HKSAR v. UBAH JOEL CHIDIEBERE

CACC 193/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 193 OF 2016

(ON APPEAL FROM HCCC 65 OF 2016)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1. On 29 January 2016 at the Eastern Magistracy the applicant pleaded guilty to a single count of trafficking unlawfully in a dangerous drug, namely 993 grammes of a solid containing 506 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 8 April 2016 he appeared in the Court of First Instance before Deputy High Court Judge Campbell-Moffat, SC (“the judge”), as Campbell‑Moffat J then was, and was sentenced to 13 years’ imprisonment.

2. On 28 June 2016 the applicant filed with the High Court a Notice of Application for Leave to Appeal (Form XI) in which he sought an extension of time in which to apply for leave to appeal against sentence.  This application was supported by an affirmation of the same date.  This application was made 1 month and 22 days out of time on the assumption that time began to run from 8 April 2016.  The applicant filed a 2^nd affirmation on 21 December 2016 in further support of his application for an extension of time in which to file Notice of Application for Leave to Appeal. 

3. On 14 June 2016 a separate forfeiture hearing took place in respect of US$4,000 that had been seized from the applicant and a “LG” mobile phone.  At the conclusion of that hearing the judge ordered the forfeiture of this money pursuant to section 56(1) of the Dangerous Drugs Ordinance, Cap 134.

4. Although being legally represented, the applicant wrote a letter to the High Court dated 16 December 2016.  In this letter the applicant said he did not really know why his property was confiscated and requested to apply for judicial review of the forfeiture order.

5. In response to queries from the court the applicant said he wished to pursue an appeal against the forfeiture order.  An opportunity was given to Mr Kelly to take further instructions from the applicant after which Mr Kelly applied for leave to withdraw from further representing the applicant as there was only one undivided appeal against sentence and, consistent with his professional duty to the court, he was not able to argue the forfeiture part of the applicant’s appeal.  We granted Mr Kelly leave to withdraw.

6. As the transcript of the forfeiture hearing was not in the appeal bundle we adjourned the hearing of the application for leave to appeal so that it could be obtained. 

7. At the hearing of the adjourned application we granted the applicant the extension of time he needed in which to file his Notice of Application for Leave to Appeal his sentence. Treating the hearing of the application as the hearing of the appeal we allowed the appeal, quashed the sentence of the judge and in place of it imposed on the applicant a sentence of 12 years 4 months’ imprisonment.  In respect of the order of forfeiture we refused this part of the appeal against sentence and did not disturb the judge’s order forfeiting the US$4,000 and the “LG” phone.  We said we would hand down our reasons for our orders at a later date. These are our reasons.

The background to the offence

8. The Summary of Facts that was admitted by the applicant and was used for the purpose of sentencing him revealed that at about 4:02 pm on 14 July 2015, the applicant came to Hong Kong from Nigeria via Dubai and was intercepted at the Arrival Hall of the Hong Kong International Airport by Customs officers who were conducting a joint anti-narcotics operation with the police. The applicant was suspected of transporting dangerous drugs by means of internal concealment and so was taken to the North Lantau Hospital for a medical examination and X-ray.  There it was confirmed that the applicant had foreign objects inside his body.  The applicant was arrested but remained silent under caution. 

9. After being transferred to Queen Elizabeth Hospital the applicant discharged 55 pellets, which contained a total of 993 grammes of a solid containing 506 grammes of cocaine. The street value of the cocaine was subsequently estimated to be HK$1,156,845.

10. The applicant stated in a cautioned video-recorded interview that he swallowed the pellets in Nigeria and was instructed to fly to Hong Kong where he would receive a reward of US$2,000 upon successful delivery of drugs. He was told he would be contacted by phone on his arrival and at that time would be given further instructions.  At the time he was unemployed.

11. When he was arrested the applicant was found to be in possession of 3 mobile phones and cash of HK$80, US$4,000 and NGN$5,050. 

12. The Summary of Facts asserted that in his video interview the applicant first claimed that the US$4,000 was given to him by a friend to buy goods on his behalf but later in the interview he claimed that he had obtained a bank loan of US$4,000 to purchase phones in Hong Kong for re-sale in Nigeria.  In respect of the NGN$5,050 he claimed that this money belonged to him and HK$80 was left over from his last trip to Hong Kong.

