Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Hksar v Gutierrez Alvarez Keishu Mercedes

Judgment Cited authorities 21 Cited in Precedent Map Related
Vincent
Judgment Date25 March 2020
Neutral Citation[2020] HKCA 184
Judgement NumberCACC320/2016
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC320/2016 HKSAR v. GUTIERREZ ALVAREZ KEISHU MERCEDES

CACC 320/2016

[2020] HKCA 184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 320 OF 2016

(ON APPEAL FROM HCCC NO 84 OF 2016)

________________________

BETWEEN
HKSAR Respondent
and
GUTIERREZ ALVAREZ Keishu Mercedes Applicant

________________________

Before: Hon Poon CJHC, Lam VP and Macrae VP in Court

Dates of Hearing: 6 and 7 November 2019

Date of Judgment: 25 March 2020

________________________

J U D G M E N T

________________________

Hon Macrae VP (giving the Judgment of the Court):

1. On 6 October 2016, the applicant was unanimously convicted before Barnes J (“the judge”) and a jury of a single count of trafficking in a dangerous drug, namely 1,995 grammes of a solid containing 1,664 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day, she was sentenced to 25 years’ imprisonment. She now appeals against both conviction and sentence. On 7 November 2019, we reserved judgment in this matter and said we would hand down our judgment and the reasons therefor in due course.

Procedural history

2. Original perfected grounds of appeal against conviction were filed on 14 March 2017 by the applicant’s then leading counsel, Mr Gerard McCoy SC. Perfected grounds of appeal against sentence were subsequently filed on 11 April 2018 by Mr McCoy, with him Ms Denise Souza. Amended perfected grounds of appeal against conviction were filed by the same leading and junior counsel on 27 October 2017. There were three amended perfected grounds of appeal against conviction. First, it was averred that the judge wrongly refused to grant the applicant a permanent stay of proceedings (Ground 1). Secondly, it was alleged that the applicant’s counsel at trial (not Mr McCoy or Ms Souza) had failed to cross-examine, and the judge had failed to sum up to the jury adequately, in respect of certain failings of Customs & Excise officers when investigating the applicant’s case (Ground 2). Thirdly, it was complained that the applicant’s legal representatives at trial did not give the applicant adequate or sufficient advice to enable her to make an informed decision as to whether to give evidence at trial (Ground 3).

3. In view of the applicant’s complaints against her legal representatives at trial, elaborated upon by way of affidavit filed on 9 November 2017 (“the applicant’s 1st affidavit”), the Court copied the applicant’s 1st affidavit to both trial counsel and solicitor on 14 December 2017 to enable them to file evidence in reply. On 16 January 2018, the Court directed that the amended perfected grounds of appeal against conviction, filed on 27 October 2017, be further copied to the legal representatives at trial, giving them leave to file further evidence in reply.

4. By way of a Memorandum of counsel, dated 6 March 2019, Mr McCoy sought to file re-amended perfected grounds of appeal against conviction of the same date. In his re-amended perfected grounds of appeal of the same date, the three amended perfected grounds of appeal remained unaltered but a new ground was added, alleging that the applicant did not receive a fair trial as a result of the lack of a dockside audio recording of the interpreter’s translation of proceedings to the applicant (Ground 4).

5. On 31 May 2019, in light of the new ground of appeal, the Court directed that two amici curiae be appointed to assist the Court in respect of Ground 4 only; and that the appeal be set down for a 4-day hearing. On 14 June 2019, the Court also directed that the re-amended perfected grounds of appeal against conviction and a further affidavit of the applicant, filed on 27 May 2019 (“the applicant’s 2nd affidavit”), be copied to the legal representatives at trial to enable them to file further evidence in response.

6. On 22 July 2019, the Court directed the respondent to write to the appropriate Registries of the criminal courts in the United Kingdom (England and Wales), Australia (New South Wales and Victoria), New Zealand, Canada (British Columbia and Ontario) and Singapore to ascertain the practice and procedure in those jurisdictions for recording proceedings at trial where a defendant speaks a language other than the language of the court and has been provided with an interpreter for the purposes of his/her trial. The Court wished to know, in particular, whether, in addition to the official record of proceedings, there is any record kept of what is said between the interpreter and the defendant in the defendant’s language whilst the defendant is in the dock. These particular common law jurisdictions were selected as the ones where defendants speaking a language other than the language of the court were more likely to be encountered in the daily practice of the courts[1].

