Herminie v R (SCA 18/2012) [2015] SCCA 39 (17 December 2015);

Zubeda Herminie

 

                                                  Appellant

 

 

Versus

 

The Republic                                                                                                                   Respondent

 

 

 

Heard:             07 December 2015

Counsel:          Mr. Nichol Gabriel for the Appellant

 

 

                        Mr. Jayaraj Chinnasamy for the Respondent

 

Delivered:       17 December 2015

 

JUDGMENT

 

A.Fernando (J.A)

 

  1. The Appellant appeals against her conviction on 2 charges of importation of 89.621 grams and 26.344 grams of heroin on the 2nd of September 2010 at the Seychelles International Airport, on 2 charges of trafficking in the said quantities of heroin by being in possession of them at English River and on 2 charges of conspiracy to import the said quantities of heroin with a Kenyan who is unknown to the Republic and the sentences of 15 years imprisonment for each for the two charges of importation, the sentences of 12 years imprisonment for each of the two charges of trafficking and the sentences of 15 years imprisonment for each of the two charges of conspiracy all of which terms of imprisonment were to run concurrently making a total term of imprisonment of 15 years.

 

 

  1. The Appellant has lodged the following grounds of appeal:
  1. The learned Judge erred in fact and in law in convicting the Appellant on the charge of importation and trafficking on insufficient, uncorroborated and hearsay evidence.
  2. The learned Judge erred in law and in fact in finding the Appellant guilty on the charge of conspiracy in the absence of any agreement with a known or unknown person to that effect.
  3. The learned Judge misdirected himself in making a finding that the Appellant had knowledge of the content of the items handed over to her by Roselyn Nyangi which was later discovered to be controlled drugs.
  4. The learned Judge erred in law and in fact in making a finding that the Appellant was in direct contact with a person in Kenya when in actual fact it was the witness Fatouma Bakari alais Kidada who was the primary contact between Seychelles and Kenya before, during and after the visit of Roselyn Nyangi to Kenya.
  5. The sentence of 15 years imposed on the Appellant was manifestly harsh and excessive and wrong in principle.
  6. The learned Judge erred in law and in fact in failing to uphold the circumstances of the Appellant stated in mitigation to be special and therefore awarding a manifestly harsh sentence.
  1. The prosecution case had been to the effect that Roselyne A. Nganyi, a Kenyan national working at Indian Ocean Tuna (IOT) and residing at Krishnamart was arrested at the Seychelles International airport on her return from Kenya on the 2nd of September 2010 for importation of 89.621 grams and 26.344 grams of heroin concealed inside two plastic bottles of body cream which was found inside her carry-on luggage. It is Roselyne who had, on her own suggested to the Customs and NDEA officers who were inspecting her luggage and when examining the two bottles of cream; to cut open the two plastic bottles and see what is inside, instead of pressing them. On cutting open the 2 bottles they found that the bottles contained two plastic bags with some powder, which was suspected to be drugs.
  2. There is no challenge before us to the analysis of the controlled drugs done by the two Government analysts or the chain of custody pertaining to the said controlled drugs. Up to that point of detection of the drugs at the airport, Roselyne had said that she did not know she was carrying drugs. On being questioned she had said that the bottles and the silver pair of shoes she was carrying along with her were for the Appellant and had been given to her by a Kenyan to be given to the Appellant. Roselyne had said that she is unable to understand why the Appellant had not felt pity for her at a time her mother had died and made use of her for a matter like this. Roselyne had therefore decided to cooperate with the NDEA and suggested that she will go to Krishna Mart accompanied by someone who will pretend as her boyfriend and then call the Appellant to come and collect the bottles. Roselyne according to the prosecution evidence had remained unperturbed during the search.
  3. The whole episode had begun when Roselyne whose mother had passed away decided to go to Kenya on the 14th of August 2010, for the funeral. It transpires from the evidence that IOT was paying for her ticket. We would have preferred if the prosecution had led some evidence from IOT confirming the death of Roselyne’s mother and the fact that her ticket was being paid for by IOT. Many of her friends had came to condole with her and among them was the Appellant, who was a friend of her room-mate Fatouma Bakari Ngare, AKA Kidada. When the Appellant came to sympathize with Roselyne on the 13th of August 2010, the Appellant had asked her whether she was going to Kenya for the funeral and if so, whether Roselyne could carry a parcel containing money to her cousin Jumar AKA ‘J’ and to bring back to the Appellant when she returns a parcel containing cream that Jumar would give her. The Appellant had told her that she will give a Kenyan telephone number to Kidada that Roselyne should call when she gets to Kenya.
