HKSAR v. EBHONUN AKONJIE ALEX

CACC 163 /2022, [2026] HKCA 1478

On Appeal From [2022] HKCFI 3223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 163 OF 2022

(ON APPEAL FROM HCCC NO 101 OF 2021)

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J U D G M E N T

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Hon Macrae Acting CJHC (giving the Judgment of the Court):

1.  The applicant was convicted after trial before Toh J (“the judge”) and a jury on 7 September 2022 of one count of trafficking in a dangerous drug (“Count 1”), and one count of conspiracy to traffic in a dangerous drug (“Count 2”). Count 1 involved 296 grammes of a solid containing 256 grammes of cocaine, while Count 2 involved 1,179 grammes of a solid containing 737.20 grammes of cocaine. The two counts were separate and distinct offences, the second offence only coming to light during Customs officers’ investigation of the first.

2.  On 8 September 2022, the applicant was sentenced to 12 years’ imprisonment on Count 1, and 20 years’ imprisonment on Count 2. The judge ordered 10 years of the sentence in respect of Count 2 to run consecutively to the sentence on Count 1, making 22 years’ imprisonment.  A further enhancement of 1 year was added for the international element involved in facilitating the importation of dangerous drugs into Hong Kong, which was ordered to run consecutively to the total sentence on Counts 1 and 2, resulting in an overall sentence of 23 years’ imprisonment.

3.  The applicant previously applied on 30 September 2022 for leave to appeal against his conviction, which was refused on 12 April 2024[1]. He then applied to renew his leave application against conviction, but abandoned that application on 21 May 2024, which was accordingly marked dismissed.  On the same day, the applicant applied for leave to appeal against sentence out of time, which was refused on 19 November 2024[2].

4.  In his Form XI Notice filed on 12 September 2025, the applicant has sought to renew his application for leave to appeal against sentence out of time.  On 13 August 2026, having heard from the applicant and the respondent, we reserved our decision in this matter.  This is the judgment of the Court.

The prosecution case

5.  At about 10:25 am on 11 June 2020, the applicant, a Nigerian national, was intercepted by a Customs officer at Winslow Street, Hung Hom in Kowloon and found to be in possession of a large carton box (“the parcel”).  It was not in dispute that the applicant had collected the parcel, which had been sent from Nigeria to Hong Kong, and that he told the Customs officer the parcel contained a machine for washing carpets.  The Customs officer inspected the machine and noticed a crack in the motor.  Suspecting there was a concealed compartment, he told the applicant that officers would have to check the machine in the Customs office.  The applicant agreed and asked the Customs officer in English, “Is there something bad inside?”  The Customs officer told him there may be something inside the machine, but they would need to check. 

6.  The applicant was escorted to the baggage examination section in the Customs Arrival Hall of Hung Hom Station for further investigation.  An examination of the machine revealed that it contained the drugs particularised in Count 1.  The applicant was duly arrested and cautioned.  When the Customs officer pointed to the three bags of white powder and asked the applicant what they were, the applicant responded, “I don’t know”.  The Customs officer then asked him, “Who owns this?”, to which he replied, “My friend.  He asked me to bring the machine.”  When he was asked how they could find this friend, the applicant said his friend’s name was “Prince”, and that he had his contact telephone number stored in his Samsung mobile telephone.  The Customs officer accordingly searched the applicant and found three mobile telephones and an airway bill in his possession.  The airway bill (number 32440530345) was dated 27 May 2020 (Exhibit P17).

7.  The applicant agreed to take part in a controlled delivery operation by contacting Prince in order to hand over the machine containing the drugs to him.  The operation was arranged for about 1:50 pm on the same day, but Prince did not materialise, and the operation was terminated.

8.  The prosecution relied on WhatsApp messages extracted from the applicant’s mobile telephone, including one which was sent on 20 May 2020 from the applicant to Prince with the address details of a person called Sylvester Boma and a mobile telephone number +852-54117310.

