Case Detail

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)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Camara Kandja	Applicant

________________________

Before:

Hon Macrae Acting CJHC, Zervos and M Poon JJA in Court

Dates of Hearing:	12 June, 7 July and 7 November 2025
Date of Judgment:	7 November 2025
Date of Reasons for Judgment:	21 November 2025

_______________________________________

REASONS FOR JUDGMENT

_______________________________________

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 2^nd 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.

(Andrew Macrae)
Acting Chief Judge
of the High Court

(Kevin Zervos)
Justice of Appeal

(Maggie Poon)
Justice of Appeal

Mr Michael Wong SADPP and Mr Michael Ma SPP, of the Department of Justice, for the Respondent

Mr James Sherry, instructed by Robertsons, assigned by the Director of Legal Aid, for the Applicant (re: Sentence)

The Applicant appeared in person (re: Conviction)

[1] HKSAR v Camara Kandja (Unrep., CACC 247/2021, 14 May 2023), per Macrae VP.

[2] The applicant’s flight record shows that she had earlier flown to Addis Ababa from Conakry, Guinea on 13 July 2019.

[3] Admitted Facts at [1.1]-[2.3] & [6.1]: Appeal Bundle (“AB”), pp 4-5 & 8; Fourth Admitted Facts at [1]: AB, p 14.

[4] Admitted Facts at [2.4]-[2.10]: AB, pp 4-7.

[5] AB, p 34J-K; pp 37P-38B; p 52G-I.

[6] Admitted Facts at [3.1]-[5.1]: AB, pp 7-8.

[7] Admitted Facts at [8.1]: AB, p 9; Second Admitted Facts at [1]: AB, pp 10-11; and Third Admitted Facts [1]-[2]: AB, pp 12-13.

[8] AB, p 22M-O.

[9] See the applicant’s letters dated 8 June 2024 (page 2), 15 July 2024 and 8 October 2024.

[10] See the applicant’s letters 15 July 2024 and 8 October 2024. In her letter dated 15 July 2024, the applicant denied sending any “letter of abandon (sic)”.

[11] HKSAR v Abdallah [2009] 2 HKLRD 437.

[12] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[13] AB, pp 83Q-84I.

[14] AB, p 85D.

[15] AB, pp 81F-85J.

[16] HKSAR v Huang Ruifang [2025] 2 HKLRD 138.

[17] The hearing was adjourned to 7 July 2025.

[18] HKSAR v Chang Wai Hang Alab [2017] 1 HKLRD 163, at [31(5)].

[19] Ibid., at 31(4)].

[20] R v Zakarian [1971] VR 455.

[21] Bridges v The Queen (1998) 104 A Crim R 322.

[22] Seabrook v HKSAR (1999) 2 HKCFAR 184, at 195C-D.

[23] HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

[24] Herry Jane Yusuph, at [79].

CACC 247/2021

[2024] HKCA 488

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)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Camara Kandja	Applicant

________________________

Before:

Hon Macrae VP in Court

Date of Hearing:	14 May 2024
Date of Judgment:	14 May 2024
Date of Reasons for Judgment:	23 May 2024

_______________________________________

REASONS FOR JUDGMENT

_______________________________________

1. The applicant pleaded not guilty to a single 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 in the High Court before Deputy Judge Derek Chan, SC (“the judge”) and a jury, she was convicted of the offence by a majority verdict of 6:1. Subsequently, on 28 October 2021, the judge sentenced the applicant to 22½ years’ imprisonment.

2. By a Notice of Appeal (Form XI) dated 4 November 2021, the applicant initially sought leave to appeal against both her conviction and sentence. However, a legal aid certificate was only granted in relation to conviction. On 29 June 2022, the applicant abandoned 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 application in relation to sentence was formally dismissed.

3. The leave application regarding conviction proceeded. On 14 May, I refused leave to appeal against conviction and said I would hand down my reasons for doing so in due course. These are my reasons.

