HKSAR v. EZEH CHRISTIAN IFEANYI

CACC 207/2016
[2018] HKCA 57

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 207 OF 2016

(ON APPEAL FROM HCCC NO. 474 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  The applicant sought leave to appeal against his conviction on 23 June 2016 after trial by Deputy High Court Judge D’Almada Remedios, as D’Almada Remedios J was then, and a jury of one count of trafficking unlawfully in a dangerous drug, namely 380 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant was sentenced to 15 years and 3 months’ imprisonment. At the hearing, we refused the application and said that we would give our reasons in due course. That, we do now.

The Trial

The prosecution case

2.  It was the prosecution case that the applicant had concealed 55 pellets, inside his body, which contained 380 grammes of cocaine, the subject of the count, when he arrived in Hong Kong on 13 June 2015 by aeroplane.

3.  There was no dispute that, the applicant arrived in Hong Kong on an Emirates flight from Lagos, Nigeria via Dubai and that he had passed through the Immigration counter at Hong Kong International Airport at15:41 hours on 13 June 2015.[1]  He was intercepted by Customs Officer Cheung Wing Wing at around 15:47 hours in the Green Channel of South Customs Arrival Hall [2].  The applicant’s luggage and then his body were searched by Customs Officer1211, Cheung Kam Fai (PW2), but nothing illegal or suspicious was found.

4.  Then, the applicant was taken to Northern Lantau Hospital by Customs Officer 8108, Wan Ho Man (PW3).[3]  There, an X-ray examination of the applicant was performed at around 17:20 hours. After the examination, Dr Wong Kwun Hang (PW21) stated that the X-ray images showed opacities inside the applicant’s body.[4]  In his testimony, Dr Wong said that in his examination of the X-ray images he had seen in the abdominal cavity in the bowel regions “…a lot of objects that resembled the shape of capsules.” [5] Having consulted his superior, he asked that arrangements be made for the applicant to be transferred to Queen Elizabeth Hospital (“QEH”) for further examination.

5.  At around 17:30 hours, the applicant was arrested for trafficking in dangerous drugs by Customs Officer 8108 (PW3) [6].  Then, the applicant was escorted to the Accident & Emergency Unit of QEH by Customs Officer 644, Kwok Sui Lun (PW5) [7]. Later that evening, US$5,000 was seized from the applicant’s personal property.[8]

6.  On three separate occasions, beginning at 21:05 on 13 June and ending at 16:35 on 14 June 2015, the applicant was observed by various Customs Officers at QEH to excrete a total of 55 pellets.  It was the prosecution case that those 55 pellets excreted by the applicant had been delivered to the Government Chemist and, on analysis, found to contain 380 grammes of cocaine.

The defence case

7.  The applicant did not avail himself of his right to give or call evidence.  However, his case as advanced through cross‑examination and in counsel’s submissions was to the effect that whilst there was no dispute that foreign objects had been found in the excrement he discharged from his body[9], issue was taken as to whether the 55 pellets found to contain the cocaine the subject of the count had been discharged from his body.  Had what he discharged from his body been swapped, replaced or mixed up with what had been discharged from another patient?[10]  Finally, of the issue of the applicant’s knowledge that he possessed dangerous drugs, the jury was invited to consider the possibility that, even if the applicant knew that foreign objects were concealed in his body, he might have thought that those objects contained diamonds or anything upon which duty would have to be paid.[11]

Issues at trial

8.  The judge identified to the jury what she said were the “two main issues in this case for you to decide”:[12]

(i) “ Did the defendant excrete or discharge from his body the 55 pellets containing the drugs?  Were they therefore the same pellets contained in his body?  In law, that is termed as was the defendant in possession of these drug pellets? ”

(ii) “ The second issue if the answer to that first issue is yes, you are sure the defendant.. these 55 pellets were in the defendant’s body, the next question is did the defendant have knowledge that these 55 pellets contained dangerous drugs? ”

Grounds of appeal against conviction

9.  It was submitted in the re-amended grounds of appeal against conviction advanced on behalf of the applicant that he had been unlawfully detained “on arrival on 13 June 2016.”  In fact, he arrived in Hong Kong on 13 June 2015.  In written submissions, Mr Ross contended that “…there was no evidence to justify why the applicant was intercepted or detained or escorted to North Lantau Hospital up until prior to the time that the applicant was X‑rayed.”  Further, Mr Ross submitted that “there was no evidence that the applicant was suspected or reasonably suspected of committing a drugs offence until after PW3 received advice from Dr Wong about the X-ray Dr Wong examined.”

