CACC 188/2009

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 188 OF 2009

(ON APPEAL FROM HCCC NO. 7 OF 2009)


_______________________

BETWEEN


HKSAR
Respondent 


and



MBUGUA JAMES WAIGWA 
Applicant

_______________________


Before: Hon Yuen JA, Barnes and McWalters JJ in Court
Date of Hearing: 3 July 2013
Date of Judgment: 10 July 2013




J U D G M E N T  



Hon Yuen JA (giving the Judgment of the Court):
	This is an application by James Waigwa Mbugua (“the Applicant”) for leave to appeal out of time against his conviction on 21 May 2009 by the late Deputy High Court Judge Mackintosh and a jury of one count of trafficking in dangerous drugs.   

Prosecution case at trial
	The prosecution case against the Applicant, a 44 year old businessman from Kenya, was that on 6 July 2008, he arrived at Hong Kong International Airport from Kuala Lumpur.  He was from Kenya, and he had flown from Delhi to Mumbai and from there to Kuala Lumpur the previous day.  Customs officials at Hong Kong airport observed that his abdomen was bulging abnormally.  He was escorted to hospital where a medical examination confirmed the presence of foreign objects in his body.  He was arrested.  On that and the following 8 days, he excreted a total of 75 pellets containing 610.67g of heroin hydrochloride, with a street value of more than $500,000.
	The day after his arrest, the Applicant was interviewed by Customs officers through a Swahili interpreter.  The record of interview was produced at the trial.  He said he had gone to India for business.  While in India, he met some West Africans at a hotel.  He said they forced him to swallow the pellets.  If he did not do so, he would not be able to continue with his journey to Guangzhou, where he was heading to buy clothes and medical equipment.  The West Africans paid for his fare to Hong Kong and promised a reward of US$4,000.  He said he was forced to smuggle illegal goods into Hong Kong, he regretted what he had done and asked for leniency.  There was no mention of any threat to any members of his family.     
Defence case at trial
	The Applicant pleaded not guilty to a charge of trafficking in dangerous drugs.  He gave evidence at trial.  He said that the year 
before, in August 2007 his father had been kidnapped or “hijacked”.  His own business failed and he was promised work by some people in Kenya at a factory in India.  He borrowed money to travel to Delhi.  
	In Delhi he met some West Africans who took him to Mumbai.  They claimed to be the same people, or in the same gang of people, who had kidnapped his father.  They gave him some pellets which he was told to swallow.  They threatened they would kill his father and impliedly injure his wife and family if he did not co-operate.  If he did, his father would be released.  He said he was beaten and during cross-examination he said (for the first time) that two guns were pointed at his head.  He therefore did as he was told.   
	The West Africans paid for his trip to Hong Kong.  His instructions were that when he arrived in Guangzhou, he should find himself a hotel, call a number in Mumbai to give the name of the hotel he was staying at, and someone would be sent to collect the goods from him.  
Issues at Trial
	The Applicant was represented at trial.  The issues were whether he knew the contents of the pellets and whether he was acting under duress.
Conviction
	The Applicant was found guilty by a unanimous verdict.  The judge took a starting point of 20 years imprisonment in view of the quantity of drugs involved and added 1 year to reflect the international element involved in the offence, making a total term of 21 years.

Application for leave to appeal
	On 3 June 2009 the Applicant applied for leave to appeal against sentence.  A typewritten document and a handwritten document accompanied his Form XI.
	In the typewritten document headed “PLEAD GUILTY”, he said that when he was in Mumbai he was driven off to a slum where he saw two Indians with guns.  He was told that he had to swallow some pellets containing “powder chemical”, that he had to follow instructions otherwise he would be killed and his family would be hurt, and he had no choice but to agree.  He said “I plead guilty and beg leniency”. 
	In the handwritten document, he said he had wanted to plead guilty whilst at the magistracy and had given mitigation instructions to his solicitors, but a Chinese man in court asked him to plead not guilty and eventually he pleaded not guilty.
	On 14 May 2010 the application for leave to appeal against sentence was dismissed by another division of this court (Hartmann JA and Lunn J, now Lunn JA).
	Nine months later, on 24 February 2011 the Applicant filed a notice for leave to appeal against conviction out of time.  In an affirmation he admitted being a drug trafficker and said he had only pleaded not guilty because he was mentally ill.  This allegation led to directions being given for an examination of the Applicant’s mental condition by psychiatrists.  