The prosecution case

4. It was not disputed that on 15 July 2019, the applicant arrived in Hong Kong on a flight from Addis Ababa, in Ethiopia[1]. She was intercepted at the airport by a Customs officer and a body search conducted. A large pellet of suspected dangerous drugs was found in the applicant’s underwear. The applicant was accordingly transferred to North Lantau Hospital and Queen Elizabeth Hospital, where X-ray examinations revealed foreign bodies inside the applicant’s abdomen[2].

5. Over the next few days, the applicant excreted 51 pellets of dangerous drugs at the Detention Ward of Queen Elizabeth Hospital and one last pellet at Tai Lam Centre for Women[3]. On the last occasion, Correctional Services officer Lo Ka-yan (PW26) asked the applicant what the pellet was, to which she answered, “Maybe cocaine”[4].

6. The total of 53 pellets seized from the applicant were examined and together found to contain 1,459.3 grammes of solid containing 1,252.7 grammes of cocaine, the street value of which was estimated at HK$2,072,206[5].

7. The applicant is a national of the Republic of Guinea, having been born at Conakry in that country. She is now 42 years old and has 3 children aged 14, 8 and 7. She 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 (3,055 US Dollars, 1,100 Indian Rupees and 30,500 Guinean currency)[6].

The defence

8. The applicant accepted at trial that she was knowingly carrying narcotics into Hong Kong[7]. However, her defence was that she was forced to do so and, at the time of the commission of the offence, she was acting under duress.

9. The applicant lived with her family in Ratoma, a town in Conakry. She left secondary school when she was 16 years of age and took up a variety of jobs, including working in hair salons, being involved in trading and working in a laundry shop. From 2013, the applicant traded and sold jewellery, apparel, honey and palm oil. Her trading would take her to India to source wigs for sale in Guinea[8].

10. While she was working in the laundry shop in 2011, the applicant met a customer named Djone, who frequented the place (sometimes with his two children), and who struck the applicant as an honest and serious man. In late 2018, the applicant encountered Djone in Addis Ababa airport during a stopover on her way back to Guinea from India. On this occasion, the two talked about a number of things, including Djone’s business of selling electrical items in Addis Ababa and the nature of the applicant’s trade. During this conversation, Djone proposed that: (1) the applicant could work with him and purchase merchandise from a contact he had in Hong Kong, which she could then sell in Guinea; (2), since she did not have enough money, he would pay for all her expenses related to the journey, including hotel, aeroplane ticket and money for the trade; and (3) the applicant would share in profits from the business. Before continuing on their journeys, the applicant and Djone exchanged telephone numbers[9].

11. After returning to Conakry, the applicant received calls from Djone from time to time discussing his earlier proposal. Eventually, Djone told the applicant that he would book a flight for the applicant to Hong Kong; and further, that he had given the applicant’s telephone number to his brother[10].

12. On 12 July 2019, Djone’s brother called the applicant and asked to meet her in Ratoma. He said he had already bought the flight tickets for her and she would have to go to Hong Kong. On this day, Djone’s brother visited the applicant’s family home in Ratoma. He met the applicant and her family, including all of her children, and gave the applicant instructions for the journey, the flight tickets and some related documents. The applicant was instructed to fly to Addis Ababa first, in order to meet Djone’s family. These family visits were necessary, Djone’s brother explained, because the applicant and Djone would be going into business together. Before leaving the applicant’s home on the evening of 12 July 2019, Djone’s brother saved the contact number of a person referred to as “Customer” in the applicant’s telephone. The applicant understood that this person was the contact in Hong Kong for the merchandise[11].

13. The applicant left Conakry for Addis Ababa the next morning. Upon her arrival in Addis Ababa on the evening of 13 July 2019, the applicant used her telephone to call Djone; however, no one answered the call. As Djone was supposed to pick up the applicant at the airport, the applicant asked a taxi driver to help her contact Djone by using his own telephone. Djone answered the driver’s call and gave a particular address. The taxi driver then drove the applicant to an address near the airport[12].