10.  Next, it was submitted that there was no evidence that the applicant had consented to having X‑rays taken of his body.  The X‑rays were taken without the authority of a warrant supported by evidence on oath. Section 52(1)(A) and (B) of the Dangerous Drugs Ordinance, Cap. 134 does not operate to authorise the taking of an X‑ray of a person.  In consequence, the taking of the X‑rays of the applicant was in breach of his right to privacy provided by Article 14 of the Hong Kong Bill of Rights.

11.  In particular, it was submitted that the two X‑rays taken at North Lantau Hospital [13] were unlawfully obtained.  It was contended that the applicant’s arrest and continued detention after the communication of the results of Dr Wong’s examination of those two X‑rays to Customs Officers was unlawful, in that it was based on Dr Wong’s opinion arising from unlawfully obtained evidence.  It was in those circumstances of unlawful detention of the applicant that the Customs Officers had obtained the 55 pellets excreted by the applicant.  It was submitted that in those circumstances the judge ought to have exercised her discretion and ruled that the 55 pellets and the two X‑rays, exhibits P 28 (1) and P 28 (2) were inadmissible.  Similarly, it was submitted the judge ought to have found that the third X‑ray [14] taken at QEH was also unlawfully obtained and the judge ought to have ruled it inadmissible as well.

12.  In addition, it was submitted that the three X‑rays were hearsay evidence and ought to have been ruled inadmissible on that basis.  Only Dr Wong spoke to the provenance of exhibits P 28 (1) and P 28 (2), hardcopy photographs taken from the disc exhibit P 32.  He identified the X‑rays as being of the applicant by reference to information appearing on those exhibits, namely the applicant’s name, a short form of his own name and the time.  No evidence was adduced as to how that information came to be on those X‑rays.  Subsequently, Dr Wong said that the X‑rays that he had examined on 13 June 2015 did not contain the measuring scale found on those exhibits.  There was no evidence as to how they came to be there.  No witness spoke to the provenance of exhibit P 33. Impermissibly, the prosecution had relied on the three X‑rays to prove the truth of the condition of the applicant’s body at the time of the X‑rays.

A consideration of the submissions

13.  Having regard to the fact that none of the matters now canvassed as grounds of appeal were issues that had been taken in the course of the trial, during oral submissions the Court raised with Mr Ross the question of whether or not allegations of incompetence were now levied against Mr Bullett and/or his instructing solicitors in their conduct of the applicant’s defence at trial.  In replying in the negative, Mr Ross said that the issues identified in the grounds of appeal were matters that “could have been” canvassed at trial, but he accepted that they were not canvassed.  He acknowledged that the stance taken by Mr Bullett at trial, in respect of the issues now canvassed in the grounds of appeal, were decisions that lay within the province of counsel in taking tactical decisions in the best interests of the defendant at trial.  As Sir Thomas Eichelbaum NPJ said in his judgment in the Court of Final Appeal, with which all the other judges agreed, in Chong Ching Yuen v HKSAR [15] “…ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground of appeal, any more than if such decision had been made by the defendant personally.  Nor will other forms of mere error of judgement.”

14.  Evidence is led by the prosecution at trial to address matters in proof of the elements of the charge and in respect of relevant matters with which issue is taken by the defence.  In that way evidence is adduced that is relevant to the issues that the jury has to consider in delivering its verdict.  That obvious and sensible practice ensures that the jury is not burdened with unnecessary and irrelevant swathes of evidence.

