HKSAR v. OKAFOR PETER ERIC NWABUNWANNE

CACC63/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.63 OF 2008

(On Appeal From High Court Criminal Case No.115 of 2007)

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BETWEEN

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REASONS FOR JUDGMENT
AND
DECISION ON RE-TRIAL

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Hon Cheung JA (delivering Reasons for Judgment and Decision on Re-trial of the Court) :

REASONS FOR JUDGMENT

1.  The appellant was convicted after trial by Deputy High Court Judge Geiser sitting with a jury of the offence of trafficking in dangerous drugs namely, 214.22 grammes of heroin hydrochloride. He was sentenced to 12½ years’ imprisonment. He applied for leave to appeal against conviction and sentence but later withdrew his application on sentence. After hearing the application on conviction this morning we allowed the application, treated it as the appeal proper, allowed the appeal and quashed the conviction. We now give our reasons.

Facts

2.  The appellant is a Nigerian national. On 19 January 2007 at 10.00 a.m. he went to the Accident & Emergency Department of Kwong Wah Hospital and complained to the duty doctor (‘PW4’) about stomach pain. He told the doctor that a few days ago he had swallowed 30 pellets of dangerous drugs. The doctor arranged for X-rays of his stomach to be taken and discovered there were dozens of packets of foreign bodies inside his body. The doctor consulted his superior and a decision was made to report the matter to the police. At about 11.45 a.m. the police arrived. PW1, a woman police officer spoke to the appellant in English. This is how the Judge summarised her evidence :

‘  The officer, members of the jury, told you that she asked the defendant if he was okay, to which, the officer said, he told her that he felt heat in his stomach and felt pain.  She said that she asked him what had happened, to which he said that he was going to deliver some drugs to Holland and if he managed to complete the mission, he would be paid US$5,000 and that he had already been paid some US$2,500.  He told the officer, according to this officer’s evidence, that on 27 December 2006, he had left Holland for Guangzhou in China and, from there, on 12 January, he left to go to India.  On the same day, he swallowed 30 pellets of white powder wrapped in nylon.  Then on 14 January, he left India for Guangzhou, arriving there on the 15^th.  After that, on the 19^th, he said he came to Hong Kong from Mainland China.  As he felt unwell upon his arrival in Hong Kong, he had gone to Kwong Wah Hospital for medical treatment.

The officer said that the defendant told her that he received the money of his own free will to swallow the drugs and that he had spent the money on the journey.  The officer confirmed that the defendant did not tell her who had made arrangements for this mission.

You will recall, members of the jury, that this witness said that as a result of what the defendant had told her, she declared arrest on him for the offence of trafficking in dangerous drugs and that she administered a caution, a verbal caution, after which the defendant immediately, according to her, said to her, “Sorry, I have financial problem”.  At once, she said, she used her notebook to jot down what the defendant had said and she asked the defendant to sign it.  It was her evidence that the defendant told her that he could not sit up as he was in pain, so she said that she did not want to force him to sign.’

3.  PW1 said that when she was talking to the appellant, she was taking some notes on a piece of paper.

4.  The next event of significance is that on the same afternoon at 4 p.m. when PW1 returned to the police station, she made a post-record in a notebook of her conversation with the appellant in the hospital. Later she went back to the hospital and saw the appellant again. She issued the appellant with a ‘Notice to Persons in Custody’ and read him the rights contained in the Notice. She then read out the post-record she had made of the earlier conversation with him, reminded him that he was still under caution and that he could correct or alter the post-record she had read. The appellant then asked her to write for him the following :

‘ I did tell who pay me.  That is, Mr Chan arranged this trip, but you didn’t mention.’

5.  PW1 then gave the appellant a pen, he wrote down a further passage and signed his name. The passage was :

‘ Mr Jean took advantage of me because of money problem with the German Customs.’

6.  PW1 then dictated an ending declaration to the appellant which he wrote in her notebook, but added the words ‘of which I did,’ to indicate that he had made an alteration to the original entry, and he also added, ‘And I’m begging for mercy’.