7. We are grateful to Mr Johnny Mok SC, with him Mr Ned Lai and Ms Cherry Ho, on behalf of the respondent, for undertaking this task. As a result, replies from all the various Registries concerned were obtained prior to the hearing of the appeal and duly served upon all parties. We shall refer to the responses from these jurisdictions when we consider Ground 4.

8. Before addressing the grounds of appeal, we shall set out details of the prosecution case and the trial so far as they may be relevant to our consideration of this appeal.

The prosecution case

9. On 9 August 2015, the applicant, a Spanish-speaking Venezuelan national, arrived at Hong Kong International Airport from São Paulo in Brazil, via Abu Dhabi in the United Arab Emirates, and passed through the ‘green’ channel with packets of cocaine, the subject matter of the indictment, strapped to the lower parts of her legs. Upon arrest, she said that she did not know what it was that was strapped to her legs.

10. The prosecution contended that the applicant had declined to participate in a controlled delivery operation and had made no mention by that stage of the duress that she was allegedly acting under.

11. On the following day, a video-recorded interview (“VRI”) was conducted by Customs & Excise officers with the applicant. During that interview, the applicant claimed that she had been tricked into leaving her home in Venezuela for Brazil in the belief that she had been offered a job there in advertising. However, when she arrived in Brazil, she was taken to meet an African male and thereafter detained against her will, during which time she was threatened, beaten and raped. She was then told to take some “stuff” to Hong Kong under threat that her family in Venezuela, including her 3‑year old child, would be killed if she did not cooperate.

The course of the trial

12. Before the empanelment of the jury, counsel acting on behalf of the applicant at trial mounted an application for a permanent stay of proceedings, on the basis that a fair trial was not possible; or, alternatively, that to continue with the proceedings would be an abuse of process, amounting to an affront to the public conscience. Evidence was adduced by the prosecution and the defence, although the applicant did not herself give evidence on the issue. The judge ruled against the applicant on the stay application and, following the jury’s verdict on 6 October, reduced the reasons for her decision into writing on 12 October 2016.

13. On 27 September 2016, the jury were empanelled and the case proceeded to trial. Again, following the prosecution evidence on the general issue, the applicant did not testify but relied on what she had said in her VRI in support of her contention that she was acting under duress at the time she committed the offence.

14. In her VRI, the applicant explained that she held a university degree in advertising. She claimed that she had been offered through the Internet a job in advertising and marketing in Brazil. Accordingly, she left her home country of Venezuela on 19 June 2015 to travel overland to Boa Vista in Brazil. From there, she took a domestic flight to São Paulo in Brazil, where she was met by an African male who conveyed her to the house of another African male called Mikael. The applicant said she was detained by Mikael at his house for a month and a half, where she was ill‑treated, relieved of her telephone, beaten and frequently raped. She was told that she was to be sent to Hong Kong and that, if she did not go, her family members, whose address Mikael had obtained, would be killed.

15. On 1 August 2015, the applicant was made to go to Paraguay, since, because of the closure of the Customs office when she had entered Brazil, her passport had not been stamped. On her return from Paraguay to Brazil, the drugs wrapped in plastic were strapped to her legs and the applicant was given an air-ticket for Hong Kong via Abu Dhabi, and some money as expenses. She was also given the details of the hotel she should go to upon arrival in Hong Kong, where someone would come to retrieve the packets. She was told she would be watched from her arrival at Hong Kong International Airport until her arrival at the hotel. She was not offered any reward for doing as instructed: her reward would be her freedom and the lives of her family. She was also provided with a false air-ticket to show, should she be stopped and questioned, that she had a return ticket for Venezuela.

16. During the VRI, the applicant was asked by Customs & Excise officers about the messages in her mobile telephone. In particular, she was asked about one message, which she confirmed she had sent to Mikael from her mobile telephone on 7 August 2015, and which read “I am on the plane. I am fine. And you?”[2]. Her explanation for this message was that Mikael had asked her to write a message to him once she was on board the aeroplane, “as if it was for a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT