HKSAR v. AGBANYIM EMEKA PRINCE

CACC 261/2021

[2023] HKCA 217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 261 OF 2021

(ON APPEAL FROM HCCC NO 162 OF 2020)

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REASONS FOR JUDGMENT

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(A)  Introduction

1.  This is an application for leave to appeal conviction. At the trial below, the applicant faced an indictment containing a single count of Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The offence arose out of the seizure of 6.061 kg of methamphetamine hydrochloride (commonly known as “Ice”) found inside Room A, Flat B, 5/F of Wai Lee Building in Hung Hom, Kowloon (“Room A”), to which the applicant had access with a key.

2.  The applicant pleaded not guilty to the offence and was tried in the High Court before Deputy Judge Derek Chan SC (“the judge”) and a jury. On 11 November 2021, he was unanimously convicted and subsequently sentenced to 28 years and 2 months’ imprisonment.

3.  By way of a Form XI Notice signed on 18 November 2021, the applicant applied for leave to appeal his conviction only. At the hearing of the application, I refused leave to appeal and said that I would hand down my reasons for doing so in due course. These are my reasons.

(B)  The trial

The prosecution case

4.  At all material times, the applicant was a Form 8 Recognizance Holder, who was accordingly not permitted to work in Hong Kong[1]. In the afternoon of 19 August 2019, he was intercepted by police officers in the vicinity of Wai Lee Building in Hung Hom. Upon enquiry, he led the police to Room A. By means of a key produced by the applicant, the police successfully gained entry to Room A and conducted a search.

5.  Inside the room, the police found a Reebok sports bag lying on the floor next to the bed, which contained two plastic bags of Ice in the quantities set out in the indictment, as well as an electronic scale. The total street value of the Ice at that time was HK$2,842,987[2].

6.  The applicant was arrested for the offence of Trafficking in a Dangerous Drug. It was an admitted fact that two tenancy agreements in respect of Room A (for the period 1 August 2018 to 31 July 2019, and 1 August 2019 to 31 August 2020 respectively) were seized in the premises at the time: they were produced as Exh P11 and Exh P12[3]. The landlady of the premises testified that both agreements had been signed by her and the tenant personally, and the tenancy had been renewed on the same terms by the same tenant, upon the expiry of the first term[4]. If the landlady’s evidence was accepted, this would mean that the tenancy had been renewed by the applicant a mere 18 days before the present offence.

7.  Further, it was an admitted fact that the applicant’s DNA was found on one of the two plastic bags of Ice and the electronic scale[5].

8.  Between 21:34 and 23:08 hours on 19 August 2019, the applicant participated in a video recorded interview (“VRI”), with the assistance of an Igbo interpreter. Its admissibility was not in dispute at the trial below[6]. In the VRI, the applicant denied knowing anything about the Reebok bag or the Ice. Nor did he know why the bag was there, or who had left it there. He said he was living elsewhere at the time, but another African male called “Jumbo” would sometimes come and stay in Room A. As it happened, Jumbo had stayed at Room A the previous week. Nevertheless, the applicant did not have the contact number of Jumbo, nor did he know where he was. He claimed that he and Jumbo each possessed a key to Room A; he had recently demanded that Jumbo return the key to him but was told that it had been lost. The applicant also confirmed in the VRI that he was the signatory to the two tenancy agreements[7].

The defence case

9.  The applicant did not give evidence, nor did he call any witnesses. Essentially, he adopted what he had said in his VRI and denied knowledge of the Reebok bag containing the Ice in question[8].

10.  The applicant’s trial counsel, Mr Michael Arthur, submitted on his behalf that there was no evidence as to when he had last stayed at Room A; and suggested that there was a possibility of contamination of the applicant’s DNA on the electronic scale and the packet of Ice by police officers in the course of their search of the premises[9]. In particular, Mr Arthur suggested that the applicant’s DNA could have been indirectly transferred onto the items when the police officer used the same pair of gloves to search Room A, handle the exhibits and move them to the corridor outside for the purpose of taking photographs[10].

