HKSAR v. CHUKWULETA SUNDAY FREEDALINE AND ANOTHER

CACC 62/2017

[2022] HKCA 26

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 62 OF 2017

(ON APPEAL FROM HCCC NO 523 OF 2014)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 26 June 2019, leave was granted by a Single Judge to the 1^st appellant to appeal against both conviction and sentence, and to the 2^nd appellant to appeal against conviction only.[2] We will refer to the 1^st and 2^nd appellants by their trial designations, which were D1 and D2 respectively.

2.  At the leave hearing, D1 was represented by Mr Phil Chau on the instructions of the Director of Legal Aid, whereas D2 was unrepresented, having been refused legal aid.  The Single Judge found D1’s four grounds of appeal against conviction were reasonably arguable.  He did not grant leave to D2 in respect of any of his homemade grounds of appeal, but nevertheless granted him leave to appeal against conviction in respect of Grounds 1, 3 and 4 of D1’s grounds which he found were applicable to him as well.  D2 was granted legal aid and perfected grounds of appeal on the basis of the grant of leave were filed on 29 August 2019.

The charges

3.  D1 and D2 stood trial before Campbell-Moffat J (the judge) and a jury on an indictment consisting of the following charges:

Count 1:	Conspiracy to traffic in a dangerous drug against D1 and D2, in which it was alleged that, on or about 14 May 2014, in Hong Kong, they conspired together and with a person or persons unknown, to unlawfully traffic in a dangerous drug, namely cocaine.
Count 2:	Conspiracy to traffic in a dangerous drug against D2, in which it was alleged that, on or about the 14 May 2014, in Hong Kong, he conspired with Okoye James Azuka (PW1 at trial) and a person or persons unknown, to unlawfully traffic in a dangerous drug, namely cocaine.
Count 3:	Trafficking in a dangerous drug against D2, in which it was alleged that, on 14 May 2014, at Room C, Flat 14, 2nd Floor, Pak Tai Mansion, Nos 2 – 16 Pak Tai Street, Ma Tau Wai, Kowloon, in Hong Kong, he unlawfully trafficked in a dangerous drug, namely 5,646.67 grammes of a solid containing 2,920.95 grammes of cocaine.

4.  On 4 February 2017, at the conclusion of the trial, D1 and D2 were unanimously convicted of the counts they faced.  On 3 March 2017, the judge sentenced D1 to a total of 16 years and 3 months’ imprisonment; and D2 to a total of 27 years and 9 months’ imprisonment.

The prosecution case

5.  In respect of Count 1, the prosecution alleged that D1 and D2 agreed that D1 would carry a total of 50 pellets of a dangerous drug in his body from Nigeria and give them to D2 in Hong Kong. 

6.  In respect of Count 2, the prosecution alleged that D2 and PW1 agreed that PW1 would carry 31 pellets of a dangerous drug in his body from Nigeria and bring them to D2 in Hong Kong. 

7.  In respect of Count 3, whilst it was not disputed that D2 was the tenant of the premises located in Room C, 2/F, No 14 Pak Tai Street, To Kwa Wan (“Room C”),[3] the prosecution alleged that Room C was where PW1 and D1 discharged a dangerous drug from their bodies, and where a total of 319 pellets (including, 50 pellets discharged by D1 and 30 pellets discharged by PW1[4]), containing 2,920.95 grammes of cocaine were found for which D2 was charged with trafficking.[5]

8.  The total value of the dangerous drugs at the time of the offence was $5,550,677.[6]

9.  The prosecution case rested on the evidence of PW1 as well as on the travel movements of PW1 and D1; the surveillance evidence of PW1, D1 and D2; the seizure of the dangerous drugs from Room C, which was tenanted and occupied by D2; and the prints of D1 and D2 inside Room C, particularly a fingerprint and palm prints of D1 inside the toilet.[7] 

10.  No issue was taken at trial that D2 occupied and leased Room C.  It was an admitted fact that:

“3. The 2^nd Defendant was referred by the Social Welfare Department to rent Room C, 2^nd floor, No.14 Pak Tai Street, To Kwan Wan (herein after referred to as the premises) for the period from 10^th January 2014 to 9^th January 2015 at a monthly rent of HK$3000 with a subsidy of HK$1500 paid by the Hong Kong Government. The premises was vacant when it was handed over to the 2^nd Defendant. Exhibit P3 and P3A is the said Tenancy agreement and its certified translation.

4. Rental receipts for the premises of January, March, and April of 2014 and P3 were found on the person of the 2^nd Defendant upon his arrest. They are respectively P2, P4 and P5, the certified translation being the P2A, P4A and P5A.”[8]

11.  It was also an admitted fact that police seized from Room C the pellets of drugs in the bags in which they were contained and an array of personal items, consisting of clothing and footwear, toiletries, bedding, mobile telephones, bottles of water and boxes of milk, and an Immigration Department plastic bag containing 11 items of jewellery, which belonged to D2.[9]  It was accepted D2 lived at Room C and the personal contents found inside the room belonged to him.[10] 

12.  On 14 May 2014, D1 and PW1 were cleared through immigration at Hong Kong International Airport at 14:59:09 and 15:00:34 hours respectively.[11] According to PW1, he and others, including D1, had travelled from Lagos, Nigeria to Douala, Cameroon, where they took a flight to Hong Kong via Addis Ababa, Ethiopia.  PW1 said there were six of them on the flight.  At about 3:15 pm, PW1 with two others, not including D1, took a taxi from the airport.  D1 took a different taxi with someone else that went to Chungking Mansions.  PW1 also went to Chungking Mansions and when he got there he telephoned D2.  PW1 had D2’s name and telephone number written on a piece of paper.  D2 arranged to meet PW1 at Chungking Mansions which he did. 

13.  As PW1’s Sim card was not working, D2 took him to a shop to get a new one.  D2 also purchased a shirt for PW1 to change into. D2 told PW1 that he would need somewhere to sleep after he excreted the drugs, whereupon he took him to the 8^th floor Chungking Mansions to arrange a guestroom.[12]

14.  PW1 was observed outside Chungking Mansions, which he entered at 3:52 pm and emerged from at 4:15 pm, having changed his clothes.  He was also observed carrying a pink plastic bag which he took to the Sands Building on Hankow Road, and came out of that building at 4:22 pm, without the bag.  PW1 testified that he had agreed to deliver some money for someone at this time.  PW1 was then observed to go into the Holiday Inn Hotel and come out at 4:37 pm, whereupon he joined D2.  PW1 went back to Chungking Mansions and at 4:39 pm, PW1 and D2 took a taxi to Pak Tai Mansion, which they reached at 4:57 pm.  PW1 was not carrying anything, having dropped off his bag at the guesthouse, while D2 was carrying a brown bag over his shoulder.[13] 

15.  According to PW1, D2 took him to Room C so that he could discharge all the drugs he had swallowed.  He said that D2 told him to excrete the drugs, wash them and put them into the red, white and blue bag by the bed.  PW1 said that D2 referred to the drugs as “chemicals”.[14]  He also told him that he needed to collect someone else to do the same thing.  D2 left Room C and told PW1 not to answer the door to anyone.  Whilst PW1 was alone in Room C, he discharged 14 pellets from his body. 

16.  At 4:40 pm, D1 was seen going into Chungking Mansions.  D1 was later observed with D2, having alighted from a taxi, entering the building of Room C.  D1 and D2 entered Room C, at which time PW1 was present.  PW1 had difficulty excreting the pellets, so D2 went out to purchase milk for them to consume as this would assist them to quickly discharge the drugs in their system.  D2 returned with the milk, which he gave them.  He then left Room C, leaving PW1 and D1 there to excrete the pellets of drugs.  PW1 was able to excrete all but one of the remaining pellets.  He and D1 took turns going to the toilet to discharge the pellets.  PW1 told D1 that he was worried about one pellet that was left and thought he should go to the hospital.  D1 told him that he should not do that because the police would get involved and he would incriminate himself.  He told PW1 that they should go to Chungking Mansions and look for D2.[15]

17.  The two of them then left Room C at 10:15 pm and as they were leaving the building they were arrested by police officers.  The police found in D1’s possession HK$1,024 and US$4,260 as well as a key card and a mobile telephone with a Sim card.[16]