15.  It is not permissible on appeal, where incompetence of counsel is not alleged, to advance grounds of appeal based on the submission that counsel for the applicant could have conducted the trial in a wholly different way, in particular that he could have taken objection to the admissibility of evidence and advanced submissions, which in fact were not made at trial.  The reason is obvious: in such circumstances, as in this case, inevitably not all the evidence relevant to a resolution of the issues now identified will have been adduced at trial.

16.  In the judgment of this Court in HKSAR v Liu Sun Kong [16], in which two of the members of the court were members of the panel and in which Mr Ross appeared for the applicant but not in the trial, observations were made on the propriety of advancing grounds of appeal in which it is asserted in effect that the trial could have been conducted on a different basis:

“ It seems to us that there is every danger, particularly in a jurisdiction where counsel on appeal is very often different from counsel at trial, that tactical and forensic decisions taken by counsel who has the conduct of the trial, are too readily ignored or disregarded by counsel on appeal whose appreciation and understanding of the dynamics of the case as it is unfolding, particularly in a jury trial, is necessarily imperfect or incomplete.”

We endorse those observations.

The interception and detention of the applicant

17.  No issue was taken at trial that the interception of the applicant on his arrival in the Customs Inspection Hall of Hong Kong International Airport and his subsequent detention were unlawful, there being no reasonable grounds for any of the Customs Officers to suspect that he was trafficking unlawfully in dangerous drugs.  No evidence was led as to why the applicant had been intercepted.  Indeed, in his closing speech Mr Bullett said of the prosecution evidence of what had happened at the airport, “nothing is in dispute at the airport.” [17]

18.  The reason that the applicant was intercepted by Customs Officers on his arrival and detained subsequently was adverted to in the witness statement of Customs Inspector Tse, which was included in the committal statements provided to the defence in advance of trial:[18]

“ In the afternoon on 13 June 2015, I and other Customs Officers mounted a special operation on an inbound flight EK 382 with a view to locating a passenger EZEH Christian Ifeanyi (Nigerian passport number A06127622, hereinafter referred as the defendant) at the Hong Kong International Airport. The defendant was subsequently identified at the Immigration Counter and later intercepted by Customs Officer for clearance at the Green Channel of Customs Arrival Hall B. After baggage examination and personal search, I and other Customs Officers escorted him to the North Lantau Hospital for medical checkup.”

19.  Obviously, it having been made known to the defence in the committal statements and the additional evidence served before trial that the applicant had been taken to North Lantau Hospital where he had declined a rectal examination, but where X‑rays had been taken of his abdomen and pelvis, it was to be inferred by those representing the applicant that the Customs Officers were possessed of information from an unidentified source that the applicant was in possession of dangerous drugs and that he was a “target”.   

20.  Not surprisingly, that evidence was not led by the prosecution nor elicited by the defence in the testimony of Customs Inspector Tse or any of the other Customs Officers.  No doubt, that was lest it prejudice the applicant’s case if it be known to the jury that he was the “target” of an investigation.  Notwithstanding those considerations, if the defence wished to pursue the issue of the reasons that the applicant was intercepted and detained it was open to the defence to have done so.  Obviously, Mr Bullett knew that to be the case but, for readily understandable reasons, he did not do so.  On its face, there was nothing to be gained by the defence pursuing the issue and much to be lost.  No doubt, that was a decision made by Mr Bullett in the best interests of the applicant.

21.  No issue having been taken by Mr Bullett as to the reasons for the interception and subsequent detention of the applicant, very little evidence was adduced relevant to those matters.  Indeed, although the officer who had intercepted the applicant, namely Customs Officer Cheung Wing Wing, was named as a prosecution witness on the back of the indictment, at the outset of evidence led by the prosecution at trial Mr Parry informed the court in the presence of the jury that he would not be calling that witness.[19]  No request was made by Mr Bullett that the prosecution tender that witness.