7.  PW1’s notebook was produced as an exhibit at the trial (Exhibit P4).

8.  Later on 21 January 2007 at 3.15 a.m., the appellant discharged 28 pellets from his body. After that another police officer interviewed him. The appellant said to him :

‘Yes, I understand, however, there is remain two pieces inside me, so I would like to say something when the two pieces are out because I am tired.  I need to sleep a bit.’

9.  The statement was produced by way of admitted facts as Exhibit P6.

10.  The appellant later discharged two more pellets. The police officer again interviewed him. The appellant’s response was

‘Yes, I understand but I have nothing to say now I am tired.’

The record of interview was produced also by way of admitted facts as Exhibit P7.

11.  In the afternoon of the same day, the police further interviewed the appellant. The record of interview was also produced by way of admitted facts as Exhibit P9.

12.  The 30 pellets discharged from the appellant were examined by Government Chemist and confirmed to contain heroin hydrochloride.

Objection to admissibility

13.  The oral evidence of PW1 regarding the content of what the appellant said to her (‘the verbal admission’) and Exhibit P4 were admitted as evidence after the Judge conducted a trial within trial on their admissibility. The appellant had objected to their admissibility and his grounds of objection were :

‘ (1)  Oppression: in the accused’s then medical condition it was oppressive to question him about his admitted consumption of the drugs.  Voluntariness is not proved.

(2)  Alternatively, the evidence should be excluded in the exercise of the Court’s discretion because:

(a)  The caution was not timously administered;

(b)  The post-record was such a severely edited version of what the accused said that it makes no reference to his explanation then given of threats to himself and his family which had caused him to act as he did in bringing the drugs into Hong-Kong;

(c)  In the accused’s then medical condition, it was wrong to conduct any interview with him, particularly one of this duration.’

14.  The Judge ruled that what PW1 had recorded as being told to her by the appellant was told by the appellant voluntarily and without any oppression. The Judge further ruled that he saw no reason to exclude the evidence either on the basis of unfairness or on any ground relied upon by the appellant’s counsel.

The appellant’s evidence

15.  The appellant then gave evidence before the jury on the circumstances in which he had the dangerous drugs and his conversation with PW1 in the hospital.

16.  He is a Nigerian and resided in Germany before his arrest. He was a businessman. In December 2006, the German Customs seized his goods. The matter was published in the internet. As a result he was contacted by a Mr. Jean (also referred to as Mr. Jong at the trial) who told him that he had a proposition to make to him on gemstones.

17.  On 18 December, the appellant went to Amsterdam and met Mr. Jong. Mr. Jong told him that he had been in the gemstone business for more than five years and he had partners in India. He had been cheated in the past as stones were sent to him which were of poor quality. He wanted someone to travel to India for him to inspect the quality of some stones and, if they were good, to bring them back to Holland. He proposed that the appellant do this for a fee of US$5,000 and expenses of US$2,500.

18.  The appellant said that he tried to negotiate the price upwards to US$10,000 but Mr. Jong refused, so the appellant said that he agreed eventually to US$5,000 plus US$2,500 expenses. The appellant thought that this would be a good opportunity for him to revive his gemstone business and that if he gave a satisfactory service, the next time Mr. Jong may order from his company direct.

19.  At the end of the meeting, Mr. Jong gave the appellant US$2,500 expenses and he also gave him a contact number in Jaipur, India. Mr. Jong asked him to send his contact details to that company in Jaipur in order for a letter of invitation to be sent. The appellant later applied for and obtained an Indian visa in Hamburg, Germany.

20.  Although Mr. Jong wanted the appellant to leave immediately, he would not go until after Christmas. The appellant also said that he would take the opportunity to go to China to sort out the problem with the goods that he had had with the German Customs earlier on in that month. He bought a ticket from Germany to Amsterdam, and then from Amsterdam to Guangzhou, via Beijing. He arrived in Guangzhou on 28 December. Whilst in Gugangzhou, he met the suppliers of the goods and discussed the problem of the earlier seizure. He stayed in China until 11 January 2007.