14. When the applicant arrived at the address, she met Djone and two of his male associates. She got into Djone’s car and was driven to a remote house, where she was taken to the third floor. Seeing nobody else around, the applicant asked Djone where his family was and he replied that, since it was late, she would be meeting his family the next day at his home, which was some way away. The applicant was surprised, and began to feel uncomfortable, but spent the night at the house[13].

15. In the morning of 14 July 2019, Djone and his two male associates came to the applicant and said they had a new proposal for her. They opened a door to a room and showed the applicant some capsules. Djone asked the applicant whether she knew what they were. Having seen similar things on the internet and believing them to be drugs, the applicant told Djone that she would rather die than get involved in such a trade. On hearing this, Djone and the two male associates became angry and aggressive, telling the applicant that she must take the drugs to Hong Kong, otherwise Djone would lose a lot of money. He then threatened the applicant that should she refuse, she and one of her children would be killed. Djone showed the applicant a photograph of her children on his telephone, which had seemingly been taken by Djone’s brother. One of Djone’s associates went out and returned with a gun and a pillow[14].

16. Having been shouted at and held at gunpoint, the applicant was frightened and, believing their threats, she agreed to cooperate. She understood that Djone’s brother was still in Conakry and would be able to carry out the threat, if the applicant refused to take the drugs to Hong Kong. For the sake of her children and herself, the applicant felt she had no choice but to cooperate. She was asked to swallow the capsules, which she did. During the process she vomited many times and had to use fruit juice and water to ease the task. At one point she wanted to back out but the men insisted and pointed a gun at her. At another point when the applicant said she could not take any more, she was taken to a toilet and told to put some capsules in her anus and vagina. The applicant explained that she had undergone surgery and could not do so. The men then took out some condoms, lipstick and a sanitary napkin and asked the applicant to place the largest capsule, wrapped in the condom, between her vagina and the sanitary napkin, which was coloured red by lipstick[15].

17. Before leaving the house, Djone searched the applicant’s bag and took away US$2,000 in cash of the applicant’s money. Djone and his two male associates then drove the applicant to the airport. During the journey, Djone told the applicant that he had other people, who would be watching her. He also claimed that he knew people working at the airport and had agents in Hong Kong as well. The applicant was asked not to say anything to anyone. If at the airport, or during the flight, the applicant tried to tell anyone what was happening, Djone would know and his brother in Guinea would kill one of the applicant’s children. Djone instructed the applicant to contact the Customer after arriving at the hotel in Hong Kong, and the Customer would take care of everything[16].

18. Since the applicant believed Djone’s threats to be real, she did not report the matter to anyone. She boarded the flight, knowing she was bringing drugs into Hong Kong, but claiming she had no choice in the matter. Had she refused, Djone and his men would have killed her and one of her children[17].

Whether the applicant was under duress

19. The outcome of the trial hinged on whether the applicant’s account was believable. The prosecution sought to establish that the applicant was lying about her claim of duress and invited the jury to draw an adverse inference against the applicant. The following suggestions were put by prosecuting counsel:

(a)  It was agreed that while working in the laundry shop, the applicant knew nothing about Djone[18] or about trading in electrical goods. Prosecuting counsel suggested that it was strange that Djone should ask the applicant to purchase the merchandise[19] for him when he had already dealt with the Hong Kong contact himself. To this, the applicant said she did not know why but Djone was free to make his own business decisions[20]. Although she had no experience in trading electric items, the applicant believed there was a first time for everything[21].
(b)  The applicant confirmed that before Djone’s brother called her on 12 July 2019, Djone had told her on the telephone that his brother had already bought the flight tickets for the applicant to go to Hong Kong, without confirming with her first. It was suggested that for a mother with three children, such a scenario was very unlikely. For a trip of uncertain length, she would surely have been consulted first as to whether it would be convenient for her. The applicant answered that since Djone had discussed the proposal to purchase merchandise in Hong Kong with her from time to time, she knew she had to be ready at any time. She did not think that this was suspicious[22].
(c)  In the night of 13 July 2019, when the applicant was taken to a remote house in Addis Ababa, the applicant became worried after she realised Djone’s family was not there. Prosecuting counsel suggested the applicant could have used her telephone to hire a taxi and leave. The applicant said she did not have the telephone number of the taxi driver who helped her earlier so he could not be contacted. She was not familiar with this country at all and did not even know where she was.
(d)  Prosecuting counsel suggested that after the applicant left Djone and his associates at Addis Ababa airport, she could have made a telephone call in the Ladies’ washroom to alert her family in Conakry, Guinea, yet the applicant did not even try to do so. She responded that there was no Wi-Fi at the airport; nor was there enough time for her to try.
(e)  Before the applicant was intercepted by Hong Kong Customs, she did not say anything as she passed through Immigration or Customs. She explained that she had never been to Hong Kong before and had no idea whether the law enforcement authorities in Hong Kong were good or corrupt. In any event, the applicant was told and believed that if she could not deliver the drugs to the Customer, one of her children would be killed[23].