9.  The prosecution contended that it could be inferred that the applicant knew the parcel contained drugs from the following circumstances: the applicant had sent the delivery details of the parcel to Prince; he actively arranged for the package to be delivered to Prince; and he was in possession of the parcel containing a valuable quantity of drugs, with a street value of HK$431,864.  The prosecution also relied on the applicant’s statements in his first and second video recorded interviews conducted on 12 June 2020, including his text messages with others, including Prince, which were only in dispute as to their meaning.  These facts formed the basis of Count 1.

10.  A further search of the applicant’s mobile telephone revealed WhatsApp messages concerning another bill of lading numbered 2173781945.  On 13 June 2020, a parcel from Costa Rica with this particular bill of lading number was intercepted and found to contain the cocaine particularised in Count 2.  The prosecution relied on the WhatsApp messages between the applicant and a person called “Nicky”, that there was an agreement to traffic in dangerous drugs between them.  On 7 June 2020, the applicant had given the details of the airway bill to Nicky, who sent back to the applicant the same name and address details of a person called Albert Simon, with the same mobile telephone number +852-54117310.  Nicky gave the applicant the bill of lading number and told him, “Track after Wednesday” and “DHL”.  In reply, the applicant said, “Ok.” 

11.  It was the prosecution case that from the circumstances of the case, in particular, the applicant’s possession of details of the airway bill and his possession of the mobile telephone 54117310 and its contents, an inference could be drawn that he had knowledge of the drugs in the parcel from Costa Rica and was party to a conspiracy to traffic in them.  These facts formed the basis of Count 2.

The sentencing of the applicant[3]

12.  In mitigation, it was submitted on the applicant’s behalf that he was merely a courier; he had participated in a controlled delivery, albeit the operation was unsuccessful; he had not received any reward; and the totality principle should apply in respect of the two sentences passed.

13.  In sentencing the applicant, the judge took into account, the total quantity of cocaine involved, namely 993.20 grammes (256 grammes in Count 1 and 737.20 grammes in Count 2); the applicant’s status as a Form 8 recognizance holder; his asserted role as a mere courier; the international element involved; and his participation in the controlled delivery.  Applying HKSAR v Abdallah[4] and R v Lau Tak Ming[5], where trafficking between 600 grammes and 1,200 grammes of cocaine corresponded to a sentence ranging from 20 to 23 years’ imprisonment, the judge adopted a starting point of 22 years’ imprisonment.  She gave a one-year enhancement for the international element; an enhancement of 6 months’ imprisonment for the aggravating factor of the applicant’s status as a Form 8 recognizance holder; and a discount of 6 months’ imprisonment for his participation in the controlled delivery.  The resulting sentence was 23 years’ imprisonment.

14.  The judge sentenced the applicant on the basis of the total quantity of drugs in both counts but, at the same time, identified the starting point for each count according to the sentencing guidelines for the individual quantity of drugs involved.  She adopted starting points of 12 years’ imprisonment on Count 1 and 20 years’ imprisonment on Count 2 (which, according to the prevailing guidelines at the time, could have been 12 years and 10 months’ imprisonment and 20 years and 8 months’ imprisonment respectively).  She ordered 10 years of the sentence on Count 2 to run consecutively to the sentence of 12 years on Count 1.  She treated the 6 months’ enhancement for the applicant’s status and the 6 months’ discount for his participation in the controlled delivery as cancelling each other out.  She further added 1 year for the international element involved and arrived at a total sentence of 23 years’ imprisonment.

Grounds of appeal

15.  In his homemade submission and affirmation attached to his Form XI Notice, the applicant has stated that he is making this application out of time in order to benefit from the revised sentencing guidelines and principles for trafficking in dangerous drugs handed down in March 2025, which was presumably a reference to HKSAR v Huang Ruifang (No 3)[6].

The respondent’s submission

16.  Ms Chan, for the respondent, did not oppose the applicant’s applications for (i) an extension of time to give notice of the application for leave to appeal; or (ii) leave to appeal against the sentence[7].