21.  He then travelled to India, arriving in New Delhi on 12 January. He was met at the airport by two men, one was an Indian and the other one a black man. They told him that they were Mr. Jong’s partners and they took him to a hotel in New Delhi. He was told to wait at the hotel for the stones.

22.  As it turned out the appellant did not go to Jaipur. He waited in his hotel for two days for the two men to return. On 13 January, the two men told him to reconfirm his ticket to go back to Guangzhou and that the stones were ready. He was told to telephone Mr. Jong, which he did, who told him that there were no seats on the KLM flight back to Amsterdam and that, therefore, he should go back to Guangzhou and, from there, Mr. Jong would arrange a KLM flight from Hong Kong to Amsterdam. Mr. Jong also told the defendant to follow the instructions of the two men.

23.  On the evening of 14 January, the two men came back to the hotel with a suitcase. When they opened the suitcase, the appellant saw the pellets. He told the men when he saw these, ‘These aren’t gemstones. I think this is cocaine,’ or words to that effect. The appellant said that he was told that this was the material that he had to take back to Mr. Jong. The appellant phoned Mr. Jong immediately and told him that the two men had brought cocaine and not gemstones, which he said was a breach of the agreement, to which Mr. Jong replied, ‘If you want to see your wife alive when you come back, you do what they tell you’.

24.  As the appellant was talking to Mr. Jong on the phone, he saw the black man have a gun inside his waist. Later the black man pulled up his shirt, displaying the pistol, saying words to the effect, ‘Don’t make me say it again,’ and ‘Swallow the drugs’.

25.  The appellant said he knew drug dealers were capable of harming his wife. He knew his family had a serious problem, so he had to force himself to swallow the 30 pellets of drugs.

26.  The appellant then devised a plan to play along with these men, get to Amsterdam and trap Mr. Jong by reporting the matter to the police. After swallowing the pellets, the men took him in a taxi to the airport, saying that if he said anything to anybody, then they would kill his wife and family.

27.  The appellant did not report the matter to the police in India because he did not know the relationship between the Indian police and the European police.

28.  The appellant took a flight from New Delhi to Bangkok, and from there to Guangzhou, arriving in Guangzhou on 15 January. After taking the drugs, he felt very, very sick, having serious pain in his stomach, and each day, it got worse. For eight days, he did not eat anything, only taking a little water and was unable to sleep properly. Each day, he telephoned Mr. Jong who kept telling him that there were no seats on board the KLM flight from Hong Kong to Amsterdam. Mr. Jong insisted that he travel on KLM so, the appellant said, he had no choice but to wait.

29.  Later on 18 January, the appellant telephoned Mr. Jong again who told him to go to Shenzhen and take a bus to Hong Kong and stay at a guesthouse. The appellant took a bus to Shenzhen the next day. He still had the drugs inside him and was worried that he might die if they burst inside him. He then went to Hong Kong and stayed at a guesthouse.

30.  When he was in Hong Kong he telephoned Mr. Jong and told him that he was very sick and he needed to report the matter to the police and sought medical treatment, to which Mr. Jong told him that, if he did that, then he would kill his wife and children.

31.  Mr. Jong initially told him that somebody would deliver an air ticket to him at the guesthouse that morning but Mr. Jong later told him that he had to wait for a few more days for the ticket as all the flights to Amsterdam on KLM were full. The appellant thought that he could not survive for another hour, and he went to the hospital.

32.  When the appellant arrived at the hospital, he approached a police officer and told him that he had cocaine inside him and he needed to report the matter to the police. He was directed to the reception area and he told the receptionist that he had cocaine inside him and he needed to see a doctor and report to the police. He was asked for his passport. The doctor was then summoned to see him. He was then taken, in a wheelchair, to a room. X-rays were taken from him. He saw PW4 and told him that he had been forced to swallow cocaine in India and he needed to report to the police so that the police could save his family. Shortly after he told the doctor this, the police officers arrived. They were PW1 and two police officers, namely, a sergeant and a plainclothes officer (PW2 and PW3).

