HKSAR v. AGBANYIM EMEKA PRINCE

CACC 261/2021

[2024] HKCA 583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 261 OF 2021

(ON APPEAL FROM HCCC NO 162 OF 2020)

_______________

_______________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  On 11 November 2021, the applicant was unanimously convicted by a jury before Deputy Judge Derek Chan SC (the judge) of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 28 years and 2 months’ imprisonment.

2.  This was a renewal application for leave to appeal against conviction. At the conclusion of the hearing, we refused the application and dismissed the appeal. We also ordered three months loss of time. We said we would hand down our reasons for our decisions in due course and this we now do.

The prosecution case

3.  The present case concerns a seizure of 6.061 kilogrammes of methamphetamine hydrochloride (commonly known as Ice), inside Room A, Flat B, 5/F of Wai Lee Building in Hung Hom (“Room A”), to which the applicant had access with a key.

4.  At the material times, the applicant was a Form 8 recognizance holder who was not permitted to work in Hong Kong.[1] In the afternoon of 19 August 2019, he was intercepted by the police in the vicinity of the Wai Lee Building for an enquiry. In response, he led the police to Room A. With a key in the applicant’s possession, the police gained entry to Room A and conducted a search.

5.  Inside Room A, the police found a Reebok bag lying on the floor next to the bed, which contained two plastic bags of Ice in the quantities stated in the indictment and an electronic scale. The total street value of the Ice at that time was $2,842,987.[2]

6.  The applicant was arrested for the offence of trafficking in a dangerous drug. It was an admitted fact that two tenancy agreements in respect of Room A (for the period between 1 August 2018 and 31 July 2019 (Exhibit P11) and between 1 August 2019 to 31 August 2020 (Exhibit P12) respectively) were seized inside Room A.[3] They were in the applicant’s name and listed his telephone number, 66420253.[4] The landlady testified that the tenancy had been renewed on the same terms by the same tenant upon the expiry of the first term.[5] The tenant produced his Form 8 document as a means of identification. This document was related to the applicant. She checked the photograph on the document to make sure that it was the same person.[6] The tenant put his name on the two tenancy agreements and also signed them in her presence. She said it was the same person each time.[7] She explained that part of the rent was paid by the government directly into her bank account and the remaining part was paid to her by the tenant.[8] It was not in dispute that the tenant was the applicant who had renewed the tenancy 18 days prior to the finding of the drugs in Room A.

7.  It was an admitted fact that the applicant’s DNA were found on the two packets of Ice and the electronic scale.[9]

8.  On the evening of 19 August 2019, the applicant participated in a video recorded interview (VRI) with the assistance of an Igbo/English interpreter. Its admissibility was not in dispute at the trial.[10] In the VRI, the applicant denied knowing about the Reebok bag and the Ice. He did not know why the bag was there or who left it there. He said he lived elsewhere at the time, but an African male called “Jumbo” would sometimes come and stay at Room A. He said that “Jumbo” had stayed in Room A the previous week. He did not have the number of “Jumbo” nor did he know where he was. He claimed that he and “Jumbo” each possessed a key to Room A; he had recently demanded that “Jumbo” return the key to him but was told that it had been lost. The applicant also confirmed that he was the signatory to the two tenancy agreements.[11]

The defence case

9.  The applicant did not give evidence or call any witnesses. He essentially adopted what he said in his VRI and denied knowing about the Reebok bag that contained the drugs.[12]

10.  In presenting the defence case, the applicant’s trial counsel submitted that there was no evidence as to when the applicant last stayed at Room A. It was suggested that there was a possibility of contamination of the applicant’s DNA on the electronic scale and the two packs of Ice by the police in the course of the house search.[13] In particular, trial counsel contended that the applicant’s DNA could have been indirectly transferred onto the exhibits when the police officer used the same pair of gloves to search Room A, handling the exhibits and moving them to the corridor to photograph them.[14]