The mitigation

13. In his address in mitigation the applicant’s counsel, Mr Shaun Kelly, informed the court that the applicant was a Nigerian of poor background who had moved to Lagos some years ago in order to raise himself up from his poverty.  He had a wife and two children, one of whom was born a few months after his arrest in Hong Kong.  He is the sole breadwinner of the family. 

14. Mr Kelly said that the applicant was a legitimate trader in mobile phones and had been to Hong Kong twice previously in order to source phones to ship back to Nigeria.  That is how he made his living.  However, he had borrowed money in Nigeria and was induced into drug trafficking by the opportunity the cash reward would provide of paying off all his liabilities. 

15. Mr Kelly portrayed the applicant as a vulnerable person being exploited by more powerful persons.  Mr Kelly said that if the applicant refused to cooperate then he and his family would be harassed by these persons. 

16. In regard to the sentence to be imposed on the applicant Mr Kelly submitted that the applicant fell squarely within the 400 grammes – 600 grammes sentencing band for which the relevant sentencing range is between 15-20 years’ imprisonment.  He also referred the judge to the Court of Appeal’s judgment in HKSAR v Chung Ping Kun[1] for assessment of the amount of enhancement of the judge’s starting point to allow for the aggravating factor of the international element.

17. Mr Kelly also said that the applicant had provided some assistance to Father Wotherspoon’s programme in persuading others not to traffic in drugs.   

The judge’s Reasons for Sentence

18. The judge referred to the matters advanced on behalf of the applicant but noted that they were of little consequence for such a serious offence.

19. Applying the sentencing guideline set out in Rv Lau Tak Ming[2], the judge adopted a starting point of 17 years and 6 months’ imprisonment. 

20. The judge then enhanced this starting point by 2 years to allow for the international element, bringing the final starting point to 19 years and 6 months.  The judge then reduced this period by one-third to allow for the applicant’s guilty plea, and imposed upon the applicant a sentence of 13 years’ imprisonment.

The application for an extension of time

21. In his affirmation dated 28 June 2016, the applicant stated that he had found out that his sentence was “a harsh punishment [as] compare[d] to other inmates who had trafficked in a greater quantity of drug, especially in the international element circumstances”.  In his 2^nd affirmation dated 21 December 2016 the applicant claimed that he was only advised of the ground of appeal concerning the international element on 14 June 2016, the day of the forfeiture hearing.  He affirmed as follows:

“On the day of my sentencing, I was given a Notice by my legal representatives informing me of my right of appeal. My legal representatives have informed me that I was not advised of the special ground of appeal (now advanced on my behalf) concerning the enhancement of sentence for the international element.

It was only at my forfeiture hearing on 14 June 2016 when I was advised of the ground of appeal with respect to the international element.”

The Perfected Grounds of Appeal Against Sentence

22. The Perfected Grounds of Appeal Against Sentence complain that the enhancement of the starting point by 2 years to allow for the international element was manifestly excessive and/or wrong in principle.

23. Mr Kelly, in a written submission filed in advance of the hearing, argued that in HKSAR v Chung Ping Kun[3], the Court of Appeal laid down a broad guideline for levels of enhancement for the international element for dangerous drugs such as “Ice”, heroin and cocaine.  The Court of Appeal suggested a level of enhancement of 1 year to 2 years for trafficking in 500-1,000 grammes of the narcotic in question.  In the present case, the quantity of cocaine is 506 grammes, and so it would, prima facie, fall at the lower end of this guideline. 

24. Whilst recognising that the determination of the level of enhancement remained a discretionary matter for the judge, Mr Kelly in his written submission argued that this discretion must nevertheless be exercised in a manner consistent with the guideline.  In this respect Mr Kelly noted that the judge gave no reason why she chose the top, rather than the bottom, of the guideline range and he argued that the proper and just enhancement would be 1 year unless there were special factors justifying a larger enhancement.  An enhancement of 1 year would result in a final starting point of 18 years 6 months’ imprisonment which, when discounted by one third becomes 12 years 4 months’ imprisonment.

25. At the hearing of the application the applicant adopted Mr Kelly’s submission but only to the extent that a two-year enhancement was wrong, for the reasons advanced by Mr Kelly.  Where the applicant departed from Mr Kelly’s submission was as to the correct level of enhancement.  He submitted it should only be six months and in support of this submission he referred to a High Court sentencing decision of HKSAR v Bah Amadou[4].  He asserted that in this case the judge only enhanced the starting point by 6 months. 