17.  Under the revised sentencing guidelines in Huang Ruifang (No 3), the trafficking in quantities of cocaine between 500 and 1,500 grammes would attract a starting point of between 16 and 20 years’ imprisonment.  However, the respondent acknowledged that the revised guidelines should be read in conjunction with other relevant cases, including HKSAR v Herry Jane Yusuph[8], HKSAR v Lee Ming Ho[9], and HKSAR v Raman Kapusamy[10].

18.  Applying the revised guidelines arithmetically, the appropriate starting point for trafficking in the entire quantity of cocaine narcotic particularised in both Counts 1 and 2, namely 993.20 grammes, would be about 18 years’ imprisonment after trial.  However, these two counts were separate and distinct offences and the quantities of dangerous drugs were not connected, thus meriting a consecutive element in sentence as between the two offences.

19.  As was held in Lee Ming Ho, the international element is no longer to be regarded as a separate aggravating feature.  That said, there may be rare circumstances where it could be, if it were of particular significance.  We said at [74] that “the international element should now generally be considered as a factor when addressing the role and culpability of the offender in order to identify the appropriate starting point for sentence”.  If we were to compare the applicant’s role with that of the applicant in HKSAR v Okafor Joe K Kingsley[11], where a 1-year enhancement was given for the international element in respect of a parcel containing 343 grammes of cocaine, the respondent contended that the applicant’s sentence could have been increased by about 15 months for the international element.

20.  In relation to the aggravating factor of the applicant’s status as a Form 8 recognizance holder, Ms Chan submitted that the enhancement of 6 months’ imprisonment was too lenient.  In HKSAR v Ali Saif[12], the Court of Appeal stated that it would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case coming before the District Court or High Court.  Considering the quantity of drugs trafficked by the applicant in this High Court case, and the fact that it involved two separate and distinct criminal offences of trafficking in dangerous drugs, the enhancement should have exceeded 6 months.

21.  The respondent further submitted that no valid complaint could be made had the applicant not been given any credit for taking part in a controlled delivery operation, which was to prove unsuccessful.  The judge’s allowance of 6 months’ discount for this factor was undeservedly generous.

Discussion

22.  In HKSAR v Lam Man Tak[13], this Court resolved that the commencement date of the ‘state of affairs’ leading to the revision of the sentencing guidelines in Huang Ruifang (No 3) was 18 September 2018, and that provided an applicant was sentenced after that date and was still within the appeal system, he or she was entitled to benefit from the revision.  Since the applicant was sentenced on 8 September 2022, approximately four years after 18 September 2018, he falls on the right side of the cut-off date.  His application for leave to appeal against sentence was made approximately 3 years out of time, and this is his renewed application for leave to appeal against sentence.  Accordingly, he is still in the appeal system, subject to an extension of time being granted, which was not opposed and we accordingly grant.

23.  Although the applicant sought to portray himself as a mere courier, it is clear that he was far more involved than simply carrying the consignment of drugs in Count 1 from one place to another.  He played an active role in facilitating the importation of almost 1 kilogramme of cocaine narcotic in no less than two separate consignments into Hong Kong; one from Nigeria, the other from Costa Rica.  Ms Chan reminded us of the distinction drawn in HKSAR v Ali Qasim[14] when comparing the international courier physically bringing or taking dangerous drugs across the border into or out of Hong Kong and the person picking up a parcel from the Post Office:

“In distinguishing between these two types of trafficking, we are not to be taken as suggesting that the conduct of a defendant who collects a parcel containing dangerous drugs from a Post Office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong. We can envisage circumstances where someone who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels, may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession. Much will depend on the facts of the case and the extent of the involvement of the defendant.”

It is clear to us that the applicant played a much more significant role than a mere courier.

