HKSAR v. IFEANYICHUKWU HENRY ONYEKA

CACC 55/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 55 OF 2016

(ON APPEAL FROM HCCC 365 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1. After pleading guilty before a magistrate the applicant was convicted on 4 September 2015 of one count of trafficking in a dangerous drug, namely 721 grammes of a solid containing 251 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the Court of First Instance of the High Court for sentence and on 26 November 2015 he appeared before Deputy High Court Judge Campbell-Moffat SC, as she then was, (“the judge”). On that occasion his sentencing hearing was adjourned so that he could finalise his instructions in respect of an application being made by the respondent to forfeit US$3,000 which had been seized from the applicant upon his arrest.

2. On 29 January 2016 the judge heard the application for forfeiture, acceded to it and made the order sought.  On the same day she sentenced the applicant to 8 years and 8 months’ imprisonment.

3. On 23 February 2016 the applicant filed a notice of application for leave to appeal against sentence (Form XI).  Acting in person, the applicant indicated at a mention hearing on 27 July 2016 that he wished to appeal only against the forfeiture order. 

4. At the hearing of the application we refused it and said we would hand down our reasons for doing so at a later date.  This we now do.

The background to the offence

5. The Summary of Facts which the applicant admitted for the purpose of his sentencing revealed that the applicant arrived at the Hong Kong International Airport from Addis Ababa, Ethiopia on 10 March 2015.  He was intercepted for Customs clearance and, as internal concealment was suspected, he was sent to hospital for a medical examination.  This examination confirmed that there were foreign objects inside the applicant’s body.  He was thereupon arrested.  On 11 March 2015, the applicant discharged a total of 39 packages which were subsequently found to consist of 721 grammes of a solid containing 251 grammes of cocaine.  Under caution, the applicant did not say anything.  The estimated retail value of the dangerous drug was HK$769,307 at the time of its seizure.

6. At the time of arrest, the applicant had in his possession cash of US$3,000 and a small amount of Hong Kong Dollars and Nigerian Naira.

The mitigation

7. The applicant is a Nigerian national who was 31 years old at the time of his sentence.  He is married and has an 11 months old son.  He was the sole breadwinner of the family and he derived an income from his business of trading in mobile phones.

8. Mr John Hemmings, counsel for the applicant at the sentencing hearing, quite sensibly submitted to the court that there was very little that could be said on the applicant’s behalf for mitigation purposes.  However, Mr Hemmings did urge the court to consider the applicant’s remorse and his family circumstances, which were expressed in a letter written to the court by him. 

The judge’s Reasons for Sentence

9. Having considered the quantity of the dangerous drug involved, the judge adopted a starting point of 12 years and 6 months’ imprisonment[1]. The judge then took into consideration the international element and enhanced the starting point by 6 months to 13 years’ imprisonment.  She then reduced the enhanced starting point by one third to 8 years and 8 months’ imprisonment to allow for the applicant’s guilty plea.  The judge said she had already taken into account the factors expressed in the applicant’s letter and considered that nothing contained in it would justify further reducing the sentence.

The forfeiture hearing

10. In support of its application the respondent relied on the Summary of Facts and did not call any other evidence.

11. The applicant gave evidence and asserted that he and his wife borrowed the US$3,000 from a friend by the name of Maduka in order to buy new mobile phones and second hand computer parts in Hong Kong for resale back in Nigeria.  He said that on a previous occasion, on his first trip to Hong Kong in 2014, he had similarly purchased such goods and had resold them on his return home.  Maduka was not the person who gave him the dangerous drug to bring into Hong Kong. 

12. He explained to the court that his wife was under great pressure from Maduka as he, the applicant, was now unable to repay the US$3,000.  Maduka had reported the matter to the police who had arrested the applicant’s wife and extracted from her some kind of undertaking in respect of the repayment of the money.  The applicant wished to reclaim the money so he could repay Maduka.

