HKSAR v. MBACHU CHARLES SUNDAY

CACC 307/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 307 OF 2009

(ON APPEAL FROM HCCC NO. 105 OF 2009)

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J U D G M E N T

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

1.  The applicant (D2 on the original indictment) was convicted in the High Court before the late Mackintosh J and a jury of a single count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210. On 8 September 2009, he was sentenced to 15 years’ imprisonment. On the same day, his co-defendant[1] (D1 on the original indictment) was sentenced to 10 years’ imprisonment, having pleaded guilty to the same offence.

2.  The applicant filed a timely notice of application for leave to appeal against both conviction and sentence (Form XI) on 21 September 2009.  However, on 2 July 2010, the applicant filed a Notice of Abandonment in respect of his applications for leave to appeal against both conviction and sentence, as a result of which his appeals were dismissed pursuant to Rule 39 of the Criminal Appeal Rules, Cap 221A.

Application to treat abandonment as a nullity (re: Conviction)

3.  Two years then passed before, by way of an affirmation dated 18 July 2012, the applicant applied to treat his Notice of Abandonment of 2 July 2010 as a nullity and to revive his application for leave to appeal against conviction (but not sentence).  A division of three members of this Court dismissed that application on 19 June 2013 and handed down its Reasons for Judgment on 11 July 2013.[2]

Application to treat abandonment as a nullity (re: Sentence)

4.  A further 2½ years then passed before the applicant, by letter of 29 January 2016 signified his further intention of appealing against his sentence.  Accordingly, on 15 February 2016, the applicant applied to treat the Notice of Abandonment of his application for leave to appeal against sentence as a nullity.  He now appears in person before this Court on that application.

Prosecution case

5.  It was not disputed that a robbery took place in Shamshuipo on 31 October 2008, in which incident a Nigerian staff member (PW1) of X Pert Exchange Limited (“X Pert”), a company acting as a remittance centre for trade transactions between Hong Kong and African countries, was robbed of US$169,433, two mobile telephones and a laptop computer at the premises where X Pert carried out its business[3] by two persons, one of whom was D1.  It was the prosecution case that during the robbery, the applicant pointed a pistol-like object[4] at PW1 and struck a customer (PW2), who was sitting beside the cashier office, with a knife, rendering him unconscious.  As a result, PW2 sustained a wound to his shoulder.  D1 and the applicant then tied up, gagged and blindfolded both PW1 and PW2 with reinforced packing tape, which the applicant had brought with him, and with some cable.  Two other customers who later entered X Pert were also robbed of their mobile telephones.

6.  The issue at trial was whether the applicant was one of the robbers.

7.  The evidence called by the prosecution included the following pieces of evidence: (i) PW1 identified the applicant as one of the robbers; (ii) the applicant’s fingerprints and DNA were found on the two knives left behind at the scene by the robbers; (iii) the applicant had confessed to a fellow Nigerian; (iv) part of the stolen money, namely US$10,000, was found on the applicant’s person, and a further US$705 was recovered from the applicant’s home; and (v) the applicant had confessed fully during a video-recorded interview with the police following his arrest that he participated in the robbery.

Defence case

8.  The applicant testified that he was an innocent person who had been framed up by D1 and others.  He claimed that: (i) he was wrongly identified; (ii) he was asked by D1 to buy the two knives, thereby leaving his fingerprints and DNA on them; (iii) he did not make any confession to a fellow Nigerian; (iv) he did not have the stolen money on his person or at his place of residence; and (v) he was forced and induced by the police to make a confession without being told his rights before the video recorded interview, which the police had rehearsed with him before interviewing him.

Reasons for sentence

9.  After the jury had entered a unanimous verdict convicting the applicant, the judge proceeded to sentence.  He found that the applicant’s offence was a particularly grave example of the crime of robbery in that:

(a) The robbers had targeted a business where there was likely to be a large amount of cash and a relatively low level of security;

(b) They were armed with imitation firearms and potentially lethal knives;

(c) The victims were terrorised with threats of death as well as being tied up, gagged and blindfolded with reinforced packing tape and cable; and

(d) One of the victims was struck a blow which rendered him unconscious and suffered a cut to his shoulder.

