HKSAR v. EBHONUN AKONJIE ALEX

CACC 163/2022

[2024] HKCA 316

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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1.  On 7 September 2022, following a trial before Toh J (the Judge) and a jury the applicant was convicted of one count of trafficking in a dangerous drug, namely 296 grammes of a solid containing 256 grammes of cocaine (Count 1) and one count of conspiracy to traffic in a dangerous drug, namely 1,179 grammes of a solid containing 737.2 grammes of cocaine (Count 2). On 8 September 2022, the Judge sentenced the applicant to 12 years’ imprisonment on Count 1 and 20 years’ imprisonment on Count 2, with 10 years of the sentence for Count 2 to run consecutively to the sentence for Count 1, with 1 additional year to run consecutively to the sentence of Counts 1 and 2, making a total sentence of 23 years’ imprisonment.

2.  On 30 September 2022, the applicant filed a notice for leave to appeal against his convictions in relation to the two counts.

The prosecution case

3.  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, Kowloon and was found to be in possession of a large carton box (the parcel).  It was not disputed that it was the applicant who had collected the parcel that was sent from Nigeria to Hong Kong and he told the Customs officer that the parcel contained a machine for washing carpet.[1]  The Customs officer inspected the machine and noticed a crack in the motor.  He suspected it concealed a compartment and he told the applicant they would have to take him to the office to check it.  The applicant agreed and asked the Customs officer in English, “Is there something bad inside?”  He told him there may be something inside the machine so they had to check it.  The Customs officer escorted the applicant to the baggage examination section in the Customs Arrival Hall of the Hung Hom Station for further investigation.  An examination of the machine revealed that it contained the drugs particularised in Count 1.[2] 

4.  Upon the drugs being found in the machine, the applicant was arrested and cautioned.  The Customs officer pointed to the three bags of white powder that were found and asked the applicant if he knew what it was.  The applicant said, “I don’t know”.  He was asked, “Who owns this?”.  And 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 name was “Prince” and gave his contact phone number that was in his Samsung mobile phone.  At the time of the applicant’s arrest, found on his person were three mobile phones and an airway bill.  The airway bill (no. 32440530345) was dated 27 May 2020 and produced as exhibit P17 at trial.[3]

5.  The applicant agreed to take part in a controlled delivery operation by contacting Prince and passing the machine containing the drugs to him.  This took place at about 1:50 pm that day but Prince did not show up and the operation concluded unsuccessfully.

6.  The prosecution relied on WhatsApp messages extracted from the applicant’s mobile phone, including one which was sent from the applicant to Prince with the address details of the name Mr Sylvester Boma and the mobile phone number +852-54117310 on 20 May 2020 prior to the collection of the parcel.[4]

7.  The prosecution alleged that it could be inferred that the applicant knew the parcel contained drugs because he sent the delivery details of the parcel to Prince and actively arranged for the package to be delivered to him and that he was in possession of the parcel containing a valuable quantity of drugs, with a street value of $431,864.[5]  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 except for what was meant by them.

8.  A further search of the applicant’s mobile phone revealed WhatsApp messages concerning a bill of lading numbered 2173781945, which was put on the watch list.[6] On 13 June 2020, a parcel from Costa Rica with this bill of lading number was intercepted and found to contain the cocaine particularised in Count 2.[7] 

9.  The prosecution relied on the WhatsApp messages between the applicant and a person called “Nicky”, that there was an agreement to traffic in the dangerous drugs between them.  On 7 June 2020, the applicant gave the details of the airway bill to Nicky, who sent back to the applicant the same name and address details for Mr Albert Simon with the same mobile phone 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.”[8]

10.  It was the prosecution case that from the circumstances of the case, and that the applicant had the details of the airway bill and was in possession of the mobile phone 54117310, an inference could be drawn that he had knowledge of the drugs and was party to a conspiracy to traffic in them.