13. The applicant also testified to his relationship with the drug trafficker who recruited him and explained the circumstances under which he agreed to traffic these drugs to Hong Kong.  He said that at the end of 2014 he borrowed US15,000 from the person who gave him the drugs and he intended to use this money to establish a shop for his business.  However, he gave the money to a property agent who then stole it.  But, he claimed, he was able to repay US$5,000 of the US$15,000 loan from the profits of his business. Because he was having trouble repaying the balance he agreed with the lender to traffic in these drugs.  The agreement with this person was that in return for trafficking the drugs to Hong Konghis debt of US$10,000 would be repaid.  But, apart from this he would not be paid any money.

14. However, there was no point coming to Hong Kong empty-handed and so he borrowed from Maduka the US$3,000 that was subsequently seized from him.

15. Under cross-examination he confirmed that he, in fact, entered Hong Kong twice in 2014.  It was put to him that one of the reasons for being in possession of the US$3,000 was so that he could show to Immigration Officers that he had the ability to maintain himself.  He denied this was so.  He claimed that the person to whom he was supposed to give the drugs would be responsible for the costs of his accommodation and food.

The judge’s ruling

16. The judge found that the Summary of Facts established a prima facie connection between the US$3,000 and the trafficking in dangerous drugs.  The judge said:

“On arrival in Hong Kong, in the normal course of events, you would have had to have shown you were in a position to support yourself whilst in our country and you could not have done that relying on the Nigerian Naira and the Hong Kong dollars that were in your possession, and it is highly likely that the US$3,000 was for this purpose, or for the purpose of supporting your ongoing trafficking activities whether that was for accommodation or travel. I do not know.”

17. The judge rejected the evidence of the applicant and made a finding that he would have used part of the US$3,000 to support himself during the days that he was discharging the pellets from his body. 

18. The judge said that whilst she could not be certain which of the limbs of section 56(1) of the Dangerous Drug Ordinance was satisfied, “the overwhelming inference from all the circumstances of this case and from your evidence is that at least one of these alternatives [that is, the alternatives in section 56(1)(a) and (b)] represents the truth and I take the view that it is more likely than not that it was to further your trafficking activities in Hong Kong.”  The judge thereupon ordered the forfeiture of the US$3,000 under section 56(1).

The grounds of appeal

19. In a letter dated 8 August 2016, the applicant said he was assured by the police that the money seized from him would be returned to him as soon as his case was concluded.  Whilst he was later told by his lawyer that the prosecution had applied to forfeit the money, the applicant reiterated in his letter that the money was not connected to the trafficking in dangerous drugs and that his wife was under great pressure to repay the money on his behalf.  He also claimed that his interpreter had told him that he had misinterpreted something “which the judge used against me.” 

20. In a letter to the court dated 10 October 2016 he repeated his claim that the US$3,000 was borrowed money and pleaded for its return to him.  In doing so he again referred to the difficulties being experienced by his wife.  He also mentioned the High Court case of HKSAR v Olebunne HCCC 388/2015 which he said was a case where a prisoner had had seized monies returned to him by the court.

21. At the hearing of his appeal he repeated what he had set out in his letters.  He claimed that at the request of a legal aid representative he had signed a document which was a list, apparently relating to the disposal of exhibits, and the only property on this list which was to be forfeited was the dangerous drugs.  The US$3,000 was, according to this list, amongst the property to be returned to the applicant.

22. The applicant also identified that part of the transcript of his evidence on the forfeiture hearing where he said the interpreter had mistranslated his testimony. 