(C)  The grounds of appeal

11.  The applicant is unrepresented. However, by an affirmation filed on 20 April 2022, Perfected Grounds of Appeal filed on 18 May 2022 and Grounds of Appeal filed on 7 June 2022, the applicant has advanced a number of grounds of appeal. The grounds fall into two broad categories. The first alleges flagrant incompetence on the part of his legal representatives at trial; the second complains that he was deprived of a fair trial. The grounds may be summarised as follows:

(1)  The applicant’s trial lawyers failed to act on his instructions to “completely oppose” the production of the VRI, which was “badly polluted”, involuntary and unfairly influenced by the Igbo interpreter present;

(2)  They failed to address the police officers’ improper conduct in the course of the arrest and house search;

(3)  They wrongly advised him not to testify, and “decided” on his behalf that his girlfriend would not testify;

(4)  They failed to explain the contents of the Admitted Facts to him, which he did not understand or admit at all;

(5)  They failed to question the police witnesses about forcing and detaining him inside a “Gogo Van” after his arrest;

(6)  The judge wrongly directed the jury on the evidence of the DNA as being against the applicant;

(7)  The judge acted unfairly by allowing leading questions to be asked in the examination-in-chief of the police witnesses, in particular as to whether there was a valid search warrant, and by failing to direct the jury not to speculate as to the reasons for not answering some of the questions; and

(8)  There was insufficient evidence to convict.

To these grounds, the applicant has added before me, in oral submissions, that his legal representatives had failed to obtain certain CCTV evidence showing the entrance to the building in question; and failed to put before the jury the fact that the electronic scale had been left behind by the previous tenant, which might also have accounted for his DNA on the article.

(D)  The trial representatives’ response

12.  Pursuant to the directions of Master Chung made on 18 May 2022, Mr Arthur and Mr Gerard Morada, the applicant’s solicitor at trial, have respectively filed evidence in response to the applicant’s allegations. Both have denied those allegations and contend that they had acted fully on the applicant’s instructions, and in his best interests, throughout the trial. They have further exhibited a set of instructions purportedly signed by the applicant (although the applicant disputes his signatures on the document) in respect of the conduct of the trial. It is apparent that the applicant’s instructions, if they are indeed his, confirm, amongst other things, the following matters:

(1)  The Admitted Facts had been read to the applicant in Igbo. He understood the contents and agreed with them[11];

(2)  His participation in the VRI was voluntary, and having been “advised of (the) advantages and disadvantages of challenging the VRI”, he did “not wish to challenge the VRI”[12];

(3)  In respect of the cross-examination of the police witnesses, the applicant had provided his lawyers with a set of instructions, which they had discussed with him. He was “satisfied” with the way Mr Arthur had dealt with the cross-examination of (PW2)[13], and agreed to “leave it to the professional discretion of my lawyers to conduct the cross-examination of PWs and ask questions as he sees fit and advantages to my case”[14]; and

(4)  At the end of the prosecution case, the applicant had been advised of the strengths and weaknesses of the prosecution’s evidence, his right to give evidence and call witnesses and the advantages and disadvantages of doing so. He directed that he did not want his girlfriend to be called as a defence witness, and specifically acknowledged that his “own detailed account of the events that transpired during my arrest and the conduct of my VRI would not be known to the members of the jury unless I give evidence”. He instructed that he did not wish to give evidence or call any other witness[15].

13.  In his affirmation, Mr Arthur further explains how he had advised the applicant not to challenge the VRI as it was voluntary and exculpatory. In the end, the matter was laid to rest as the applicant confirmed his instructions not to challenge it. In respect of those parts of the VRI that were prejudicial, or in the applicant’s words “highly polluted”, they were redacted upon Mr Arthur’s application to the judge. Mr Arthur recalls, having watched the redacted version of the VRI with the applicant, that he received no complaint from him.

14.  In view of the fact that the seizure of the Ice was not disputed, Mr Arthur considers the important issues at trial were essentially “how they got there” and the possibility of secondary transfer of DNA. Accordingly, the alleged improper access and conduct by the police were merely “peripheral” to the issues in the case. In any event, he did cross-examine the prosecution witnesses on those allegations, but they were all denied. As confirmed in the signed instructions dated 5 and 8 November 2021, the applicant was satisfied with the way his defence was conducted and made no complaint regarding the matter.

15.  Mr Arthur further recalls that, at the end of the prosecution case, he had duly advised the applicant about his right to give evidence, and warned that if he chose not to do so, his version of events would not be heard by the jury. Ultimately, the applicant decided not to testify. Mr Arthur also denies having discouraged the applicant’s girlfriend from testifying for the defence; on the contrary, the applicant instructed him that he did not want her to testify.

16.  Mr Arthur also recalls that on 23 October 2021, he explained the contents and the significance of the Admitted Facts to the applicant; and further, on 2 November 2021, the judge explained the same to him in open court with the assistance of the official Igbo interpreter. The Admitted Facts reflected precisely the applicant’s instructions and at no stage had the applicant raised any query about, or objection to, them.