The original grounds of appeal

20. In this application for leave, the applicant was originally represented by her previous trial counsel, on the instructions of the Director of Legal Aid but her legal aid certificate was subsequently revoked and she has since been acting in person. However, despite three written requests from the court asking the applicant whether she was intending to adopt the perfected grounds of appeal and written submission prepared by her former counsel and, if not, what her grounds of appeal would be, the applicant has failed to answer any of the court’s enquiries. In the circumstances, I shall deal with her grounds as drafted by her former counsel, since they are still on the record, and also with her Form XI Notice of Appeal as supplemented by what she has said to me orally in court.

The challenge to the Specimen Direction 21.2 (original Ground 1)

21. By Ground 1, the applicant’s former counsel mounted a challenge to the judge’s direction on circumstantial evidence under Specimen Direction 21.2, which was faithfully given to the jury as follows[24]:

“Circumstantial evidence can be powerful evidence. Indeed, it can be as powerful, or even more powerful, than direct evidence. But it is important that you examine it with care, as with all evidence, and consider whether the evidence which the prosecution relies upon to prove 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 doubt on the prosecution case, or even destroy the prosecution case.
You should be careful to distinguish between reaching a conclusion based on reliable circumstantial evidence and mere speculation. So be careful to distinguish between the two. Speculation amounts to no more than guessing, or making up theories without good evidence to support them. Neither the prosecution, nor the defence, nor you, should do that.” (Emphasis added)

22. Issue was taken with several parts of the above direction. Firstly, it was argued that “circumstances … of sufficient reliability and strength” asked for more than what was required from something that may be true and thus placed an additional hurdle for the jury to acquit[25]. Secondly, the expression “consider whether the evidence which the prosecution relies upon to prove its case” directed the jury only to consider the prosecution case[26]. Thirdly, the prohibition of “making up theories without good evidence to support them” excluded any exculpatory theory that may be true but fell short of “good” evidence[27].

23. Not only were these same complaints raised at trial after the judge gave the impugned direction[28], but the same argument was repeated by the same counsel in another appeal where almost identical directions had been given at trial. In that appeal, namely, HKSAR v Khaw Kim Sun[29], the Court of Appeal roundly rejected this same ground of appeal[30]. Counsel then sought to appeal the Court of Appeal’s decision on this ground but the Appeal Committee of the Court of Final Appeal (“the Appeal Committee”) rejected any of the criticisms of Specimen Direction 21.2, holding that the standard direction was “unimpeachable”[31].

Whether the direction was unnecessary (original Ground 2)

24. Ground 2 is an extension of Ground 1. It was contended that because of the impugned direction, a burden was thereby placed on the applicant to prove her innocence. However, the Appeal Committee has rejected this complaint too[32] on the basis that the direction asked the jury to decide whether the prosecution evidence was reliable: it did not place any burden on the applicant.

25. The law having now been authoritatively clarified by the Appeal Committee, an appeal mounted on the same grounds as the grounds drafted by the applicant’s former counsel is not reasonably arguable.

The catch-all (original Ground 3)

26. Ground 3 is a general ground stating that because of the complaints above, the applicant’s conviction was unsafe and unsatisfactory. For the above reasons, this ground too is not reasonably arguable.