  4. The Appellant had also told Roselyne that Kidada will hand over the money to her and give her the necessary instructions and that Kidada would inform the person who will meet her at the airport about the description of the clothes Roselyne would be wearing so that he could identify her. On the 14th of August the day Roselyne travelled to Kenya, Kidada had handed over the money (USD 500 & Euro 500) to Roselyne, stating that it was from the Appellant. Kidada had written a Kenyan telephone number 0719700109 on Roselyne’s diary, which Roselyne had also written down on the envelope containing the money. Roselyne had been instructed to call that number on reaching Kenya. Kidada had told her to give the money to Juma and that only after she had called her. On arrival at the airport in Kenya a person had approached her claiming he was Juma. According to Roselyne he had claimed that he had called the Appellant and not been able to reach her, had called Kidada. The Kenyan having talked to Kidada had passed the phone to Roselyne. Kidada had then told Roselyne to give the parcel containing money to that person, saying he was Juma. Juma had taken the parcel and told her that she would have to carry a parcel containing cream and shoes to the Appellant while returning to the Seychelles. He had then dropped her off at a certain place from where she proceeded to her home. The person had called her on the 1st of September and thereafter met her in Nairobi. He had handed over a grey plastic bag to her containing 3 bottles, 2 natural honey and the other aloe vera and silver shoes and said that the parcel was for the Appellant. She had then packed her bags and placed the stuff the man had given her under a cooking pot in her carry-on luggage.
  5. After agreeing with the NDEA for a controlled delivery Roselyne had proceeded with some NDEA Officers, one of whom was to pretend to be her boyfriend to Krishnamart. Roselyne had said that she does not know the phone number of the Appellant but would get it from Kidada. On arrival at Krishna Mart she had got Kidada to call the Appellant. On calling a second time Kidada had managed to get through to the Appellant who then handed over the phone to Roselyne. Roselyne had then told the Appellant to come and collect her things as she had brought things for others also. The Appellant had then told her not to give anything to anyone until she turns up, which request Roselyne had turned down saying that the other persons may come and want to collect their things. Later Kidada had told her that the Appellant was on her way. The Appellant had turned up thereafter in about 20 minutes. The Appellant had been in a hurry, had not greeted her and straight away asked for her things. Roselyne had then asked the Appellant the name of her cream stating she had many creams and couldn’t remember what she had brought for her. The Appellant had said ‘mafuta yangu’, which means ‘my cream’. She had then told the Appellant that she had many creams. The Appellant had asked Roselyne to ask the police officer with her who was pretending to be her boyfriend to leave. The Appellant had then asked him to get out and tried to grab him by his arm and push him away. Roselyne had then given the Appellant the grey plastic bag containing the cream Juma had given her in Kenya. The Appellant had taken it, opened it, caressed it and said “my cream, my shoes, mafutayangu, viatu vyangu” in Kiswahili, but said ‘Natural honey’ in English. Having taken the parcel into her hands the Appellant had asked Roselyne to send the man away. At this stage Kidada had told the Appellant in Kiswahii “This man is not a good man”. When the Appellant heard that she had thrown the things and said “I don’t know this lady. I never send her back to Kenya.’  Then the police officer had told her “if you don’t know her, what did you come, here to do” and arrested her.
  6. The defence had not challenged Roselyne’s evidence that the Appellant had met her before her departure to Kenya, requested of her to carry some money and give it to a person named Juma in Kenya, her evidence pertaining to the instructions given to her as to how the money was to be handed over to Juma and the Appellant’s request that she on her return from Kenya, bring back some cream to the Appellant. In fact the defence position in cross-examination of Roselyne had been that it was Kidada who organized everything and blamed it on the Appellant when she saw the NDEA persons and that the Appellant had not come to collect drugs that day but to collect the cream.
  7. The evidence of Roselyne has been corroborated in all material particulars by Fatouma Bakari Ngare, AKA Kidada. She had lived in Seychelles for the past 18 years, was working for IOT and staying at Krishnamart. Roselyne Adhiambo Nganyi was her roommate. She confirms that in August 2010 Roselyne had got information that her mother had passed away and wanted to go immediately to attend the funeral. The Appellant who was present at that time had asked Fatouma whether she could send some money to Kenya through Roselyne. Fatouma had replied “I don’t think so if she refused because she is a good lady.” Thereafter both Fatouma and the Appellant had gone up to her and the Appellant had spoken to Roselyne. Roselyne’s reply had been “If it is some money I will take it, no problem”. Two days later the Appellant had come back with money (Euros and over 1000 dollars) inside an envelope on which the initial ‘J’, of the person in Kenya, and his telephone number +254 719700109 was written and had given it to Fatouma because at the time she came Roselyne was busy talking to some people.
