HKSAR v. OLUBOYEDE AYODELE OGUNADEgunade

CACC213/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2005

(ON APPEAL FROM DCCC 14 OF 2005)

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J U D G M E N T

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Lunn J (giving the judgment of the Court) :

1. In this court the applicant, who appears in person, renews his application for leave to appeal against conviction and sentence.

Convictions and sentence

2. On 4 May 2005 the applicant was convicted in the District Court by Deputy District Court Judge Mierczak of three charges arising from items found on him by a police officer at Gate 66 of Hong Kong International Airport, after the applicant had disembarked from an Emirates aircraft.  The applicant was a passenger on the aircraft and was bound for Beijing, having travelled to Hong Kong from Bangkok.  In the applicant’s wallet, which was in his hand luggage, were found five credit cards, three of which were the subject of charge 1, namely possession of false instruments contrary to section 75(1) of the Crimes Ordinance, Cap. 200.  Three passports were found in the applicant’s rear trouser pocket.  A Congolese passport in the name of Ogunade Roger Smith was the subject of charge 2, namely possession of a false travel document, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115.  An Indian visa attached to a Liberian passport in the name of Ogunade Kala G was the subject of charge 3, namely possession of a false instrument contrary to section 75(2) of the Crimes Ordinance, Cap. 200.

3. At the conclusion of the trial, the judge convicted the applicant of all three charges and sentenced him to a total of 3 years’ imprisonment.  The sentence imposed in respect of charge 1 was 2½ years’ imprisonment and one year’s imprisonment in respect of each of charges 2 and 3.  The latter sentences were ordered to run concurrently one with the other, but 6 months’ imprisonment imposed in respect of those charges was ordered to run consecutively with the sentence of imprisonment imposed in respect of charge 1.

The case for the prosecution

4. It was an admitted fact at the trial of the applicant that he was a transit passenger having arrived in Hong Kong on Emirates flight EK 382 from Bangkok and that he was bound on that flight to Beijing.  Miss Ho Shun Kwan (PW1), an airport services officer of the airline, testified that she had boarded the aircraft after its arrival and questioned the applicant in respect of his use during the flight of a credit card to purchase an item from the airline.  She testified that the applicant confirmed his use of an Aeon MasterCard, one of the three credit cards of the subject of charge 1, in that transaction.

5. On his disembarkation from the aircraft the applicant was questioned and searched by police constable 51032 (PW2).  Following the discovery of the items, the subject of the three charges the applicant was arrested by that police officer.  In due course, an immigration officer, PW3, refused the applicant the right to land in Hong Kong.  Two security officers (PW4 and PW5), from Visa and MasterCard credit companies respectively, testified between them that in their opinion, for a variety of reasons, the three credit cards were fraudulent. Mr Chan Wai Chung (PW6), a government chemist, testified in respect of various irregularities to the documents, the subject of three charges and expressed the opinion that they were all forged documents.

The case for the defence

6. The applicant testified on his own behalf, but did not call other evidence.  He said that his name was Ogunade, but agreed that he used other names including Adekunle Michael and Kala G.  He testified that he had left Liberia in March 2004.  Prior to doing so, through a travel agent, he had obtained a Liberian passport and the Indian visa attached to that Liberian passport.  The visa is the subject of charge 3.  Also, through the assistance of the travel agent he obtained an ATM card from the Thai Farmers Bank.  He travelled to India, arriving there on 10 March 2004.  He was successful in using the ATM card to obtain money in India.  Then, he tried to arrange the issue of a visa so that he could travel to Thailand, where he said he wished to play football.  Eventually, he was successful and he travelled on that visa to Bangkok in Thailand.  There, he was joined by his brother, wife and child.  His brother had brought with him five other credit cards.  However, he was unsuccessful when he tried to use those cards in Thailand or in the Mainland of the People’s Republic of China, to which he also travelled.

7. The applicant accepted in evidence that he had used the Aeon MasterCard, one of the three credit cards the subject of charge 3, to purchase an item on the aeroplane. That was one of the credit cards issued in his father’s name.  On arrival in Hong Kong the applicant was asked to remain on board the aeroplane, where PW1, i.e.Miss Ho, the airline services officer had taken his Liberian passport and that credit card.  Subsequently police officers had taken him to an immigration officer, PW3, who had refused him permission to land in Hong Kong.  The applicant testified that he did not know that the Congolese passport, the subject of charge 2, was in a bag in his possession, nor did he know that the credit cards were not genuine credit cards.