18.  The police officers gained entry into Room C where they found 319 pellets, consisting of a total quantity of 2,920.95 grammes of cocaine narcotic.  The drugs were variously contained in two yellow plastic bags (exhibit P17), one green plastic bag (exhibit P18), two white plastic bags (exhibit P19 and P21) and one black plastic bag (exhibit P22).[17]  In each of those plastic bags, there were further packets containing the pellets in question.  The total and average weight of the pure narcotic of a pellet extracted from the packets in those plastic bags was as follows: (a) exhibit P17 consisted of 29 packets of a total of 246.95 grammes with an average of quantity of 8.52 grammes; (b) exhibit P18 consisted of 70 packets of a total of 727.33 grammes with an average quantity of 10.39 grammes; (c) exhibit P19 consisted of 60 packets of a total of 534.43 grammes with an average quantity of 8.91 grammes; (d) exhibit P21 consisted of 80 packets of a total of 694.04 grammes with an average quantity of 8.68 grammes; and (e) exhibit P22 consisted of a total of 708.14 grammes with an average quantity of 8.85 grammes.[18]

19.  At 10:42 pm, D2 was arrested at a location near the building of Room C.  He had in his possession cash of HK$18,622 and US$3,000, and two mobile telephones with two Phone cards and one Memory card.  He also had in his pocket a tenancy agreement to Room C, together with rental receipts for Room C for the months of January, March and April 2014, as well as the keys to the front door of the flat and a key to Room C.[19] 

20.  PW1 explained that he became involved in bringing the dangerous drugs to Hong Kong because he was in financial difficulties.  He needed to borrow money and he was put in touch with a person known as the “Chief” in Lagos, Nigeria. The Chief offered him a substantial fee to carry chemicals into Hong Kong.  He believed that the Chief was in the chemical business and that he supplied chemicals to Hong Kong.[20] He had testified that he did not know that the pellets he had swallowed contained a dangerous drug but accepted under cross-examination that he suspected that he was transporting cocaine from the comments of the driver who took him to the airport.  The Chief gave him US$1,270 to buy an air ticket and he met up with the Chief the day before his flight.  He went to a place where there were 9 other people swallowing drugs, including D1, whom he referred to as “Sunday”.  He said that he saw the others, including D1, swallowing what he believed to be 50 pellets each.[21]  Everybody had a bowl which he understood contained 50 pellets because the reward offered to them was US$5,000. As he was having difficulty swallowing the pellets, the Chief got angry with him and wanted his money back for the ticket.  He did not hear the Chief scold anyone else for not being able to swallow the pellets, who in remonstrating with him mentioned one of the others had finished swallowing all 50 pellets in the bowl.[22]  As he was only able to swallow 31 pellets, he was to be paid US$3,100.

21.  PW1 said that on the flight to Hong Kong, there were a total of six people from the place where he swallowed the pellets of dangerous drugs, including himself and D1, although he did not talk to D1 and the other four persons, whom he did not know .[23]

22.  It was the defence case that PW1 was motivated by self-interest and was falsely implicating D1 and D2.  He was cross-examined about inconsistencies between his evidence and his record of interview, and his claim that he believed he was transporting chemicals for the Chief.  PW1 denied knowing that the pellets swallowed by him were dangerous drugs until he was arrested by the police,[24] even though he had previously given inconsistent versions of the events.  His answers in his video record of interview about the contents of the pellets were for the most part, “I don’t know”,[25] while he said in one of his witness statements, “I believed that the white oval substances which I had swallowed were dangerous drugs”.[26]  It was put to PW1 that he had told lies in his interview with the police and about D1 in order to blame someone else, to which he said he was telling the truth.[27]  It was also put to PW1 that he was only testifying for the purpose of receiving a reduction in his sentence, to which suggestion he disagreed, although he accepted he knew he would be entitled to a reduction in sentence.[28]  

23.  The immigration records of PW1 and D1 were admitted into evidence by way of section 65C of the Criminal Procedure Ordinance, Cap 221.[29]  Those records showed that they had entered Hong Kong not only on 14 May 2014, but also on previous occasions and sometimes at more or less the same time.  Nevertheless, the evidence that they had previously entered Hong Kong was not a matter relied on in the prosecution opening or closing speeches.  PW1 was cross-examined about his previous trips to Hong Kong and questioned as to how he had paid for them.  He explained that he purchased electronic items for resale back in Nigeria.[30] 

24.  D1’s case as it emerged in cross-examination, which was denied by PW1, was that D1 was not in Lagos on 13 May 2014 and not in the room swallowing drugs as claimed by PW1.  D1 was in Cameroon.  They had met for the first time in the smoking room at Addis Ababa Airport, when D1 had given PW1 his contact telephone number in Hong Kong.  On 14 May 2014, PW1 called D1 and invited him to the premises at To Kwa Wan.  D2 took D1 there, where he met PW1.  They had a brief discussion about business.  PW1 told D1 that he could not get accommodation at Chungking Mansions and D1 suggested that they return there since he had accommodation.  D1 took a shower and got dressed while PW1 used the toilet facilities, after which they both left.[31] 

25.  PW1 was questioned as to how he came to know D2.  He confirmed that prior to 14 May 2014 he had never met him.  He had a telephone number and the name “Kenenna” on a piece of paper which was discarded together with a packet of cigarettes by the police when he was arrested.  He was questioned about meeting D2 at Chungking Mansions, and about buying a Sim card, a shirt and booking accommodation at a guesthouse.

26.  Under cross-examination, PW1 was taken to two previous statements he made to the police on 23 September and 17 December 2015, in which he made allegations of bribery and assault against D2 between October and December 2014, whilst they were in Lai Chi Kok Reception Centre.  These allegations were compared to the factual matters stated in paragraphs 20 to 23 of the Admitted Facts and it was put that they did not happen as the two of them were segregated and did not have contact with each other during that period.[32] 

27.  D2’s case as put in cross-examination, was that D2 did not buy a shirt for PW1 and when they were together at Chungking Mansions PW1 told him that he and D1 had nowhere to stay, which was why D2 took PW1 to his home.[33] All of the drugs found in the premises, except for those that PW1 had swallowed, were in the blue, red and white bag that PW1 had taken into the taxi from Chungking Mansions to D2’s home.  PW1 denied this was the case.[34] 

The defence case 

28.  Both D1 and D2 elected not to testify or call any witnesses on their behalf.  Their case was that PW1 was not a truthful or credible witness, and that he had falsely accused them of being involved in trafficking of the dangerous drugs.

The summing-up

29.  The judge told the jury that PW1 was a co-conspirator and had pleaded guilty to a conspiracy to traffic in dangerous drugs but that was not evidence against D2 of his guilt.[35]  Whilst the judge did not give an accomplice warning as suggested by the defence,[36] she nevertheless directed the jury in the following terms:[37]

“The fact that it has been suggested that PW1 hopes to secure a discount on sentence -- by giving evidence against both of the defendants in this case does not mean that he is not telling the truth. It is for you to decide whether he is telling the truth or not and that is a matter of which you must take particular care. As I said before, you will assess each witness’s evidence against the information which is provided to you and you will use your common sense and deciding whether, despite his position as a co-conspirator, the witness is telling the truth or not. And to make that decision, you should take into account all of the evidence you have before you.”

30.  The judge gave the jury general directions in relation to the evidence, during which she made references to how PW1’s evidence had been challenged by the defence.  Having referred to a witness being challenged in respect of a previous statement, she said:

“… when matters were put to PW1 he has not always agreed that what had been a recorded is what he said. On other occasions, he has qualified, he has explained what he said by saying something else. Now, counsel … have made much of the apparent inconsistencies, conflict, between what the first witness said in court and what he -- it is suggested he said on those other occasions in those other documents some two years – more - ago. And that is something you must pay particular attention to, please. You must be sure that you understand the context in which a question was asked and answered. And you must also be sure that the interpretation was a true interpretation.

… You cannot speculate about what he might have said, so you must be careful to assess what it is that has been said when you are being asked to decide whether the witness is now telling the truth, or was telling the truth previously, or has lied throughout. It is not such an easy exercise, lady and gentlemen, particularly in this case because we did not have a certified copy of the documents for you. We had difficulty because of the number of people – interpreters - there are. So take that into account both for and against the witness, for and against the defendants, put it into the melting pot when you are considering whether in fact the witness has deliberately lied. It is for you to decide.”[38]

31.  The judge again emphasised with the jury that the defence had heavily criticised the evidence of PW1 and they were to take this into account.  She said:

“I mentioned to you at the beginning of the trial that you might find it useful to look at the witnesses and to concentrate on what is being said and how it is being said because I was going to be taking a note anyway and it might help you. And it is of course important to look at a witness and perhaps especially important to look at PW12 because he has been heavily criticised by both defence counsel. And it may be important -- it will be important for you to consider his evidence and everything that he has said and everything that you know about him.