  8. The Appellant had however told Roselyne that she had given the money to Fatouma. Thereafter the Appellant had asked Fatouma to confirm to her, when Roselyne has handed over the money to the person in Kenya because she did not want the person in Kenya to call her as her husband (Appellant’s), was not aware of the fact that she had sent money to Kenya. She had therefore requested Fatouma’s telephone number (585301) to be given to the person in Kenya so that he could contact her.  Fatouma was also aware of the Appellant’s telephone number (573329). The Appellant had then given Fatouma the necessary instructions to be conveyed to Roselyne regarding the circumstances under which the money was to be handed over to the person in Kenya, named Juma. After the Kenya Airways flight left Seychelles, the Appellant had called Fatouma to find out whether Roslyne had contacted her. She therefore had called Juma on the telephone number that was written on the envelope given to Roselyne and when she found out that Roselyne was already with him, had asked Roselyne to give the money to Juma.
  9. On the 2nd of September 2010 around 4pm Roselyne had come into her room with a guy and asked for the Appellant’s telephone number saying that she wanted the number so that she could ask the Appellant to come and collect the things that she had brought for her from Kenya. She had wanted her to come immediately as she had brought stuff for others and was not sure to whom each of those parcels belonged and thus wanted the recipients to come and select their own parcels. Fatouma had therefore called the Appellant’s mobile but there had been no response. A little later the Appellant had called and Fatouma had told her that Roselyne had wanted her to come and collect her stuff, to which she had replied “No, today I am busy I cannot come.” Thereafter the Appellant had spoken to Roselyne. She had then called Fatouma again and asked Fatouma and said “Tell Roselyne not to give my things, I am coming to take it”. The Appellant had phoned Fatouma again and asked Fatouma to wait awhile before going for work as she was bringing some cassava for her. A while later the Appellant had phoned her again and told her that she had heard that police were at Fatouma’s place and had wanted Fatouma to collect her things from Roselyne and “take them down stairs for her.”  Fatouma had then told her “I cannot do that because Roselyne told me she doesn’t know which is your thing, you have to come by yourself and choose.” The Appellant had thereafter come and Fatouma who was on her way for work had gone back to the room where Roselyne was, accompanying the Appellant. On entering the room the Appellant had inquired about the person who was with Roselyne, and Roselyne had replied that he was her boyfriend. The Appellant had wanted him to move out of the room but he had not done so. The Appellant had then requested Roselyne to hurry up and give her things as she needs to go. Roselyne had then opened her suitcase and inquired from the Appellant what her things were to which she had replied shoes and cream. The Appellant had then looked inside a green coloured plastic bag and said “its my shoes and my cream and taken it.” The Appellant had been speaking in Swahili while Roselyn had repeated some words in English. Thereafter the NDEA officer who was with Roselyn, pretending to be her boyfriend had arrested her. Up to that point of time Fatouma had claimed that she did not know what was happening, although she “knew there was a problem”.
  10.  Jimmy Adelaide a NDEA agent testifying before the Court had stated that he had seized mobile telephone bearing number 573329 from the Appellant’s hand when she came to Krishnamart to collect her things on the 2nd of September. This had not been denied by the Appellant nor had she taken up the position that she had not been using that phone during the period in question.
  11. The Appellant had made a dock statement. According to the Appellant, Fatouma had called her and asked her to come and collect her things at Krishnamart on three occasions. The Appellant had told her that she will come the next day. She had thought that Fatouma’s mother whom she knew had sent her something. Then Roselyne had also spoken to her and asked her to come and collect the things ‘J’ had sent her. The Appellant had then called ‘J’ in Kenya and asked him what he had sent her to which he had replied it was some cream. She had then told Roselyne that she would come and had “rushed to go and collect.” According to the Appellant when she went to Fatouma’s apartment she had been arrested. In her dock statement the Appellant had not denied giving money to Roselyne to be given to one ‘Juma’ a.k.a ‘J’, when she went to Kenya for her mother’s funeral or requesting her to bring back some cream for her.
