EDWARD WILSON UBAMAKA v. R.

IN THE COURT OF APPEAL

1993, No. 85
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court:

1. This is an application for leave to appeal against a conviction for trafficking in dangerous drug. The applicant, Edward Wilson Ubamaka, was convicted before Chan J. and a jury on 24 February 1993 on one count namely trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The particulars of offence are that he on 11 December 1991 at the Baggage Reclaim Hall, Hong Kong International Airport, unlawfully trafficked in a dangerous drug, namely 11,197.09 grammes of a mixture containing 5,519.77 grammes of esters of morphine.

2. The prosecution case was straight forward. Suspicion fell on the applicant when he queued for customs examination. The contents of two rucksacks which he was carrying were searched and there were found concealed in those two rucksacks the quantities of heroin in question.

3. At the trial the applicant gave evidence and essentially his defence was that he was a legitimate businessman but he had been set up by his cousin one Victor Paul Ozumba in Nepal. He arrived from Nepal with the rucksacks without any knowledge of their contents and therefore in law he never had the drugs in his possession. That is the sole issue. The grounds of appeal focussed on the way the case was conducted by then counsel for the prosecution. The cross-examination focussed, as one would expect, upon the case put up by the defendant, and was calculated to test the veracity of his assertion that in his travels he was in pursuit of his business as a cloth merchant and that when he came to Hong Kong it was for legitimate business purposes. The applicant, as part of his case, put forward various documents. They were exhibited as Exhibit D1 to D13. They included, for example, exhibit D2 which was an income tax clearance certificate in relation to a company called Edakson Investment Ltd which the applicant said was his company. It shows that the company had no income for the years 1989 and 1990 and an income of 90,000 Naira in 1991. 90,000 Naira represented approximately US$8,000; a part of the cross-examination was calculated to show to the jury that that could not have possibly accounted for the very substantial sum in cash which the applicant said he had brought to Nepal and India namely, US$34,000, which had been almost wholly expended when he was arrested in Hong Kong. He then only had US$670 on him.

4. Other parts of the cross-examination focussed on his passport and the chops in his passport. Complaint was made of a passage in the summing-up where the judge reminded the jury of the prosecution case in these terms:

"The prosecution has suggested to you that this would involve dishonesty on his part because this obviously would be deceiving the proper authorities in Nepal that he had not left and returned to the country".

5. The thrust of the complaint in this court is that both the prosecuting counsel and the judge had focussed too much on the aspect of dishonesty of the applicant and not on the central issue namely whether he knew of the contents of the rucksacks.

6. In our judgment, the cross-examination though robust was legitimate. It was aimed at probing the central issue which was at the heart of the defence namely whether the applicant was, as he claimed, a legitimate businessman. We see no impropriety in the way the cross-examination was conducted nor did the judge fail properly to put the issue to the jury. In our view, there is no prospect whatever of success on the appeal in accordance with the perfected grounds of appeal put forward by the counsel. This application for leave to appeal against conviction should therefore be refused.

7. As to sentence the quantity of drugs seized came within the top of the range of such seizures at Kai Tak Airport. The 11.197 kg containing 5.519 kg of esters of morphine represented, in terms of pure narcotic contents, 6.33 kilo of salts of esters of morphine. On any view this was a very considerable quantity and counsel for the applicant conceded that having regard to the tariff proposed in R. v. Lau Tak-ming [1992] HKLR 370 the only proper sentence for this applicant was something upwards of 20 years imprisonment. The judge on the facts took the applicant as a courier involved in drug trafficking and on the material before us this would appear to be a proper view to take. Trial judges are given latitude in the exercise of their judgment as to what is the proper sentence, and in our view the sentence of 24 years' imprisonment in this case is not manifestly excessive. The application for leave to appeal against sentence must likewise be refused.