But it is only part and parcel, it is not, looking at somebody, of whether you can decide somebody has been truthful or not and what weight, what importance, you can give to their evidence. It is particularly important in respect of the first witness. He has been heavily criticised. They say - and they have both put to you - that he has lied in material respects before you and to the police previously, and they say because of that you cannot rely on his evidence at all.” [39] (Emphasis added)

32.  The judge continued to stress with the jury the importance of making an assessment as to whether PW1 was telling the truth, and in this regard she said:

“To what extent does his evidence in fact differ now from what it was previously? Was what it is suggested he said previously an accurate record of what he said? Was he being precise in his answers? Were the questions being asked of him, were they precise to obtain the correct answer? Is his recollection an accurate chronological recollection or is it jumbled up? Could there be a good reason for that?

And in any event, to what extent are any of the issues that had been raised about which he is criticised and about which you may or may not agree that he should be criticised, are they important? Are they relevant to your deliberation on the guilt or innocence of the accused?”[40]

33.  The judge later gave a lengthy summary of the evidence of PW1,[41] in which she pointed out to the jury that under cross-examination, PW1 changed his evidence and accepted that he had been suspicious that he was carrying cocaine[42] and also mentioned that PW1 had given evidence contrary to the admitted facts.[43]

34.  In respect of the total amount of dangerous drugs which were found in Room C but not covered in Counts 1 and 2, the judge told the jury:[44]

“Now, the prosecution rely upon the evidence of PW1 to suggest to you that the only reasonable inference you can draw is that the remainder of the pellets in the flat - so, not the 50 that they allege under Count 1 and not the 31 they allege under Count 2, but the remainder, so you have got 81 taken away from 319, yes - that other drug mules must have come to the flat and other drug mules must have excreted them because PW1 told you, if you believe what he says, that at least eight others were swallowing pellets that day or the day before in Lagos and were then taken to either the airport or then by ferry to Douala, to the international airport there. And at least six of them had come in under the observations through our airport at that time that the observation officers were watching the airport. I am going to direct you in a moment about reasonable inferences from proven facts. But that is what the prosecution say, that it is an inference that you can draw, that the remainder of those pellets came from this exercise that PW1 told you about when he was in Lagos.”

35.  As for the immigration records of PW1 and D1, which appeared to show that they had entered Hong Kong on previous occasions, sometimes at about the same time, the judge directed the jury as follows:[45]

“And if PW1’s evidence was not there, you have the entry into Hong Kong on 14 May -- of both PW1 and D1, both from Douala Airport in Cameroon. Those -- lady and gentlemen, those immigration records, when you have the opportunity to look at them, you will see that whilst no one has contested the fact that both D1 and PW1 arrived on 14 May on the same flight from Cameroon, you will see if you look at it that in fact they appear to have entered and left previously on the same dates and sometimes exited on the same dates on those. So this is not the first time, on the documents that are admitted before you and conclusively proved, that they have entered and exited at the same time from Douala …”

The sentence

36.  The sentence appeal only concerns D1.  In passing sentence, the judge noted that there was no direct evidence to show how many of the recovered pellets were unlawfully imported into Hong Kong by D1. She therefore sentenced D1 on the basis of the lowest average weight of the pellets amongst those extracted from exhibits P18, P19, P21 and P22. She excluded exhibit P17 because it only contained 29 pellets and as D1 would have excreted 50 pellets they would have been put in one of the bags with a large quantity of pellets.  Taking the lowest average weight of 8.67 grammes, the judge multiplied it by 50 and arrived at an overall quantity of 433.5 grammes of cocaine. 

37.  The judge then referred to the sentencing guidelines in HKSAR v Lau Tak Ming[46] which stated that trafficking in between 400 and 600 grammes of cocaine would attract a starting point of 15 to 20 years.  She adopted a starting point of 15 years and 6 months, which she enhanced by 9 months for the international element, and passed a sentence of 16 years and 3 months’ imprisonment on D1.

The grounds of appeal against conviction

38.  As already noted, leave to appeal against conviction was granted to D1 in respect of his original four grounds of appeal, and to D2 in respect of Grounds 1, 3 and 4 of those grounds.  The grounds of appeal are framed as follows:

39.  During the course of the hearing on 4 August 2020, we requested counsel to address us on the nature and effect of the admissions in the admitted facts that were relied upon to show that PW1 had lied about his allegations against D2 of bribery and assault while they were in custody in the Lai Chi Kok Reception Centre.

Ground 1: Drawing an inference as to the aggregate of drugs

40.  The first ground complains that the judge misdirected the jury by saying that the prosecution case was that D1 and PW1 had travelled to Hong Kong as part of a group of six persons, who each contributed to the aggregate amount of drugs found in Room C.  It is argued that the direction invited the jury to speculate, and in so doing caused prejudiced to D1 and D2.  Furthermore, there was no evidence to support the drawing of such inference, nor was it part of the prosecution case at trial. 

41.  It is in respect of the following passage of the judge’s summing-up, that counsel for D1 and D2 submit she misdirected the jury:

“Now, the prosecution rely upon the evidence of PW1 to suggest to you that the only reasonable inference you can draw is that the remainder of the pellets in the flat - so, not the 50 they allege under Count 1 and not the 31 they allege under Count 2, but the remainder, so you have got 81 taken away from 319, yes - that other drug mules must have come to the flat and other drug mules must have excreted them because PW1 told you, if you believe what he says, that at least 8 others were swallowing pellets that day or the day before in Lagos and were then taken to either the airport or then by ferry to Douala, to the international airport there. And at least 6 of them had come in under observation through our airport at the time that the observation officers were watching the airport.”[47]

42.  It is argued by counsel that the direction was wrong as a matter of fact.  They argue the prosecution never put its case that six people, who were on the flight to Hong Kong, went to D2’s flat upon their arrival and excreted pellets of a dangerous drug.  They point out that prosecuting counsel did not put the case that high and refer to her remarks in a discussion about the matter with the judge and to her closing address to the jury.

43.  In the exchange between the judge and counsel about the drawing of the inference suggested, the discussion centred on whether there was evidence to draw such an inference.  In response to defence counsel’s suggestion that there was no evidence that D2 brought the drugs to the room, the judge said that from the evidence of PW1, if accepted, he had acknowledged that he was a drug mule and he went to the room at the direction of D2 to excrete the drugs, as did D1.  She noted that the prosecution were asking the jury to infer that the remainder of the pellets came from other people on the flight or other flights because D2 was the middleman.  It was D2’s flat in which there was an open bag of pellets and D2 directed PW1 and D1 to pass out the pellets from their system.[48] Defence counsel questioned whether there was evidence from which to draw the inference suggested by the judge.  She pointed to the evidence of PW1 that he and others were each given a bowl of 50 pellets, which they were asked to swallow, before six of them embarked on their journey to Hong Kong.  When defence counsel said the prosecution did not put its case that the six people went to the room and that the drugs found there came from the people on the same flight as PW1, prosecuting counsel responded that she had not put it that high but rather that the room was a collection place for the drugs.  She also added that the pellets of drugs had all been packaged in the same way.[49]  In her closing address, prosecuting counsel said:

“These people, including Mr Okoye and the 1^st defendant, Sunday, would have swallowed their drugs, came into Hong Kong brought to, of course, a place where they can pass out these drugs to be collected, otherwise you don’t want to flush it down the toilet and be paid; that doesn’t make sense.”[50]

44.  It should be noted that PW1 gave extensive evidence about what transpired in the lead up to travelling to Hong Kong after swallowing the pellets of drugs.  In short, he said that he was taken to a room in Lagos where he and others swallowed pellets of drugs contained in a bowl, and that six of them, including himself and D1, then took a flight to Hong Kong.[51] There was also the evidence of PW1 as to the role of D2 in bringing both him and D1 to the room where they excreted the pellets of drugs; and the admitted fact that 319 pellets of drugs were found in the room.

45.  The extent to which this aspect of PW1’s evidence was challenged by D1 was to put to him that D1 was not there.[52]  No challenge to this aspect of his evidence was made by D2.  It is to be remembered that neither D1 nor D2 gave evidence or called evidence on their behalf.

46.  It is contended by D1 and D2 that the judge by her remarks was inviting the jury to draw an inference that the remainder of the pellets found in D2’s apartment came from the nine men, including PW1 and D1, who were in the room in Lagos. 

