R. v. TAMUNO LEWIS MARTINS

IN THE COURT OF APPEAL

1995, No.29

(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced one count of trafficking in dangerous drug. It was alleged that on 22nd January 1994, at Room 601, the International Hotel, Cameron Road, he unlawfully trafficked in 5,624.63 grammes of a mixture containing 5,330.81 grammes of salts of esters of morphine. He was found guilty after trial before Leonard, J. and a jury and was ordered to be imprisoned for 22 years.

2. The facts upon which the Crown relied were that a man named Sali had brought the drugs from Bangkok. He was apprehended at the airport and agreed to co-operate with the customs. A trap was then laid for the person to whom the drugs were to be passed by having Sali wait in Room 601 with Customs officers for the contact to be established. The applicant, according to the Crown evidence, came to the room at about 11 p.m. and was handed the case containing the drugs. After arrest, it was found that he had registered in a false name in Room 110 of the hotel and that he already had a room in a boarding house known as "Rooms for Tourists".

3. The applicant gave evidence in his own defence saying that he was looking for a contact who was getting him a Japanese visa and that he had never touched the suitcase.

4. It was, it must be said, a very strong prosecution case and the defence was, upon its face, highly improbable.

5. Before we turn to look at the grounds which the applicant has raised in two sets of written submissions we wish to refer to the difficulties that have arisen in relation to interpretation. At the trial the applicant, who was represented by Mr. Egan, gave evidence in pigeon English. There does not appear to have been any difficulty in his giving evidence nor was any difficulty brought to the court's notice as to his ability to understand the conduct of the trial. Mr. Egan, indeed, said at the conclusion of the trial:

"Nigeria is a country which has a multitude of dialects. The three choices which he has been offered so far were English, Igbo, which is generally the dialect of the Eastern region of Nigeria, and Nigerian Pigeon English.

My understanding is that he doesn't speak Igbo. He doesn't speak English very well. He can of course communicate in Nigerian Pigeon English. That is the language of the three that he has been offered and the choice that he prefers."

6. The applicant has repeatedly, today and at earlier appearances before this court, maintained that he understands only the Okrika dialect. We do not accept this. He conducted his defence in pigeon English and it was never suggested by his counsel that he had any difficulty understanding the proceedings as translated to him in Nigerian pigeon English. We are quite satisfied that he does understand pigeon English and is quite capable of conducting this appeal, insofar as any layman would be ,in that language.

7. We turn then to the grounds of appeal.

8. In his first set of grounds of appeal he suggested that the verdict was based upon speculation. We have read the summing-up with care and we reject any suggestion that the judge in any way indicated to the jury that they could rely upon speculation when coming to their conclusion as to guilt. There was evidence which established physical possession and the trial judge correctly instructed the jury as to the presumption upon which they were entitled to rely and as to inferences they were entitled to draw.

9. It is his next submission that the OC case, Customs officer Tso, or some other customs officers were dishonest. This ground seems to be based upon a suggestion that Tso had let Sali make a telephone call to Bangkok to warn his girl friend to tell her to get out. It is by no means clear whether this happened but even if it did the matter was before the jury and was properly one for their assessment.

10. He submits also that there was no fingerprint evidence. This is true but it is of no moment. Very often there is no fingerprint evidence simply because the nature of the article handed does not allow it to take a fingerprint impression.

11. He has suggested that the tape that was made of the encounter shows that he said "no" when asked if he had come for the bag. He has handed up a transcript of that tape and, having perused it, we are satisfied that it does nothing of the sort.

12. He suggested that the judge urged the jury to return a verdict of guilty directing them to act upon his speculation. This is a quite unwarranted suggestion. There is nothing in the summing-up which would justify its being made.

13. He suggested that there was no sufficient warning given by the judge with regard to the evidence of the accomplice. The judge said:

"And he is also, as you have heard suggested, an accomplice. He has a purpose of his own to serve in giving evidence against the defendant. According to Mr. Egan, that purpose is to save his own skin in the sense that by giving evidence against the defendant, he hopes to receive a lighter sentence for the offence of trafficking to which he himself has pleaded guilty."

The judge later went on to say:

"So Mr. Sali stands before you as a self-confessed criminal. He says he brought the drugs in question from Bangkok. According to his evidence, he was to deliver the drugs to somebody here in Hong Kong. And according to him, he did so deliver them to the defendant. If that is so, he was a party to the crime alleged against the defendant and, as such, he was an accomplice.

Now there may be all sorts of reasons for an accomplice to tell lies and to implicate other people. It is, therefore, dangerous to convict on the evidence of Mr. Sali unless that evidence is corroborated, that is to say, independently confirmed by other evidence. The danger here is, as has been put before you by Mr. Egan, that the accomplice may be telling lies against the defendant in order to gain an advantage for himself, that he is lying to minimise his own culpability and to gain credit for helping the prosecution in order to gain a reduction in sentence."

The judge went on then, correctly we are satisfied, to indicate the evidence capable of constituting corroboration. We are satisfied that there was a proper direction to the jury as to the accomplice evidence.

14. In the second set of grounds of appeal which he handed to the court today, he complains firstly of a misdirection as to the law relating to possession and knowledge. As we have already indicated, we are satisfied that there was no such misdirection and that what the judge said in that regard was impeccable. He suggests that the presumption of knowledge which arises by virtue of the Dangerous Drugs Ordinance is contrary to the Bill of Rights. Although some presumption provisions have been declared to be so, This is not one of them. Nor should it be.

15. He suggests that the judge indicated to the jury that they would be entitled to speculate because of the weight of the bag and as to whether he had received certain phone calls. There are, in fact, no such suggestions in the summing-up. The judge referred to those matters because they were part of the Crown case but he didn't do so in any way unfairly and he cannot be criticized for what he said in that regard.

16. The applicant suggests that he was prejudiced because the evidence revealed the possibility of other offences such as the use of false passport and the adoption of a false identity. No complaint can properly be made by reason of the admission of that evidence. It was clearly evidence admissible as part of the factual matrix surrounding the charge.

17. He also suggests that the hand-over as sworn to by the Crown witnesses was not in accordance with the evidence of Sali as to the way in which it had been agreed it would take place. That was a matter of fact for the jury and cannot properly be raised in this appeal.

18. He suggests that the evidence of the hand-over which came from the customs officer and from Sali was contradictory. While it may be true that the evidence of each witness was not exactly on all fours with that of the other, these, again, were matters of fact essentially for the determination of the jury.

19. We have already dealt with the final matter which he raises - that is the use of pigeon English by him at the trial. He suggests that it was not fair because he was using a language which he could not properly speak or understand. We do not accept that. He gave evidence at the trial and there was apparently no difficulty in his doing so. We do not consider that the trial was in any way unsatisfactory or that the conviction was in any way unsafe.

20. His application for leave to appeal against it is, therefore, refused.