HKSAR v. MADUEKWE AKACHUKWU BELLAMINE alias TUNKARA OMAR

CACC 14/2018

[2020] HKCA 655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 14 OF 2018

(ON APPEAL FROM HCCC NO 457 OF 2015 & HCCC NO 59 OF 2016)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The applicant was jointly charged with one other with a single count of trafficking in a dangerous drug, namely, 1,309 grammes of a solid containing 549 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 3 August 2016, the applicant and his co-accused (D2) both appeared before DHCJ Lugar-Mawson and both pleaded guilty to the count. On 9 January 2018, the applicant was sentenced by M Poon J (“the judge”) to 14 years and 5 months’ imprisonment and D2 was sentenced to 11 years’ imprisonment.

2.  The applicant subsequently filed a Notice of Application for Leave to Appeal against sentence (Form XI).  However, on 19 June 2018, he filed a Notice of Abandonment in respect of this Application for Leave to Appeal, as a consequence of which his appeal was dismissed pursuant to Rule 39 of the Criminal Appeal Rules, Cap 221A.

3.  On 7 November 2018, the applicant made and filed an affirmation seeking to revive his application for leave to appeal his sentence by treating his earlier abandonment of it as a nullity.  He, thereafter, filed two further affirmations with medical reports attached to them.  The medical reports were relied on by the applicant to show that his earlier abandonment was not the result of a deliberate and informed decision by him.

4.  At the hearing of the application, we refused it.  These are our reasons for doing so.

The background to the offence

5.  The Summary of Facts, which was admitted by the applicant and used for his sentencing, revealed that on 24 April 2015, the applicant was observed by police officers handing a white plastic shopping bag to D2 outside a shop on Cheung Sha Wan Road, Sham Shui Po.  The officers then approached, stopped and searched both men.  They found a total of 549 grammes of cocaine, wrapped in 74 plastic pellets in the shopping bag that D2 was by then holding. The street value of the cocaine was HK$1,500,114 at the time of its seizure.

6.  Under caution, both the applicant and D2 denied any involvement in the offence but in the Summary of Facts the applicant admitted having committed the offence.

The procedural history of the applicant’s case

7.  During a pre-trial review on 7 June 2016 before Zervos J, as Zervos JA then was, the applicant and D2, through their legal representatives, indicated that they would maintain their pleas of not guilty and would stand trial between 2 and 15 August 2016.

8.  However, counsel for the applicant subsequently wrote to the court informing it that the applicant would plead guilty on the first day of trial.  Those acting for D2 indicated the same intention.  On the day before the scheduled trial date, the applicant’s counsel wrote to the court again, stating that the applicant wished to provide assistance to the prosecution.

9.  On 3 August 2016, both the applicant and D2 pleaded guilty before DHCJ Lugar-Mawson, and admitted the Summary of Facts.  The applicant’s mitigation was reserved until after the police had obtained non-prejudicial statements from him.  When the applicant learnt that the police had assessed his statements to be of no practical value, he applied to reverse his guilty plea and discharged his counsel.  He was thereafter represented by Mr James McGowan who informed DHCJ Lugar-Mawson that issues relating to the applicant’s mental condition and fitness to plead would have to be investigated by the court as part of the application to reverse his guilty plea.  On 25 October 2016, the applicant’s case came on before DHCJ Lugar-Mawson who ordered a psychiatric report on the applicant.  A further hearing took place on 2 November 2017 before Li J for procedural matters to be addressed.

10.  Finally, on 15 December 2017, Mr McGowan on behalf of the applicant withdrew the application to reverse plea and maintained the applicant’s guilty plea.  The case was then adjourned to 9 January 2018 for mitigation and sentence of both the applicant and D2, at which time M Poon J took over this case.

The mitigation

11.  The applicant relied on the fact that he was of a clear record, was not a torture claimant, albeit he had overstayed in Hong Kong, and had provided assistance to Father Wotherspoon’s letter-writing campaign.

12.  Mr McGowan also informed the judge that the applicant would rely on entrapment as a mitigating factor.  He submitted that the evidence suggested that the applicant had only committed the offence as a result of being set-up by a police informant, an allegation that was denied by Mr Andrew Raffell, counsel on fiat for the prosecution.  Mr Raffell informed the court that the arrest of the applicant and D2 was the result of an internal police investigation and not from information provided by an informer.

13.  Mr McGowan also asked for a full one-third discount to be given to the applicant as his plea, though not entered at the earliest opportunity, was before the Court of Appeal decision in HKSAR v Ngo Van Nam[1], which was handed down on 2 September 2016, and on the ground that the applicant had a long history of psychiatric problems since April 2016 that intermittently affected him.

The judge’s Reasons for Sentence

14.  After setting out the background and the procedural history of the case, the judge addressed the allegation of entrapment and found that there had been no entrapment by the police.