47.  As submitted by Mr Derek Wong, for the respondent, the judge was correct in directing the jury that the remainder of the pellets in Room C did not come from PW1 or D1, and therefore it did not matter who provided them.  However, based on the evidence of PW1, if accepted, the inference could be drawn that they came from the other members of this group of six people.  The judge did not say that the aggregate amount of drugs found in Room C came from the group of six.  She only said that the prosecution were relying on the evidence of PW1 to suggest that the only reasonable inference they could draw was that the remainder of the pellets came from other drug mules.  PW1 had given evidence that a group of about nine persons had been given a bowl of 50 pellets each to swallow; six of those persons, including himself and D1, travelled onto Hong Kong; he and D1 went to Room C to excrete the pellets they had swallowed; he and D1 had contributed about 81 of the total of 319 pellets; and all the pellets seized from Room C were of a similar size, shape and packaging containing the same dangerous drug, cocaine.

48.  Another complaint under this ground was that prosecuting counsel said she did not have to put her case that high, which we take to mean that she did not have to show from where the remaining pellets came to prove her case against D2.

49.  We find no substance in this ground of appeal.

Ground 2: The previous trips to Hong Kong

50.  The second ground complains that the judge misdirected the jury when referring to the immigration records of D1 and PW1, pointing out that they had entered and left Hong Kong on previous occasions. It is argued that the direction invited the jury to speculate about the purpose of them entering Hong Kong on those occasions, and this caused prejudice to D1, which was further exacerbated by the failure of the judge to appropriately warn the jury not to speculate in respect of this evidence. 

51.  The immigration movement records of PW1 and D1 were adduced into evidence by way of an admitted fact and produced as exhibits P8 and P9, respectively.[53] In other words, it was agreed by D1 that the immigration records of both he and PW1 should be put before the jury for their consideration.  It is difficult to understand how D1 can now complain about any reference to that evidence by the judge in her summing-up to the jury.

52.  The judge said no more than what the evidence revealed, namely that they had similar travel arrangements to Hong Kong on previous occasions.  This is what the judge said:

“And if PW1’s evidence was not there, you have the entry into Hong Kong on 14 May -- of both PW1 and D1, both from Douala Airport in Cameroon. Those -- Lady and gentlemen, those immigration records, when you have the opportunity to look at them, you will see that whilst no one has contested the fact that both D1 and PW1 arrived on 14 May on the same flight from Cameroon, you will see if you look at it than in fact they appear to have entered and left previously on the same dates and sometimes exceeded on the same dates on those. So this is not the first time, on the documents that are admitted before you and conclusively proved, that they have entered and exited at the same time from Douala. Which of course I think you will remember PW1 said it is much cheaper to go from Douala than it is from Lagos, even though both of them are residents of Nigeria. Because there was some criticism of PW1 who appeared to be living full-time in the Cameroon, he did not even seem to have an entry or exit to Nigeria.”

53.  It would appear from the above, the judge was emphasising the fact that PW1 and D1 had travelled on the same flight from Douala to Hong Kong on 14 May 2014.  The travel movement records of PW1 and D1 have to be set against the testimony of PW1, who explained that he had previously travelled to Hong Kong for his business of buying electronic goods, which he would sell in Nigeria, Cameroon and Gabon.  He said he had seen D1 before but he was not an acquaintance.  He had first met D1 in Lagos when they consumed the pellets of drugs. He said:

“I used to see him in the flights. I have seen him a few times in the Hong Kong flights. He says he can also remember there was an occasion at the 7-Eleven, a 7-Eleven close to Chungking. We were all there just drinking and chatting, then Sunday decided to buy drinks for all of us, but I don’t have acquaintance with him.”

He added:

“Most times we take the route, Hong Kong to Douala because the flight ticket is cheaper. So I have seen him several times. We arrived together a few occasions.”[54]

54.  Mr Chau argues that without more this direction prejudiced D1 by distracting the jury’s attention from considering D1’s involvement in the present offence.  He further argues that it invited the jury to speculate about the purpose of his prior visits to Hong Kong, with the obvious implication being that he had previously travelled in order to traffic in dangerous drugs.  He submits, therefore, that it was incumbent on the judge to direct the jury that they should not speculate about this evidence or use it in deciding whether he had trafficked in dangerous drugs in the present offence.

55.  First, the judge gave the usual directions to the jury on how they should go about their task of considering and evaluating the evidence, stressing that they must focus on the evidence presented to them and not speculate.[55]

56.  Secondly, the judge was only pointing out to the jury that PW1 and D1 had previously travelled to Hong Kong and was not inviting them to speculate as to the purpose of those trips.  In any event, the evidence before them, as testified by PW1, was that he had made these trips for his business of buying and selling electronic goods.

57.  We find no substance in this ground of appeal.

Ground 3: Failure to warn the jury about PW1’s evidence

58.  The third ground complains that the judge failed to direct the jury’s attention to PW1’s inconsistent and false statements, and failed to warn the jury about relying on PW1’s evidence, particularly in light of the sentence reduction that PW1 could expect for giving evidence against D1 and D2. 

59.  It is submitted that the judge failed to refer to the inconsistency about PW1’s knowledge that he was carrying drugs in respect to what he had said in his first video record of interview dated 16 May 2014 and his statement dated 23 July 2014; and PW1’s allegations of assault and bribery against D2 and the facts contained in the admitted facts.  It is also submitted that the judge failed to warn the jury to be cautious in their evaluation of the evidence of PW1, and to mention that PW1 could expect a substantial discount to his sentence for pleading guilty and giving evidence against D1 and D2.

60.  In order to address this ground, it is necessary to have an overall appreciation of the way this case was conducted both by the prosecution and the defence at trial.  The prosecution case relied primarily on PW1 to add content to the background and the surveillance evidence of D1 and D2 in connection with the dangerous drugs found in Room C.  Whilst the defence case mainly focused on attacking the credibility of PW1 and in that process submitted that they were not involved in trafficking the dangerous drugs as alleged.  Neither D1 or D2 gave evidence or called evidence.  The jury would have been in no doubt that a key feature of the case was the evidence of PW1 and the challenge to his credibility.

61.  The challenge to PW1 was both to his credibility and reliability as a witness.  His evidence was questioned as to his contact and dealings with D1 and D2 as was his truthfulness generally and specifically.  He was cross-examined at length by the respective counsel for D1 and D2.

62.  Counsel for D1 questioned PW1 on his evidence that he thought the pellets he had swallowed contained chemicals and only when he was arrested did he know they contained cocaine, suggesting this was inconsistent with previous statements he had made about his knowledge of the contents of the pellets.

63.  Counsel for D2 questioned PW1 on his evidence that he had a piece of paper with the name and telephone number of D2 on it, which had been discarded together with a packet of cigarettes when he was arrested by the police.  He was challenged that his evidence was inconsistent with answers he had given in his video record of interview in relation to the name of D2 and what took place when they met at Chungking Mansions.  He was also questioned about what had taken place inside Room C and how many cartons of milk were drunk or put in the fridge.  He was referred to his immigration record and it was put to him that he had previously met D2 in Hong Kong.  He was taken to two previous statements he made in 2015, in which he had made allegations of bribery and assault against D2.  He was taken to the relevant admitted facts and it was put to him that his allegations were lies.

The difference between “chemicals” and “dangerous drugs”

64.  When PW1 was questioned in his first video record of interview on 16 May 2014 about whether he knew the pellets he swallowed contained drugs, he said he did not know that was the case until the police told him.[56] In cross-examination, PW1 was taken to his non-prejudicial statement dated 23 July 2014, where he said, in the context of being told by the driver who took him to the airport not to eat on the plane: “At the time, I believed that the white oval substances which I had swallowed were dangerous drugs.”  He previously referred to being given and swallowing white oval substances in Lagos, and later when discussing events in Hong Kong referred to what he had swallowed as “the stuff” and “drugs”.[57]

65.  Mr Chau notes that PW1 was extensively cross-examined about this inconsistency but the judge made no reference to it in her summing-up to the jury.

66.  PW1 confirmed that it was not until he was in Hong Kong that he came to know that what he had swallowed were dangerous drugs.  It was pointed out to him that this was contrary to what he had said in the non-prejudicial statement.  He responded: “That’s not correct because what I told the police is that it was when somebody told me in the flight not to eat I just thought that maybe this is dangerous drugs that I was not sure because when I arrived in Hong Kong the police told me exactly.”  He added: “When I was in Hong Kong in Kenenna’s room, Sunday told me it’s dangerous drugs.  No, he said drugs.  It was the police who made me know it’s dangerous drugs.”[58]

67.  The judge emphasised with the jury that PW1 had been “heavily criticised” by defence counsel, who submitted that PW1 “lied in material respects before you and to the police previously”.[59]  She repeatedly mentioned to the jury that the defence case was that the evidence of PW1 should not be believed.  In relation to PW1’s evidence on the issue, the judge said:

“Eventually, Chief had said he would not give him a loan and had asked him to carry chemicals into Hong Kong. He had not been prepared in court to agree that he knew that the chemicals he was referring to were dangerous drugs, despite the fact that he had to swallow them and could not carry them in a case. But under cross-examination, he did accept that he had been suspicious that they were drugs when he was in the car going to the airport and that he knew that they were cocaine, he said, only when he was told it was cocaine by the police.”[60]

PW1’s allegations against D2 and the admitted facts

68.  It is necessary to recount the unusual circumstances in which this issue arose.  On the first day of trial, on 17 January 2017, the prosecution filed a set of admitted facts signed by counsel for the parties, which incorporated paragraphs 20 to 23.[61]  Those paragraphs read:

“20. Since 20 May 2014, Okoye James Azuka and the 2nd Defendant were kept in separate confinement and segregated in Lai Chi Kok Reception Centre.