The respondent’s reply

23. Mr Simon Kwong, Public Prosecutor, for the respondent, relied upon the case of HKSAR v Ngoma Juma Shabani[2] and submitted that once the prosecution had established a prima facie case that a defendant’s property was liable to forfeiture, the burden shifted to the defendant to satisfy the court on the balance of probabilities that he was entitled to have the property returned to him.  Furthermore, it was not necessary for the court to identify which limb of section 56(1) of the Dangerous Drugs Ordinance was engaged.  A judge was entitled to make an order if the judge was satisfied that either of the circumstances described in section 56(1)(a) or (b), was proven, even though the judge could not say which one.  In further reliance on the comments of Lunn VP in Ngoma Juma Shabani, Mr Kwong submitted that if monies are possessed by a drug trafficker to enable him to convincingly pass himself off to Immigration Officers as a legitimate businessman seeking to enter Hong Kong, then those monies are used in the commission of or in connection with an offence.  On that basis alone, so Mr Kwong argued, the judge was entitled to conclude that the monies were liable to be forfeited.

24. The respondent submitted that the judge had correctly applied the relevant legal principles and was justified in rejecting the applicant’s assertion and to hold that he was in possession of the money to facilitate his entry into, and stay within, Hong Kong.  Although the judge was unable to categorically say which subsection applied, she was satisfied that at least one of the alternatives under section 56(1) applied and she took the view that it was more likely than not that the money was to further the applicant’s trafficking activities in Hong Kong.

Discussion

25. The applicant’s case essentially comes down to his difficulties in accepting that having been told that his money will be returned to him, the reality is that it will not.  However, the state may deprive another of his property as long as there is a legal power for it to do so and as long as that legal power is exercised through a properly conducted legal process.  Here, the legal power is section 56(1) of the Dangerous Drugs Ordinance, Cap 134.  There can be no argument that, subject to the process having been properly conducted, the judge was not empowered to make the order she did.

26. We have examined the process carefully and can detect no error of legal procedure or legal principle in the way the judge conducted the forfeiture hearing.  The respondent adduced evidence, in the form of the Summary of Facts, in support of its application for forfeiture and then closed its case.  The judge ruled that, on the basis of that evidence, the money was prima facie liable to forfeiture. 

27. The applicant elected to testify in support of his claim that the money should not be forfeited but should be returned to him.  The basis of the applicant’s claim to be entitled to the return of the money was a purely factual one and was dependent on the judge accepting not just his assertion that the money was the proceeds of a personal loan and not a reward for his trafficking the dangerous drugs to Hong Kong, but also that his use of the money did not fall within either of the limbs of section 56(1).

28. After carefully analyzing the evidence of the applicant the judge rejected it and made a specific finding of fact.  We can find no fault in her reasoning in concluding that the applicant’s evidence was not credible or in the process by which she found that the applicant would use the money to support himself over the days he was discharging the pellets from his body.

29. The hardship caused to the applicant by forfeiture of the money is, even at its highest, a factor relevant not to whether a forfeiture order should be made, but whether that order should be in respect of the whole of the money.  However, if the underlying rationale of forfeiture is to advance the objects of the Dangerous Drugs Ordinance then it would be a very rare case indeed for it to be appropriate for a court to order forfeiture other than for the whole amount of the defendant’s property that is found to be caught by section 56(1). This applicant’s situation is certainly not such a case.

30. None of the matters relied on by the applicant can properly impugn the making of the order of forfeiture in respect of the US$3,000.  What orders are made by other judges in respect of other defendants’ properties is wholly irrelevant to whether, on the facts of this case, a forfeiture order in respect of this US$3,000 was properly made by this judge.  As to the allegation that part of his evidence was misinterpreted, we have examined the transcript and are satisfied that any misunderstanding by the interpreter was immediately corrected by him and the true meaning of what the applicant was saying was before the judge.  

Conclusion

31. For these reasons we refused the application for leave to appeal the sentence, in so far as it related to the order forfeiting the applicant’s property of US$3,000.

[1]  HKSAR v Lau Tak Ming & ors [1990] HKLR 370: for 200 to 400 grammes of cocaine, the relevant sentencing band, after trial, is 12 to 15 years’ imprisonment.

[2]  HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57.