The case history

11.  On 18 November 2021, the applicant filed an application for leave to appeal against conviction (Form XI). In his home-made grounds of appeal he listed three matters supporting his leave application. First, the prosecution presented a false document to the jury in the form of a Sim card that was relied upon by the prosecution to invite the jury to question “my truthfulness and alleged that I lied in my VRI about the time I started using the Sim card”. Secondly, the judge misdirected the jury when he told them “I said that I never live in the apartment where police claimed that the alleged drugs were found, while I never disputed that the apartment is under my name and I live there as well”. He added that this admission could be confirmed by the Admitted Facts and also in the VRI. Thirdly, he referred to the case report of his trial counsel and solicitor and said that he would be filing more grounds in the future after receiving the Appeal Bundle. Significantly, he maintained that he lived in Room A as confirmed in the Admitted Facts and the VRI, and made no complaint against his legal representatives about the conduct of his case. It was not until considerably later that he made sweeping allegations against his legal representatives at trial, accusing them of not explaining the Admitted Facts and not challenging the VRI, contrary to his instructions, which formed the main focus of his appeal against conviction.

12.  On 9 May 2022, the applicant filed Perfected Grounds of Appeal, in which he complained about the flagrant incompetency of his legal representatives at trial and the insufficiency of evidence for his conviction. He had previously listed a litany of complaints against his legal representatives in a 14 page affidavit dated 19 April 2022. In response, the applicant’s trial counsel, Mr Michael Arthur (Mr Arthur), filed an affirmation dated 7 June 2022 and solicitor, Mr Gerard Morada (Mr Morada), filed an affidavit dated 7 June 2022, both strongly refuting the applicant’s allegations against them. The applicant filed an affidavit in reply dated 11 October 2022. The applicant alleged that his lawyers did not challenge the VRI, contrary to his instructions; failed to explain the Admitted Facts to him properly; and misled him not to testify and decided not to call his girlfriend to give evidence on his behalf. However, the applicant’s allegations were decisively contradicted by the production of several written instructions signed by the applicant.

13.  The applicant’s leave application was heard on 14 February 2023 before the Single Judge[15]. He appeared in person, having had legal aid refused. The Single Judge addressed the applicant’s eight grounds of appeal, which he summarised as follows:

(1)  The applicant’s trial lawyers failed to act on his instructions to “completely oppose” the production of the VRI, which was “badly polluted”, involuntary and unfairly influenced by the Igbo interpreter present;

(2)  The trial lawyers failed to address the police officers’ improper conduct in the course of the arrest and house search;

(3)  The trial lawyers wrongly advised him not to testify, and “decided” on his behalf that his girlfriend would not testify;

(4)  The trial lawyers failed to explain the contents of the Admitted Facts to him, which he did not understand or admit at all;

(5)  The trial lawyers failed to question the police witnesses about forcing and detaining him inside a “Gogo Van” after his arrest;

(6)  The judge wrongly directed the jury on the evidence of the DNA as being against the applicant;

(7)  The judge acted unfairly by allowing leading questions to be asked in the examination-in-chief of the police witnesses, in particular as to whether there was a valid search warrant, and by failing to direct the jury not to speculate as to the reasons for not answering some of the questions; and

(8)  There was insufficient evidence to convict.

14.  The Single Judge, in his judgment dated 17 February 2023, comprehensively addressed the applicant’s grounds, dismissing them as not reasonably arguable, soundly rejecting the applicant’s allegations against his legal representatives. He put the applicant on notice of the court’s power to order the loss of any time that he had spent in custody pending an unmeritorious renewal of his leave application, particularly if he renewed his allegations of flagrant incompetence against his legal representatives at trial.

15.  On 14 February 2023, the applicant filed a renewal of his leave application (Form XIII). In this document, he was reminded of the court’s power to make a loss of time order. Since the filing of his renewal application, the applicant had submitted numerous letters, requesting additional material and lodging further complaints. Eventually, in a letter dated 26 May 2023, he listed what he described as Amended Perfected Grounds of Appeal, which can be summarised as follows:

