HKSAR v. AGAEHI PASCHAL EMEKA

CACC 305/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 305 OF 2012

(ON APPEAL FROM HCCC NO. 264 OF 2010)

____________

____________

______________________________

REASONS FOR JUDGMENT

______________________________

Hon Lunn JA (giving the Reason for Judgment of the Court):

1.  The applicant, who appeared in person, sought leave to appeal against his conviction on 17 July 2012, after trial by Deputy Judge Stuart-Moore and a jury, of a count of conspiracy to traffic in dangerous drugs, namely cocaine, and a count of attempting to traffic in dangerous drugs, namely 444.52 grammes of cocaine and in respect of the sentences of imprisonment imposed in consequence, namely a total of 22 years and 6 months’ imprisonment. At the hearing we dismissed both applications and said that we would give our reasons in due course. We do so now.

The indictment

2.  By Count 1, it was alleged that the applicant had conspired between on or about 29 January and 6 February 2010 with a person or persons unknown to traffic unlawfully in cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.  By Count 2, it was alleged that on 6 February 2010 outside Room A, 5^th Floor, 70 Lee Garden Road, Causeway Bay the applicant attempted to traffic unlawfully in 444.52 grammes of cocaine.

Sentence

3.  Having said that he had regard to the guidelines for sentence articulated by this Court in its judgment in HKSAR v Abdallah[1], the judge imposed a sentence of 16 years’ imprisonment in respect of each count, ordering that 6 years and 6 months’ imprisonment of the sentence imposed in respect of Count 2 be served consecutively to the sentence imposed in respect of Count 1.  Accordingly, the total sentence imposed on the applicant was 22½ years’ imprisonment.

THE TRIAL

The prosecution case

4.  The genesis of the prosecution case against the applicant was the interception of two express mail service boxes dispatched from Argentina, which were intercepted by the Customs and Excise officers on their arrival at the International Mail Centre at the Hong Kong International Airport on 1 and 3 February 2010.  Each of the boxes contained straws, which in their turn contained cocaine.  They were made up to look like baskets.  In addition, the boxes contained children’s toys and items of stationery.

Count 1

5.  The box relevant to Count 1 was addressed to: “Robert Patrick, King Kung House, 16/F Room 1812 Chou Wan Estate, Chi Wan Street”, whereas the applicant’s address, registered in the name of his mother-in-law, was Room 1815, King Kung House.  It bore the contact telephone number “6143 5058”.  Also, it bore the box serial number “EE00161394 5AR”.  Straws in the two baskets contained in the box were found to have a total of 446.56 grammes of cocaine.  An attempt to make a controlled delivery of the first box in the afternoon of 3 February 2010 was unsuccessful.

Count 2

6.  The box relevant to Count 2 was addressed to: “Peter Jackson, 70 Lee Garden Road, Causeway, 5^th Floor, Room A”.  It bore the contact telephone number, “6142 9831”.  Also, it bore the box serial number “EE 00182609 1AR”.  It was found to contain a green bag which in turn contained straws with a total of 444.52 grammes of cocaine.  The dangerous drugs having been removed, an attempt to deliver that box on 4 February 2010 failed.

7.  On 6 February 2010, a post office employee was successful in making contact through the contact telephone number with a person, to whom he confirmed delivery of the box would be made that afternoon between 3 and 5 p.m.  At about 3:15 p.m. the post office employee made contact with the contact telephone number again to confirm delivery and received a negative response as to whether or not the address was of a named building.  Having received a negative response to ringing the doorbell of Room A, 5^th Floor of 70 Lee Garden Road, the post office employee made contact yet again by telephone with the contact telephone number, informing the recipient of his presence outside their premises.  At that point, a black male emerged from the nearby staircase and produced a photocopy of a page of a passport apparently issued by the Federal Republic of Nigeria in the name of Peter Jackson.  That man, Onwufuju Ifeanyi Charles (“Charles”), was arrested.