33.  The appellant gave his passport, the card from the guesthouse and a piece of paper with Mr. Jong’s telephone number on it to the sergeant. The appellant told the sergeant, ‘Please contact Interpol as my wife and children are in danger’. The sergeant passed these documents to PW1. The sergeant asked him who Mr. Jong was and the appellant told him that he was in Holland and he wanted to kill his family if he reported the matter to the police. He said he had been double-crossed by Mr. Jong.

34.  The appellant was given a drip by a nurse and then pushed into the observation room and locked up. PW1 came back with a writing pad and asked him what had happened. He recounted his story to PW1 who wrote notes on the pad as he was speaking. PW1 promised him that the police would contact Interpol.

35.  After the appellant gave PW1 his explanation, she went out of the observation room and wrote in her police notebook, which is Exhibit P4. She then came back and read out the declaration of arrest. He did not hear PW1 caution him and he never said, ‘Sorry, I have a financial problem’. He told her about the problems that he had had with the German Customs seizing his goods. PW1 asked him to sign her notebook but he refused because what was written down was not what he had told the police officer.

36.  Later that day, he was transferred to Queen Elizabeth Hospital. He made a telephone call to his wife, explaining to her about Mr. Jong and him being in the hospital in Hong Kong.

37.  The appellant saw PW1 in the evening of the 19January. PW1 started reading again from her police notebook. He told the officer that it was not what he had told her earlier and that he had told her about Mr. Jong. PW1 then wrote, in her own handwriting, the words that appeared in the notebook, ‘I did tell who pay me, that is, Mr. Chan arranged this trip, but you didn’t mention’.

38.  After PW1 added this, she said, ‘Sign, sign, sign. I’ll call Interpol’. The appellant was frightened for his family, so he signed on the notebook and wrote out a passage. PW1 appeared upset and took the book from him. He wrote the final declaration after the officer had written it on to a piece of paper and asked him to copy it, including the words, ‘Of which I did’.

39.  The appellant said that when he said, ‘I am begging for mercy’, he meant that he was begging for mercy for his family. The appellant also said that PW1 never asked him and he never said that he swallowed the drugs willingly.

40.  The appellant said that PW1 had come to the conclusion that, as he was a black man from Nigeria, that he must be a drug courier.

41.  In Exhibit P9 the appellant explained that he swallowed the drugs under duress along the lines of his evidence in Court.

Admissibility of admissions

42.  In the perfected grounds of appeal, the appellant challenged the Judge’s decision to admit the verbal admission together with the post-recording of that verbal admission (Exhibit P4) as evidence before the jury. Further the appellant stated that the Judge did not direct the jury on the irregularities in the compilation of the record of interview.

Direction to jury on admissions

43.  It is not necessary for us to address the issue of the admissibility of the verbal admission and P4 because, assuming they were admissible, the Judge had not properly directed the jury on how they should approach them. Although this was not initially a ground of appeal, Mr. Dykes, S.C., sought leave to rely on it after this Court drew this matter to the parties’ attention. Mr. Wong, Senior Assistant DPP, did not object to the inclusion of this ground and we granted leave to the appellant to rely on this ground as well.

The nature or the admissions

44.  The importance of the verbal admission and P4 must be emphasized. The purported statements made by the appellant to PW1 were confession to the offence of trafficking in the full sense of the word. He confessed that :

1) he agreed to bring drugs to Holland for a fee of US$5,000 and he had received half of that payment;

2) he swallowed the drugs while he was in India;

3) he was willing to receive the money to swallow the drugs; and

4) he had money problems.

He further asked for mercy.

45.  The appellant’s case is that the so-called admissions were not made by him and further they were not true because he said he was forced to carry the drugs due to the threats to himself and his family. He signed on P4 because PW1 told him to sign and she would contact Interpol. Hence the issue before the jury fell squarely on whether the appellant made the admissions and whether they were true.