21. There is no record of the Correctional Services in the Lai Chi Kok Reception Centre recording any assault by the 2nd Defendant on Okoye James Azuka at any time during their detention.

22. Okoye James Azuka and the 2nd Defendant have never attended the medical clinic at Lai Chi Kok Reception Centre together at any time during their detention.

  23.  According to the records of the Correctional Services, Okoye James Azuka and the 2nd Defendant did not have any contact with each other at any time at the Lai Chi Kok reception Centre.”

69.  It is extraordinary that these facts were admitted as part of the prosecution case because they were never relied upon by the prosecution to prove its case, nor as accurate statements of the facts which the defence sought to assert.  Their only relevance was for the purpose of impugning the credibility of PW1, the prosecution’s own witness.

70.  On 19 January 2017, PW1 testified on behalf of the prosecution.  In his examination-in-chief, he was not asked any questions about the incidents with D2, which he had mentioned in his prior witness statements.  It was in cross-examination by counsel for D2 that PW1 was questioned about the incidents with D2.  The purpose of this cross-examination was solely to attack the credibility of PW1, with the assistance of the admitted facts.

71.  In his statements, PW1 made several allegations of assault and bribery against D2 whilst he was incarcerated in Lai Chi Kok Reception Centre.  In a statement to the police dated 23 September 2015, PW1 claimed that D2 had told him to admit the dangerous drugs were his; D2 offered US$20,000 to him to hire a lawyer; and D2 had attempted to assault him.[62]  In another statement dated 17 December 2015, PW1 claimed that D2 had attempted to stab him with a pencil; D2 told him that he knew his family were in Nigeria; and D2 had attempted to attack him while at the medical clinic of Lai Chi Kok Reception Centre and D2 was taken away by Correctional Service officers.[63] 

72.  D2’s counsel read out passages from PW1’s statements in which he described the various incidents between himself and D2. PW1 confirmed as correct each of the incidents which he had reported to the police and described in his statements.  He also explained that he and D2 were not supposed to be together and as there was no physical injury in respect of these incidents he was told to forget about them by the CSD officer.[64] 

73.  The cross-examination proceeded as follows:

“Q. Now, I’ll just read very briefly what’s written there.

‘Approximately in October 2014, when I had free activity in Lai Chi Kok Reception Centre I met another arrested male, Christian, involved in this case. At that time he told me to admit that the dangerous drugs found in the drugs trafficking case belonged to me and he would offer me US$20,000 and hire a lawyer to beg for mercy. At the time only he and I were present without anyone else. Christian left after talking about this, I did not promise Christian.’

Do you see that? Right? So you - - right?

A. Yes.

Q. So let me get this quite clear, in there you are accusing the 2^nd defendant in October of 2014 in trying to bribe you, is that right, to give false evidence?

A. Yes.

Q. And this is alleged to have happened in Lai Chi Kok Reception Centre in around October of 2014.

COURT: The question, Mr Okoye, was as to did this happen in and around October 2014.

A. Yes, it happened.

COURT: All right.

Q. All right. So moving on to bottom of page 5, in the same statement you make further allegations. You say, ‘Since 12 November, I have been detained in Lai Chi Kok Reception Centre. During this period I met another arrested person, Christian, twice at Lai Chi Kok. At that time Christian attempted to hit me, but I would not be hit by him. We were separated by the officers of the Correctional Services Department. Christian attempted to hit me without saying anything. I believe that it was because I refused to receive the US$20,000 from him. Finally, I would like to say -- to add that when he, Christian, talked to me about offering the US$20,000, he suggested two conditions. He asked me to admit either (1) all the dangerous drugs belonged to me or (2) I was the person responsible for the one pellet of dangerous drugs inside my body belonging to me.’”[65]

…

“Q. But you say that there you make a further accusation that during that period in Lai Chi Kok he made an attempt to assault you and you had to be separated by officers of the Correctional Services Department, right?

A. Yes.”[66]

…

“Q. Now, just before lunch we dealt with the statement of 23 September where you made accusations against the 2^nd defendant that allegedly happened in Lai Chi Kok, right, which you confirmed. Right, now, I’m going to move now to the second statement you made regarding this matter on 17 December 2015 and that statement, if you turn to page 4, I’d just like to read something to you and just to get your confirmation that that is your case, right? Now, starting from the words ‘around’, do you see? On the second English paragraph there, right? I’ll just read that out. ‘Around 29 and 30 December 2014, when I was at Lai Chi Kok Reception Centre waiting to make a long-distance call I saw Nigerian male Christian, another defendant of the same case. At that time Christian was holding a pencil and he wanted to come up to me to stab me, yet the Correctional Services officer grabbed Christian and pulled him away from me. I heard Christian asking the Correctional Services officers to let go of him and he had to deal with me. Then the Correctional Services officers took Christian away. In the incident Christian didn’t hurt me with the pencil.’

A. Yes, that’s what happened.

Q. So, first of all, can you confirm that’s what you said in the statement?

A. Yes, I agree.

Q. And you confirm that you accused Christian of trying to stab you with a pencil.

A. Yes, I agree.

Q. And you confirm that it was the Correctional Services officers who restrained him and took him away.

A. Yes, agree.

Q. All right, okay. Now, let’s look at another incident that you mention in the same statement at the bottom of page 5, the page, the last - - you know, same page, bottom of page 5, the last two lines. I’ll read it out, ‘On an occasion, the date of which I forgot, I went to the clinic of Lai Chi Kok Reception Centre to see the doctor. When I entered the clinic, I saw Christian sitting there. I stayed away from him as far as I could to avoid seeing him. When I was waiting I heard some noises and took a look. I saw that Christian was trying to attack me, but was taken away by the Correctional Services officers.’

A. Yes, that’s correct.”[67]

74.  Having confirmed the incidents with PW1, defence counsel then took him to the admitted facts:

“Q. Now, to be absolutely fair to you, Mr Okoye, I am going to read out the admitted facts from paragraphs 20 to 23 before I ask you more questions on your accusations as to what happened in Lai Chi Kok. Now, paragraph 20 says, ‘Since 20 May 2014, Okoye James Azuka and the 2^nd defendant were kept in separate confinement and segregated in Lai Chi Kok Reception Centre.” Paragraph 21, ‘There is no record of the Correctional Services in Lai Chi Kok Reception Centre recording any assault by the 2^nd defendant on Okoye James Azuka at any time during their detention.’ Paragraph 22, ‘Okoye James Azuka and the 2^nd defendant have never attended the medical clinic at Lai Chi Kok Reception Centre together at any time during their detention.’ Paragraph 23, ‘According to the records of the Correctional Services, Okoye James Azuka and the 2^nd defendant did not have any contact with each other at any time at the Lai Chi Kok Reception Centre.’ All right? All right, Mr Azuka, you have confirmed under oath in the witness-box just now those incidents that I put to you in your statement, is that not right?

INTERPRETER:    He says, ‘The only correct paragraph is paragraph 20.  Paragraph 21, 22, 23, they are not true.’

Q.  Look, can we deal with one thing at a time.  Answer the question.  Can you just confirm that under oath in the witness-box just now you just confirmed all those incidences that you alleged happened to you in the reception centre?

A.  Yes, but I need time to explain.

Q.  No, you’re not here to explain.  You’re here to answer my questions at this stage.

INTERPRETER:    He says he doesn’t agree, he only agrees to paragraph 20.”[68]

…

“Q. Right, now, the first thing I put to you is this, that all those accusations of assaults, threats, alleged bribery, all those that you have said in those statements that happened in Lai Chi Kok, they are all lies.

A. I am saying the truth.

Q. Right, and not only am I putting to you that they are lies, it’s very clear from those four paragraphs that I have read out that the Correctional Services belief that those accusations are all lies.