The defence case

11.  The applicant denied knowledge of the drugs regarding both offences in his two video recorded interviews and oral evidence in court.  In support of his case, he relied on his denial of knowledge of the narcotics upon his arrest.[9] During the controlled delivery operation, when he asked Prince to collect the parcel, Prince replied, “Okay” but later said, “Sorry, I can’t come” in the WhatsApp messages, which was argued was consistent with his case that he was simply helping Prince collect the parcel.[10] 

12.  The applicant in his first video recorded interview mentioned that it would be difficult for him to speak in English and not have a lawyer or an interpreter.  It was alleged that that was the reason why the Customs officer stopped the interview, in order to find an interpreter.  It was complained that the interviews were unfairly conducted because of the absence of an Edo or Esan interpreter.[11]  It was also complained that the second video recorded interview was conducted without an interpreter and despite the applicant’s difficulty in speaking in a language that was not his mother tongue.[12]

13.  The applicant was not sure and did not know the full name of Prince, although he suggested that Sylvester could be the real name of Prince.[13] He testified that he simply acted as a middleman for a person called Martin, who had a store in Yuen Long.  In respect of Count 1, he said he helped Prince receive the parcel from Martin.  Having acquired the delivery details from Martin, he then sent them to Prince.[14]  In respect of Count 2, he said he knew Nicky sometime in 2019 when he was arranging cargo for Martin.  On 6 June 2020, having acquired the delivery details from Martin, the applicant sent them to Nicky.[15] 

14.  In the applicant’s defence, it was pointed out that there were other addresses and telephone numbers exchanged between the applicant and Prince and Nicky there was insufficient evidence to show that the parcel which the applicant was asked by Nicky to track was the parcel in Count 2.  It was also pointed out that the applicant received no rewards, as indicated in his video record of interview, and there was no reference to drugs in any of the WhatsApp messages.[16]

The issues at trial

15.  Mr Hanif Mughal, for the applicant, sets out in his submissions that the issues at trial were (i) whether the language proficiency of the applicant was good enough to conduct the interviews and confirm the content recorded in the notebook without any oppression and unfairness caused to him; (ii) whether the applicant had knowledge of the narcotics in the parcels alleged in the two counts; (iii) whether in the absence of direct evidence of knowledge of the drugs, an inference of knowledge was irresistible; and (vi) whether there was sufficient evidence of an agreement for the conspiracy in Count 2. 

16.  It is important to note that these were matters in issue at trial and that the jury were asked to consider them in their deliberations of the two counts.

The grounds of appeal

17.  Mr Mughal advances seven grounds of appeal, and I will deal with each ground in turn.

Ground 1

18.  Ground 1 alleges that the Judge erred in not giving a full and unqualified good character direction for the applicant by referring to discreditable matters that may have negated and undermined the overall effect of such a direction.

19.  The Judge, when addressing matters, generally directed the jury as to the applicant’s clear record in Hong Kong in the following passage: [17]

“Now, Ms Mohamed has mentioned that the defendant has a clear record in Hong Kong, and that is part of the admitted facts, that in Hong Kong he has a clear record. But do bear in mind that he arrived in Hong Kong in 2017 and he is a Form 8 holder whilst awaiting decision on his application as a refugee. So he was given his Form 8 and he moved around freely in Hong Kong until his arrest in 2020 for this offence, and during these two to three years of freedom in Hong Kong, he has not committed a criminal offence. Now, it is a matter for you to take into account when you are considering his evidence as to whether he is credible and reliable as a witness, being someone who has not previously committed an offence in Hong Kong.” (Italics added)

20.  In addition to not having a criminal record in Hong Kong, it was also an admitted fact that he had arrived in Hong Kong in 2017.[18] The applicant testified at trial, and in the Judge’s summary of his evidence, she mentioned what the applicant said about his background, having grown up in Nigeria and coming to Hong Kong in 2017 as an asylum seeker.  He explained that he was issued a Form 8, which allowed him to move around freely in Hong Kong.  Although he was unable to work, he received coupons for food.  It was then that the Judge said, “He says he has a clear record in Hong Kong and it is admitted he has a clear record in Hong Kong and that means he has not committed a criminal offence in Hong Kong since arriving here in 2017.”[19]