The respondent’s submissions

26. Mr Matthew Leung, Senior Public Prosecutor for the respondent, did not oppose the present application being made out of time, accepting that, in accordance with established Court of Appeal authority[5], the court would look at the proposed ground of appeal to ensure that, should it not find the explanation for the delay to be satisfactory, it would not be shutting out a substantial and plainly arguable ground of appeal.

27. In relation to the broad guideline set out in the case of Chung Ping Kun, Mr Leung referred the court to a number of sentencing decisions of the Court of Appeal and the Court of First Instance.  He accepted that the judge’s enhancement for the international element was on the high side and that in the case of this applicant there was no other aggravating factor present.

Discussion

28. The applicant seeks an extension of time in which to give notice of his application for leave to appeal his sentence. This raises the question of whether the applicant is, in law, out of time in which to give his notice. 

29. By section 83Q(2) of the Criminal Procedure Ordinance, Notice of an Application for Leave to Appeal against sentence shall be given within 28 days from the date on which sentence was passed.  Rule 36 of the Criminal Appeal Rules provides:

“The time within which a convicted person shall give notice of appeal, or notice of application for leave to appeal, against his sentence shall commence to run from the day on which the sentence was passed upon him by the trial judge.”

The sentence of 13 years’ imprisonment was imposed on 8 April 2016 but the forfeiture order in respect of the US$4,000 was not made until 14 June 2016.

30. Forfeiture orders have, for some time, been treated by the Court of Appeal as part of the sentence[6] of an offender and, therefore, capable of being challenged as an appeal against sentence.[7] If the order is part of the applicant’s sentence then, arguably, time to give notice of application for leave to appeal began to run from 14 June 2016.  Should this be correct then the applicant, having filed his application for leave to appeal his sentence on 28 June 2016, would be within time. 

31. However, as this is not a matter on which we have heard argument we shall, more out of an abundance of caution, treat the applicant as needing the extension of time that he seeks.  In this respect we note that the applicant’s appeal is based on a legal ground whose existence was only belatedly brought to his attention.  The delay is not the fault of the applicant.  That being so we are satisfied that this is an appropriate case in which to grant the applicant an extension of time in which to file his Notice of Application for Leave to Appeal.

32. As to the merits of the ground of appeal we are of the view that in determining the appropriate level of enhancement the judge must exercise the sentencing discretion in a manner consistent with the Chung Ping Kun guideline. As with the sentencing bands for drug trafficking offences the enhancement guideline is based upon the quantity of narcotic being trafficked. Consequently, the quantity of narcotic brought or taken across the border will in most cases be the main indicator of where within the Chung Ping Kun guideline range the enhancement should lie.  Of course, in determining the level of enhancement a judge may always take into account, in addition to the quantity of narcotic, any other relevant considerations, but if so doing should state that he has done so and identify those other relevant considerations.

33. The applicant’s reliance on HKSAR v Bah Amadou is misconceived.  We have read the judge’s Reasons for Sentence in that case and it is clear that the applicant is mistaken as to what the judge did.  The case involved 555.91 grammes of heroin hydrochloride and in the course of sentencing the defendant the judge said:

“You have imported the drugs into Hong Kong from abroad.

All things considered, I adopted a starting point of 17½ years and enhance it by 1 year, making a total of 18½ years.”

34. But, as we have said on many occasions, the sentencing decisions of first instance judges in respect of other defendants convicted of drug trafficking offences will be of limited assistance to this court.  What this court has to decide is the appropriate sentence for this applicant in accordance with established sentencing principles.

35. When regard is first had to the quantity of narcotic in the present case the appropriate level of enhancement is 1 year.  Mr Leung does not suggest that there exists in respect of this applicant any considerations relevant to the amount of enhancement other than the quantity of narcotic.

36. We agree that there is no basis for departing from an enhancement of 1 year and when this is added to the judge’s initial starting point of 17 years 6 months the final starting point for the applicant becomes 18 years 6 months’ imprisonment.  When this figure is discounted by one-third to allow for the applicant’s plea of guilty the final sentence becomes 12 years 4 months’ imprisonment.

The forfeiture hearing

37. The forfeiture application was made by the prosecution pursuant to section 56(1) of the Dangerous Drugs Ordinance, Cap 134.  The prosecution’s application relied upon the Summary of Facts, the applicant’s flight itinerary, the contents of his record of interview and the fact that he had no hotel booking receipt or invoice.  Furthermore, the applicant had admitted, in mitigation, that he was in a desperate financial situation and was in debt.  His need for money to pay off his debts was said by his counsel to be the reason he was persuaded to traffic in drugs.

