HKSAR v. OKAFOR CHRISTIAN

CACC 20/2021

[2021] HKCA 1909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 20 OF 2021

(ON APPEAL FROM HCCC NO 198 OF 2019)

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REASONS FOR JUDGMENT

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1.  The applicant and D1 were jointly charged with drug trafficking. After a trial before Deputy High Court Judge Douglas Yau (“the judge”) and a jury, D1 was acquitted while the applicant was convicted (by a majority verdict of 5:2). On 6 January 2021 the applicant was sentenced to 22 years and 2 days’ imprisonment. I refused to grant leave to the applicant to appeal against his conviction. I now give my reasons.

The Prosecution case

2.  The particulars of the charge were that the applicant and D1 on 11 June 2018 at Tsim Sha Tsui Post Office, Ground Floor, Hermes House, No 10 Middle Road, Tsim Sha Tsui unlawfully trafficked in a dangerous drug, namely 720 grammes of a crystalline solid containing 720 grammes of methamphetamine hydrochloride.

3.  The prosecution alleged that the applicant arranged the importation of the parcel,^[1] and D1’s role was to pick up the drugs from Tsim Sha Tsui Post Office, which she did on 11 June 2018.  She collected the parcel which had arrived from Mexico containing the drugs particularised in the charge hidden inside three thermos flasks.  When she left the Post Office, she was immediately intercepted by Customs and Excise Officers. After she had provided a description of a black man who gave her the Speedpost Notification Card and accompanied her to the post office, the officers went to  Mirador Mansions (which was where the parcel had originally been addressed) and the applicant was seen queuing in the lift lobby.^[2]  He ran out of the building into Nathan Road when they were about to intercept him.^[3] During his flee he was seen to have discarded an LG mobile telephone. Subsequent examination revealed that a call was made from that mobile telephone to D1 when she was inside the Post Office. Furthermore,  the telephone number of a Nokia telephone found in the applicant’s pocket matched the number written on the side of the parcel.^[4]  Call records from that Nokia telephone showed that a call was made to D1 and 10 minutes after that call she was about to leave the Post Office.^[5]

4.  According to CCTV footage produced, a man and a woman, were seen walking in the direction of the Post Office.  The prosecution asserted D1 and the applicant were depicted therein. ^[6]

The Defence case

5.  Neither the applicant nor D1 gave evidence.  D1’s defence was that she had no knowledge of the presence of the drugs in the parcel.  The applicant’s defence was that he had nothing to do with the parcel.  He had no knowledge of the presence of drugs and did not know D1.^[7]  He denied possession of the LG or the Nokia telephone and contended he had not thrown away the LG telephone as alleged.  It was argued the quality of the CCTV footage was poor so a proper comparison could not be made.^[8]

The confrontation identification

6.  D1 was taken by CO 15150 to a government vehicle where the applicant and two customs officers were seated for a so-called confrontation.  It was the Prosecution’s evidence that D1 and the applicant could see each other unobstructed.  They looked at each other for about 5 seconds and nothing was said.  D1 identified the applicant in his absence.  This evidence was objected to but the judge ruled that the prosecution could lead such evidence.^[9]

The applicant’s submissions

7.  Mr McGowan, who represented the applicant at the trial, appears for him in this application.

Ground 1

8.  Ground 1 complains that the confrontation was made in circumstances which were intrinsically unfair to the applicant and should not have been admitted.  (since the applicant was not informed of what was happening prior to it, nor was he informed of his right to refuse to participate; he was seated and partially obscured by those guarding him; he was viewed from the side; he was arrested and he was handcuffed at the time; he was also of a different race and appearance to those inside the car and the witness (i.e. D1)).

Grounds 2 and 3

9.  Mr McGowan submits the CCTV images and “screenshot” photographs of the man walking with D1 were of poor quality and should have been withdrawn from the jury.  Alternatively, the jury should at least have been directed in accordance with Specimen Direction 108 (II)(A) (which is a sample direction to be given where CCTV identification is relied upon plus photographs).

10.  Ground 3 complains the judge’s Turnbull warning given in respect of D1’s identification of the applicant was confusing and inadequate especially in view of the judge’s repeated warning to the jury against using that aspect of D1’s evidence against the applicant.

Ground 4

11.  Ground 4 complains of the insufficiency of the judge’s directions on inferences, especially failing to provide the jury with an example of an inference despite the suggestion of the prosecutor when the jury question asked what “reasonable” meant.^[10]

Grounds 5 and 6

12.  Grounds 5and 6 complain the jury were put under “time pressure” in their deliberations in order to avoid staying overnight during their deliberation.  It was further contended that the judge should have asked the jury whether they were close to reaching a verdict before asking them to retire overnight.  It was further submitted that the jury should have been told that should they be unable to reach a verdict which the court could receive they must say so.

The respondent’s submissions

13.  In reply to Grounds 1 to 3, Mr John Wright, who also appeared for the respondent in the court below, contends that the judge repeatedly directed the jury that D1’s confrontation was not evidence against D2 and they had to consider the case for and against each defendant separately.  He draws to the attention of this court that, not only had there not been any application for separate trials, but counsel for the applicant cross examined the customs officers extensively about the circumstances of the confrontation.