21.  Mr Mughal complains that the Judge, by her italicised remarks, “But do bear in mind”, when the applicant arrived and that he was a Form 8 holder, negated his good character direction by referring to those “discreditable matters”.  First, they were not “discreditable matters”, they were matters of fact.  Secondly, the fact that the applicant was a Form 8 recognizance holder and came to Hong Kong in 2017 was put into evidence without any dispute from the defence.  He relied on his background and circumstances to show that he was helping others and that his proficiency in English was limited.

22.  Mr Mughal complains that the Judge should have said more when giving the good character direction.  In particular, he submits she should have told the jury how the applicant’s clear record should have been applied to the circumstances of the case.  Whilst the Judge’s direction did not follow the exact wording of Specimen Direction 37.3, she did cover all the salient points and told the jury that the applicant’s clear record was a matter that they should take into account as to his credibility and reliability[20].  This was more than an adequate direction on good character in the circumstances of this case.

23.  Mr Mughal contends that “out of an abundance of fairness”, the Judge should have given a good character direction on propensity as well.  As pointed out by Mr Beney Wong, for the respondent, the circumstances of the case did not warrant a good character direction on propensity: Tang Siu Man v HKSAR (No 2) [21]. See also HKSAR v Mohammed Saleem (No 2) [22].  The applicant received a good character direction on credibility which was in appropriate terms.

Grounds 2, 3 and 4

24.  Grounds 2, 3 and 4 generally complain about how the Judge addressed or did not address the applicant’s case. 

25.  Ground 2 contends that the general tenor of the Judge’s summing-up of the applicant’s case was tantamount to a critique impacting upon the applicant’s credibility and thereby depriving him of a fair trial.  Mr Mughal identifies two matters. 

26.  The first concerns the Judge’s comment about the applicant’s mixup of the names between Matthew and Martin in his video recorded interview.  After she described the mixup, she told the jury that it was a matter for them as it became a big issue because the applicant claimed that the person he meant was Martin.[23] She also reminded them of his evidence concerning his communications with Matthew or Martin, reminding them that in his interview, he said he received a message from Matthew, but in court, he said it was from Martin.  She added, “So, members of the jury, I do not want to say too much on that.  It is in front of you, the whole video recorded interview transcript.”[24]  I do not see how this would have adversely impacted the applicant, as there was a mixup in his evidence, which the Judge explained to the jury was a matter for them to decide the issue. 

27.  Ground 3 complains that the Judge’s summary in respect of the prosecution case in Count 2 did not include a summary of the applicant’s case, rendering the summing-up unbalanced and unfair.

28.  Mr Mughal essentially complains that when summarising the prosecution case, the Judge did not refer to the applicant’s counter arguments in respect of Count 2.  The difficulty with this complaint is that the Judge addressed the defence case in detail and set out the applicant’s counter arguments in respect of this count.[25]

29.  Ground 4 complains that the Judge did not make any reference to the applicant’s case on the element of an agreement in relation to Count 2, thereby rendering the summing-up unbalanced and unfair.

30.  This ground seems to complain about prosecuting counsel’s interpretations of the WhatsApp messages in his closing speech to the jury where he submitted that the conspiratorial agreement was struck when Nicky told the applicant that the parcel was with DHL and to track it after Wednesday and he replied, “Ok.”  When addressing the jury on some of the text messages, prosecuting counsel said:[26]

“At message 299, (he?) complements with the airway bill to give it some context and he says, he tells the defendant, ‘It’s DHL. Track it after Wednesday.’ What else could these messages mean? Members of the jury, what else could they mean? They are evidence of the agreement on what has been arranged between Nicky and the defendant that there’s another package coming. And as we know, what did the package contain? A substantial amount of cocaine.