Events following the CFA ruling and hearing of the application

27. Shortly after the Appeal Committee approved of the correctness of Specimen Direction 21.2, the Director of Legal Aid discharged the applicant’s Legal Aid Certificate on 2 August 2023. Since then, the applicant has been unrepresented[33].

28. Due to the applicant’s repeated and continuing failures to reply to and inform the court whether she would still adopt the perfected grounds of appeal of her former counsel and/or what her grounds of appeal would be, one can only refer to the applicant’s initial grounds stated in her Form XI Notice of Appeal, filed on 4 November 2021. There, the applicant stated that “the judge, the prosecutor and the jury” did not take her defence into account, and that “they only consider the drugs all because I am coloured (black)”. Before me, the applicant has continued to protest that since she was forced to do what she did, she should have been found not guilty as a result.

29. However, this was a classic case for the jury to determine. Ultimately, the jury entertained no reasonable doubt about her actions and rejected her defence of duress. That being an essentially factual determination by the jury, who heard and saw the witnesses and evidence, it is not for the Court of Appeal to interfere, provided the jury received correct directions from the judge. In this case, I can see no appealable error on the part of the judge or any other reasonably arguable grounds of appeal.

30. Having examined all the papers in this case, I would observe that the summing-up was extremely fair, entirely correct and in accordance with the law and the evidence. The application for leave to appeal against conviction must, in those circumstances be refused.

31. Accordingly, the application for leave to appeal against conviction is refused. The applicant is advised that she has the right to renew her application for leave to the full Court of Appeal, but she is also warned that the Court has the power to order the loss of any time she has already spent in custody pending the appeal, if the Court were to come to the conclusion that the application should not have been renewed.

(Andrew Macrae)
Vice President

Mr Michael Wong SADPP and Mr Michael Ma SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] The applicant’s flight record shows that she had earlier flown to Addis Ababa from Conakry, Guinea on 13 July 2019.

[2] Admitted Facts at [1.1]-[2.3] & [6.1], Appeal Bundle (“AB”), pp 4-5 & 8; Fourth Admitted Facts at [1], AB, p 14.

[3] Admitted Facts at [2.4]-[2.10], AB, pp 4-7.

[4] AB, pp 34J-K; 37P-38B; 52G-I.

[5] Admitted Facts at [3.1]-[5.1], AB, pp 7-8.

[6] Admitted Facts at [8.1], AB, p 9; Second Admitted Facts at [1], AB, pp 10-11; and Third Admitted Facts [1]-[2], AB, pp 12-13.

[7] AB, p 22M-O.

[8] AB, pp 41B-42E.

[9] AB, pp 42E-43F.

[10] AB, p 43F-J.

[11] AB, pp 43K-45E.

[12] AB, pp 45F-46G.

[13] AB, p 46H-P.

[14] AB, pp 48J-49B.

[15] AB, p 49B-U.

[16] AB, pp 50D-51H.

[17] AB, pp 51D-S & 52T-53B.

[18] AB, p 53D.

[19] The applicant believed the merchandise to be electronic items and household wares: AB, p 54H-J.

[20] AB, p 53H-L.

[21] AB, p 54J-L.

[22] AB, pp 53N-54G.

[23] AB, pp 55L-O; 56F-S.

[24] AB, pp 31S-32C.

[25] Written Argument of the applicant’s former counsel at [23(a)].

[26] Written Argument of the applicant’s former counsel at [23(b)].

[27] Written Argument of the applicant’s former counsel at [23(c)].

[28] AB, pp 92-97.

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

[30] Ibid., at [183] to [188].

[31] HKSAR v Khaw Kim Sun[2023] HKCFA 13 (Unrep., FAMC 24/2022, 6 June 2023).

[32] Ibid., at [3].

[33] The applicant did re-apply for Legal Aid Certificate but her application was refused.

HKSAR v. CAMARA KANDJA

Related cases with same parties

Files (2)

“COURT:	Reading [the 2^nd 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)