38. Counsel for the prosecution at the forfeiture hearing, Ms G Chan, Senior Public Prosecutor, submitted that the applicant would have required monies to facilitate his travels in the course of his drug trafficking, including being able to show to officers of the Immigration Department that he had sufficient means to sustain himself if allowed entry into Hong Kong.  Ms Chan noted that the exculpatory explanations of the applicant were inconsistent and in any event were not credible as a drug trafficker in the applicant’s position was unlikely to fund the travel expenses associated with his trafficking of drugs.

39. For all these reasons Ms Chan submitted that the prosecution had proven a prima facie connection between the US$4,000 and the commission of the offence.

40. The judge then ruled that on the basis of the Summary of Facts, the admissions on arrest, the contents of the video record of interview, what was said in mitigation and the antecedent statement, the prosecution had proven a prima facie case.

41. Mr Kelly then indicated that the applicant would give evidence.  The applicant testified that he earned US$250 per month from which to support his family.  He was married with two young children, the last of whom was born whilst he was in custody here in Hong Kong.  He said he was promised US$2,000 as a reward for trafficking in the drugs but he had not yet received that money. 

42. He testified that the US$4,000 seized from him was a loan from the AB Micro Finance Bank which he had obtained to buy mobile phones to bring back to Nigeria for resale.  He borrowed the money in November 2014 on the undertaking that he would repay it after 1 year. 

43. He produced photocopies of some documents relating to that loan. One was a bank account opening form bearing his signature and that of his guarantor.  Another document was entitled “Collateral Contract” which was a guarantee agreement between the bank, himself and his sister-in-law.  He was granted a loan and received the loan monies on 4 February 2015.  It amounted to 800,000 Naira, equivalent to about US$4,019.  He said that the copy of the Collateral Contract document is incomplete but that was all that his wife was given by the bank.  The “collateral owner” mentioned in this document is the guarantor mentioned in the first document.  This person is his cousin’s brother.  The collateral that was given to the bank was a two-storey building and a BMW Jeep motor vehicle both of which belonged to the guarantor.  Another person that stood in for him in this document was his sister-in-law. 

44. A third document was a demand from the bank for payment accompanied by a threat that the bank would institute legal proceedings against the applicant and the guarantor.

45. The last document that the applicant produced was his marriage certificate.

46. The applicant claimed that it was he who paid for the return air ticket to Hong Kong and he did so by paying only a deposit of 190,000 Naira, equivalent to approximately US$1,000.  He undertook to the travel agent to pay the balance of the cost of the ticket on his return from Hong Kong.  This, he said, was the normal way he purchased tickets. 

47. He said he had come to Hong Kong twice before to buy mobile phones.  He was supposed to use part of that US$4,000 for his expenses in maintaining himself whilst here in Hong Kong for one week.  He arrived in Hong Kong on 14 July and was due to depart Hong Kong on 21 July.  His purpose in coming to Hong Kong, other than trafficking in drugs, was to buy mobile phones to bring back to Nigeria for resale. 

48. During cross-examination, the prosecution referred to the copy of the Collateral Agreement and to the meaning given to “collateral owner” in it, namely, the applicant, and to article 3.1 which stated that the collateral owner, that is, the applicant, legally owned the properties.  Ms Chan also questioned the applicant on the difference in his name in the agreement.  The agreement described him as UBAH U/ Joel, whilst on his passport he was described as UBAH Joel Chidiebere.  It was put to the applicant that he was not telling the truth.  The applicant denied he owned either of the properties used for collateral and said he had changed his name after he grew up. 

49. When asked whether he could sustain his family on only US$250, he said he needed a loan to increase his income so that he would be able to invest and thereby earn more money.  He agreed that he was able to sustain his family on the income he had and was not desperate or in dire financial straits.  He said he agreed to traffic in drugs so that he could add the reward of US$2,000 to the US$4,000 he already had, to invest in the purchase of goods in Hong Kong to bring back to Lagos. 

50. When challenged as to why, if he was a businessman, he did not ensure he received at least a partial payment before swallowing the drugs and why he paid for the air ticket himself, he said he had already bought the air-ticket to Hong Kong for business anyway.  He was supposed to be staying in Hong Kong for one week.