10.  Finding that the robbery was carefully planned, the judge then considered the applicant’s role.  He said:

“D2, you entered the premises first with, as you admitted, the imitation pistols in your bag. After a while you let D1 into the premises and, as we saw on the video, he came with a bag containing the knives which were some 30 centimetres in length. Suddenly, the robber in the blue top, who was you, D2, entered the small cashier's office where PW1 was sitting at a desk and PW2, a customer, Mr Ko Yiu-hung, was sitting beside it.

The pistol was pointed by you at PW1. He was told that all the money in the safe should be handed over or he should consider himself a dead man. The knife was quickly produced and raised high by you, D1(sic), and you lunged with it at PW1 and struck at PW2, who was hit with a downward sweep, causing a blow to his head and a cut to his shoulder. He was rendered unconscious, whether by the blow or by sheer fright at what was happening.”[5]

11.  In the circumstances, the judge sentenced the applicant to 15 years’ imprisonment.

Application by way of affirmation dated 15 February 2016

12.  The applicant has attached 11 pages of handwritten submissions[6] to his affirmation dated 15 February 2016 in support of his application to treat his 2 July 2010 Notice of Abandonment of his application for leave to appeal against sentence as a nullity.

13.  The applicant has explained that he had applied to be transferred to his home country of Nigeria to serve his sentence (“transfer application”) and was informed that he had to abandon his leave application before the transfer application could be processed.  He stressed that he did not want to abandon his appeal; he was misled by the welfare officer and filed the notice “out of frustration and confusion” and thus “abandoned [his] appeal unknowingly”.  He said that “[he] was not informed neither by the court nor the welfare (officer) that [his] abandonment might cause trouble to [him]”.  He exhibited a letter from the Security Bureau dated 19 December 2013[7], together with two letters from the Legislative Council secretariat dated 10 October 2012[8] and 3 January 2014[9] respectively, showing that his transfer application had been referred to the Nigerian authorities for processing since November 2010.

14.  The applicant has also claimed in his submissions that he has been experiencing health problems, including (i) intense headaches; (ii) testicular pain and abnormality; and (iii) chest pains.

15.  He attached to a further letter, filed on 27 May 2016, mitigation letters written by his relatives (namely an uncle and a cousin), asking the Court for clemency.

16.  In a further 3-page handwritten submission filed on 27 June 2016, the applicant has attached three further letters; one from the pastor of his church in Nigeria, one from Father Patrick Colgan in Hong Kong, and another from his uncle in Nigeria.  He reiterates that, but for the issue of the transfer application, he would not have abandoned his appeal against sentence.

Respondent’s submissions

17.  Ms Memi Ng SPP, on behalf of the respondent, submits that the test for determining the question of nullity in relation to an abandonment of an appeal has been addressed in HKSAR v Law Kam Fai & Another[10], namely whether or not the abandonment was the product of a deliberate and informed decision.[11]  Wrong advice regarding the merits of an appeal would generally not be sufficient; the position might be different where wrong advice is given which goes to the nature or effect of the act of abandonment, by which it may be said that the act of abandonment may not have been voluntary:

“...Where wrong advice is given regarding the merits of an appeal, this will generally not be sufficient: see HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1 at para’s 26-28. In such a situation, in signing a notice of abandonment, an applicant knows exactly what he or she is doing: he knows he has a possible appeal to the Court of Appeal and he is expressly abandoning that possibility. Whether or not that possibility is a good one (in other words, the prospects on appeal) is not relevant: he still realises he has that possibility. On the other hand, where wrong advice is given going to the nature or effect of an act of abandonment, the position may be quite different since the act of abandonment may on analysis not have been a voluntary one at all, or it had an effect of which he was unaware: see HKSAR v Lai Siu Cheung at para 26 (at p 12C-F). In most cases, however, without more, a person can be taken to realise that when he is signing a notice of abandonment, he is doing just that.”[12] (Emphasis supplied)

18.  Ms Ng also relies on HKSAR v Ip Wai Ho Micky[13], where the Court explained that the focus of such an application was the state of mind of an applicant when signing the notice of abandonment, and the applicant has the burden of persuading the court by credible evidence that the abandonment was not the result of a deliberate and informed decision.