22.  As noted earlier, the applicant was arrested at around 17:30 hours on 13 June 2015 for trafficking in dangerous drugs.  Between 17:20 hours and 17:30 hours X‑rays had been taken of the applicant and then examined by Dr Wong, who stated that the X‑ray image showed opacities inside the applicant’s body.  Customs Officer 8108 testified that he had arrested the defendant as a result of being told by Dr Wong of what had been detected in the X‑ray internally in the applicant.[20]  Of the special circumstances in which the applicant was subsequently detained at QEH Customs Officer 8108 said “…we suspected him of concealing something inside his body.” [21]

The taking of X-rays of the applicant at North Lantau Hospital

23.  In his evidence-in-chief, Dr Wong agreed that, in the course of an examination of the applicant at North Lantau Hospital on 13 June 2015, the applicant had refused to allow him to conduct a rectal examination.  Dr Wong identified an image contained on a disc, exhibit P 32, which was displayed on a screen as the image that he had looked at to make his diagnosis in respect of the applicant.  He did so from information contained on the image; namely, the applicant’s name, the short form of his own name, the name of the hospital and the time.[22]  Then, Dr Wong referred to two hardcopy photographic images of X‑rays, exhibits P 28 (1) and P 28 (2,) in amplifying his evidence before the jury.  Having compared exhibit P 28 (2) with an image from the disc exhibit P 32 he confirmed that it was a hardcopy of the image.[23]

24.  In cross-examination, Dr Wong said that the purple scale on the right-hand side of each of those hardcopy photographs was not present on the image that he had examined on 13 June 2015.  Dr Wong said:[24]

“…usually when we look at x-ray images we have to click something or press a certain button to have it shown, otherwise the scale would not show up. So maybe when you people get the disc you have added this onto the image, I don’t know.”

25.  At the top of the two photographs in purple, inter-alia, was the name “EZEH CHRISTIAN IFEANYI”, the number “UK 1627138”, “North Lantau Hospital 06/13/15” and a reference to time.  On one photograph “17:20:35” and on the other photograph “17:21:08”.  Dr Wong testified that the time “matched”:[25]

“ because the time I dealt with this patient was 5 p.m., on 13 June 2015, so the time matched.”

26.  In re-examination, when asked to view again the X‑ray image stored on the disc, exhibit P 32, Dr Wong said that was the image displayed on his computer screen at the time of his examination of the applicant.  Of the written information contained on the image, he said :[26]

“ When I look at the x-ray image I would only pay attention to the name of the patient, the patient number, the date and time, but as to other information I won’t really pay attention to it.”

27.  Then, Dr Wong answered in the affirmative that the image displayed to him in court from the disc was the one of the patient that he was examining, namely the applicant.[27]

28.  Finally, the following exchange ensued between the judge and Dr Wong:[28]

“ Q. … Did you yourself, at the time you took this x‑ray, use your computer to actually measure the length or the width, whatever you may call, of these foreign objects?

A. No.”

29.  Inaddition,inhisevidence-in-chiefDrWongwasaskedtoviewwhathewastoldwasanX‑ray,exhibitP33 [29],takenbyaradiologistattheQEHandtold“youprobablyhavenotseenthatx‑ray”.  AtthetopofthehardcopyphotographoftheX‑raywas the following information: “EZEH CHRISTIAN IFEANYI”; “UK 1627138”; “15/6/2015 19:01:48”; and “QEH 003274730T‑1”.  When asked to compare it with P 28 (1) and P 28 (2), Dr Wong said “the most obvious thing is that in the lower abdominal area you can see no white shadows anymore.” [30]

30.  It is to be noted that when Mr Parry first introduced the disc of the X-rays taken at North Lantau Hospital, exhibit P 32, in tendering it as an exhibit he said “…there is no disagreement”.[31] That statement appears to have been confirmed by the fact that Mr Bullett made no objection to the production of that exhibit or the hardcopy photographs taken from it, namely P 28 (1) and P 28 (2).  Certainly, he did not ask the judge to exercise her discretion to exclude that evidence.  Similarly, he may have no objection to the production of the disc, exhibit P 33, containing the X‑ray taken at QEH.