  12. Georges D’Offay, Director Sales and Customer Services testifying before the Court had said that he had received warrants from court to testify regarding the calls taken during the period August 2010 to September 2010 [14th August to 3rd September 2010]; from telephone number 573329 seized from the Appellant, by Jimmy Adelaide a NDEA agent;  but registered in the name of Mr. Francois Maxwell Agathine, Anse Louis and telephone number 585301 recovered from Fatouma, but registered in the name of Staniella Youpa, Point Larue. The prosecution had not offered any evidence as to how these telephone numbers registered in the names of Francois Maxwell Agathine and Staniella Youpa, came to be found in the possession of the Appellant and Fatouma. According to records maintained at Cable & Wireless it was established that telephone number 573329 seized from the Appellant had called the Kenyan number 254719700109, said to be that of Juma, on the 13th, 14th  (at 1455 hrs), 15th, 17th, 19th, 20th, 21st, 23rd, 28th and 30th of August and on the 2nd of September2010 at 1641 hrs. There had been calls from 573329 to 585301, the telephone recovered from Fatouma, on the 14/8; 15/8; 17/8; 18/8; 20/8; 21/8 and on the 2nd of September 2010 at 1628hrs; 1655 hrs; 1658 hrs; 1709 hrs. On 14/8 at 1959 hrs it has been recorded that there was a call from 585301 to the Kenyan telephone number 254719700109.
  13.  Of these calls, what is noteworthy are the calls from the Appellant’s number 573329 to the Kenyan number 254719700109 on the 2nd of September 2010 at 1641 hrs; and from Fatouma’s number 585301 to the Kenyan number 254719700109 on 14th of August 2010 at 1959 hrs and from Fatouma’s number 585301 to the Appellant’s number 573329 on the 2nd of September at 1628hrs; 1655 hrs; 1658 hrs; 1709 hrs. The call from Appellant’s number 573329  to the Kenyan number 254719700109 on the 2nd of September 2010 at 1641 hrs corroborates the Appellant’s dock statement, where she had stated that she had called ‘J’ in Kenya after Fatouma had asked her to come and collect her items that Roselyne had brought to her from Kenya. The calls from Fatouma’s number 585301 to the Appellant’s number 573329 in the afternoon of the 2nd of September 2010 corroborates Fatouma’s evidence that she had in fact called the Appellant to come and collect her items from Roselyne. The calls from Fatouma’s number 585301 to the Kenyan number 254719700109 on the 14th of August 2010 at 1959 hrs corroborates her evidence that she had called Juma to ensure that Roselyne hands over the money to the correct person. The Appellant had not denied that telephone bearing number 573329 is hers.
  14. As regards ground (i) of appeal, we are of the view that the evidence of Roselyne A. Nganyi, Fatouma Bakari Ngare, NDEA Agent Jimmy Adelaide and the telephone records pertaining to Appellant’s telephone number 573329, seized from the Appellant clearly show that there was sufficient evidence against the Appellant and which had been corroborated. Although some hearsay evidence had crept into the record when Roselyne A. Nganyi testified, there had been sufficient evidence independent of that to base a conviction against the Appellant.
  15. As regards grounds (ii) and (iii) of appeal, the evidence of Roselyne A. Nganyi, Fatouma Bakari Ngare, and the telephone records pertaining to Appellant’s telephone number 573329, seized from the Appellant, which shows calls made to 254719700109, said to be that of the telephone number of Juma, on the 13th, 14th (at 1455 hrs), 15th, 17th, 19th, 20th, 21st, 23rd, 28th and 30th of August 2010 and on the 2nd of September 2010 at 1641 hrs; is clear evidence not only of the agreement that existed between the Appellant and the person called ‘Juma’ of Kenya, but also that the Appellant had knowledge of the content of the items handed over to her by Roselyn Nyangi which was later discovered to be controlled drugs.
  16. As regards ground (iv) of appeal it is clear to this Court that the Appellant, Fatouma and Juma were all part of a conspiracy to import and traffic in drugs, but the prosecution had only wished to file charges against the Appellant. As to why they left out Fatouma, who seems to be one of the protagonists of these transactions is baffling us. Anyhow it is the discretion of the Attorney General to institute prosecutions, but we wish to state that such discretion should be exercised judiciously. The evidence of Fatouma has to be viewed with suspicion as she is no doubt an accomplice, but that does not in any way absolve the guilt of the Appellant and in our minds there is no doubt like that of the learned Trial Judge as to the guilt of the Appellant in respect of all the charges preferred against her.
  17. We therefore dismiss the appeal against conviction.
  18. As regards grounds (v) and (vi) of appeal, which are on sentence, we wish to point out that filing two charges each for importation, trafficking and conspiracy in respect of the heroin found in the two bottles was superfluous. For both bottles of cream were found in a plastic that was inside the carry-on luggage of Roselyne and it was only one act of conspiracy to import the said drugs into the country. We are not certain that the learned Trial Judge had taken this factor into consideration in passing sentence. We therefore quash the sentence of 15 years imposed on the Appellant and substitute a sentence of imprisonment of 12 years on the Appellant.