the treatment of factual and evidential matters

38. Grounds 5 (failure to adduce into evidence the photograph of Jude), 6 (DW2’s evidence was not summed up in the same manner as the first trial) and 7 (the Judge failed to mention that Jude’s girlfriend had been deported) are new grounds of appeal and will be dealt with together. They were concerned about how factual and evidential matters were treated differently in the appellant’s trial from his first trial. Where new grounds are raised after refusal of leave by the Single Judge, the Court of Appeal would consider them as an application for an extension of time to file new grounds of appeal that were not previously argued and “more stringent rules of practice apply to out-of-time applications”: HKSAR v Kalawila[14]. The appellant had offered no explanation on his failure to raise the new grounds before the Single Judge, when he was still legally represented. He responded in a letter dated 15 December 2023 that he had mentioned these matters to his then counsel. The respondent submitted that the appellant had provided no adequate explanation. In particular, it was noted that the appellant had filed to court a handwritten letter dated 18 July 2023 about the matters he would like to raise in the appeal whilst being legally represented, but he had not raised anything relating to the items under these grounds before and at the hearing of the leave application.

39. We did not accept the appellant’s explanation for the late filing of the new grounds. Moreover, we found that the subject matter of the new grounds had no substance to them. What transpired in the first trial was entirely irrelevant as the present appeal/application concerned the conviction after the retrial before another panel of jurors and another hearing judge[15] and where all witnesses testified afresh.

40. As for Ground 5, we had difficulty understanding the forensic value in producing a photograph of someone the appellant said was Jude, particularly when the only evidence of Jude’s identity or existence came from the appellant. His evidence was that he met Jude shortly before the offence. He did not know his name, except that he lived in China and stayed in hotels when he came to Hong Kong. He said Jude was knowledgeable about motor spare parts, and he met him three times in June. The fact that a photograph purporting to be Jude had been produced in the first trial was neither here nor there.

41. As for Ground 6, the Judge fairly summarised DW2’s evidence and no error or mistake had been identified by the appellant in the Judge’s summary of her evidence. Moreover, how DW2’s evidence was summarised in the first trial was irrelevant.

42. As for Ground 7, the arrest and subsequent repatriation of “Esther” was made an admitted fact at the trial.[16]

43. We found that these grounds were devoid of merit and not reasonably arguable.

Conclusion

44. It followed from what we had said that we did not find there was merit in the appeal grounds, and the appellant’s appeal against conviction was dismissed.

45. Ground 1, the question of law, had been answered by the Appeal Committee of the Court of Final Appeal on 6 June 2023, and was unnecessarily maintained despite the fact it had been rejected. Grounds 2, 3 and 4 renewed previous Grounds 1, 5 and 8, for which leave had been refused. These grounds were without merit, and there was no justification for the renewal of them. Grounds 5, 6 and 7 were new grounds that were also without merit. We refused the appellant an extension of time to file these grounds and leave to appeal them as they were not reasonably arguable.

Loss of time

46. At the outset of this hearing, we informed the appellant that he was at risk of receiving a loss of time order because of the unmeritorious nature of his appeal. He had a right of appeal on a point of law, which he was informed in June 2023 had been rejected by the Appeal Committee of the Court of Final Appeal. He nevertheless continued with this ground. He also renewed previous grounds, for which leave had been refused, and raised new grounds. He was informed in clear terms of the lack of merit in the complaints that he had raised and had the benefit of detailed submissions from the respondent. It seems there may have been a breakdown of communications between him and his previous legal representatives, but even taking that into account, he still persisted in advancing totally unmeritorious grounds of appeal.