8.  Very soon afterwards Customs and Excise officers entered Room 8, 4^th Floor of the premises, a guesthouse, and found the applicant lying on a bed, on which were found various items, which on the prosecution case were highly relevant to the case.  A page of a diary (P18) contained the names of the two recipients stipulated on the two boxes, namely Robert Patrick and Peter Jackson, together with the corresponding serial numbers of the two boxes.  Also, it bore the telephone number, 2921 2345, of the post office employee who had made contact with the contact telephone number stipulated on the second box on 6 February 2010, together with the address stipulated as the recipient of the first box.  A piece of paper (P17) bore the respective contact telephone numbers of the recipients, stipulated on the respective boxes.

9.  Further, a SIM card (P22) was found which bore the number, “6143 5858”, namely the contact telephone number stipulated on the first box.  A second SIM card bore a number, “6574 7908” (P23) which number had been used to make telephone calls to a telephone found in the possession of Charles and to the Post Office.

10.  CCTV film depicted the applicant, together with another black man, checking in at the reception area of the guesthouse on the 4^th Floor of 70 Lee Garden Road on 6 February 2010.

Defence case

11.  The applicant did not give or call evidence.  He had made no out-of-court statements admitted into evidence.  As the judge reminded the jury in his summing-up[2], it was the defence case, as articulated in counsel’s closing speech, that it was possible that Room 8 was occupied by two persons and that the incriminating circumstantial evidence, both documentary and the real evidence represented by the SIM cards, might have been the property of Charles, rather than that of the applicant.  The Customs and Excise officers were criticised for not having taken photographs, made a sketch or detailed references in their notebooks of where it was that items had been found.  Rather than having been found on the bed, it was suggested in cross-examination that some of the items were found elsewhere in the room.  Further, there was no evidence of the identity of the author of the writing on the pieces of paper which replicated some of the details on the two boxes and to the telephone calls.  Also, it was not known who had made those telephone calls.

GROUNDS OF APPEAL AGAINST CONVICTION

12.  In the grounds of appeal attached to the Notice of Application for Leave to Appeal against Conviction and Sentence the applicant complained that no dangerous drugs were found in his possession, whereas he contended that Charles had been found with dangerous drugs.  He complained that they had not been tried together.  Next, he complained that no photographs had been taken or adduced in evidence of Room 8 in the guesthouse.  Then, he complained that counsel had not put his instructions to witnesses in the trial.

13.  In light of the applicant’s complaints in respect of counsel, the Registrar wrote to the applicant on 4 and 18 October 2012, inviting him to file an affirmation in support.  When no affirmation was forthcoming, Cheung CJHC adjourned Mention hearings on 20 December 2012 and 22 March 2013 for one month on each occasion to permit the applicant to file such an affirmation.

14.  In a written submission dated 17 January 2013, the applicant complained that the address and the telephone numbers on the two boxes were not his name or his telephone number.  The applicant complained that although he had requested to see the Admitted Facts adduced into evidence his counsel did not provide him with a copy.

15.  In a document, received by the court on 11 April 2013, entitled “affirmation/affidavit”, which is neither, the applicant asserted baldly that his counsel at trial “...denied me to see some document when I asked for it and show me another paper.  He is my counsel and I don’t know why he do that to me on the trial.”  Next, the applicant complained that the prosecution had changed the charges against him on three occasions and asserted that “some of the statements were also changed”.  Further, he complained that the prosecution did not produce any DNA or fingerprint evidence connecting him with the dangerous drugs.

16.  In his oral submissions the applicant complained that Charles had not been called as a witness at trial.  From material that had been served on him when they were both jointly indicted he was aware that Charles had made a statement in which he made allegations against the applicant.  He had wished him called at trial so that those allegations could be challenged.

A CONSIDERATION OF THE SUBMISSIONS

17.  It is correct that the judge did not remind the jury that there was no evidence, either by way of fingerprints or DNA, of any contact by the applicant with either of the boxes or any of their contents.  However, that is hardly surprising, since neither of the boxes was actually delivered by the Post Office employees.  There was no dispute that the boxes had been sent from Argentina by airmail and that they had been received in Hong Kong on 1 and 3 February 2010.  There was no evidence that the applicant had ever been in Argentina.  The absence of such evidence was of no significance and not relevant to the defence case.