(1)  Ground 1 consists of three parts and complains of the ineffective assistance the applicant received from his legal representatives: Ground 1A (the previous Ground (1) in the leave application), alleges that trial counsel failed to challenge the admissibility, voluntariness and fairness of his VRI as there were irregularities that took place during the VRI caused by the wrong interpretation and bad interference of the Igbo interpreter (Mr Harry Donatus Ozuma (Mr Ozuma)); Ground 1B (the previous Ground (3) in the leave application), alleges that trial counsel inadequately advised the applicant as to the strength of the prosecution case, which enticed him not to give evidence and deprived him of calling his defence witness (who attended court but was not allowed to give evidence); Ground 1C (the previous Ground (4) in the leave application), alleges that the legal representatives at trial failed to adequately explain the court procedures and the importance of the Admitted Facts;

(2)  Ground 2 complains that the judge failed to ensure that the case file or the jury bundle be provided to the applicant and the court appointed interpreter to assist him in the conduct of his case; and

(3)  Ground 3 avers that the tenancy agreement (Exhibit P12) is false and fresh evidence in the form of three letters from the International Social Service, Hong Kong (ISS-HK), can prove this to be the case and also disprove the evidence of the landlady (PW1).

16.  In a letter dated 25 September 2023, the applicant requested in respect of Ground 1B that Ms Uhryssa Limos Ubando (Ms Ubando) be called to give evidence concerning his allegations that she was not called to give evidence on his behalf by his legal representatives. He also requested that the trial counsel and solicitor be called to give evidence in the hearing of his renewal application. In a letter dated 13 June 2024, he withdrew a previous complaint concerning his consent for a buccal swab.

The renewal application

17.  At the hearing of the renewal application, the Igbo interpreter assigned to the proceedings was Mr Ozuma, who informed the court that he was the subject of a complaint by the applicant on his grounds of appeal. After a brief discussion, the applicant confirmed that he wished to conduct the hearing in English. It was apparent that he was proficient in English as he was able to formulate his grounds and complaints in his letters, understand questions asked of him and provide detailed answers in the hearing.

Ground 1

18.  In Ground 1, the applicant alleged that his trial counsel, Mr Arthur and his trial solicitor, Mr Morada were flagrantly incompetent.

19.  In Ground 1(A), the applicant complained that Mr Arthur erred in disregarding his instructions and not challenging the VRI, notwithstanding that he was fully aware of the “irregularities” that rendered it involuntary. The “irregularities” mainly referred to the “wrong interpretations and bad interference” by the Igbo interpreter during the course of the VRI, which he argued undermined his right of silence.

20.  The applicant further argued that Mr Arthur’s legal advice that the VRI was exculpatory and could not incriminate him, induced him not to pursue the issue of the voluntariness of the VRI, contrary to his instructions, and eventually agreed not to challenge its admissibility. In the end, both the prosecution and the judge made prejudicial remarks of parts of his VRI to the jury.

21.  In Ground 1(B), the applicant contended that Mr Arthur failed to properly advise him regarding the strength of the prosecution case, which enticed and caused him to refrain from giving evidence. In particular, Mr Arthur advised the applicant not to give evidence, adding that the prosecution evidence was “full of doubts” and the applicant would risk giving contradictory evidence to the defence case. The applicant submitted that Mr Arthur’s advice was plainly wrong, since there was a “virtual certainty to convict” unless he testified: R v Ho Ling and Another[16]. We note that the legal representatives stated that they discussed the case in detail with the applicant and this was confirmed by the signed written instructions.

22.  In addition, the applicant alleged that Mr Arthur and Mr Morada “unfairly deprived” him of the right to call his own defence witness, Ms Ubando, to testify even though she was prepared to do so on 10 November 2021.[17] In the written instructions dated 9 November 2021 that Mr Arthur and Mr Morada stated that he signed and had interpreted to him, his signature appeared alongside the item that he had been advised by his lawyers of his right to call witnesses in his trial and did not want his girlfriend to be his defence witness. He claimed he did not sign the instructions and the signature was not his. He submitted that in the interests of justice, Mr Arthur, Mr Morada and Ms Ubando should be summoned to give evidence on this matter.

23.  In Ground 1(C), the applicant complained that his legal representatives failed to adequately explain to him the court procedures and significance of the Admitted Facts. He said before he signed the Admitted Facts, he was not told that it was conclusive and could be used by the prosecution against his interest. We note that this complaint was contradicted by the statements of the legal representatives and the signed written instructions.