COURT: Well, I think that’s a step too far and I think it’s a step that you could go in submissions, but I don’t think it’s a proper question to ask him. The point is that it’s clear on the face of the document that the Correctional Services are making the statements that have been agreed as admitted facts at 20 to 23. That’s as far as you can go. The Correctional Services are not saying he’s lying, it’s something that you will be putting to the jury.

MR FENTON: All right, fair enough. I apologise, my Lady.”[69]

75.  It was put to PW1 that he did not have the support of the Correctional Services in his allegations.  At this point, the judge intervened to correct defence counsel, which he duly accepted.

“COURT: Your difficulty -- I’m sorry, Mr Fenton, but your difficulty is the wording of the admitted fact. It says, ‘According to records of the Correctional Services.’ This isn’t an admitted saying they never met. It’s an admitted fact saying, ‘According to our records they never met.’

MR FENTON:  All right.”[70]

76.  Defence counsel then referred to the admitted fact that they never attended the medical clinic together, to which PW1 said that was not true.[71]

77.  PW1 went on to explain that when the incident happened at the medical clinic, the CSD staff had apologized to him as the two of them were not supposed to be there at the same time.[72]  As for the incident with the pencil, he was told by the CSD officer to forget it since no one was hurt.[73]

78.  Finally, defence counsel put to PW1 that these alleged incidents were all lies and they did not happen.  PW1 said they did. The judge noted PW1 did not accept what was put to him by defence counsel and it was a matter for submissions, to which he agreed.[74]  This all occurred in the presence of the jury.

79.  In re-examination, PW1 gave an explanation about the incidents in Lai Chi Kok Detention Centre and why they had not been recorded by CSD staff. His evidence was as follows:

“INTERPRETER: He says, ‘I made a call -- I went to make a call, a call to Nigeria and the CSD staff asked me to sit down after I was making the call.’

A. The CSD staff asked me to sit down where people who go to court when they return normally sit down, the people who -- he asked me to sit down in a place where those who have been to court and have come back, where they normally, after taking their shower, sit down. So around that time was 6 pm, so they now told me to sit down and wait for all those people who went to court, for them to finish taking shower, then we’ll all go together to eat. So while we were sitting there waiting, they opened the door and Kenenna and some group of people came out from -- so Kenenna and a group of people came out from they opened the door where I was sitting, Kenenna came out with a group of people from a room called day one.’

COURT: Day room.

INTERPRETER: He says he was sitting in a place and then Kenenna -- the door was opened for Kenenna, ‘For Kenenna to pass through where I was sitting, because they were coming out from their day room to go and sleep.’

A. So the next thing I noticed was that he was holding a pencil and wanted to attack me with it. Then the CSD staff held him. So the officer with the two star told me to calm down, told me that they made a mistake, that they were not supposed to keep me there and I told the CSD staff that any other day, Kenenna would try to attack me I am going to fight him. So the CSD staff told me that I shouldn’t behave like Kenenna, Kenenna is a very troublesome person, he’s always having problems and because he has problems they always take him into a place called chipper (?), chipper is a place they take people who are, like, troublesome to, that he’s always fighting, that I should forget about the matter, I shouldn’t try to copy what Kenenna is doing. So they gave me a piece of paper to write that I was not actually physically assaulted. So I wrote it and then I forgot it, okay, I forgot about the matter. What led to my saying -- then I forgot about the matter after then, but what led to my saying it to my lawyer again was when Kenenna threatened my family. So 18 November 2015, Kenenna threatened my -- so I suppose the trial will start 18 November 2015 …

INTREPRETER: He said, ‘Before the trial there was supposed to be a trial at 18 November 2015, before that trial Kenenna now threatened me and told me, “If you don’t stop being a witness to the prosecution your family is going to be attacked.” Then Kenenna now told me my wife was in Cameroon, I didn’t even know that my wife had travelled back to Nigeria. Kenenna now told me, “For your information, your wife is now in Nigeria and this is your home address in Nigeria, so if you decide to be a prosecution witness your family will be attacked in Nigeria.” So that was when I became afraid and I decided to -- that is what led to my telling my lawyer all these things that have been going on.’ So he says he wants the court to tell Kenenna to leave him alone and stop troubling his life, that even yesterday Kenenna also troubled him.

COURT: No, no, we’re not going to have other allegations of any sort going on in this trial. You were asked to explain what you wanted to explain about the allegations you made previously. You’ve done that, all right?

INTERPRETER: So the reason why all this, why the CSD does not want to accept -- admit what happened is because they know, actually, according to the law, himself and Kenenna, they are not supposed to have any form of contact, be at the same place at the same time. So that’s why the Correctional Services made a mistake of making them they are the same place at the same time, that’s why they try to cover up this story.”[75]

80.  By this issue, defence counsel sought to challenge the credibility of PW1 and this was emphasised with the jury in his closing speech as follows:

“Then there are the accusations of PW1 about what happened when he was detained at Lai Chi Kok Detention Centre. He confirmed in cross-examination that he gave two statements regarding these accusations, one on 23 September 2015 another on 17 December 2015 and I put to him what he said in those statements and he confirmed the following things. He said that the 2^nd defendant had attempted to bribe him whilst he was at Lai Chi Kok and then on at least two other occasions he tried to assault him. On one of those occasions he tried to stab him with a pencil; on at least two occasions he was restrained by Correctional Services Officers and on one of those incidents, it happened at the Medical Clinic there in Lai Chi Kok.

I invite you, members of the jury to look at the last four paragraphs of the Admitted Facts starting from paragraph 20. And you will recall, members of the jury, that in my learned friend for the prosecution’s opening I counted that she at least said on five separate occasions to you in that opening that these facts are undisputed – undisputed. Look at paragraph 20. ‘Since 20 May 2014 Okoye James Azuka and the 2^nd defendant were kept in separate confinement and segregated in Lai Chi Kok Reception Centre.’ That’s a fact that is undisputed.

Paragraph 21, ‘There is no record of the Correctional Services in Lai Chi Kok Reception Centre recording any assault by the 2^nd defendant on Okoye James Azuka at any time during their detention.’ 22, ‘Okoye James Azuka and the 2^nd defendant have never attended the medical clinic at Lai Chi Kok Reception Centre together at any time during their detention.’ 23, ‘According to the records of the Correctional Services, Okoye James Azuka and the 2^nd defendant did not have any contact with each other at any time at the Lai Chi Kok Reception Centre.’

You may say that 21 and 23 are simply records so the fact that records show that they had no contact with each other is one thing but 21 – I’m sorry 20 and 22 – if you look at the wording of 20 and 22, those are not records, those are facts that they were kept separate in separate confinement and segregated. And 22, that they never attended medical clinic at Lai Chi Kok Reception Centre together at any time during their detention. If you look at 20 and 22 they’re not just records, records already should be pretty damning evidence against his credibility but 20 and 22 are facts that they didn’t see each other.

So the prosecution have put themselves really in quite an embarrassing position, they have agreed facts that they say are undisputed that basically PW1 is lying when he says that ‘He tried to assault me at the medical centre when we both had appointments there.’ He is actually saying – the prosecution, by agreeing those facts, are literally saying that, ‘Well, we’re putting this witness forward, members of the jury, as a witness that’s reliable and truthful but at the same time we are agreeing that if he makes any accusations that these things happened in Lai Chi Kok, they can’t possibly be true. So they can’t have it both ways. This witness is either at least lying about that or is a truthful witness that you can rely on.”[76]

81.  Defence counsel by his closing remarks made it clear to the jury that the issue went to PW1’s credibility, although he did acknowledge that paragraphs 21 and 23 were based on records and therefore less emphatic than paragraphs 20 and 22, which were not. 

82.  It was submitted that the judge did not remind the jury of this aspect of D2’s case.  However, this is not correct.  She went into great detail about it and directed them to take it into account in assessing the credibility of PW1.

“Now, the remainder of the evidence was introduced by the 2^nd defendant who relies upon paragraphs 20 to 23 of the Admitted Facts. And the thrust of that evidence is the PW1 made allegations of bribery and assault against the 2^nd defendant in between October, November and December 2014. This, the 2^nd defendant says, is a complete lie. It could not have happened because they were segregated and they never met. And Mr Fenton is correct to take you to the evidence there is of that. It comes from the Admitted Facts, but it also comes from PW1. PW1 says these incidents occurred. The Admitted Facts state that there is no record of such allegations and the defendants were segregated. It is for you to decide if the Admitted Facts, which are conclusively proved before you, are in conflict with his evidence or not.