15.  The judge rejected the applicant’s claim that he had been experiencing psychiatric episodes which had affected the conduct by him of his case and found that he had employed tactics that had dragged the case on unnecessarily.  She was of the view that the assistance he gave to Father Wotherspoon did not warrant awarding him any discount and even if it did, it would have been off-set by the delaying tactics which he had employed.

16.  The judge adopted 18 years’ imprisonment[2] as the starting point for the amount of cocaine in which the applicant trafficked.  She then allowed the applicant a discount of 20% for his guilty plea and sentenced him to 14 years and 5 months’ imprisonment.

The applicant’s grounds of appeal against sentence

17.  The applicant was unrepresented at the hearing of his application.  In his Form XI, he complained that his sentence is manifestly excessive.  He is dissatisfied with the length of his sentence and feels that no account was taken of his remorse and assistance to the police.

The application to treat the Notice of Abandonment as nullity

18.  The applicant filed three affirmations in support of his application. In the 1^st affirmation made and filed on 7 November 2018, he explained that he abandoned his appeal because “a solicitor from legal aid visited me and told me (at that time) that I didn’t have any grounds for an appeal - and consequently, will not be represented by legal aid and I, therefore, felt legally defenceless and cancelled.”

19.  In his 2^nd affirmation, filed on 11 December 2018, he explained that his earlier abandonment was due to the fact that at that time he “was undergoing some episodes of depression and mental instability”.  He said of these that they had been:

“… diagnosed and treated in Siu Lam Psychiatric Centre, but resurfaces every once in a while.

Consequently, I was truly in a deep unstable state and wasn’t in a proper frame of mind to take any rigid and appropriate decisions.”

He added that he was on psychotherapy and always on psychotic drugs.  He said: “In all, I wasn’t thinking straight and clearly.”  He accepted his condition had considerably improved under the medical care provided to him and that he could “see very clearly, now”.

20.  Two psychiatric reports prepared by doctors at Siu Lam Psychiatric Centre (SLPC) were attached to the 2^nd affirmation. In the first report, dated 13 June 2016, the applicant was diagnosed as suffering from a “depressive episode” and in the second report, dated 30 June 2017, he was diagnosed as suffering from a “psychosis”. In both reports, it was stated that “with treatment his condition has significantly improved”, and “he should be ready for discharge from Siu Lam Psychiatric Centre although for administrative or other reasons he might have to stay here for a few more days”.

21.  On 8 April 2019, the applicant filed a 3^rd affirmation, attaching his latest medical report dated 6 March 2019.  In this affirmation, he said his purpose in exhibiting this latest medical report was to show “that I have been on antipsychotic drugs – as at the time of my cancellation – thereby leading to my unfavourable and rash decision to cancel my appeal.”

22.  The exhibited medical report was prepared by Dr Ma of West Kowloon Psychiatric Centre.  In this report, Dr Ma recorded the medical history of the applicant from when he was first referred to SLPC in May 2016:

“when he presented with poor response, poor sleep and low energy level during his stay at Lai Chi Kok Reception Centre (LCKRC). He was diagnosed to suffer from depression and antidepressant was given to him.”

23.  However, in May 2017, he was again admitted to SLPC, claiming that he held a “persecutory idea that a staff pointed to him with electric torch while he was sleeping and he felt paralysed afterwards”.  He was observed to be dull-looking, preoccupied, suspicious and sullen.  Dr Ma said that the applicant’s diagnosis was then revised to psychosis and the applicant was prescribed antipsychotic medication to which he responded satisfactorily.

24.  He was last seen at West Kowloon Psychiatric Centre on 21 November 2018.  He appeared co-operative, euthymic with relevant and coherent speech, and suffered no hallucination, delusion or suicidal idea.  Though he was on some medication, he was impressed to be stable.

25.  By a letter dated 24 July 2019, the respondent sought leave to include the applicant’s psychiatric report dated 11 November 2016 into the appeal bundle which was allowed by Master Cheung.  In this report, a visiting psychiatrist of SLPC expressed the opinion that the applicant “suffered from depression and he is currently stable without sign of relapse”[3].

The respondent’s submissions

26.  In response, Ms Claudia Ng relied on the Court of Appeal decision in HKSAR v Chang Wai Hang Alab[4] which set out the legal principles to be applied by the Court of Appeal in deciding a nullity application and emphasised that the court is not concerned with the merits of the underlying application for leave to appeal.

27.  In response to his 1^st affirmation, she submitted that the applicant’s decision to abandon clearly stemmed from the legal advice he received from Legal Aid Department that he did not have any ground of appeal.  Legal advice, whether right or wrong, in respect of the prospects of an appeal, as opposed to advice as to the nature and effect of the Notice of Abandonment, was not a justifiable ground for treating the abandonment as a nullity.