24.  The respondent submitted that the applicant had failed to establish that his legal representatives were flagrantly incompetent as required in Chong Ching-yuen v HKSAR[18] and HKSAR v Li Xiaoxiang[19]. There was no basis to find that the legal representatives had acted contrary to the applicant’s instructions.

25.  It was submitted that Ground 1(A) could not stand in the face of the applicant’s signed instructions. As explained by Mr Arthur, the applicant gave an exculpatory account in his VRI, and in any event, there was nothing in the circumstances that affected the voluntariness of the VRI. It was noted that the applicant’s claim that he “gave in” against his instructions to challenge the VRI was different from what he said in the leave application that his signatures were “fabricated”. The respondent submitted that such a dramatic change in the applicant’s account demonstrated a lack of credibility on his part. As for Ground 1(B), the jury was directed properly that they could not use the applicant’s silence against him, so his right of silence was safeguarded. It was pointed out that Ms Ubando only arrived after the close of the defence case, and never confirmed that she would be a defence witness. As for the Ground 1(C), it was not supported by the applicant’s signed instructions. They showed that the contents of the Admitted Facts had been explained to him before he signed it. Moreover, the Admitted Facts were read out and interpreted by the Igbo interpreter to the applicant in open court.

26.  As noted by the Single Judge, the applicant by his grounds of appeal was effectively seeking to resile from the signed written instructions he gave to his legal representatives; the formal admissions he made in the Admitted Facts; and the admissibility of the VRI and the admissions he made regarding the tenancy agreements he signed for Room A. In doing so, he cast aspersions on the conduct and competence of his legal representatives and the conduct and fairness of the police and the Igbo interpreter, Mr Ozuma, used during the taking of the VRI. He had even alleged that the signatures on the written instructions dated 9 November 2021 were not his, implying that they were fabricated. This document set out relevant matters as to the conduct of his case and a confirmation of his instructions not to give evidence or call any other witnesses, specifically mentioning that he did not want to call his girlfriend, Ms Ubando, as a witness.

27.  Mr Arthur and Mr Morada, in their respective responses, denied all of the applicant’s allegations and contended that they had acted to his instructions and in his best interest in the trial. In support, they exhibited a set of written instructions interpreted to the applicant and signed by him at the various stages of his trial. It was plain that the contents of these instructions were in direct contradiction to what the applicant contended in seeking to appeal his conviction.

28.  The written instructions dated 23 October 2021 consisted of a copy of the Admitted Facts, which was signed and dated by the applicant, confirming that the Admitted Facts had been read to him in Igbo and that he understood and agreed with the contents. The Igbo interpreter was Mr Ifeanyichukwu C Nduka, who signed the document.

29.  The following written instructions were interpreted to the applicant by a different Igbo interpreter, Mr Benjamin Emeka Udogwu, who signed the documents. The written instructions dated 1 November 2021 confirmed that the applicant’s participation in the VRI was voluntary, having been advised regarding the advantages and disadvantages of challenging the VRI. It was stated that he did not wish to challenge the admissibility of the VRI. The written instructions dated 3 November 2021 reaffirmed that the applicant did not wish to challenge the admissibility of the VRI. The written instructions dated 5 November 2021 confirmed that the applicant was satisfied with the cross-examination of the police witness (PW2) and had no further questions to be asked of him. The written instructions dated 8 November 2021 confirmed that the applicant had provided instructions which he discussed with counsel in respect of the cross-examination of the police witness (PW3). The written instructions dated 9 November 2021, listed a number of matters on which the applicant had been advised. He signed the document and the various amendments. It was stated that the contents of the document had been translated to him in Igbo and he confirmed that what was set out were his instructions. It was signed by him and dated. As we have already noted, it was signed by the interpreter, who confirmed that he had interpreted the document to the applicant in Igbo. It confirmed that at the end of the prosecution case, the applicant was advised of the strengths and weaknesses of the prosecution’s evidence, his right to give evidence and call a witness as well as the advantages and disadvantages. He acknowledged that he did not want to call his girlfriend as a defence witness, and his “own detailed account of the events that transpired during my arrest and the conduct of my VRI would not be known to the members of the jury unless I give evidence.” Having made this acknowledgement, the applicant confirmed that his instructions were that he did not wish to give evidence or call a witness.

