HKSAR v. ANTHONY UCHENNA ELEZIE

CACC 340/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 340 OF 1999

(ON APPEAL FROM HCCC 316 & 317 OF 1998)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. This matter comes before us as an application for leave to appeal against conviction. However, on 9 June 1999, the Applicant pleaded guilty in the High Court before Deputy Judge Gill to three counts relating to drugs offences. He was sentenced on each count to concurrent terms of two years and three months' imprisonment. The broad basis of this application amounts to an attempt to have the pleas of guilty reversed because of the pressure which the Applicant alleges that his legal advisers, and to some extent a police officer, placed on him to admit the charges.

2. The indictment originally contained six charges. The Department of Legal Aid assigned the defence to Hastings and Co. (Solicitors) who in turn briefed Mr. Paul Dinan to appear as counsel on the Applicant's behalf at trial.

3. Mr. Dinan is counsel of very considerable ability and experience and has been in practice since 1975. It was his considered opinion that the prosecution's case was overwhelming in relation to some of the counts and, consistent with his duty to his client, he decided to explore the possibility of the prosecution accepting pleas of guilty to some charges in return for dropping others. The Applicant, in the course of today's proceedings, has described this as a deal which was done "behind his back" but it is clear that counsel has a duty to do all that he can for his client within the proper framework of the criminal justice system which we have in Hong Kong.

4. Mr. Dinan's negotiations were fruitful and the prosecution indicated their preparedness to accept pleas of guilty to counts 1 and 6 as they stood, and a plea of guilty to an amended form of count 2. This was on the understanding that counts 3, 4 and 5 would not be proceeded with by the prosecution.

5. On the face of it, if the Applicant was a guilty party and agreed to the arrangement that had been made, he was the beneficiary of a remarkably favourable deal with the prosecution. This was because the prosecution would, under the terms agreed, be dropping a charge of offering to traffic in 5 kilogrammes of cannabis and two other minor trafficking charges in return for proceeding on three charges on the indictment, as amended, which were as follows:

First Count

STATEMENT OF OFFENCE

Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

Anthony Uchenna Elezie, on the 13th day of February, 1998 at Room 930, Hong Kong Hotel, Tsim Sha Tsui, Kowloon, in Hong Kong, together with Eniro Bangure, unlawfully trafficked in a dangerous drug, namely 168.00 grammes of a mixture containing 2.52 grammes of heroin hydrochloride.

Second Count

STATEMENT OF OFFENCE

Offering to traffic in a purported dangerous drug, contrary to section 4A(1)(b) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

Anthony Uchenna Elezie, on the 13th day of February, 1998 at Room 930, Hong Kong Hotel, Tsim Sha Tsui, Kowloon, in Hong Kong, offered to traffic in a substance held out by him to be 300 grammes of heroin hydrochloride but which was not in fact a dangerous drug.

Sixth Count

STATEMENT OF OFFENCE

Trafficking in purported dangerous drug, contrary to section 4A(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

Anthony Uchenna Elezie, on the 6th day of March, 1998 at the 'Le Rendezvous' Bar, 1st Floor, Regal Kowloon Hotel, Tsim Sha Tsui, Kowloon, in Hong Kong, trafficked in a substance represented by him to be a dangerous drug, namely heroin hydrochloride, but which was not in fact a dangerous drug.

6. These charges sufficiently set out the general nature of the case alleged against the Applicant and it is unnecessary to relate the facts of the case in any greater detail in the circumstances of this application. Suffice it to say that the Applicant was arrested as the result of undercover agents being used to expose his criminal activities which, as it turned out, more closely resembled obtaining money by deception, or attempts to do so, than actual trafficking in drugs. As count 1 demonstrates, the quantity of actual heroin in the comparatively large quantity of powder was very small indeed.

7. With this background, the Applicant served notice of appeal on 25 June 1999 in which he made five complaints. In summary, he alleged that:

(1) heroin had been planted in the mixture, the subject of count 1;

(2) a visit had been made to Lai Chi Kok Reception Centre by an unnamed police officer who offered him his freedom if he pleaded guilty to some charges because he would have spent 15 months in custody by that stage and he would almost immediately be released.

Pausing there, we have heard in court today from a Senior Inspector of Police who saw the Applicant at Lai Chi Kok. He confirmed an affirmation he had made to the effect that he had gone to see the Applicant with a view to gaining information from him. He denied, and we can say straightaway we have no difficulty in accepting his denial, that he had sought to put any pressure on the Applicant to plead guilty.