  And finally, to confirm his involvement in the conspiracy and his intention to be part of the conspiracy, at message number 300, the defendant says, ‘Okay.  Message received.  I’ve got it.  I know it’s coming.  I’ve got the tracking number.  I’ll pick it up.  Okay.’”

31.  It seems the word “Okay” in the above passage was the actual quoted remark by the applicant and the rest was commentary by prosecuting counsel as to what was meant when considering the messages as a whole.  I agree with Mr Wong that whilst there was no evidence of the applicant actually tracking the parcel, it was open to the jury to draw the only reasonable inference that the applicant and Nicky had conspired to traffic in the drugs contained in the second parcel as evidenced by a consideration of the messages as a whole.

32.  I am not persuaded that these three grounds are reasonably arguable.

Ground 5

33.  Ground 5 contends that the Judge’s direction to the jury regarding a witness’s demeanour went beyond the language of advice and guidance.

34.  In her directions to the jury, the Judge said near the close of her summing-up: [27]  

“So it is all a matter for you, members of the jury. When you are considering a witness’s evidence, any witnesses, whether they be prosecution witness or the defendant, very often you look at the person giving evidence and demeanour may play a part in your assessment of credibility. However, demeanour is not a very safe guideline because some people may look confident and speak well and they may not be telling the truth. Others, because they have not given evidence before, may not speak well but may be telling the truth. So better guideline is really using your common sense in assessing the evidence. Asking yourself, does the evidence makes sense to you? Is it logical? Is it sensible? Because that is really how you would judge a person’s credibility. It is what they say, whether it makes sense to you.”

35.  In respect of this passage of the Judge’s directions to the jury, Mr Mughal complains it went beyond the language of “mere advice and guidance”.  He argues that this reflected adversely on the applicant and was tantamount to inviting the jury that if the applicant’s evidence was not perceived as being logical or sensible, then this would impact upon the assessment of his credibility, and he should be disbelieved.  With respect, the Judge’s comments do not have this effect at all and, in any event, were comments that she directed in relation to the evidence of witnesses, whether they be prosecution witnesses or the applicant who was the only witness for the defence.

36.  I do not find any merit in this ground of appeal.

Ground 6

37.  Ground 6 complains that the Judge failed to properly direct the jury on the reliability and accuracy of the video recorded interviews and the notebook entry, which were made in the absence of assistance from an interpreter despite the applicant’s repeated requests for one.

38.  It was part of the defence case that English was not his mother tongue.  Despite his requests for an interpreter, none was provided when signing the notebook entry and during the video recorded interviews.  Against this allegation is the fact that the applicant’s WhatsApp messages on his mobile phone were in English, and the interviews were conducted in English, from which it is clear that he understood the questions and gave responses in English that showed that he understood the questions and was able to articulate an answer to them.  This was an issue before the jury that the Judge addressed in detail, setting out the relevant evidence and directing them to consider whether the applicant understood the English questions and was able to answer them appropriately in English. 

39.  From the moment the applicant was intercepted, he communicated with the Customs officers in English, answering questions as to what was in the parcel, refusing to sign a notice to persons in custody after it was explained to him, agreeing and participating in a controlled delivery operation, signing the notebook entry and writing out the declaration to it (although he denied he wrote it, the Judge told the jury that it was a matter for them to consider), signing the notice to persons in custody after it was explained to him again and participating in the two video recorded interviews which were conducted in English.  The Judge summarised the evidence concerning the attempts by the Customs officers to arrange an interpreter in the Edo and Esan languages and assist him in making telephone calls with a person called “Festus” to arrange a lawyer, which was unsuccessful.  As noted by the Judge, the Customs officers testified that the applicant willingly participated in the video recorded interviews.  She went on to say:[28]  

“Now, you have seen the video recorded interview. You have seen the defendant being asked questions. It is a matter for you, members of the jury, whether you think he understood the English questions that were asked of him, whether he answered the questions that were asked of him in a sensible and a logical way. And it is clear that the defendant, in his answers to the Customs officers, was stating that he did not know what was inside the package and that he was only asked to collect it and he gave an account about Prince and why he trusted Prince. So that is a matter for you, members of the jury, what you consider what he says in the video recorded interview.”