30.  In his affidavit, Mr Morada further explained that he took a statement from Ms Ubando on 5 September 2021 and kept her informed as to when she should attend court to give evidence in the defence case but she did not confirm her attendance, repeatedly claiming that she needed permission from her employer. This was explained to the applicant who confirmed his instructions in writing that he did not wish to call Ms Ubando as a witness. It was the day after the applicant had signed his instructions not to call Ms Ubando and when the judge was summing up to the jury that she attended court.

31.  The applicant complained that the Igbo interpreter, Mr Ozuma, during the VRI had misinterpreted the caution inducing him to answer questions, interrupted him causing him to answer questions inappropriately, and answered some of the questions on his behalf. We have already noted that the applicant did not take issue as to the voluntariness of his VRI and the position that he took before us was contrary to his written instructions. He highlighted that during his VRI he was asked to confirm whether the signatures on the tenancy agreement were his, and the interpreter responded “Yes, it’s my signature”, when he did not utter a word. That is not entirely correct for it is recorded that he was shown the two tenancy agreements and when that question was asked he said “Mm”.[20] It may be by his gesture and response he was affirming that the signatures were his. Moreover, when considering the applicant’s answers as a whole, he did not take issue with the fact that he was the tenant of Room A. The attempt by the applicant to distance himself from the renewed tenancy agreement was contrary to his case at trial and an effort to retry his case on an entirely new point unsupported by the evidence. It was highly relevant that no issue was taken by him when evidence was led that the signatures on the two tenancy agreements belonged to him, and the position that he took before us on this matter was completely contradicted by his signed written instructions. Furthermore, when he listed his grounds of appeal in the Form XI dated 18 November 2021, he made no complaint about this matter, but instead complained that the judge misdirected the jury when he told them that he said “I never live in the apartment”, and that “I never disputed that the apartment is under my name and I live there as well”, adding that this admission could be easily confirmed in the Admitted Facts and the VRI.

32.  We did not consider it necessary to call witnesses to give evidence before us because we accepted the statements of Mr Arthur and Mr Morada, which were supported by the circumstances of the case and the written instructions that we accepted were signed by the applicant.

33.  We had no reason to doubt the authenticity of the written instructions and that the applicant signed and agreed with the contents contained in them. This ground of appeal was totally devoid of merit.

Ground 2

34.  The applicant complained that the judge failed to provide him with the case files or jury bundle, and the interpreter was unable to interpret the proceedings to him effectively. He claimed that as a result of being denied the case files or jury bundle from the outset he was kept in the dark as to the progress of the trial and his right to a fair trial was prejudiced: HKSAR v Moala Alipate[21]. However, the applicant acknowledged that on the second day of the trial (2 November 2021) he was provided with a jury bundle upon the interpreter’s request, which he said he shared with the interpreter.

35.  As pointed out by the respondent, the applicant was represented by a legal team of three counsel and one instructing solicitor, who actively assisted the applicant in presenting the defence case. This was evident by the record of the proceedings where counsel on behalf of the applicant agreed to the Admitted Facts, examined witnesses and presented the defence case in his closing address to the jury. It was also evident from the signed written instructions that the applicant was kept informed and consulted about the case alleged against him and how best to present his defence to the jury.

36.  We found no substance in the applicant’s claim that he was kept in the dark regarding the progress of his case as the record of the proceedings and the signed written instructions clearly showed that he was well aware of what was taking place during the trial and giving instructions as to how his case should be presented.