17.  With regards to the issue of the Gogo Van, Mr Arthur avers that ultimately, the applicant accepted that he was kept inside an unmarked police vehicle, and not a Gogo Van. The police witnesses were cross-examined on this issue and they confirmed that the vehicle was in fact an unmarked police vehicle. In any event, the alleged events, which took place inside the unmarked police vehicle, all preceded the VRI and did not have impact on its voluntariness.

18.  Mr Morada, in his affidavit, adopted Mr Arthur’s version of events and added that the applicant’s girlfriend had not indicated at any stage of the trial that she could attend the court to testify. In the end, the applicant’s girlfriend appeared only after the judge had begun his summing-up to the jury.

(E)  The applicant’s further reply and section 83V application

19.  As may be seen by his affidavit filed on 11 October 2022, the applicant entirely disagrees with his trial representatives’ version of events. He disputes that the instructions exhibited to their evidence were the “correct instructions”, and claims that some of the contents were even “unknown” to him. Before me, the applicant disputed the several signatures attributed to him on the signed instructions.

20.  By another affidavit filed on 21 September 2022 and a letter filed 12 October 2022, the applicant also seeks to file new evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221. Attached to the new evidence application are three letters[16] purportedly issued by the International Social Service Hong Kong (“ISS HK”), in response to the applicant’s request for the copy of the tenancy agreements in respect of Room A for the period 2018 to 2019 and 2019 to 2020.

21.  The following matters may be discerned from the replies of ISS HK. Firstly, the tenancy agreement, which the applicant submitted to ISS HK for the period 2018 and 2019 was located in their records and was duly provided to him as requested; however, secondly, they were unable to provide the tenancy agreement for the period 2019 to 2020 because “there was no record of the said document kept in our agency”.

22.  The significance of the new evidence is said to be that the absence, or non-existence, of the said tenancy in the ISS HK records could undermine the prosecution case that he had in fact renewed the tenancy for Room A shortly before the offence and was the tenant at the time of the offence, as alleged by the prosecution.

23.  The applicant also disputes the authenticity of Exh P12. He contends that the tenancy agreement produced at trial in respect of the period 2019 to 2020 was “entirely unknown to him” and was “not signed by him”. By comparing it with Exh P11, he alleges one can readily see the obvious differences in content, handwriting and signatures.

24.  The applicant maintains that he only discovered the issue concerning Exh P12 after he had “carefully reviewed and scrutinised all the relevant documents” following his conviction.

(F)  The response of the respondent

25.  Mr Dominic Ngai, on behalf of the respondent, opposes the present application. He submits that the applicant has failed to discharge the heavy burden involved in establishing the flagrant incompetence of his trial representatives, or to show that he has been deprived of a fair trial. In particular, he invites the court to accept the accounts given by Mr Arthur and Mr Morada, and reject the applicant’s version in its entirety. He argues that the accounts of his trial representatives are supported by the clear, contemporaneous and signed instructions of the applicant. With the assistance rendered by the defence Igbo interpreter throughout the trial, it is inconceivable that the applicant could have been kept in the dark about developments in the trial as he now claims. Mr Ngai submits that none of the applicant’s grounds of appeal has any merit.

Ground 1

26.  As is apparent from the signed instructions, the applicant’s allegation that he had opposed the production of the VRI is simply untrue. As pointed out by Mr Arthur, the account of events contained in the VRI was exculpatory, and the applicant had himself seen the redacted version in open court and raised no complaint. Further, the judge had properly reminded the jury that the VRI, apart from any incriminating parts, also contained explanations.

Ground 2

27.  Mr Ngai submits that Mr Arthur was clearly aware of the allegations of improper access and conduct by the police, and had cross-examined the prosecution witnesses on those matters. In any event, he argues that those allegations were peripheral to the main issue in the case, which was how the applicant’s DNA came to be deposited on the electronic scale and one of the packets of Ice.

Ground 3

28.  It is the respondent’s position, as confirmed by the applicant’s signed instructions, that the applicant had been given full and proper legal advice following the close of the prosecution case. Mr Arthur then conducted the defence case pursuant to his instructions not to testify or to call his girlfriend as a witness. Further, in his summing-up, the judge had properly directed the jury that they must not assume anything from the applicant’s decision not to give evidence, and invited them to consider the explanations contained in his VRI. There is simply no merit in this ground.