47. The principles applicable to a loss of time order have been comprehensively discussed by the Court of Final Appeal in Chau Ching Kay v HKSAR[17]. The purpose of a loss of time order is to discourage unmeritorious appeals, so that valuable judicial time and resources can be spent on meritorious ones.[18] The Court stressed that in considering making a loss of time order, a court ought to have regard to all the circumstances of the case:

“71. … The matter must be looked at in the light of the whole appellate procedure. The starting point must be the purpose of having the power to order loss of time – to deter unmeritorious application so that meritorious cases can be dealt with without delay. Judicial time should not be unnecessarily wasted. Hence, the main criterion in deciding whether to order loss of time is the total lack of merit in the application. There are, of course, other relevant factors to be considered, including the fact that he is acting under legal advice, the conduct of the applicant in presenting his case to the court, the seriousness of the matter and the importance of the appeal to the applicant. Each case has to depend on its own facts. The circumstances of each case can so vary that it is difficult to lay down any general guideline as to when the court should make an order for loss of time and if so, how much loss of time should be ordered.”

48. The Court went on to say:

“73. … In considering the amount of time to be discounted, the court should take into account the lack of merit in the application, the length of the sentence, the maximum period to be discounted – the time from the lodging of the application to the hearing of the application, and any peculiar or extraneous circumstances. …”

49. When considering making a loss of time order, the starting point will naturally be whether the appeal was totally devoid of merit. Whilst some allowance is given to a person acting without legal representation, it can only go so far. The appellant has written many letters to the court and the parties, in which he has made numerous complaints about his trial that were either the subject or a variation of previous grounds, for which leave was refused, or completely new grounds. He was put on notice that he would be liable for a loss of time order if he advanced unmeritorious renewed or new grounds of appeal. He previously had the benefit of legal representation, but that was ceased after the point of law was unsuccessful on appeal in another case. He nevertheless persisted, causing considerable inconvenience and a substantial waste of resources. In particular, he has expended valuable court time and resources that could have been spent on more pressing and meritorious appeals. We therefore ordered two months loss of time.

(Kevin Zervos)	(Maggie Poon)	(Andrew Chan)
Justice of Appeal	Justice of Appeal	Judge of the Court of First Instance

Ms Irene Fan, SADPP, of the Department of Justice, for the respondent

The appellant appeared in person

[1] HKSAR v Conte Gaoussou[2020] HKCA 865, CACC 112/2019, 23 October 2020, per Macrae VP.

[2] The direction given by the Judge was as follows: “circumstantial evidence ... 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 quilt or whether, on the other hand, it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.” Appeal Bundle (AB), pp 21T-22D.

[3] HKSAR v Khaw Kim Sun [2022] 5 HKC 249.

[4] HKSAR v Khaw Kim Sun[2023] HKCFA 13, FAMC 24/2022, 6 June 2023.

[5] HKSAR v Khaw Kim Sun (2023) 26 HKCFAR 556, [2023] HKCFA 37.

[6] HKSAR v Khaw Kim Sun[2023] HKCFA 13, FAMC 24/2022, 6 June 2023, at [3].

[7] HKSAR v Khaw Kim Sun (2023) 26 HKCFAR 556, [2023] HKCFA 37, at [64], [68]-[76].

[8] AB, 68F-H.

[9] AB, 71P.

[10] AB, 17A-E.

[11] Leave Judgment, at [23]-[30].

[12] Leave Judgment, at [26].

[13] Leave Judgment, at [31].

[14] HKSAR v Kalawila [2021] 4 HKLRD 519, at [3] and [46].

[15] The first trial was before Deputy High Court Judge D Yau in 2018. The retrial was before Hon Toh J in 2019.

[16] AB, 10, Further Admitted Facts, at [4]-[6].

[17] Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540.

[18] Ibid., at [63] and [69].

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)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Conte Gaoussou	Applicant

________________________

Before: Hon Macrae VP in Court

Date of Hearing: 16 October 2020

Date of Judgment: 23 October 2020

________________________

J U D G M E N T

________________________

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, interalia, 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 LinPingKeung 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.

	(Andrew Macrae)
	Vice President

Ms Irene Fan SADPP, of the Department of Justice, for the Respondent

Mr John Hemmings, instructed byTanner De Witt, assigned by the Director of Legal Aid, for the Applicant

[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.

HKSAR v. CONTE GAOUSSOU

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