51. Ms Chan asked the applicant how he would respond to queries by an Immigration Officer as to how he would support himself.  The following exchange then took place:

“Q. So if you were stopped by Immigration did the drug-trafficker tell you what to do when the officers asked you how you were going to sustain yourself in Hong Kong as he didn't give you any money?

A. When I was stopped by the police in Immigration they just asked me why I come into Hong Kong. I told them that I come in for business and I showed them the money that I was -- that was in my pocket.

Q. So you showed the US$4,000 to them, is that correct?

A. Yes.

Q. I see. And did you say to them that this would be how you would sustain yourself in Hong Kong?

INTERPRETER: They didn’t ask him any question.

A. They didn't ask me any question further.

Q. But you showed them the money, as you told us just then.

INTERPRETER: Yes, and he showed them the money.

Q. This money, as you said earlier, you said that this money you would use to pay for the guesthouse, the transportation and food while you were in Hong Kong, is that correct?

INTERPRETER:  Yes, he said part of the money he used to pay for the guesthouse, for his feeding and his transportation and also buy goods.”

52. The judge then asked questions of the applicant.  He accepted that the Collateral Agreement made his sister-in-law equally liable for the repayment of the loan.  The applicant said that the reason for his sister-in-law’s involvement was because the bank insisted that one of the guarantors must be a “working-class” woman. 

53. He said he brought the loan money to Hong Kong in February 2015 when he came to buy mobile phones.  He then returned to Lagos and got his money back and earned a profit from the sale of these phones.  He then repeated this exercise when he came to Hong Kong in May 2015 except that when he returned to Lagos he earned even more profit of around US$950 from the sale of the phones.  He said he sold the phones out of a shop that he operated with the assistance of his brother. 

54. The judge asked counsel if they had any further examination of the applicant arising from her questioning of him.  Mr Kelly said he had none but Ms Chan cross-examined the applicant further.  She asked him questions about the answers he had given in his record of interview and put to him that he had told the interviewer that his business was not doing well and that he was unemployed.  The applicant said this was a misinterpretation and all that he had said was that his work was not going fine.

55. In re-examination, the applicant was referred to entries in his record of interview and confirmed that he told the police that he was a businessman who came to Hong Kong to engage in mobile phone business. 

The judge’s reasons for forfeiture

56. After considering the Summary of Facts, the applicant’s video record of interview, his antecedent statement and his evidence in court, together with the exhibited documents that the applicant produced, the judge said she did not believe the applicant’s explanation that the US$4,000 was a loan.  In assessing the credibility of the applicant’s evidence she had regard to the fact that he appeared to have changed his explanation.  She said:

“You also said that US$4,000 found upon you at the time of your arrest was given to you by a friend to buy goods, but you have now changed that story, and you say that it was a bank loan to purchase phones in Hong Kong to sell on in Nigeria.”

57. In respect of the applicant’s loan explanation she noted that the documents which had been produced in support of it were incomplete and did not include the actual loan agreement or any proof that the applicant ever actually received these loan monies. 

58. Of the involvement of the applicant’s sister-in-law as guarantor, the judge said:

“… and also you say your sister-in-law was on the loan documents only because this was a microfinance loan, and you needed a poor woman to be the recipient of the loan.”

59. The judge also analysed the figures given by the applicant of his family expenses, travel expenses and profit from selling phones and concluded that after paying the US$1,000 deposit for the July airfare from the profits obtained from the May trip:

“This would have left no money for you to live on, and for you to support your family. And no mention has been made by you in evidence of all of the other expenses that you would have had to have paid for the various trips, not least the cost of two other airfares. Your profit margin was clearly, in any event on your own evidence, very slim, and you were living hand to mouth.”

60. The judge then went on to say that she did not accept what the applicant said about his means and did not accept that the US4,000 was from a loan.  She said she did not accept that the applicant would take the risk of swallowing the pellets without significant reward and without financial support. 

61. The judge then found that the US$4,000 was a reward for trafficking in dangerous drugs.  She said that:

“The fact that you intended to use that reward, after expenses, no doubt to purchase mobile phones for onward sales is irrelevant.”

62. However, the judge went on to consider what might be the position if she was wrong in her conclusion that the US4,000 was a reward for trafficking the drugs.  She noted that the applicant would have had to satisfy Immigration Officers that he was a legitimate businessman able to support himself in Hong Kong.  This led to her saying:

“Even if you had come by it [ie the US4,000] honestly, which I do not accept, you were using it to facilitate admission to Hong Kong. You would also have had to secure onward transportation, hotel, and food bills during your stay, because you had yet to excrete the pellets before passing them on to dealers in Hong Kong.