8. The remaining complaints made by the Applicant in his first notice of appeal were that:

(3) he had been subjected to torture, amongst other things, at the hands of police after his arrest;

(4) he agreed to plead guilty based on his counsel's assurance, supported by the officer who had seen him, that he would not receive further imprisonment if he admitted some of the charges on the indictment; and

(5) the arresting officer had recklessly pursued a conviction by entrapment and other underhand methods to preserve his own reputation, having paid an informer who subsequently disappeared to find a "drug trafficker", as opposed to someone like the Applicant who was more in the nature of a fraudsman.

9. In a further letter dated 10 August 1999, the Applicant went into greater detail about his complaint against his legal advisers. He said that he pleaded guilty on being given the advice that he could have faced between twenty and twenty-five years' imprisonment if he pleaded not guilty because each of the charges was likely to carry seven years' imprisonment. If, on the other hand, he pleaded guilty, he would not have to serve any extra time. He went on to say that he "readily agreed" in the hope that the undercover police officer would help clear his record according to the promise that officer had made prior to trial. This last complaint was in fact a new complaint, and the Applicant went on to make a number of others amongst which he stated that he was being used as a scapegoat to prove that drug trafficking was being controlled by black people in Hong Kong. He also referred to the transcripts of tapes, which had been recorded by the undercover police agents in the course of this inquiry, as having been forged. He explained to the court that he meant by this "tampered with" by the officer.

10. Today, the Applicant gave evidence in support of his allegations. We also heard from counsel, Mr. Dinan, as well as Mr. Patrick K.H. Chu from the firm of solicitors instructed, Hastings & Co. Mr. Chu has practised as a solicitor for twenty years and has sat as a magistrate. He is well known in these courts as a very experienced practitioner.

11. The Applicant repeated his basic complaints against his lawyers. Mr. Dinan confirmed the written comments which he had previously provided not only to the court but also to the Applicant so that he should be able to see what in effect Mr. Dinan would be likely to say. This was to the effect that no promises were made to the Applicant of the kind he has alleged, nor was there any pressure placed on him to plead guilty in the manner he has suggested.

12. Mr. Chu confirmed the contents of his written account dated 2 September 1999 which the Applicant has also received. This gave a reasonably detailed account of the handling of the case from start to finish. It is clear that Mr. Chu is a highly diligent solicitor who kept detailed attendance notes. The most important of these related to 1 June 1999 which the Applicant has signed. On 9 June 1999, Mr. Chu made absolutely sure that the Applicant understood the newly amended indictment that had been prepared for the plea to be tendered that day. He confirmed also with the Applicant the new Summary of Facts. The Applicant acknowledged that he agreed with them.

13. It is apparent to this court that the Applicant's lawyers went to see the Applicant at Lai Chi Kok Reception Centre on a number of occasions in the space of a month between 27 April 1999 and 26 May 1999. Throughout that time, the Applicant maintained his innocence. Indeed, at a pre-trial review, a plea of not guilty was indicated. Following the meetings with the Applicant at Lai Chi Kok Reception Centre and during some of the time before then, the Applicant's lawyers were in constant communication with the prosecution until an arrangement was reached as to acceptable pleas. On 1 June 1999, when the Applicant was seen by Mr. Chu and told in terms of the arrangement that might be made if the Applicant was agreeable to it, the Applicant agreed and signed instructions to the effect that he would plead guilty in due course. It was then that the fresh indictment and Summary of Facts were prepared before the pleas of guilty were ultimately tendered to the court.

14. In short, this Applicant has had the benefit of conscientious and skilled lawyers acting every step of the way in his interests. His repayment to them has been wholly unjustified and has effectively been a slap in the face for all the effort they have put into getting him the best possible result in the face of overwhelming odds. Not only was he tape-recorded in conversations which expressly revealed his guilt, but his co-defendant had made a statement implicating the Applicant which only added to his problems.

15. This application is without a scintilla of merit and it is dismissed. In view of the wholly unmeritorious nature of this application, we would have ordered 6 months' loss of time. However, as Mr. Saw, S.C., on behalf of the Respondent, has very properly indicated that the Applicant has completed his sentence and is now in custody pending his deportation to Nigeria, we do not consider such an order can be made.