24.  The starting point in respect of Count 1, on a purely arithmetical basis under the revised guidelines, would be about 12 years and 9 months’ imprisonment.  The starting point in respect of Count 2, again on an arithmetical basis, would be about 17 years’ imprisonment.  However, the latter offence was a conspiracy, in which we think the applicant had a significant role to play in organising 732.20 grammes of cocaine narcotic to enter Hong Kong.  Furthermore, the international element applies to both cases.  Given the applicant’s role and culpability in the two offences, as well as the international element, we would assess the appropriate sentence after trial as 13 years and 3 months’ imprisonment on Count 1, and 19 years’ imprisonment on Count 2.  Looking at the two offences together, we consider that the applicant’s overall criminality warranted a sentence of 21 years’ imprisonment.  In doing so, we are alive to the fact that the international element attaches to both counts, but we have taken a global view of the applicant’s criminality.

25.  We agree with Ms Chan that the fact that the applicant was a Form 8 recognizance holder is a serious aggravating feature in this case. The applicant had chosen to operate a cocaine importation business under the cloak of a non-refoulement torture claimant, having been allowed to remain at liberty on the streets of Hong Kong whilst his application is being assessed.  We consider that the overall sentence should be enhanced for this factor by 12 months’ imprisonment.  We agree with Ms Chan that the judge’s assessment of 6 months’ imprisonment for this matter was, in the circumstances, inadequate. The overall notional sentence after trial thereby becomes 22 years’ imprisonment

26.  In terms of mitigation, the applicant pleaded not guilty and cannot benefit from any discount for his pleas.  As for the controlled delivery operation, which lasted just over an hour, it was unsuccessful and there was no warrant for any discount for the applicant’s assistance. In this regard, the judge also erred.

27.  Accordingly, we would assess the sentence under the revised guidelines at 22 years’ imprisonment.  This difference between the sentence under the revised guidelines and the former guidelines is only one year.  We have given serious consideration as to whether we should interfere with the sentence at all in view of such difference.  We should make clear that had the difference been less than one year, we would not have altered the sentence.  However, in light of our decision in HKSAR v Yusuf Lukman Adepoju[15], where we held that a difference of less than one year between a sentence under the revised and the previous guidelines would not ordinarily be regarded as significant enough to warrant appellate interference, but a sentence of one year or more would ordinarily be so regarded, we shall allow the appeal and reduce the applicant’s overall sentence from 23 years’ imprisonment to 22 years’ imprisonment. 

28.  The applicant’s application for leave to appeal is, accordingly, granted and his appeal against sentence allowed to this limited extent.  His overall sentence will be reduced from 23 years’ imprisonment to 22 years’ imprisonment, which will be achieved by making 3 years of the sentence of 13 years and 3 months’ imprisonment on Count 1 run consecutively to the sentence of 19 years’ imprisonment in respect of Count 2.  The remainder of the sentence on Count 1 will run concurrently with the sentence on Count 2.

29.  The applicant’s overall sentence is now 22 years’ imprisonment.

[1]  HKSAR v Ebhonun Akonjie Alex (Unrep., CACC 163/2022, 12 April 2024).

[2]  HKSAR v Ebhonun Akonjie Alex (Unrep., CACC 163/2022, 19 November 2024).

[3]  Ibid., at [14]-[16].

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

[5]  R v Lau Tak Ming [1990] 2 HKLR 370.

[6]  HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

[7]  Submissions for the Respondent, [6].

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

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

[10]  HKSAR v Raman Kapusamy [2024] 2 HKLRD 955.

[11]  HKSAR v Okafor Joe K Kingsley [2024] 1 HKLRD 288.

[12]  HKSAR v Ali Saif [2018] 6 HKC 19.

[13]  HKSAR v Lam Man Tak [2026] 2 HKLRD 199.

[14]  HKSAR v Ali Qasim (Unrep., CACC 332/2018, 14 January 2020), at [30].  See also HKSAR v SK Wasim [2020] 2 HKLRD 1139, at [37] and Raman Kapusamy, at [62]-[64].

[15]  HKSAR v Yusuf Lukman Adepoju (Unrep., CACC 178/2025, 4 June 2026), at [15].