28.  In respect of the applicant’s psychiatric conditions, Ms Ng submitted that the fact he may have suffered from them did not mean that he was not in the position to understand the effect or consequence of the Notice of Abandonment when he signed it.  Ms Ng submitted that the medical reports on the applicant showed that his psychiatric condition had improved over time.  She asserted that the applicant had failed to provide credible evidence that he did not understand the nature of the Notice of Abandonment or the effect of signing it. 

Discussion

29.  Once an appeal is abandoned, and as a consequence is dismissed, the Court of Appeal does not have inherent jurisdiction to reopen it.  It can only do so if an applicant can satisfy the court that his abandonment should be treated in law as being a nullity.  In order to discharge this burden, the applicant must show by credible evidence that the abandonment was not the result of a deliberate and informed decision, in other words, his mind did not go with the act of abandonment.  The focus of the Court of Appeal’s enquiry is on the state of mind of the applicant at the time he signed the Notice of Abandonment.

30.  In respect of the present case we accepted that the applicant has been treated for psychiatric conditions on and off over the years. However, we did not accept that these psychiatric conditions operated on his mind at the time he made the decision to abandon his appeal.  The medical reports on which he relied suggest that his psychiatric condition responded well to treatment after May 2017 and that it was, thereafter, kept under control.  He filed his Notice of Abandonment after this time, on 19 June 2018, and the only other medical report on him stems from his visit to West Kowloon Psychiatric Centre on 21 November 2018.  That report reveals that the applicant was completely normal and stable. 

31.  We note that in his 1^st affirmation of 7 November 2018, the applicant attributed the reason for abandoning his appeal to the unfavourable legal advice he received.  It was only after he was informed by Master Cheung, the Registrar of Criminal Appeals, by letter dated 20 November 2018, that there was nothing in his 1^st affirmation which showed that his abandonment was not the result of a deliberate and informed decision that he then claimed in his 2^nd affirmation filed on 11 December 2018 that his abandonment was due to his psychiatric conditions.  This prompted a second letter from Master Cheung dated 13 December 2018 in which she noted that the medical reports exhibited to his second affirmation showed his mental condition had significantly improved and did not support a claim that “his act of abandonment did not go with his mind at the relevant time.” This prompted the 3^rd affirmation that was filed on 8 April 2019.

32.  The procedural history of the applicant’s sentencing process reveals the applicant to be manipulative in respect of the court’s processes.  His conduct during the sentencing process, together with what has transpired since filing this application, deprives him of all credibility.  

33.  Having taken into account the applicant’s past conduct, the explanations proffered by him in his affirmations, and his medical reports, we were not satisfied that his abandonment in June 2018 was not the result of a deliberate and informed decision by him.

Loss of time order

34.  Given the wholly unmeritorious nature of the application, we gave consideration to whether this was an appropriate case in which to exercise our powers under section 83W(1) of the Criminal Procedure Ordinance Cap 221 and make an order for loss of time.

35.  We note that the offence was committed on 24 April 2015 but that as a result of the applicant seeking, and then abandoning, a trial, providing meaningless assistance to the police, and making, and then abandoning, an application to reverse his guilty plea, he was not sentenced until 9 January 2018.  This period of two and three quarter years was taken up with a number of appearances before four different judges and the unnecessary preparation of a court ordered psychiatric report.

36.  The appeal process has itself been prolonged from January 2018 to November 2019 because the applicant has sought to revive his abandoned appeal by the present application.  As we have indicated, the applicant filed his Notice of Abandonment when he received legal advice that his appeal had no merit and he would be refused legal aid.  In our view, that was a perfectly reasonable decision based upon a correct assessment of the merits of the applicant’s appeal.

37.  At the hearing on 14 November 2019 we warned the applicant of the power we possessed under section 83W(1) but nevertheless acceded to his request to adjourn the hearing of his application so that he could obtain an opinion from the Bar Free Legal Service Scheme operated by the Hong Kong Bar Association on the merits of his application to treat the abandonment of his appeal as a nullity.  The applicant was refused assistance and advised in emphatic terms that his application was unlikely to be successful.

38.  Notwithstanding such strongly worded advice and this court’s warning to him, repeated at this latest hearing, the applicant persisted in his application.

39.  The only basis for his application is an assertion that when he filed his Notice of Abandonment his mind was so affected by his psychiatric conditions that he did not appreciate the nature and effect of the Notice of Abandonment.  As we have already indicated, we accept that the applicant was undergoing treatment for psychiatric conditions but it is clear from the medical reports on which he relied that his conditions of depression and psychosis were under control at the time he filed his Notice of Abandonment.  He well knew the nature and effect of the Notice of Abandonment and we had no doubt that his reason for signing and filing it was correctly set out in his 1^st affirmation.

40.  In these circumstances, we were satisfied that this was an appropriate case in which to exercise the section 83W(1) power and so directed that 2 months of the time spent by the applicant in custody pending the determination of his appeal should not be reckoned as part of the term of his sentence.

Disposition

41.  For these reasons we refused the applicant’s application to treat the abandonment of his appeal as a nullity and ordered 2 months’ loss of time.