The Specimen Directions

46.  The Judicial Studies Board has provided a Specimen Direction on how jury should be directed on out of Court admissions made by a defendant and it is in the following terms :

1) Did the defendant in fact make the admissions? If you are not sure that he did, you must ignore them. If however you are sure he did, then :

2) Are you sure that the admissions are true? In addressing that issue (whether the admissions/answers were true) decide whether they were, or may have been, made or given as a result of [oppression] [something said or done which was likely to render them unreliable]. If you conclude that the admissions/answers were or may have been obtained by (identifying the person or persons in authority) as a result of [oppression] [something said or done which was likely to render them unreliable] then you must disregard the admissions/answers.

The Judge’s approach

47.  The Judge did not direct the jury at all on the terms of the Specimen Direction. What he had done was to give the following direction on how they should approach the evidence of PW1 and the appellant. This is what the Judge said :

‘ That was the evidence of PW1, members of the jury.  It is your job to decide whether you accept her evidence as the prosecution suggest you should, or reject it, as the defence propose.’

‘ When considering the evidence of the officer, PW1, members of the jury, you must decide whether she was lying, or rather, whether she was in fact, extremely conscientious and attempting to do to her job by the book.  You are entitled to ask yourselves, what possible motive has this young officer got for fabricating evidence against this defendant?  These are matters for you, members of the jury, but if you decide that, in fact, this officer was a truthful witness, you may properly come to the conclusion that this undermines the whole of the defendant’s story.’

‘ Members of the jury, there it is, what you make of the evidence of the defendant is a matter entirely for you to decide.  You must use your common sense and pooled experience of life.  I repeat that the defendant is a man of unblemished character.  He has no previous convictions and you must take that into account in deciding whether he is likely to involve himself in drug-trafficking, and also take it into account in deciding whether you believe this evidence.’

Mr. Wong’s response

48.  Mr. Wong, while recognising the importance of the direction, submitted that the omission must be considered in its context. He argued that the admissions ‘paled into relative insignificance when the defence is one of duress, which any reasonable jury properly directed would have rejected’.

Our view

49.  We disagree. In a summing up, the jury should be instructed to consider all the circumstances in which the confession was made in assessing the truth and weight of the confession : see Archbold Hong Kong 2010, paragraphs 15-16. The significance of the admitted admissions is two-fold. First, irrespective of the jury’s view on the defence of duress, they could convict the appellant of the offence charged based on his confession on drug trafficking. Second, in assessing the issue of duress, no doubt the jury would take the admitted admissions into account. They showed that the appellant had willingly taken the drugs for money and this contradicts his defence of duress. In fact the Judge directed the jury that if they accepted the evidence of PW1, they ‘may properly come to the conclusion that this undermines the whole of the defendant’s story’.

50.  Hence it is important for the Judge to properly direct the jury along the lines of the Specimen Direction and by reference to the evidence of this case including, the condition of the appellant when he checked himself to the hospital that morning. In our view the Specimen Direction directs the mind of jury to the two focal issues of their assessment in the present case, namely, whether the appellant made the admissions and, if so, whether they were true. In our view, the omission is a serious one and affects the safety of the conviction. This is not a case to apply the proviso. Accordingly we allowed the appeal.

DECISION ON RE-TRIAL

51.  Mr. Wong applied for a retrial which was opposed by Mr. Dykes.

52.  In considering whether a re-trial should be ordered we, of course, have to take into account that the appellant has been in custody since January 2007. Further he had already gone through two trials. In the first one the jury was unable to reach a verdict. This was followed by a retrial of which we have quashed the conviction.

53.  However, we have to bear in mind that the appellant was charged with a very serious offence which attracts a sentence of 12½ years’ imprisonment and the prosecution also has strong evidence against the appellant : a large quantity of drugs were found in his stomach and admissions by him of his guilt. The conviction in the second trial was quashed solely on the ground of the failure by the Judge to give the required direction on how out of Court admissions of the appellant should be approached. In our view public interest is served for an order for re-trial and we will so order. The appellant will be remanded in custody. The case will be listed within 14 days before the Listing Judge for fixing the hearing dates of the re-trial.