19.  Applying this principle, Ms Ng stresses that the applicant made the present application 2½ years after the first nullity application was refused, claiming that he was informed that he needed to abandon his leave applications in order to process his transfer application, and that he was not informed either by the court or the welfare officer that his abandonment might be problematic for him. She submits that even if the applicant was told to make a choice between the transfer application and the leave application, he was nonetheless still making a deliberate and informed decision.

20.  Ms Ng submits that there is no evidence to show that the applicant did not know the nature and effect of the Notice of Abandonment when he signed and filed it.  The transfer application had all along been in process, as shown by the correspondence annexed to the applicant’s affirmation; yet the applicant, contending that he was labouring under a purported misconception, had still made an application to treat his abandonment as a nullity in 2012, and indeed on this occasion.  Ms Ng submits that a change of mind cannot be a legitimate ground for a nullity application, properly applying the test in HKSAR v Ip Wai Ho Micky.

Appeal against sentence

21.  Ultimately, Ms Ng submits that, even if the applicant could succeed in his application to treat his Notice of Abandonment as a nullity, the sentence imposed upon him was neither wrong in principle nor manifestly excessive.

22.  She cites HKSAR v Fu Choi Chung[14], a case concerning the use of a pistol-like object in the course of robbery, for the obvious and established principles that

“26.  Robberies involving the use of firearms, even of imitation firearms, are hideous offences. When law enforcement officers are alerted, they would not be able to tell if the firearms used by the robbers are real firearms or just imitation firearms and they might have to resort to their own, thus exposing the public to grave danger.

27.  This Court has, on many previous occasions, emphasised that the normal sentence to be expected where a person takes part in an armed robbery upon a bank or upon a jewellery or similar shop is one of twelve to fifteen years.”[15]

23.  She further refers to the decision in D1’s application for leave to appeal against sentence delivered on 8 October 2010 in respect of the very same offence, in which the Court of Appeal has already endorsed the approach of the sentencing judge, and confirmed the starting point and ultimate sentence he imposed.[16]  She further submits that the background of the applicant and the letters from his relatives and pastors do not give rise to any issue which would warrant a reduction of sentence; nor would the health issues claimed by the applicant justify this Court in interfering with a sentence which was otherwise appropriate.

24.  Accordingly, she argues that the application for leave to appeal against sentence should be dismissed.

Consideration

25.  We note that the reasons now given by the applicant to treat his abandonment of his appeal against sentence of 2 July 2010 as a nullity are quite different from those which were recorded by the Court in its judgment of 11 July 2013 as the reasons given for his application to treat the abandonment of his appeal against conviction as a nullity.[17]  That is not surprising, since the applicant did not mention any of the reasons for his abandonment when making his nullity application in relation to conviction which he now asserts in relation to his nullity application on sentence.  Furthermore, we find it inconceivable that the applicant would have attempted to resuscitate his application for leave to appeal against conviction but not his sentence, if what he now claims were his real reasons for asking this Court to treat his earlier abandonment as a nullity; or that he would have waited a further 2½ years after the dismissal of his appeal on 11 July 2013 before seeking to reinstate his appeal against sentence.

26.  Moreover, if there were any residual concern[18] that the applicant might conceivably not have fully appreciated the conclusive nature of his Notice of Abandonment on 2 July 2010, he could not have been under any such misapprehension following the handing down of reasons for the Court’s refusal to treat the abandonment of his application for leave to appeal against conviction as a nullity on 11 July 2013.  However, he waited a further 2½ years before deciding to make yet another application to treat his Notice of Abandonment as a nullity, this time in relation to his application for leave to appeal against sentence.