40.  Mr Mughal submits that the Judge did not specifically direct the jury to consider (i) the evidence in relation to the applicant’s level of English; (ii) the relevant officers’ ability to communicate English and understand the applicant’s answer; (iii) whether the applicant would be prejudiced by this or the officers deficiency in English during the video recorded interview and the signing on the notebook; and (iv) whether the video recorded interview and the record of the notebook would be inaccurate or unreliable due to the possibility of any mistranslation or misunderstanding.  With respect, I do not think any of these points needed to be addressed because they were either not in issue or of little consequence. As pointed out by Mr Wong, what the applicant said in his video recorded interviews and the notebook entry was consistent with his evidence at trial and the defence case.  As regards to Count 1, he said he was picking up the parcel for his friend Prince and did not know that the parcel contained drugs.  The notebook entry and the two video recorded interviews did not concern Count 2, and accordingly, there was no prejudice to the applicant in respect of that count.

41.  Mr Mughal further submits that the Judge made adverse comments, reflecting on the applicant’s deficiency in English, in respect of whether he meant to say “Martin” instead of “Matthew”.  This was a minor matter and, in any event, before the jury to consider.

42.  I am not persuaded that this ground is reasonably arguable.

Ground 7

43.  Ground 7 avers that in the absence of direct cogent evidence showing the applicant’s knowledge of the drugs, the circumstantial evidence was insufficient to draw an irresistible inference of knowledge.  This caused a lurking doubt as to the safety of the applicant’s convictions, rendering them unsafe and unsatisfactory in all the circumstances.

44.  This is a general complaint that the grounds of appeal, individually or collectively, would render the convictions unsafe and unsatisfactory.  It is mainly argued that the circumstantial evidence was insufficient to draw the only reasonable inference that the applicant knew he was involved in narcotics.  The key issue at trial was whether the applicant knew he was dealing in narcotics, and in light of all the circumstances and the evidence before the jury, it was open to them to convict him of the counts.

45.  This ground is not reasonably arguable.

Conclusion

46.  For the reasons I have given, I am not satisfied that the grounds of appeal are reasonably arguable and leave to appeal against the convictions is refused.

47.  The applicant is reminded of his right to renew his application for leave to appeal against his convictions to the Court of Appeal, but he is also informed of the consequence of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1] Appeal Bundle (AB), 22N-O. 

[2] AB, 22Q-23A.

[3] AB, 23D-N. 

[4] AB, 87.

[5] AB, 67S-68Q. 

[6] AB, 27C-F.

[7] AB, 28N-U.

[8] AB, 92, Messages 291 and 297- 300.

[9] AB, 73R-74C. 

[10] AB, 74F-M. 

[11] AB, 75I-M. 

[12] AB, 75M-U.

[13] AB, 76P-S. 

[14] AB, 32H-O. 

[15] AB, 33P-34C.

[16] AB, 77C-E and H-L.

[17] AB, 21H-O.

[18] AB, 9, at [11]. 

[19] AB, 31D-F

[20] AB, 21M-O

[21] Tang Siu Man v HKSAR (No 2) (1997-98) 1 HKCFAR 107, 121B-C, 125H-I, 133C-D, 133J-134B. 

[22] HKSAR v Mohammed Saleem (No 2) [2009] 5 HKLRD 478, at [27] and [28].

[23] AB, 27O-R. 

[24] AB, 28J-K. 

[25] AB, 33J-34D.

[26] AB, 71O-T.

[27] AB, 32P-33B.

[28] AB, 26Q-27C.