14.  In reply to the other grounds Mr Wright simply submits that the judge’s directions on inferences cannot be faulted and time was extended for the jury to deliberate pursuant to their own request.  There was no misdirection or pressure exerted by the judge.

Discussion

15.  The case against the applicant was not based on the identification/confrontation evidence of the applicant by D1.  The jury was never asked to compare the face of the black man in the CCTV with the face of the applicant in court[11]. Instead the jury was asked to compare the 4 attributes of the man seen in CCTV with the photograph taken by CO 1666[12] at the lift lobby of Mirador Mansion and two photographs produced by the applicant: one was a landscape photo photocopy and the other one a photograph from Apple Daily.[13]

16.  It was the evidence of CO 1666 that after he took a photograph of the man whom he subsequently knew to be the applicant, he intended to show the photograph to the other team members in the lift lobby but then the applicant started to leave[14]. He then gave chase[15] and the applicant was arrested.  It was not disputed that the applicant was the person shown in the photograph taken by CO 1666.  The jury was asked to draw the inference, by comparison of the photographs with the CCTVfootage, that the applicant was the person captured in the CCTV as walking alongside D1 before she collected the parcel.[16]

17.  That was only one of the basis for the jury to draw the inference that the applicant was in legal possession of the parcel. The other evidence included the two mobile telephones; the LG telephone that CO 1066 said he saw D2 throw onto the ground during the flight and the Nokia mobile telephone which was found on the applicant.  The Prosecution case was that the telephone record of the LG phone linked the applicant to D1.  The Nokia telephone number linked him to the parcel as its number was written on the paper stuck on the parcel collected by D1.

18.  In the light of all this, Grounds 1 to 3 are not reasonably arguable.  The judge specifically directed the jury not to compare the face of the man in the CCTV with that of the applicant sitting in court, as that was not what the Prosecution sought to do.  Specimen 108-17 to 108-18 deals with situations when a jury is asked to compare the defendant sitting in the dock against a photographic image from the scene of the crime. The example given in that Specimen direction in 108-18 reads:

“You do not have any evidence of this incident from an eyewitness. However, there is CCTV footage and you also have photographs that have been made from that. You are asked to compare the defendant against the person in the footage and the photographs. …”

19.  It is plain that that specimen direction caters for situations when the jury is asked to compare the defendant against visual images which are the only evidence against him.  The present case is not such a case.  Further, the judge repeatedly told the jury that, what D1 said to the customs officer after the confrontation, and in the absence of the applicant, was not evidence against the applicant.  Taken at its highest, this was just a piece of evidence showing that the two arrested persons were given an opportunity to look at each other.  No confrontation evidence of the applicant was placed before the jury.  In any event, what the applicant said to the officers about not knowing D1 was elicited fairly and squarely from the PWs.[17]

20.  Turning now to Ground 4.  The inference direction was given in accordance with the Specimen direction[18].  The case of Nguyen Ahn Nga v HKSAR[19], which was relied on by Mr McGowan,  was  “made up of circumstantial evidence entirely”[20] and turned on the reaction and non reaction of the appellant to being asked if the check-in suitcase was hers. The judge, while giving the jury directions on circumstantial evidence and the drawing of inferences, did not specifically refer to evidence of the appellant’s reaction or the opposing arguments.

21.  Contrary to Mr McGowan’s submission, in this case, the judge, apart from giving the general specimen direction relating to inferences, also did so in the context of the evidence.  He drew to the attention of the jury that it was the prosecution’s case that, because of the presence of the primary facts, as stated above in paragraphs 15, 16 and 17, they could draw the only reasonable inference that the applicant was in legal possession of the parcel and he knew there was dangerous drugs inside[21]. On the other hand, he also referred to Mr McGowan’s submissions and said this:

“…If the prosecution cannot prove to the jury so that you are sure that D2 did in fact throw or drop the LG phone and that they cannot prove that he did have the Nokia phone in his pocket, Mr McGowan says then the prosecution’s case against D2 must collapse since this circumstantial evidence that they seek to rely on to ask you to draw the only reasonable inference that he had control and custody over the parcel and that he knew there was some kind of drugs they will not exist anymore and the prosecution’s case must collapse against D2. That is Mr McGowan’s submissions.”[22]

22.  During deliberation, one of the questions asked by the jury was “what is regarded as a “reasonable inference”.  After extensive discussion between counsel and the judge[23] , the judge gave the following direction:

“…so if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference; that is to say you must not draw the inference that goes against the defendant.”[24]

23.  The judge stressed to the jury that:

“…You will give the word ‘reasonable’ its everyday meaning as you understand it to me (sic, mean). There is no special legal direction from me on what is regarded as reasonable. What is reasonable is a matter of fact and as such is entirely within the realm of the jury, the judges f facts. You are the one to say what is or is not reasonable.”[25]

24.  Although during discussion Mr Wright did suggest to the judge to give an example to the jury[26], such is not always necessary so long  as the jury has a full comprehension of the concept of inferences.  This ground is not reasonably arguable.