The evidence -- that part of the evidence, because that has got nothing to do with the events in May 2014, that part of the evidence goes to the credibility of PW1, his truthfulness. And you should take it into account when you decide if you believe his evidence or not. And as Miss Chow has conceded, whether you believe some parts of his evidence, whilst rejecting other parts, and I am not suggesting to you whether you should accept or reject anything. That is entirely a matter for you.”[77]

83.  Essentially, it is complained that the judge should have gone into considerably more detail than she did in setting out the allegations and how they conflicted with the admitted facts. 

84.  Section 65C(1) and (3) provide for proof by formal admission, and state:

“(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.

(2) …

(3)   An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).”

85.  This statutory provision for the admission of facts in criminal proceedings is a common provision in other common law jurisdictions.

86.  Section 65C was considered by the Court of Appeal in R v Chan Chun Man [1996] HKC 261, where it was held that any admission tendered under section 65C in the proper manner shall be conclusive. The Court went on to say:

“We think that the section must be strictly construed. If it is not, its value will be lost. It is likely to happen, from time to time, that evidence which contradicts, or is inconsistent with, the contents of an admission, is given during a trial. If this occurs, the admission must prevail since it is conclusive.”

87.  In that case, the applicant was convicted of offences relating to two robberies.  The Court found that there were two aspects of the judge’s summing-up which were unsatisfactory.  One aspect was that the judge should have warned the jury in clearer terms of the limited weight they should have attached to blood type evidence of the applicant to confirm the evidence of one of the victims.  The other aspect concerned the admitted fact that one of the victims at an identification parade at which she identified the applicant stated: “It looks like the second from the left”.  The judge had directed the jury to consider whether or not, as she alleged in her evidence, she told the officer in charge of the parade that she was sure, which the officer had denied.  It was submitted that this was wrong since the only version of what happened at the parade which the jury could properly consider was that contained in the admission under section 65C.  The Court agreed and concluded that the judge should have directed the jury to accept the weaker form of identification by the victim.

88.  It is noteworthy that the Court in Chan Chun Man stated that they would not have regarded these two aspects of the summing-up, by themselves, as sufficient to give doubts as to the propriety of the conviction, if the quality of the identification of the applicant by the victim had been satisfactory.

89.  In the present case, it was unusual that the facts contained in paragraphs 20 to 23 were in the admitted facts as part of the prosecution case.  None of these facts were relevant to any fact in issue. They only went to collateral matters that were later used to bring into question the credibility of PW1 during cross-examination.  Had the defence sought to adduce in the defence case evidence of the matters contained in the admitted facts, it is questionable whether they would have been permitted to do so under the legal principles relating to the admissibility of evidence going to collateral issues of credit.

90.  When PW1 was cross-examined by counsel for D2, he was taken to statements he had made to the police on 23 September and 17 December 2015, in which he complained about incidents involving D2 whilst in detention at Lai Chi Kok Reception Centre.  It was confirmed with him that he made the statements and that they were correct.  In the passages that PW1 was taken to in his statements, he agreed the following matters.  Firstly, that in around October 2014, he was approached by an arrested male, Christian (a reference to D2), who told him to admit that the dangerous drugs belonged to him and he would offer him US$20,000 and hire a lawyer for him.[78]  Secondly, that since November 2014, he met Christian twice, who attempted to hit him but was separated by Correctional Services officers.[79] Thirdly, that around 29 and 30 December 2014 when waiting to make a long-distance telephone call, he saw Christian, holding a pencil with which he wanted to stab him but was restrained by Correctional Services officers.[80]  The fourth matter concerned PW1’s statement of his attendance at the clinic:

“On occasion, the date of which I forgot, I went to the clinic at Lai Chi Kok Reception Centre to see the doctor. When I entered the clinic, I saw Christian sitting there. I stayed away from him as far as I could to avoid seeing him. When I was waiting I heard some noises and took a look. I saw that Christian was trying to attack me, but he was taken away by the Correctional Services officers.”[81]

91.  It was submitted to PW1 that what he had stated in his two statements was contradicted by the admitted facts.  It was put to him that his accusations of assaults, threats and alleged bribery were all lies, to which he responded he was telling the truth.  It was further put to him that the incidents did not take place, to which suggestion he said that they had.

92.  This rather unusual course of events needs to be carefully considered.  It would appear that the admitted facts in paragraphs 20 to 22 were drafted for the purpose of contradicting PW1 in relation to the allegations he had made against D2 and in order to undermine his credibility in the eyes of the jury.  Although, the defence were submitting that PW1 had lied about these incidents, the admitted facts do not describe them in specific detail but rather express them in general and broad terms.  Even counsel for D2, had to acknowledge in his closing address to the jury, that paragraphs 21 and 23 were “simply records”, while paragraphs 20 and 22 were “facts”.[82]  It would seem that he was acknowledging that just because there was no official record of something having occurred, this did not mean that it did not happen.  That is a matter of common sense.  However, counsel for D2 did place considerable emphasis on paragraphs 20 and 22 as being “facts” which not only contradicted PW1’s statements, but established he had lied about coming into contact with D2 and attending the medical clinic together with D2 at the Lai Chi Kok Reception Centre.

93.  It is therefore important to look carefully at the wording of paragraphs 20 and 22.  Paragraph 20 states that since 20 May 2014, PW1 and D2 “were kept in separate confinement and segregated in Lai Chi Kok Reception Centre.”  It is not expressed in very clear terms and is open to interpretation.  On the one hand, it may mean that they were separately confined and segregated from each other, or on the other hand, it may mean they were kept in separate confinement and segregated, but not from each other.  The wording is general and broad, and does not specifically address the issue on which this statement is now relied upon under this ground.  Even accepting that the statement asserts that they were kept in separate confinement and segregated from each other, it does not necessarily eliminate the possibility that they had come into contact with each other.  The admitted fact only described how “they were kept” whilst in Lai Chi Kok Reception Centre, and nothing more.  Had the admitted fact said that there would have been no opportunity for them to come into physical contact with each other, or more specifically, never had an altercation with each other whilst in detention at Lai Chi Kok Reception Centre, then that would have stood in direct contrast with the evidence of PW1.

94.  Paragraph 22 states that PW1 and D2 “have never attended the medical clinic at Lai Chi Kok Reception Centre together at any time during their detention.”  This paragraph is also expressed in general and broad terms and does not address the specific incident on which this admitted fact was relied upon to contradict PW1.  According to PW1, D2 was already at the medical clinic when he went there and so does not contradict the admitted fact that they attended the clinic together.  However, even accepting that it was an admitted fact that they had never been at the medical clinic at the same time, it was a matter that the jury were invited to consider as to whether PW1 had lied about the incident with D2 he claimed took place there.

95.  Even though these admitted facts were broad statements, they were nevertheless conclusive evidence as to the facts which they asserted.  To that extent, they were relied on by the defence to submit to the jury that PW1 had lied about coming into contact with D2 and there being an incident with him at the medical clinic.  However, whether what they asserted contradicted the evidence of PW1 was a matter for the jury to decide and that is exactly how the judge directed the jury in respect of this evidence.  The jury were invited to consider and resolve the issue that PW1 had lied.

96.  Given the wording of the paragraphs in the admitted facts and the relevant evidence, we do not see what more the judge could have said about the issue.  As to whether PW1 lied about the incidents in question, the issue was put squarely before the jury for them to consider as they were correctly directed to do by the judge in her summing-up. 

97.  We do not see any merit in this ground of appeal.

Failure to direct on PW1’s sentence reduction

98.  It is complained that the judge did not warn the jury to approach PW1’s evidence with caution, bearing in mind the substantial sentence reduction he stood to benefit from giving evidence against the two defendants and the relevance of his credibility to supporting the prosecution case.

99.  It is important to bear in mind that the two defendants did not give evidence or call evidence on their behalf.  Their case mainly centred on attacking the credibility of PW1.  The jury would have been in no doubt that their prime task was to evaluate and assess the credibility of PW1.  It was very much the focus of the closing addresses by the two defence counsel that PW1 had given untruthful evidence before them.  The judge in turn constantly reminded the jury that criticisms had been levelled against PW1 as a witness of truth and that they should assess those criticisms in deciding whether or not to accept his evidence.[83] She specifically mentioned the issue of the sentence reduction for giving evidence in the proceedings:

“The fact that it has been suggested that PW1 hopes to secure a discount on sentence -- by doing evidence against both of the defendants in this case does not mean that he is not telling the truth. It is for you to decide whether he was telling the truth or not it is a matter of which you must take particular care. As I said before, you will assess each witness’s evidence against the information which is provided to you and you will usually common sense in deciding whether, despite his position as a co-conspirator, the witness is telling the truth or not. And to make that decision, you should take into account all of the evidence you have before you.”[84]

100.  The circumstances of the present case are very different from those in HKSAR v Ngie Hon Miu [2012] 1 HKLRD 137, where the accomplice witness testified that no one had ever told him he could obtain a further discount to his sentence for giving evidence, and nor was he expecting to receive one.  PW1 admitted in cross-examination that he was to receive a reduction to his sentence if he testified against the defendants.[85] 

101.  Both defence counsel repeatedly made this point in their closing addresses to the jury.

102.  We do not find that the matters complained under this ground to be made out, nor did they result in a miscarriage of justice.