Ground 4

29.  Mr Ngai argues that the applicant’s allegations regarding the Admitted Facts are simply untrue in the wake of his clear, signed instructions. The trial representatives had advised and explained the effect of the Admitted Facts to the applicant; furthermore, the document in its final form was read and interpreted to him in open court, and then admitted to by him personally before the judge.

Ground 5

30.  Mr Ngai contends that Mr Arthur had discharged his duty properly in cross-examining the police witnesses regarding the applicant’s alleged detention in a Gogo Van, which was in fact an unmarked police vehicle. Besides, whatever the applicant’s instructions were regarding those events, they all preceded his voluntary participation in the VRI, which was accepted as voluntary in the Admitted Facts.

Ground 6

31.  It is the respondent’s argument that Mr Arthur had already done his best in cross-examination of the police witnesses and government chemists by suggesting several possible ways that there might have been secondary transfer of DNA to the electronic scale and drugs. In his summing-up, the judge had set out the evidence in this regard, and fairly reminded the jury that the DNA evidence did “not in itself prove that the defendant committed the offence”[17].

Ground 7

32.  It is submitted that Mr Arthur conducted the applicant’s defence according to his instructions and in his best interests. Furthermore, as confirmed by his signed instructions, he had entrusted the matter of the cross-examination of the important exhibits officer to the professional judgment of his counsel.

33.  Mr Ngai further argues that leading questions are not prohibited in criminal trials. For instance, the questions now complained about only had the effect of confirming the applicant’s acknowledgment of the seizure, as opposed to his knowledge of the Ice, which would clearly have been objectionable. Besides, the judge reminded the jury that the applicant claimed to have no knowledge of the Ice in his VRI[18]; while, of the police officers’ credibility, he said, “the fact that they are officers does not mean that their evidence is more credible or less credible than other witnesses”[19]. It is submitted that the applicant could not have been prejudiced in any way.

Ground 8

34.  Mr Ngai submits that the sufficiency of the evidence was an issue for the jury. In his summing-up, the judge gave a detailed summary of the evidence and the points made in the closing speeches of counsel. The judge correctly used the absence of fingerprint evidence, and of CCTV footage and telephone records as examples to illustrate the point that it was not open to the jury to speculate as to what this absent evidence might be, or to fill in any gaps in the evidence. Above all, the jury were properly reminded that they were to decide, on the whole of the evidence, whether the prosecution had made them sure of the applicant’s guilt.

35.  Finally, Mr Ngai draws to my attention the decision of the Court of Final Appeal in Chong Ching Yuen v HKSAR[20] and submits that the crucial question before any appellate court will be whether the applicant had a fair trial. He argues that the directions to the jury were fair, accurate and comprehensive. Further, as supported by their evidence on appeal, the trial representatives had discharged their duties diligently and conducted the defence in accordance with their instructions. Besides, there was nothing in the circumstances to suggest that the applicant, who had the benefit of experienced legal representation and interpretation, did not fully understand the trial proceedings. The applicant has, therefore, failed to show that he was deprived of a fair trial.

(G)  Consideration

36.  The applicant is, by his grounds of appeal, now effectively seeking to resile from: (i) the signed instructions he gave to his trial representatives; (ii) the formal admissions he made in the Admitted Facts; and (iii) the admissibility of the VRI and the admissions he made therein (for example, as to the signing of the tenancy agreements). In so doing, he has sought to cast aspersions on the conduct and competence of his legal representatives, and the conduct and fairness of the police and Igbo interpreter used during the taking of the VRI, in an effort to undermine the Admitted Facts and the admissibility of the VRI. He has even gone so far as to suggest that the signatures on his instructions on 9 November 2021 have somehow been fabricated. It can be seen that his position has changed dramatically since the trial and his conviction.

37.  In the Admitted Facts, which were agreed to and read out at trial, the applicant had admitted the following matters relevant to the present application:

(1)  His identity and Form 8 status;

(2)  The seizure of drugs (there was no admission as to where they had been seized) by the exhibits officer, and its associated chain of evidence;

(3)  The narcotic weight and the street value of the Ice in question;

(4)  The seizure of two tenancy agreements inside Room A for the relevant periods, and their formal production at the trial as Exh P11 and Exh P12;

(5)  The formal production of the VRI at trial, which was accepted as voluntary and made with the assistance by an Igbo interpreter; and

(6)  The findings of the applicant’s DNA on the electronic scale and one of the packets of Ice.