The Reasons for Verdict

8. In the first place, the judge found that all the acts were done or are to be treated as done in Hong Kong, citing as authority what he described as section 2C of the Aviation Security Ordinance, Cap. 494.  Then, the judge went on to find that all the documents or instruments respectively, the subject of the three charges were false.  Of the relevant documents the judge found that they were fraudulent and went on to find the defendant knew or believed them to be false.  He rejected the applicant’s evidence that he had not known of the presence of the Congo passport on his person.  Of the credit cards, the subject of charge 1, the judge found that the applicant knew or believed the cards to be false and that he had the intention to induce somebody to accept them as genuine, and by reason of so accepting them, to do or not to do some acts to his or any other persons prejudice.  Accordingly, in the result the judge convicted the applicant of all three charges.

Grounds of appeal against conviction

9. By Grounds 1, 2 and 4 the applicant contends that the acts the subject of the charges took place on board the aircraft or in the airport whilst he was a “passenger-in-transit” in Hong Kong and accordingly, so he submits, not within the jurisdiction of Hong Kong law.

10. By Ground 3 the applicant questions the lawfulness of his arrest for acts committed whilst on the aircraft.

11. By Grounds 5 and 6 the applicant questions the lawfulness of his subsequent detention prior to his trial.

12. By Ground 7, as developed in his written submissions, the applicant contends that there were material irregularities in the conduct of his trial in that the judge accepted testimony of prosecution witnesses, which the applicant contends was inconsistent and the product of coaching.  Furthermore, it is contended that the judge gave undue weight to the credibility of those witnesses because they were government employees and Hong Kong citizens.  The applicant contends that the judge erred in drawing inferences from untrue facts.  Further, it is asserted that the judge reached his conclusions on the balance of probabilities not on proof beyond reasonable doubt as required.  Finally, it is submitted that the judge erred in rejecting the applicant’s evidence without due cause.

13. By Ground 8 the applicant questions the lawfulness of the detention order issued in his case by the Secretary of Security.

The Respondent’s submissions

Grounds 1, 2 and 4 : the jurisdiction of the Hong Kong courts

14. Miss Wong submits on behalf of the respondent that the judge was correct to determine that he had jurisdiction to try these charges, but not for the reasons advanced by the judge.  It is submitted that jurisdiction arose because the acts were committed in Hong Kong, not on a foreign registered aircraft.  In particular, the applicant was searched and arrested outside the aircraft at Gate 66 of the Hong Kong International Airport, which place is clearly in Hong Kong and, accordingly, subject to Hong Kong law.

Grounds 3, 5 and 6 : the lawfulness of the applicant’s arrest and subsequent detention

15. The simple submission made on behalf of respondent is that the arrest and subsequent detention was made in accordance with the law of Hong Kong. 

Ground 7 : material irregularities

16. The respondent points out that the judge stated in terms in reaching his conclusions that :

“… the burden lay on the prosecution to satisfy me beyond a reasonable doubt of the guilt of the defendant, and that there was no burden at all resting on the defendant.” [Appeal bundle paragraph 45, p.16 R-T]

Of the applicant’s complaint that the witnesses were coached and yet somehow still gave inconsistent evidence, the respondent invites the court to note that the applicant points to no evidence in support of that bare contention.  Of the acceptance by the judge of the evidence of the prosecution witnesses and the rejection of the applicant’s evidence the respondent submits that they were determinations that the judge was entitled to make, as he was entitled to draw inferences from the possession by the applicant of the three credit cards, the subject of charge 1.

Grounds 8 : the lawfulness of the applicant’s detention

17. The respondent submits that these grounds are irrelevant to this application for leave to appeal against conviction.

Conclusion

Grounds 1, 2 and 4 : jurisdiction

18. Although the deputy judge referred in terms in the typed Reasons for Verdict to “Section 2C of the Aviation Security Ordinance, Cap. 494” as founding jurisdiction in the courts of Hong Kong for the acts of the applicant, in fact, there is no such subsection.  Section 2(2)(c) of the Ordinance provides that :

“any act done on board an aircraft while in flight over Hong Kong shall be treated as done in Hong Kong.”