Ground 4: Summing-up unbalanced and unfair

103.  The fourth ground complains that the judge failed to sum up to the jury in a balanced and fair manner.  It is argued that the judge’s treatment of PW1’s evidence was brief and did not cover important aspects in sufficient detail to assist the jury in its task.

104.  This ground relies on the merits of the previous grounds, to the extent that they individually or collectively resulted in an unfair summing up.  As there is no substance in the previous grounds, there is equally no substance to this ground.

The grounds of appeal against sentence

105.  Leave was only granted to D1 to appeal against his sentence. 

106.  It is submitted by Mr Chau that the judge wrongly assumed that the jury convicted D1 of Count 1 based on him having swallowed 50 pellets that he brought into Hong Kong, and there was no evidence to support such an inference.

107.  This was an issue that had been argued before the judge by counsel for D1 and accordingly the judge addressed the matter in her reasons for sentence.  She noted that the prosecution case against D1 throughout the trial was that he had swallowed 50 pellets from the bowl whilst in a house in Lagos, Nigeria and that he had travelled onto Hong Kong, where he was taken by D2 to Room C, to excrete all 50 pellets.  The judge in her summing-up to the jury had spelt out that the prosecution case against D1 in relation to Count 1 was that he had conspired with PW1 to traffic in 50 pellets.[86] 

108.  The judge referred to PW1’s evidence as to what occurred when he and D1 were in the room consuming milk in an effort to excrete the pellets each of them had swallowed.  And to his evidence as to what occurred in the house in Lagos where he and others, including D1, were given a bowl containing 50 pellets which they were required to swallow.  He was scolded because he could not swallow all 50 pellets and he did not hear anyone else being scolded for not doing so.

109.  The judge was satisfied that D1 had swallowed 50 pellets and the case against him had been made out as evidenced by the jury’s verdict.  She then calculated the quantity of narcotic involved as follows. She noted that the average weight of a pellet from exhibit P17 was 8.5 grammes; from exhibit P18 was 10.39 grammes; from exhibit P19 was 8.9 grammes; from exhibit P21 was 8.6 grammes; and from exhibit P22 was 8.85 grammes.  She excluded from consideration exhibit P17, because there were only 29 pellets in the bag and she concluded that D1 would have placed all of his pellets into one bag.  She therefore took the average weight of pellets from exhibit P21 of 8.67 grammes which she multiplied by 50, resulting in a total quantity of cocaine narcotic of 433.5 grammes.

110.  At one stage in oral submission, Mr Chau suggested that the judge should have taken the lowest average weight of 8.5 grammes, but as pointed out to him an arithmetic calculation of the starting point for such a quantity in accordance with the sentencing guidelines would be 15 years and 7.5 months.  The judge adopted a starting point of 15 years and 6 months which was lower than the arithmetic calculation for 433.5 gramme- of 15 years and 10 months.  Clearly, there is no substance to this argument.

111.  The judge enhanced the notional starting point by 9 months for the international element, resulting in a sentence of 16 years and 3 months’ imprisonment. 

112.  We find no reason to interfere with the sentence.  In the circumstances, D1 has no cause for complaint about the sentence passed on him. 

Conclusion

113.  It follows from what we have said that we did not find any basis to interfere with the convictions against D1 and D2, nor the sentence against D1. 

114.  The appeals against conviction of D1 and D2 and against sentence of D1 are therefore dismissed.

[1] The Court received notice from the Commissioner of Correctional Services on the dates fixed for handing down Judgment that the two appellants were unfit to attend the hearing on the recommendation of the medical officer because of the coronavirus disease (COVID-19).  We have decided that in accordance with section 83U of the Criminal Procedure Ordinance, Cap 221, it is in the interests of justice that the Judgment be handed down in the absence of the appellants.  A copy of the Judgment will be provided to the legal representatives of the appellants as well as to the appellants, which will be translated to them, if necessary, by an appropriate and convenient method.

[2] CACC 62/2017, 2 July 2019 [2019] HKCA 738 per McWalters JA.

[3] Appeal Bundle (AB), 9, Admitted Facts, at [3]-[4].

[4] AB, 242E-F, the 31^st pellet was discharged from PW1 in the hospital.  

[5] AB, 241P-242O, prosecution’s opening address.

[6] AB, 17, Admitted Facts, at [19].

[7] AB, 8-18, Admitted Facts.

[8] AB, 9, Admitted Facts, at [3] and [4].

[9] AB, 10-14, Admitted Facts, at [7]-[9]. 

[10] AB, 46U-47P.

[11] AB, 8 and 9, Admitted Facts, at [1] and [2].

[12] AB, 121K-122D, 203D-E, and 202P-205B.

[13] AB, 51G-R.

[14] AB, 122S-123C.

[15] AB, 52R-53B.

[16] AB, 14-15, Admitted Facts, at [10].

[17] AB, 11-14, Admitted Facts, at [9].

[18] AB, 16-17, Admitted Facts, at [13].

[19] AB, 9 and 15, Admitted Facts, at [3], [4] and [11].

[20] AB, 131P-132N. 

[21] AB, 116M-117K.

[22] AB, 113C-E.

[23] AB, 119P-Q and 120H-I.

[24] AB, 133D-E, I-K, 137L-138A, 145Q-U.

[25] Transcript of the video recorded interview of PW1 on 16 May 2014 from 16:08 to 18:57 hours, Counters 1449, 1589, 2125, 2154, 2163, 2186, 2210 and 2234.

[26] Witness statement of PW1 dated 23 July 2014: AB, 537.

[27] AB, 152B-E. 

[28] AB, 230B.

[29] PW1’s immigration records (Exhibit P8) entered Hong Kong on 12 January, 9, 18 and 27 April, and 5 May 2014: AB, 632-633; D1’s immigration records (Exhibit P9) entered Hong Kong on 29 and 26 January, 26 February, 7, 16, 24, and 31 March, 9, 20 and 27 April, and 5 May 2014: AB, 634-635.

[30] AB, 160M-164C.

[31] AB, 185K-187Q.

[32] AB, 213C-224J. 

[33] AB, 224J-229J.  

[34] AB, 208E-209L.

[35] AB, 25I-U.

[36] AB, 286I-K.

[37] AB, 25O-R.

[38] AB, 28D-S.

[39] AB, 31I-S.

[40] AB, 32G-M.

[41] AB, 47T-53T.

[42] AB, 48F-J.

[43] AB, 53G-O.

[44] AB, 42J-T.

[45] AB, 46J-P.

[46] HKSAR v Lau Tak Ming [1992] HKLR 370.

[47] AB, 42J-S.

[48] AB, 291S-292C.

[49] AB, 301L-302G.

[50] AB, 252J-M.

[51] AB, 116M-119R. 

[52] AB, 185M-O; and 157L-M and 183Q-184E. 

[53] AB, 17, Admitted Facts, at [17] and [18]. 

[54] AB, 119S-120H.

[55] AB, 20B-23A.

[56] AB, 443-453, at Counters 2148-2298. 

[57] AB, 530 -545.

[58] AB, 154R-157U.

[59] AB, 31L-S.

[60] AB, 48E-J.

[61] AB, 18, Admitted Facts, at [20]-[23].

[62] AB, 553-560. 

[63] AB, 561-567.

[64] AB, 213K-224J.

[65] AB, 214H-215D.

[66] AB, 215N-P.

[67] AB, 216T-217P.

[68] AB, 220K-221C.

[69] AB 221G-N.

[70] AB, 222F-H.

[71] AB, 222I-J.

[72] AB, 222I-223B.

[73] AB, 223D-K.

[74] AB, 224C-I.

[75] AB, 231I-232R.

[76] AB, 271K-272M.

[77] AB, 53H-T.

[78] AB, 214I-Q. 

[79] AB, 214R-215Q. 

[80] AB, 217C-K. 

[81] AB, 217K-P.

[82] AB, 271K-272M. 

[83] AB, 25O-U, 31I-32M, 46A-S, 49J-T, 50F-P, 52H-P, and 53H-T. 

[84] AB, 25O-U.

[85] AB, 230B. 

[86] AB, 41M-42E and 48M-49B.