I find that the irresistible inference is that the moneys you had on you were in your possession for that purpose, whether or not they had been given to you as a reward or partial reward, and would have been consumed in so doing, given that you were in Hong Kong for a week.  As such they fall to be forfeited in the alternative under subsection (1)(a).”

63. In ordering that the US$4,000 that had been seized from the applicant at the time of his arrest, be forfeited, the judge said:

“The US$4,000 is ordered to be forfeited under section 56(1)(b), or in the alternative, section 56(1)(a)...”

The applicant’s submissions on his appeal against the forfeiture order

64. The applicant wrote three letters to the court, dated 15 March 2017, 2 May 2017 and 13 May 2017, in which he raised a number of complaints.

65. Firstly, he maintained that he did provide explanations to the police in respect of all the monies possessed by him and so cannot understand why only two of the three sets of currencies were returned to him.

66. Secondly, he cannot understand why the judge disbelieved him and requests to know her actual reasons for rejecting his evidence. 

67. Thirdly, he disputes what is said in the Summary of Facts in respect of two matters: (i) that he first claimed the US$4,000 was given to him by a friend; and (ii) that he was unemployed.  In respect of the former matter he claimed that the Summary of Facts does not accurately reflect what he said in his record of interview.  In respect of the latter he maintained that he was a self-employed trader as is evident from both his business card and ATM card which had been seized by the police and which he expected would be included in court exhibits.  They could prove that he was a legitimate trader.

68. Fourthly, he complained that one of his mobile phones, the “LG” phone, was not returned to him. He stated that only the SIM card inside it was for receiving further instructions in relation to his trafficking in the drug, but that the phone itself was his personal phone.

69. Finally, the applicant referred to five case authorities where, he claimed, the defendants had not had their properties forfeited.[8]

The respondent’s submission on the forfeiture appeal

70. Mr Leung submitted that the judge correctly directed herself on the relevant legal principles and properly found that the US$4,000 was, prima facie, liable to forfeiture.  He submitted that the bank documents produced by the applicant were so incomplete that they could not be relied upon.  He referred to the applicant’s submission of 15 March 2017 to which the applicant attached a number of documents, one of which, a letter of demand from the creditor bank dated 24 March 2016, the applicant also produced at the forfeiture hearing.  As Mr Leung pointed out, although the two letters purport to be the same document there are clear differences between them.

71. Finally, notwithstanding that there was merit in the applicant’s complaint that the Summary of Facts incorrectly referred to him having given the police conflicting accounts as to the source of the money, the judge was entitled to find that the applicant’s testimony was not credible.

72. Alternatively, Mr Leung argued that the judge indicated that the money was liable to forfeiture under section 56(1)(a) and her basis for so finding was in accordance with established authority.

Discussion

73. We shall first deal with the applicant’s complaints in respect of the Summary of Facts.  In respect of the applicant’s employment, the Summary of Facts says no more than that:

“At the time [he left Nigeria having swallowed the drugs] he was unemployed.”

74. As to the explanations the applicant provided in respect of the source of the US$4,000, the Summary of Facts recites:

“He first claimed that the US$4,000 was given by a friend to buy some goods on his behalf but later claimed that it was a bank loan he obtained to purchase phones in Hong Kong for re-sale in Nigeria.”

75. We have read the record of interview to determine whether the complaints of the applicant are justified.  In respect of his employment he made the following statements:

Counter No	Statement by Applicant
301	“… I have no work to do.”
319	“… I have no job.  I’m not working.”

76. These answers are not inconsistent with what is succinctly stated in the Summary of Facts.  Nevertheless, it could be said that in so far as the Summary of Facts suggests that the applicant usually worked as an employee of another, it is misleading.  Throughout his record of interview the applicant portrayed himself as a self-employed businessman who at the time he was approached to traffic the drugs to Hong Kong was not engaged in any business.

77. However, the second complaint of the applicant in respect of the accuracy of the Summary of Facts has greater substance to it.  This is apparent from the following interchange between the applicant and the interviewer, via Punti and Igbo interpreters:

“976 [Q] … You were arrested by me, I seized from you, um, the money in three currencies.

979 They include US$4,000.

986 [A] Yes, this money …

988 … is meant for my business to come and do shopping in Hong Kong.

994 Okay. This money is meant for buying goods …

996 … in Hong Kong, the things that I will sell in Nigeria.