38.  It is to be remembered that Section 65C(3) of the Criminal Procedure Ordinance stipulates that:

“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)”. (Emphasis supplied)

The Court in HKSAR v Tam Ho Nam[21] at [91] has recently emphasised that admissions, which have been formally and solemnly made under section 65C, are rightly made very difficult to withdraw; and only then, with the leave of the court. I cannot on the material before me see any reasonable argument that the applicant might successfully withdraw such admissions.

39.  The carefully chronicled instructions signed by the applicant, and meticulously kept by the legal representatives, suggest that he was kept well informed of the progress and development of his trial as it progressed, with the assistance of an interpreter. Moreover, in accordance with standard court procedure, the Admitted Facts were read out in the applicant’s presence in open court without demur[22]. At no stage did the applicant raise any concern or complaint about the accuracy (or inaccuracy) of the Admitted Facts, until after he had lodged his leave application following conviction. Accordingly, an appellate court would normally continue to regard the matters recorded therein as conclusively proved: this point is particularly relevant to his present challenge to the admissibility of the VRI and Exh P12.

40.  Furthermore, the above admissions are consonant with the applicant’s signed instructions; and Mr Arthur’s tactics and conduct of the defence at trial were also consistent with those instructions. Given that the applicant had never raised any complaint about the conduct of his case or his legal representatives as the trial progressed, an appellate court might have great difficulty in concluding that the signed instructions were not an accurate record of the applicant’s instructions at trial. The allegations of flagrant incompetence are not reasonably arguable, given the very careful and diligent steps taken by the applicant’s legal representatives to ensure not only that the applicant gave them appropriate instructions but that they faithfully followed those instructions.

41.  In view of the matters set out in the Admitted Facts and the prosecution case, issues such as the Gogo Van allegations, the damage to the door of the premises and the demeanour of the Igbo interpreter were not significant issues in the case. Mr Arthur cannot realistically be criticised for taking the view that they did not advance the defence case. Indeed, arguably, such issues undermined the case he was trying to present to the jury. Mr Arthur’s tactic of not concentrating on peripheral matters but focussing on the possible secondary transfer of DNA, was arguably a wise one and properly within his discretion given the applicant’s written instructions.

42.  As for the complaint about the VRI, the fact is that it contained the gist of the applicant’s defence in the absence of his evidence; accordingly, it is difficult to fault Mr Arthur’s tactic in not challenging it, especially given the applicant’s clear instructions that it was voluntary. In any event, it remains a matter of speculation as to what the applicant and his girlfriend might have said (on top of what was contained in the VRI), had they testified. For present purposes, given that his VRI was admitted into evidence, alongside counsel’s cross-examination and submissions on the possibility of secondary transfer of DNA, the important aspects of his defence would have been properly considered by the jury.

43.  As for the new suggestion made to me in oral argument that the electronic scale was left behind by the previous tenant, as a result of which the applicant may have touched it, I cannot see how counsel could have advanced such an explanation without the applicant giving evidence or, at least without the suggestion appearing in the VRI, which it did not.

44.  The applicant has failed to make out a reasonably arguable case of incompetence, let alone flagrant incompetence, on the part of his trial representatives. On the contrary, an appellate court might be particularly struck by the care and conscientiousness with which his legal representatives obtained, confirmed and carried out their clear instructions.

45.  Nor can I see any reasonably arguable ground that the applicant did not get a fair trial.

46.  The applicant’s challenges to the fact of leading questions, and the judge’s failure to direct on certain matters in the summing-up, are not reasonably arguable. It appears that leading questions were only asked regarding matters that were not in dispute. At trial, the applicant had the benefit of having a defence team of three counsel, a solicitor and a defence interpreter. Yet none of them reacted to the alleged unfairness and prejudice which is said to have arisen in the course of the trial. In any event, the time to make complaints about leading questions is at the trial, not at the appeal.

47.  Finally, the judge’s summing-up on the evidence was accurate and his directions on the applicable principles were correct. In its overall effect, the summing-up seems comprehensive, fair and balanced.

48.  As for the applicant’s wish to adduce fresh evidence as to the tenancy of the premises, I cannot see an appellate court acceding to such an application, even assuming it fulfilled the other requirements under section 83V of the Criminal Procedure Ordinance, when the applicant has already admitted signing the tenancy agreements in his VRI, which was accepted as voluntary and admissible in the Admitted Facts.

(H)  Conclusion

49.  Accordingly, I refused leave to appeal on any of the grounds advanced before me. I further advised the applicant at the hearing that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application. I should also add, in the context of this particular case, that where allegations of flagrant incompetence against legal representatives at trial are renewed at the appeal and found by the Court to be wholly unjustified, the Court will normally consider an order for loss of time.