25.  In addressing Grounds 5 and 6, it is important to look at the time sequence:

(a)  The jury was sent out at 10:30 am on 5 January 2021;

(b)  By 4:38 pm, the jury sent a note informing the court of a split in the verdict relating to the applicant.  A discussion with counsel was held in the absence of the jury between 4:38 pm and 4:42 pm during which Mr McGowan suggested that the jury be asked whether if they had any more time they would be in a position to reach a verdict and the judge was in agreement[27]. The jury was brought back into court and directed accordingly and sent out again at  4:46 pm[28];

(c)  The court reconvened in the absence of the jury at 6:13 pm to deal with further questions sent in by the jury, one of which was on the topic of inferences[29] during which the judge and counsel had another discussion[30].  The jury was once again brought back to court at 6:36 pm and directed accordingly[31].  The jury left court for further deliberation at 6:52 pm;

(d)  At 8:17 pm the judge made the observation that the jury had only been deliberating an hour or so after their questions were answered and he was minded to give them more time rather than to ask if they were still at an impasse[32]. Mr McGowan agreed that time had come for the jury to stop deliberating although his was inclined towards seeking a discharge[33];

(e)  At 8:23 pm the jury was brought back into court.  They were directed to retire for the night[34].  The jury foreman then informed the court that they required just a little bit more time to finish their discussion and provide a verdict[35] and asked the court to make it 9 pm.  The judge then stressed that there was no time limit or deadline and the foreman replied “yes”[36].  When asked about their views, all counsel were in favour of allowing the jury to carry on deliberating.  The jury came back with a verdict at 9:03 pm.

26.  Looking at the context, there was no pressure from the bench to the jury.  After the judge explained the position to the jury the request for more time came from the jury.  HKSAR v Amarasinghalage [37] is a case which turned on its own facts where, upon the judge’s direction that the jury were to remain in the court building overnight and to resume their deliberations the following morning, some of the jurorsresponded negatively:

“40. …the forelady of the jury struck her forehead with the palm of her hand in a gesture of apparent despair. …the other jurors evinced dissatisfaction…”

27.  On the next morning when the court resumed, the judge continued to ask the jury to further deliberate without informing them that should they be unable to reach a verdict they must say so.  It was in this context that the Court of Appeal held:

“54.  We are satisfied that, if the Judge was of the view that, having given the jury the direction that they were to cease their deliberations and resume them the following morning it was too late to make the enquiry of them noted earlier, it was necessary that the jury be told the following morning, before they retired to consider their verdicts that, if they were unable to reach verdicts which the Court could receive, they “must say so.”…”

28.  In the present case, after the jury questions were answered they had slightly over an hour to deliberate and the judge rightly acceded to their request for a little more time. Time was not ripe for a Specimen 55.3 direction on Split.

29.  I find all of the grounds advanced by the applicant are without substance and not reasonably arguable.

30.  I remind the applicant of his right to renew his application for leave to the Court of Appeal but that may attract a consequence of a direction for loss of time spent in custody pending his appeal, should the Court come to the view that there is no justification for the renewal of his application.

[1] Appeal Bundle pg 15K-M

[2] Admitted Facts para.7, Appeal Bundle VI

[3] Appeal Bundle pg 74E-G.

[4] Appeal Bundle pg 20H-L

[5] Appeal Bundle pg 20R-T

[6] Appeal Bundle pg 18H-19G

[7] Appeal Bundle pg 4S-5C & 15O

[8] Appeal Bundle pg 5C-H

[9] Appeal Bundle pgs.151-153.

[10] Appeal Bundle pg.144R-S, pg.36J-R

[11] Appeal Bundle pgs.18J-19E

[12] P72

[13] Appeal Bundle pg.19C-H

[14] Appeal Bundle pgs.47P-48E

[15] Appeal Bundle pg.49H

[16] Appeal Bundle pgs.18-19

[17] Appeal Bundle pg.79H

[18] Appeal Bundle pgs.25M-26F

[19] (2017) 20 HKCFAR 149

[20] At page 153

[21] Appeal Bundle pgs.99I-100A

[22] Appeal Bundle pg.105E-J

[23] Appeal Bundle pgs.135-137

[24] Appeal Bundle pg.158I-J

[25] Appeal Bundle pg.158P-S

[26] Appeal Bundle pg.144R-S

[27] Appeal Bundle pg.134M-N

[28] Appeal Bundle pg.135M

[29] Appeal Bundle pg.135N

[30] Appeal Bundle pgs.135-148

[31] Appeal Bundle pgs.154-159

[32] Appeal Bundle pg.148I-J

[33] Appeal Bundle pgs.149N-Q

[34] Appeal Bundle pgs.159T-160A

[35] Appeal Bundle pg.160B-C

[36] Appeal Bundle pg.160G-H

[37] [2016] 4 HKLRD 1