1003 [Q] Ah, to buy what kind of goods？

1005 [A] Buy, uh, like, mobile phones like that Samsung …

1008 You can see one of those mobile phones, like that Samsung …

1010 … Yeah, it was one of the phones I bought last time but it, it’s no good. The, the person asked me to return any one of this no good. So normally, I use this money to buy mobile phones …

1012 … which I sell in my country.

1015 [Q] So, all the money, um … this, this money, um, is not, is not yours. Um, it is, uh, uh, your friend’s and, um, your friend asked you to, uh, buy, buy goods, uh, with this; is it?

1018 [A]  It’s my money.  This money belongs to me.  I wanted to use it to buy goods.”

78. This would appear to be when the interviewer first revealed a misunderstanding of what the applicant was saying.  But it is clear that the applicant was saying he was coming to Hong Kong to do business.  At counters 1366-1368 the applicant said:

“Yeah, I, I planned to come and do my business.

That’s why I -- you can see I carried my money to buy s--- goods.”

79. Then from counter 1583 onwards the applicant explained how it is possible to obtain small bank loans to conduct business, how he obtained such a loan and how he planned to repay it with the money he would later receive from his drug trafficking.  The following exchanges with the interviewer set out the applicant’s position and lead in to the interviewer repeating his misunderstanding of what the applicant was saying.

“1589 [A] So, with the little loan, they will ask you to be travelling, do business, transact. So, this is the -- this business I’m doing is money from the bank …

1591 … and, eh, I want to -- but the interest is too much. My i-, my initial plan was, after a while, I will stop to collect loan from the bank so that’s why I, I decided to collect the 2,000 from this guy, …

1593 … just to help the -- just to help my business to pay off the -- repay the bank their money.

1604 … my initial plan is to do business and that’s why I carried my money …

1606 … to do business. This was going to be an addition to enable, you know, buy s--- uh, uh, reasonable goods in Hong Kong …

1611 [Q] Uh, what kind of business, um, did you come to Hong Kong for?

1614 [A] I think I have told you, uh, that I deal on mobile phone.

1617 [Q] Uh, you buy the mobile phones back to Nigerian and then sell the mobile phones Nigeria; is it true?

1618 [A] Yes, yes.”

80. After talking about the models of phones that he buys he was then asked:

“1684 [Q] Uh, you said before that, mm, the US dollars, uh, were, um, uh, from your friend and your friend asked you to, uh, buy some things from Hong Kong, uh, with the US dollars. Is it -- it -- the, the dollars, uh, did not belong to you?”

81. To which the applicant replied:

“1689 I never made such statement.”

82. It is clear from these excerpts that a misunderstanding of what the applicant was saying in the course of the interview somehow made its way into the Summary of Facts.  This part of the Summary of Facts is simply wrong.

83. This error was not picked up by either the prosecutor or the applicant’s counsel and, given it was a fact admitted by the applicant for the purpose of his sentencing, was relied on by the judge when assessing the credibility of the applicant’s evidence.

84. We note also that the judge said in respect of one of matters raised by the applicant:

“… and also you say your sister-in-law was on the loan documents only because this was a microfinance loan, and you needed a poor woman to be the recipient of the loan.”

85. What the applicant actually said is recorded as being as follows:

“Q. Right, so why was it your sister-in-law who was supposed to be the collateral owner with you in this contract and not your brother?

INTERPRETER: It is the request of the bank that the two guarantor one must be a lady, the other must be a man, and the lady must be a working-class lady and her sister-in-law is, she is a working-class lady. That’s why his brother...

Q. Because it’s microfinance.

INTERPRETER: That’s why his brother asked her wife to come and guarantee him.

Q. Right. If you have got, if you actually receive the money -- right, you just said because it’s a microfinance there needed to be a lady involved.

A.  Yes Ma’am.”

86. We are concerned that what the applicant may have been saying was that the bank required a working woman in receipt of an income to be a guarantor of the loan.  It is possible that the judge may have misunderstood the applicant’s evidence and allowed that misunderstanding to influence her view of the credibility of the applicant’s explanation.

87. In view of the matters to which we have referred we are satisfied that the judge’s assessment of the applicant’s credibility was arrived at through a flawed process and we cannot, therefore, uphold her finding that the US$4,000 was a reward given to the applicant for trafficking the drugs to Hong Kong.  It follows that this money was not liable to forfeiture under section 56(1)(b) of Cap 134.