18.  It is readily apparent from the transcript of the evidence of the Customs and Excise officers and the closing speech made by counsel on behalf of the applicant that issue was taken with the prosecution witnesses as to the place within the room at which the allegedly incriminating articles had been found, in particular that they had not been found on the bed on which the applicant was lying when Customs and Excise officers entered the room.  That criticism was reflected in the judge’s summing up, in which he summarised the criticisms of the applicant’s counsel in his closing speech to the jury[3]:

“ And if the items which were allegedly on the bed were not on the bed, he submits that it could lead to a very different overview of the evidence because these were, or at least some of the items, the property of Mr Charles rather than the defendant’s property which is much more likely if they were on the bed right next to him as he was arrested and he drew attention to what he called the carelessness of the Customs officers in failing, for example, to even make a sketch or put where these items were found on the sketch or mention in the notebooks or their statements where the items were found precisely.”

19.  Similarly, the judge went on to detail other aspects of the unsatisfactory nature of the evidence adduced on behalf of the prosecution relied upon by the defence, namely[4]:

“ the fact that we do not know who wrote the diary entries on those loose pieces of paper and we do not also know insofar as phone calls are concerned who actually made the calls.”

20.  The judge revisited those very same points in several subsequent passages in his summing up[5]. Clearly, the submissions made on behalf of the applicant were fully ventilated before the jury.  The resolution of those issues was a matter for the jury.  The evidence against the applicant was overwhelming.

21.  The applicant’s criticism of his counsel at trial lacks any particularity of the kind obviously sought by the court by its request that it be provided with an affirmation made by the applicant.  The applicant has been afforded every opportunity to particularise his complaints, but has singularly failed to do so.  As was suggested to the applicant in the course of his oral submissions it is obvious why his counsel did not seek to have Charles called as a witness at the trial: Charles was a former co-accused who had laid the blame on the applicant in an out-of-court statement to the authorities for having tricked him into collecting one of the boxes without disclosing to him its contents.  Charles had been acquitted of the charge arising from that conduct at his own trial.

Conclusion

22.  We were satisfied that there were no merits in the applicant’s grounds of appeal against conviction.  Accordingly, his application for leave to appeal against conviction was dismissed.

REASONS FOR SENTENCE

23.  In sentencing the applicant, the judge observed[6] that the total amount of cocaine involved in the conduct the subject of the two counts was 891 grammes.  Having noted that the guidelines for sentence articulated in the judgment of this Court in Abdallah for unlawful trafficking in amounts up to 600 grammes of cocaine was 20 years’ imprisonment, the judge stipulated a starting point before enhancement of 21½ years’ imprisonment.  For the aggravating feature of the international element of importation he enhanced sentence by one year’s imprisonment.  In the result, he sentenced the applicant to a total of 22½ years’ imprisonment[7].  Having noted that the amount of cocaine involved in each of the counts was under 450 grammes, he imposed a sentence of 16 years’ imprisonment in respect of each count.  He achieved the totality of sentence by ordering that 6½ years of the sentence imposed in respect of Count 2 be served consecutively to the sentence of imprisonment imposed in respect of Count 1.

GROUNDS OF APPEAL AGAINST SENTENCE

24.  The applicant did not advance any written grounds of appeal in support of his application for leave to appeal against sentence.  In his oral submissions he complained simply that the sentence imposed upon him, an innocent man, was too lengthy.

DISCUSSION

25.  The judge’s consideration and application of the guidelines articulated in Abdallah was entirely appropriate, as were the individual and total sentence of imprisonment imposed on the applicant.

Conclusion

26.  We were satisfied that there was no merit whatsoever in the application for leave to appeal against sentence, which was dismissed.

[1] HKSAR v Abdallah [2009] 2 HKLRD 437.

[2] Appeal Bundle, page 4 E–S.

[3] Appeal Bundle, page 4 H-M.

[4] Appeal Bundle, page 4 Q-S.

[5] Appeal Bundle, page 19 K-N; page 25 R-26 F; page 28 J-M and page 29 L-O.

[6] Appeal Bundle, page 39 P.

[7] Appeal Bundle, page 40 L.