Section 2(2)(a) provides that :

“the period during which an aircraft is in flight shall be deemed to include —

(i) any period from the moment when all its external doors are closed following embarkation for a flight until the moment when any such door is opened for disembarkation after that flight;”

It is clear from the Admitted Facts that the evidence led from the prosecution witnesses commenced with Miss Ho (PW1) boarding the aircraft after its arrival in Hong Kong to make inquiries of the applicant.  It follows, as is suggested by the respondent, that the provisions of the Aviation Security Ordinance have no application.  Accordingly, the judge did not need to restrict himself to determining that jurisdiction was founded in reliance on that Ordinance.  Clearly, however, the court had jurisdiction to try the applicant on the three charges, the applicant having disembarked from the aircraft after its arrival in Hong Kong, whereupon he was searched at Gate 66 of Hong Kong International Airport and the items, the subject of the three charges, were found in his possession.

Ground 7 : material irregularities.

19. There is no merit whatsoever in the applicant’s contentions made under this heading.  The judge correctly articulated the burden and standard of proof in his Reasons for Verdict.  Rejecting the applicant’s evidence the judge said :

“…his evidence is in the realms of fantasy and stretching the bounds of incredulity.”

20. In accepting the evidence of the prosecution witnesses, the judge noted that their evidence had not been the subject of real challenge by the defence and stated that he found that evidence to be “clear, cogent and compelling.”  Thereafter, the judge found proved all the necessary ingredients of the various offences in the three charges.

Grounds 3, 5, 6 and 8 : the lawfulness of the applicant’s arrest and detention.

21. The applicant was arrested at Gate 66 of the Hong Kong International Airport by PW2 for uttering forged documents.  On the following day, he was charged with using a false instrument, namely the Aeon MasterCard, on the aircraft contrary to section 73 of the Crimes Ordinance, Cap. 200.  However, his trial proceeded on three different amended charges described earlier.  None of the Particulars of Offence of the three charges describe the place at which the offences occurred.  However, the evidence led in support of those charges was in respect of the discovery of the items, the subject of the charges, in the search by the police officer at Gate 66.  The fact that the applicant was arrested for one offence, initially charged with another and then tried on other charges does not in any way impugn the validity of the trial.  There is no merit in any of the submissions advanced under this ground of appeal.

Grounds of appeal against the sentence imposed in respect of charge 1

22. The applicant submits that since he was a passenger-in-transit through Hong Kong on his way from Bangkok to Beijing there was no actual or attempted economic loss to an entity in Hong Kong.  In support of his contention that culpability is thereby reduced, in his written submission the applicant invites the court to note that the Dangerous Drugs Ordinance, Cap. 134 makes provision for an offence in specific circumstances of importing a dangerous drug in transit elsewhere and provides for a lesser penalty than unlawfully trafficking in a dangerous drug.  In those circumstances, he submits that the sentence imposed upon him in respect of charge 1, namely 2 ½ years’ imprisonment, is excessive.

Conclusion

23. The judge stated in terms that he was aware that there was no actual loss arising from the offence committed in respect of charge 1.  He went on to say :

“…but that is not the only consideration ….  It is the potential loss which is important.”

Thereafter, the judge cited passages from the judgment of this court in HKSAR v. Yau Wai Chun, unreported, CACC417/2000 and R. v. Chan Sui To [1996] 2 HKCLR 128, in which various factors of relevance in sentence in such circumstances are described, including the potential for loss and whether or not there was an international dimension to the commission of the offence.

24. In our judgment, those factors were most material to the sentence to be imposed on the applicant in this case.

25. The fact that the Dangerous Drugs Ordinance makes provision for an offence of importation of dangerous drugs in transit is irrelevant to the issue of the appropriate sentence to be imposed in respect of charge 1.

26. In the result, we are satisfied that the sentence of 2 ½ years’ imprisonment imposed in respect of charge 1 was entirely appropriate.

27. For the reasons set out earlier, the applications for leave to appeal against conviction and sentence are dismissed.