Ground 3

37.  The applicant challenged the authenticity of the tenancy agreement produced at the trial (Exhibit P12) and argued that he was not the tenant of Room A at the material time. He contended that Exhibit P12 was “entirely unknown to me” and he had not executed the renewed tenancy agreement, although he acknowledged that he signed the first tenancy agreement (Exhibit P11).[22]

38.  The applicant took issue with the landlady’s evidence and how it was summed up by the judge to the jury. He argued that the landlady in examination in chief testified that the tenancy agreements were signed by the applicant in her presence and she could not remember or was unsure whether she attended the government offices. He argued that in cross-examination, she testified that the tenancy agreements were signed at the government offices in Kwun Tong in the presence of a government official, and this was how the judge summed up this aspect of her evidence to the jury. As noted in the summing-up, the judge explained that this was what she said in cross-examination, and the jury would have appreciated the totality of her evidence. He complained that there were inconsistencies with her evidence, however the defence case was that he executed the renewed tenancy agreement, but another person called “Jumbo” had stayed at the flat and left the bag of drugs there. Hence, there was no real issue with her evidence.

39.  The applicant also sought to renew his application to file three letters[23] purportedly issued by the International Social Service, Hong Kong, (ISS-HK) as new evidence, pursuant to section 83V of the Criminal Procedure Ordinance (Cap 221). These letters appeared to be issued in response to the applicant’s request for a copy of the tenancy agreements of Room A for the period “2018 to 2019” and “2019 to 2020”. Attached to one of the letters was a tenancy agreement that was purportedly submitted to ISS-HK by the applicant for the period between “2018 to 2019” (the first tenancy agreement). However, it was stated that they were unable to provide the tenancy agreement for the period “2019 to 2020” as there was no record that the document had been kept by the agency.

40.  According to the applicant, the significance of these letters was that the non-existence of a copy of the renewed tenancy agreement in the ISS-HK records could have impacted the credibility of the landlady, and thereby undermined the prosecution case that he had just renewed the tenancy for Room A and was the tenant at the material time of the offence. Furthermore, he complained that there were discrepancies between the two tenancy agreements, his first name had been misspelt in the renewed tenancy agreement (missing “n” in Agbanyim), and the handwriting and signatures were different. It was not in dispute that the applicant had a key to Room A, and the police found the two tenancy agreements inside the room. He said he did not see the Reebok bag in the room as he was not sleeping in his house. He explained that he previously lived with another person called “Jumbo” in Room A for at least three months. He said he did not know where “Jumbo” was living, but he would come and stay with him. “Jumbo” told him that he wanted to live at Room A as the applicant had another room elsewhere. He said there was a recent misunderstanding between them, and he told “Jumbo” to return the key to the room. “Jumbo” could not find the key, so the applicant left it. He said that “Jumbo” would still come to Room A but not as often. The last time he saw “Jumbo” was a week before his arrest.[24]

41.  The applicant repeated his complaint that he did not state in his VRI that he had signed the two tenancy agreements. As we have already stated, this was an attempt by the applicant to distance himself from the renewed tenancy agreement, which was contrary to his case at trial and the evidence.

42.  The respondent submitted that, as the applicant had admitted signing Exhibit P12 in his VRI, which was further accepted as voluntary and admissible in the Admitted Facts, there was no basis on which to adduce the letters as new evidence on appeal. We agreed.

43.  This ground of appeal is without merit.

Loss of time

44.  We had no hesitation in rejecting the applicant’s serious allegations against his legal representatives at trial. The allegations were completely undermined and shown to be untrue by written instructions signed by the applicant and also signed by the trial Igbo interpreter as having been interpreted to him, who was not the interpreter when he was interviewed by the police. When faced with the signed written instructions, the applicant then alleged that he had not signed the documents and that the signatures were false. To persist after his complaints had been completely answered by the legal representatives and soundly rejected by the Single Judge at the leave hearing, was a gross abuse of the court procedures and warranted a loss of time order. The applicant had been informed of the risk of such an order at the outset of the proceedings, and when called upon at the conclusion of the hearing why it should not be made against him, he was unable to provide any plausible explanation, other than to repeat his complaint against his conviction and that he was seeking justice. It was evident that the applicant’s grounds were not only unmeritorious, but also lacked credibility.

Conclusion

45.  For the foregoing reasons, we found no merit or substance whatsoever in the appeal grounds and dismissed the applicant’s appeal against conviction. We also considered that the renewal application centred on an unjustified attack on the applicant’s legal representatives and unmeritorious grounds that warranted a loss of time order of three months.