R. v. JOHN ONOJAIFE and Others

IN THE COURT OF APPEAL

1996, No 333

(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This case comes to us from a trial before His Honour Judge Chung in the District Court earlier this year.

2. Both applicants are Nigerian men in their 30's. Together, they faced two charges of conspiracy to defraud. On his own, the 1st applicant also faced a third charge, being one of possession of a false instrument, namely a bogus Central Bank of Nigeria staff identity card.

3. On May 21 this year, the 1st applicant was convicted on the three charges which he faced, while the 2nd applicant was convicted on the two charges which he faced.

4. Sentence was passed on the 24th of that month. Each applicant received a sentence of four years' imprisonment. That was reached by consecutive two-year terms on each conspiracy charge and, in the case of the 1st applicant, also a concurrent nine-month term on the possession of a false instrument charge.

5. Initially, both applicants sought leave to appeal against conviction and sentence. Now, however, both have abandoned their applications in regard to conviction and have confined their applications to sentence.

6. Shortly stated, the case proved against the applicants was as follows. Each conspiracy involved the applicants coming to Hong Kong and telling a tall tale about their being in a position, as officials of the Central Bank of Nigeria, to put a huge sum of money into the hands of the intended victim if only he would first pay over a smaller sum to make everything possible.

7. It is a very old trick. The variations on the theme here were these.

8. Under the first charge, it was a story of: US$50 million from Nigeria to be invested in the New Zealand film industry; US$15 million of such investment to be released to the intended victim, a cinema-photographer who had been lured to Hong Kong by faxes from Nigeria; and a cash payment of US$250,000 being needed from the intended victim before the US$15 million could be released to him.

9. Under the 2nd charge, it was a story of: assistance being needed by Nigerian concerns in making payment to European creditors; US$12.5 million in cash having been remitted to Hong Kong for release to the intended victim, a Swiss businessman who had been lured by faxes from Nigeria to come to Hong Kong to discuss such assistance from him; and US$50,000 being needed from him for the purchase of chemicals to clean such cash of the substance with which the same had been defaced.

10. Fortunately, the schemes failed, and the intended victims did not in the result part with any money of which the applicants had conspired to defraud them.

11. It cannot be said that either of these two men appears to be anything like the mastermind behind any of these schemes. But that is not to minimize their roles.

12. All things considered, we are of the view that the sentences passed on the applicants are, despite the seriousness of their conduct, nevertheless appreciably beyond the top of the appropriate range in the circumstances.

13. We look at it in that broad way: so that it was not necessary to invite argument from counsel for the respondent on any specific point; and there was nothing specific which he wished to volunteer.

14. Treating this hearing as that of the appeals themselves, we allow the appeals to the extent of reducing the consecutive two-year terms to consecutive terms of 1½ years instead. The concurrent nine-month term will remain undisturbed: it makes no difference to the total sentence anyway.

15. In the result, each man's total sentence goes down from four years' imprisonment to three years' imprisonment.