31.  In his closing speech, Mr Bullett merely touched on the issue of the provenance of exhibits P 28 (1) and P 28 (2):[32]

“There is another doubt that arises on the doctor’s evidence, he had not seen - and did not think it came from the hospital - the scale that appears on the x‑ray image. So if there’s been some editing of that image, can we be sure that no other editing of it has taken place?”

32.  During the jury deliberations, the jury posed a written question:[33]

“ Can the hospital confirm the X ray film is authentic (one with the allegedly added scale bar).”

33.  Having discussed the issue raised by the jury with counsel, the judge gave the jury further directions.  She said, inter-alia:[34]

“ …a short answer to your question is there will be no more evidence. There will be no evidence from the hospital to confirm that this x‑ray film exhibited as P 28 is authentic.”

34.  The judge went on to say:[35]

“ When the doctor looked at the x-ray image in general, he would only pay attention to the name of the patient and the date, no other information. On this x‑ray film, P 28 showed the name and date of the patient. And the doctor’s evidence, looking at it, looking at the name, he believed it was the x-ray film of this defendant. You have heard from the doctor that if this exhibit, P 28, is the x‑ray image of the defendant, when the doctor saw the x‑ray image of the defendant there was no purple ruler or scale or bar as you’ve called it on the side of the image as is now depicted.

The doctor has not confirmed that the scale is accurate.  It is not known how this purple scale bar or other information, apart from the patient name and date, has appeared on this image, P 28, produced in court.”

35.  Having directed the jury that it was a matter for them to decide whether exhibit P 28 “is one and the same x‑ray image that the doctor saw of this defendant on 13 June 2015”, the judge reminded the jury that paragraph 4 of the admitted facts stated:[36]

“ On the same day, the defendant was subsequently taken to North Lantau Hospital by Customs Officer Wan Ho Man (PW3) and at around 0720 (sic) hours was taken to the x‑ray examination room for x‑ray. The examining doctor, Wong Kwun Hang stated that the x‑ray image showed opacities inside the defendant’s body.”

The reference to 0720 hours was made in error.  The admitted facts stated the time to be 17:20 hours.

36.  As noted earlier, Doctor Wong testified that the X‑ray he had examined in the course of his examination of the applicant was the image displayed in court from the disc, exhibit P 32.  The separate issue of the authenticity of the photographs, exhibits P 28 (1) and (2), which displayed the purple scale, was a matter that was left for the determination of the jury.  Clearly, Mr Bullett was content for the matter to be left in that way.

37.  The issue of whether or not the applicant had consented to the taking of those X‑rays was not raised by Mr Bullett on behalf of the applicant.  It having been admitted on behalf of the applicant that an X‑ray had been taken of him at 17:20 hrs at North Lantau Hospital and no issue having been taken in cross‑examination as to the question of the applicant’s consent to any of the X‑rays being taken, it is hardly surprising that the prosecution did not lead such evidence.  The prosecution was not required to adduce evidence to address an issue that was not taken.

38.  As noted earlier, there was no evidence led at all of the provenance of the disc which contained the image of the X‑ray it was asserted by Mr Parry was taken at QEH of the applicant.  Again, no issue was taken by Mr Bullett with their bare assertion.  Certainly, he did not object to its admissibility.  Clearly, in the absence of any evidence whatsoever of its provenance, he could have done so.  He acquiesced in its production.  In any event, in truth, nothing turned on this evidence.  There was no dispute that the applicant had excreted the 55 pellets between the time of the taking of the X‑rays in North Lantau Hospital and the taking of the X-rays at QEH on 15 June 2015.

39.  Not having taken issue at trial in respect of the applicant’s interception on arrival at the airport, his initial and continued detention and the taking of X‑rays of his body and having failed to raise the matter in either cross‑examination or submissions it ill behoves those now representing the applicant in this court to complain that the prosecution did not lead evidence to address issues that were raised for the first time in this court.

Conclusion

40.  For the reasons that we have given, we are satisfied that there is no substance nor any merit in any of the grounds of appeal advanced on behalf of the applicant.  Accordingly, we refused the application for leave to appeal against conviction.