27.  The result of this protracted history is that we are now obliged to deal with an application for leave to appeal against sentence, which was abandoned in July 2010, not resuscitated in 2013 although the applicant sought to reinstate his appeal against conviction, but which he now seeks to reinstate almost 7 years after the original conviction and nearly 8 years since the offence was committed.  Following the dismissal of his earlier unmeritorious nullity application by three members of the Court of Appeal in 2013, this latest application has once again necessitated two members of the Court preparing for, hearing the application and giving judgment in a case which was disposed of many years ago, not to mention the resources expended by the Department of Justice to meet this application; all of which is at the expense of other applicants, whose appeals will have been filed in accordance with the prescribed time limits and who are waiting patiently to have their appeals listed and heard.  And unlike this application, some of the applications and appeals to be made by those in custody may ultimately be found to have merit, thus resulting in their release.

28.  Furthermore, the applicant must have known that the appeal against sentence by his accomplice (D1) on identical facts has already long ago (on 8 October 2010) been dismissed by a different division of the Court of Appeal, which held that the starting point of 15 years’ imprisonment after trial for this offence was entirely correct.  Consequently, he must have realised that his appeal against sentence would be doomed to failure.

29.  Appeal courts are not to be toyed with in this fashion.  Time limits are prescribed by law so that appeals can be dealt with expeditiously in a timely, efficient manner.  Accordingly, applications for leave to treat earlier abandonments of appeals against conviction or sentence are highly exceptional.  The circumstances of this case come nowhere near fulfilling any of the criteria necessary for treating the abandonment of such an application as a nullity.  Furthermore, as these Courts have said time and again, unfortunate personal circumstances are not any reason to disturb an otherwise proper sentence for serious offences.  Armed robbery is an extremely serious offence in the annals of criminal sentencing in Hong Kong.

30.  We have given serious thought to whether we should order loss of time in this matter, notwithstanding that the sentence was a lengthy one.  We have reluctantly decided not to do so, but we take this opportunity now to sound a clear warning to others who are disposed to try and resuscitate appeals they have abandoned years after the event without any reason at all, let alone a good one, that this Court has the power under section 83W Criminal Procedure Ordinance, Cap 221 and will use it in appropriate cases to direct that the time, or part of the time, during which an appellant has been in custody pending the determination of his appeal may not be reckoned as part of the term of any sentence to which he is subject.

31.  This application is refused.

[1] Obiagwu Oluchukwu Christian.

[2] HKSAR v Mbachu Charles Sunday (unrep., CACC 307/2009, 11 July 2013).

[3] Flat B, 1^st Floor, Lung Wa Building, No. 22 Fuk Wa Street, Shamshuipo, Kowloon, Hong Kong.

[4] An air pistol was found at the scene.

[5] Appeal Bundle page 212.

[6] A substantial part of the submissions attached to his affirmation dated 15 February 2016 were grounds of appeal against conviction.  They are irrelevant to the present application.

[7] This letter informed the applicant that the Security Bureau were still liaising with the Government of Nigeria concerning the applicant’s application to transfer to Nigeria to serve his sentence.

[8] This letter informed the applicant that the Security Bureau had sent information to the Nigerian Consulate General in August 2012, and were awaiting a response from the Government of the Nigeria.

[9] This letter explained that there was no bilateral agreement on the transfer of sentenced prisoners between the HKSAR and the Government of Nigeria; that the applicant’s transfer application was therefore being processed on an ad hoc basis in accordance with the Transfer of Sentenced Persons Ordinance, Cap 513; and that such application required tripartite agreement between the two governments concerned and the applicant himself.  The Security Bureau were liaising with the Government of Nigeria and were still waiting for a response.

[10] HKSAR v Law Kam Fai & Another [2006] 2 HKLRD 879.

[11] ibid., at para 44.

[12] ibid., at para 45.

[13] HKSAR v Ip Wai Ho Micky [2015] 5 HKLRD 567, at para 23.

[14] HKSAR v Fu Choi Chung (unrep., CACC 367/2008, 1 September 2009).

[15] ibid., at para’s 26-27.

[16] HKSAR v Obiagwu Oluchukwu Christian [2011] 1 HKC 453, at para’s 16-17.

[17] HKSAR v Mbachu Charles Sunday (unrep., CACC 307/2009, 11 July 2013), at para 10.

[18] See HKSAR v Sarkuna [2011] 6 HKC 145.