88. However, the matter does not end there.  The judge also found, in the alternative, that even if this money was not a reward for drug trafficking it fell to be forfeited under section 56(1)(a) as money “which has been used in the commission of or in connection with” a Cap 134 offence.

89. The evidential basis for her so finding can, in fact, be found in the testimony of the applicant himself. During cross-examination the following exchange took place with Ms Chan:

“Q. So if you were stopped by Immigration did the drug-trafficker tell you what to do when the officers asked you how you were going to sustain yourself in Hong Kong as he didn't give you any money?

A. When I was stopped by the police in Immigration they just asked me why I come into Hong Kong. I told them that I come in for business and I showed them the money that I was -- that was in my pocket.

Q. So you showed the US$4,000 to them, is that correct?

A. Yes.

Q. I see. And did you say to them that this would be how you would sustain yourself in Hong Kong?

INTERPRETER: They didn’t ask him any question.

A. They didn’t ask me any question further.

Q. But you showed them the money, as you told us just then.

INTERPRETER:  Yes, and he showed them the money.”

90. On the basis of the applicant’s own testimony the US$4,000 fell squarely within section 56(1)(a) of Cap 134 and was liable to forfeiture, and properly ordered to be forfeited, under that provision.  The form of trafficking in which the applicant engaged was to import the drugs into Hong Kong.  He could only commit this form of trafficking if he could persuade the Immigration authorities to allow him entry into Hong Kong.  Key to achieving this goal was for the applicant to be able to show that he had a legitimate purpose in coming to Hong Kong and the financial means to support himself whilst here.  Thus, even if the US$4,000 was not the applicant’s reward for trafficking these drugs to Hong Kong but was his personal money which he intended to use to purchase mobile phones, he nevertheless made use of this money to facilitate his entry into Hong Kong.  By so doing he used the money in the commission of, or at the very least, in connection with, a Cap 134 offence.

91. In respect of the LG mobile phone the applicant complains that it was not the phone that was to be used to contact his handler but rather the SIM card in the phone.  This is a spurious argument.  The SIM card can only be used as a means of contact when it is inserted in a phone.

92. The cases to which the applicant referred are simply first instance sentencing decisions.  They are not rulings on forfeiture applications and contain no mention of what order was made in respect of any property possessed by the defendant at the time of his arrest.  But even if the judge in each case ordered money to be returned to the offender it does not mean that the same order should be made in respect of the applicant before us.  Indeed, if such an order was made in these other cases it could well have been because that was the order that was sought and that counsel for the prosecution made no application for forfeiture of any property. 

93. For all these reasons we reject the applicant’s complaints in respect of the forfeiture order.

94. Before leaving this case we would like to comment that section 56(1)(a) appears to be unnecessarily and undesirably restrictive in its drafting by limiting the power of forfeiture to any money or thing “which has been used in the commission of or in connection with …”  The situation with most mules is that they possess money for the purpose of maintaining themselves whilst waiting for their bodies to discharge the drugs concealed within them.  The sub-section may be a more practical power if it was amended to encompass possession of the property for the purpose of facilitating the commission of a Cap 134 offence.

Conclusion

95. For these reasons we granted the applicant an extension of time in which to file his Notice of Application for Leave to Appeal his sentence and treating the hearing of that application as the hearing of the appeal, we allowed his appeal.  We quashed the sentence of the judge and in substitution for it imposed on the applicant a sentence of 12 years 4 months’ imprisonment.

96. In respect of the appeal against the forfeiture order we refused this part of his appeal against sentence and did not disturb the judge’s order forfeiting the US$4,000 and the LG phone. 

[1] [2014] 6 HKC 106

[2] [1990] 2 HKLR 370

[3] HKSAR v Chung Ping Kun [2014] 6 HKC 106

[4] HCCC 329/2010

[5] See HKSAR v Oh Chun Kit [2013] 1 HKLRD 437

[6] Section 80 of the Criminal Procedure Ordinance, Cap 221 defines “sentence” in an inclusive way as follows:

“‘sentence’ in relation to an offence, includes any order made by a court in dealing with an offender, including a hospital order.”

[7] See HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692 as a recent example of where the Court of Appeal accepted, at paragraph 31 of the judgment, that a forfeiture order was part of the sentence imposed on the applicant. 

[8] These were the Reasons for Sentence in HCCC 329/2010, HCCC 260/2015, HCCC 458/2014, HCCC 346/2011 and HCCC 335/2015.