HKSAR v. OKETA SUNDAY BASIL

CACC 18/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 18 OF 2017

(ON APPEAL FROM HCCC NO 144 OF 2016)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  On 25 May 2016, the applicant was sentenced by Zervos J (“the judge”) to 9 years and 8 months’ imprisonment on his own plea to trafficking in 326 grammes of cocaine narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”). The prosecution having indicated its intention of applying under section 56(1) of the Ordinance for the forfeiture of US$2,000 found on the applicant upon his arrest, the case was adjourned until 30 June 2016 for the hearing of the application.

2.  On 30 June 2016, counsel representing the applicant (who had also represented him at the sentencing hearing), informed the court that the applicant was abandoning his claim to the US2,000 and did not oppose the prosecution’s application for forfeiture.  Accordingly, the judge made an order in the terms sought by the prosecution.

3.  More than 6½ months then passed and on 20 January 2017, the applicant filed a Form XI Notice of application for leave to appeal in respect of the forfeiture order only.  By then, he was more than 5½ months out of time.  The reasons he gave for the lateness of his application for leave were that he had now found the receipt for the money and he had come across another prisoner whose money had not been forfeited.

4.  On 11 July 2017, the application sent a letter to the court apologising for the lateness of his application for leave to appeal and contending that no one had properly explained to him that he was required to file notice of his intention within 28 days.

5.  Before us, the applicant did not add to his earlier explanations.  However, he stressed that the money was all he had and pleaded for its return.

6.  On 31 August 2017, we refused leave to appeal out of time and dismissed the appeal.  We said we would give our reasons in due course.  These are our reasons.

The facts of the case

7.  On 1 November 2015, the applicant, a Nigerian national, arrived at Hong Kong International Airport on an inbound flight from Doha in Qatar.  He was intercepted for Customs clearance, and was suspected to have internally concealed dangerous drugs.  Accordingly, he was conveyed to North Lantau District Hospital, where a medical examination confirmed the presence of foreign objects within his body.  He was arrested and cautioned but had nothing to say.

8.  US$2,000 in cash and two mobile telephones were seized from the applicant.

9.  The applicant was then transferred to Queen Elizabeth Hospital, where he eventually discharged from his body 60 pellets, which upon later examination were found to contain a total of 784 grammes of a solid containing 326 grammes of cocaine.  After discharging the first pellet, the applicant was cautioned, whereupon he said that the pellet was a drug but he did not know what type of drug.

10.  In a later video-recorded interview, the applicant stated that the purpose of the trip to Hong Kong was to do business by buying clothes to take back to Nigeria.  Having purchased an air ticket for about 240,000 Nigerian Naira, he planned to stay in Hong Kong for 10 days, although he had not booked into any hotel.  He had been to Hong Kong on three previous occasions in 2015.  He said he was planning to walk around Sham Shui Po in Kowloon in order to buy shirts for his business.  He had been instructed to deliver the pellets he had swallowed for US$1,500.  He repeated that he knew there were drugs inside the pellets but he did not know what type of drugs.

11.  Of the money seized, the applicant said that it belonged to him for buying shirts and to pay for the expenses of the trip.

12.  The estimated retail value of the drug was HK$842,800.  The travel movement records of the applicant confirmed that this was the fourth time during 2015 that the applicant had been to Hong Kong.

13.  Upon pleading guilty, the applicant admitted that he was trafficking in the dangerous drugs seized.

Reasons for sentence

14.  The judge considered the guidelines in R v Lau Tak Ming & Others[1], HKSAR v Abdallah[2]and HKSAR v Chung Ping Kun[3]before adopting a starting point of 13 years and 10 months’ imprisonment.  This was enhanced by 8 months for the international element involved in bringing the drugs across the border into Hong Kong.  According the applicant a full one-third discount for his plea of guilty, the judge passed a sentence of 9 years and 8 months’ imprisonment.

15.  As we have said, the question of the forfeiture of the US$2,000 was adjourned to 30 June 2016 for a separate hearing.  However, on that day, the applicant’s counsel on instructions specifically withdrew his objection to forfeiture, and the judge duly order the money forfeited.

Consideration

16.  The first hurdle faced by the applicant is to explain why he is more than 5½ months out of time in appealing the order of forfeiture.  No satisfactory explanation has been given either in writing or orally before this Court.  None of the reasons advanced come anywhere near discharging the burden that is on him to demonstrate why he should not have filed notice of his intention to appeal within the time limit prescribed by section 83Q of the Criminal Procedure Ordinance, Cap 221.

17.  Since we can see no reason to justify the applicant’s appeal out of time, his appeal can be refused on that basis alone. However, lest we be shutting out a plainly arguable ground of appeal which the applicant could and should have mounted, we have nevertheless gone on to consider the merits of his application.

18.  Having examined the facts and circumstances of this case, there is no basis for this court to upset the order for forfeiture made by the judge.  The applicant did not give evidence and submit himself to cross-examination before the judge on the question of whether forfeiture should be ordered or not.  However, even if we assume in the applicant’s favour that which he asserted in interview to Customs Officers, namely that he was intending to buy shirts in Hong Kong for his business in Nigeria, he would have been using his alleged business purpose as a cloak to disguise his much more serious and sinister purpose of trafficking a very large and valuable quantity of dangerous drugs into Hong Kong secreted within his body.  The US$2,000 was plainly being used in connection with that purpose, not only in order to gain entry to the territory with the drugs, but to support his time in Hong Kong whilst he was waiting to discharge and deliver the drugs.  Indeed, as we have seen, among other things, the applicant told Customs Officers in interview that the money was also to cover his expenses during the trip.

19.  There was no merit in this application.  For the above reasons, the application for leave to appeal out of time was refused.

20.  Before leaving this matter, we wish to make clear that the time for applying for the return of any property, such as money, which the prosecution is seeking to forfeit, is before the trial judge who is fully seized of the papers in the case and who will be in the best position to hear evidence and submissions on the matter, and come to a proper determination as to whether in all the circumstances the property should be forfeited or not.  It is not for a defendant to accede to an order for forfeiture before a trial judge and then change his mind on appeal.  This Court does not, save in very limited and exceptional circumstances, of which these are not one, hear evidence on appeal.