	Two psychiatric reports were produced which stated that in August 2009 (about 3 months after his conviction), he was referred to hospital for disturbance in his cell but no psychotic symptoms were elicited.  He was diagnosed to be suffering from Adjustment Disorder.  In December 2009 he was referred to hospital again and psychosis was diagnosed on that occasion.  Anti-psychotic medication was prescribed.  
	The psychiatrists were of the opinion that the Applicant was “likely suffering from schizophrenia currently in remission” at the time of their examination.  Their opinion was that he was mentally fit to plead and give instructions at the time they examined him, but they were unable to express an opinion for the period from 6 July 2008 (when he was arrested) to 21 May 2009 (when he was sentenced).
Ground of appeal
	The Applicant is now represented by Mr Ross of counsel and the only ground of appeal advanced concerns the judge’s direction to the jury to the effect that the threats would only be valid as a defence of duress if they were of “immediate or almost immediate” harm.  It is argued that the judge should have used the word “imminent” or the phrase “close temporal link” as these refer to a longer period in the future.  Mr Ross argued that by using the words “immediate or almost immediate”, the judge had excluded the threat of harm to the Applicant’s father, because (on the Applicant’s evidence) he was already in the gang’s hands and the harm to him could be inflicted sometime in the more distant future.  Mr Ross also argued that when the judge directed the jury to ask themselves whether the Applicant could have taken evasive action “whether by going to the police or Customs, or in some 
other way, such as warning his family by telephone or message of some sort, to ensure their safety ...”, he failed to take into account the position of the father who (on the Applicant’s evidence) had already been kidnapped the year before.   
Discussion
	The principles governing the court’s decision whether to grant leave to appeal out of time are well-established.    
	The first relevant factor is the length of delay.  As indicated earlier, this application is substantially out of time.  There was a period of more than 1½ years between June 2009 (when the Applicant was convicted) and February 2011 (when he applied for leave to appeal against conviction out of time).  The longer the delay, the more onerous is the Applicant’s burden to persuade the court to grant him leave out of time (R v Wong Kai Kong [1990] HKC 279, HKSAR v Corredor Medina CACC296/2007).
	Secondly, the Applicant was well aware of the appeal procedure as he had applied for leave to appeal against sentence within time.  It was after that application failed that he sought to apply for leave to appeal against conviction.  The reason he has given for the delay was his mental condition.  However the psychiatric evidence can only account for at most a period of 4 months (from August to December 2009) when his psychosis was untreated.  There was no expert evidence to support his allegation that his mental condition affected his ability to decide whether to lodge an application for leave to appeal against 
conviction (in addition to pursuing the application regarding sentence) for the balance of the period of delay. 
	Thirdly, and most importantly, is the consideration whether the ground of appeal is substantial and plainly arguable.  In our view, it is not.  
	Regarding the use of the words “immediate or almost immediate”, the judge was clearly tracking the language of Lord Bingham in R v Z [2005] 2 AC 467.  Pausing here, it is correct that that part of Lord Bingham’s speech was obiter, but the breadth and depth of the discussion are such that it can be safely taken as the authoritative exposition of the current law regarding the defence of duress and should be preferred to other cases decided prior to that case.  
	Moreover in our view there is no real difference between “imminent” and “almost immediate”.  Thus at para 27 of R v Z, Lord Bingham refers to “the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress” and at para 28 he said “it should however be made clear to juries that if the retribution threatened against the defendant or his family ... is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged”.  (Emphasis added).  He drew no distinction between the two phrases.  As for the term “close temporal link”, in our view that is a less direct way of expressing “imminence” or “immediacy”, and the latter should be preferred when directing a jury.  

	Nor can we agree with Mr Ross’s argument that by using the words “immediate or almost immediate”, the judge had excluded the threat of harm to the Applicant’s father, because (on the Applicant’s evidence) he was already in the gang’s hands and the harm to him could be inflicted sometime in the more distant future.  One would have thought that the threatened harm to the Applicant’s father (who was already being held captive) would be more immediate than that to the Applicant’s wife and children.   
	As for Mr Ross’s last argument, as we understand it, his complaint is that when the judge directed the jury to ask themselves whether the Applicant could have taken evasive action “whether by going to the police or Customs, or in some other way, such as warning his family by telephone or message of some sort, to ensure their safety before going to the authorities”, he failed to take into account the position of the father, who (on the Applicant’s evidence) had been held captive for some time (nearly a year) before the gang made its approach to the Applicant in Mumbai and who the gang threatened to kill if the Applicant did not co-operate.
	In our view, the “evasive action” meant in R v Z is that of the defendant avoiding the commission of a crime.  The availability of such an action is of course directly affected by whether the defendant reasonably expected an immediate or almost immediate threat to life or serious injury to those threatened.  In the passage set out in the above paragraph, the learned judge was simply giving examples of “evasive action”, hence the use of words like “some other way, such as ...”.  One example of evasive action, which may be pertinent to the father’s position, was going to the police or customs in India, Malaysia or Hong Kong as 
rescue efforts might have been made in the time lag before the gang expected to hear from the Applicant after checking into a hotel in Guangzhou.  Another example of evasive action, which may be pertinent to the wife and children, was warning them by telephone.  But these were just examples to explain to the jury what was meant by “evasive action”.  The judge did not in any way suggest that the jury should find that the Applicant did in fact have those evasive actions available to him at the relevant time.  That was a matter for the jury. 
	The judge made sure that the jury did not lose sight of the Applicant’s allegations about the father’s position.  The judge referred to it virtually immediately before handing out a document on the essential features of duress, when he reminded the jury of the Applicant’s evidence that “his father had been kidnapped in Kenya in August 2007 and was in the hands of the same syndicate or gang who were forcing him, in Mumbai, to swallow the packets and that his father would be killed if he did not co-operate and would be released if he did”.  
	The judge referred to the father again when he recounted the Applicant’s evidence-in-chief “about his father’s kidnap, or hijack as it was put, in August 2007 by some people.  He suggested that these were from the same group as those he had met in India.  There was an agreement for his father’s release if he co-operated but, he said, his father would be killed, or so he believed, if he did not co-operate”.
	The judge referred to the father again when he recounted the Applicant’s cross-examination when he said the Applicant “reaffirmed that he was protecting his father ...”.

	In the circumstances discussed above, we do not consider that there are any merits in the intended appeal and we would dismiss the application for leave to appeal against conviction out of time.  




(MARIA YUEN)
Justice of Appeal
(JUDIANNA BARNES)
Judge of the Court of First Instance
(IAN McWALTERS)
Judge of the Court of First Instance






Mr Phillip Ross, instructed by Christine M. Koo & Ip, assigned by the Director of Legal Aid, for the Applicant 

Ms Catherine Ko, ADPP (Ag.) of Department of Justice, for the Respondent




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