HKSAR v. OKEY AFUNWA ENUKWE AND ANOTHER

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1997, No.339
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicants faced four counts. They were particularized as follows. The first count alleged that they, on 10th July 1996, inside the gent's toilet on the first floor lobby of the Hyatt Regency Hotel, trafficked in 48.83 grammes of a mixture containing 21.24 grammes of cocaine. The second count alleged that they, on 12th July, two days later, at the same place, trafficked in 57.43 grammes of a mixture containing 27.71 grammes of cocaine. The third count alleged that on 18th July, outside Holiday Inn Hotel, No.50 Nathan Road, Tsimshatsui, they unlawfully trafficked in 128.83 grammes of a mixture containing 80.72 grammes of cocaine. The fourth and final charge alleged that they, outside the Hongkong Bank, No.21 Nathan Road, Tsimshatsui, unlawfully trafficked in 107.83 grammes of a mixture containing 62.75 grammes of cocaine. After trial before Deputy Judge Longley and a jury, the 1st applicant was convicted on all four counts and the 2nd applicant on counts 2, 3, & 4. They now seek leave to appeal against those convictions. The applicants were represented by Mr. MacKenzie-Ross in the court below but appear in person on this appeal.

2. It was the prosecution case that on 10th and 12th July (counts 1 and 2), in the gent's toilet of the Hyatt Regency Hotel, the 1st applicant passed drugs under a partition in the toilet area to an undercover police officer Inspector Wright. In the first of those two counts, the 2nd applicant waited outside. It was agreed that $35,000 was to be paid some two days later, and that led to the meeting on 12th July when more drugs were passed at the same place.

3. On 18th July, Inspector Wright said, drugs were passed to him outside the Holiday Inn Hotel by the 1st applicant in a DHL bag which later was found to bear the fingerprint of that accused. On 30th July, Inspector Wright said drugs were passed to him outside the Hongkong Bank by the 1st applicant and that these drugs were in a Maxim's bag.

4. As well as the evidence of those four meetings, there was evidence from Inspector Wright of numerous telephone calls and of meetings both prior to the first meeting on 10th July and between the meetings that followed during which an offence occurred. In the outcome, neither of the applicants gave evidence.

5. Voluminous objections have been submitted by the applicants suggesting that they were not accorded a fair trial and that the conviction is both unsafe and unsatisfactory.

6. The 1st applicant has set out his grounds in detail. The first is that the judge erred when he admitted into evidence "the only evidence of identification dock identification". The ground goes on to say the weight to be attached to the identification in court, commonly known as dock identification, is so slight that its prejudicial effect may outweigh its probative value and that the trial judge has discretion to refuse to admit evidence of dock identification.

7. Ground 2 also concerns identification as it states that "although the judge pointed out to the jury that it is possible for an honest witness to make a mistake in identification, there have been wrongful convictions in the past as a result of such a mistake. The judge should have warned the jury adequately of the danger of convicting when crucial identification evidence was weak, uncorroborated and poor in accordance with the guidelines in R. v. Turnbull."

8. The third Ground also concerns identification as it alleges that the judge erred in law in that he "failed to withdraw from the jury the evidence of identification, the description is poor and wrong, no additional evidence substantial or otherwise which would support the identification and that there are no exceptional circumstances."

9. It is appropriate that the issue of identification is raised at the outset so that it can be disposed of forthwith. There is no merit whatsoever in this ground. The identification took place after a relatively long police undercover operation during which, as we have already said, Inspector Wright had numerous contacts with both of the applicants and was, indeed, present when both were finally arrested by a party of police in the Hongkong Bank. There is no question of any impropriety in the court's allowing a dock identification in such circumstances. The suggestion that this course in some way occasioned unfairness to the applicants is entirely without merit. Those first three grounds are dismissed.

10. In Ground 4 the applicant submits that the "judge erred in law by admitting into evidence the audiotape evidence when there are no identity voice identification and the manner in which the tape could properly produced." The audiotape evidence was of telephone calls that Inspector Wright had in which he spoke to both applicants. There was a considerable amount of internal evidence in those calls which indicated that the persons being spoken to were the two persons under investigation and there was the evidence of Inspector Wright who said positively that he could identify the voices in each of the tapes, and that those voices were the voices of the applicants. The suggestion that further evidence was required is without merit. It was for the jury to determine whether or not they were prepared to accept Inspector Wright's identification of the voices. There was no impropriety in the court's allowing that evidence and in indicating to the jury that they could, if they saw fit, rely upon it.

11. We turn to Ground 5. That concerns again the audiotapes. It is suggested that the judge erred when "he wrongly ruled the voice identity was legal transcript". It is not clear exactly what is meant by this ground however what we have already said in relation to Ground 4 deals adequately with it.

12. Ground 6 again deals with the voice identification of the audiotapes. It is suggested that Inspector Wright should not have been allowed to give his evidence as he "has confirm no specific training in identifying particular voices". This ground is also without merit. The Inspector gave evidence in which he stated that he was familiar with the voices of the applicants, that he had been dealing constantly with them over a period of days and that he was sure that the voices he heard on the tapes were those of the applicants. That was admissible evidence for the jury's consideration.

13. The 7th and 8th grounds concern a statement made by Inspector Wright dated 24th April 1997. It is suggested that this statement should never have been admitted as it was dated one month earlier than the events with which the prosecution was concerned, and that this, in effect, showed that the whole of the prosecution case was a concoction. Inspector Wright was cross-examined about this. He said that it was a typing error as the statement was not made on 24th April but on a later date. This was a matter for the jury's consideration. One cannot help but remark that common sense would indicate the likelihood that the Inspector was telling the truth in that regard. However that may be, it was a matter for the jury and it was left for them. They were well aware of the date that was on the document and they were well aware of the Inspector's explanation as to how it came to be there. There is nothing in this ground.

14. The 9th Ground suggests that the judge misdirected the jury when he told them that it was Detective Inspector Snaith's evidence that he had seen Inspector Wright being given something. The suggested misdirection is in the following terms:

"You will recall that Inspector Snaith who gave evidence said that he was watching what was happening from the Sheraton Hotel across the road and he says that he saw Inspector Wright being given something. But you will also recollect that in cross-examination he admitted that he did not make a note of having seen this."

15. The judge did tell the jury that Inspector Snaith had given evidence saying that he was watching from across the road and saw Inspector Wright being given something. It is suggested that this misrepresents the evidence of Inspector Snaith. We turn therefore to that evidence. The evidence of the Inspector appears at p.229 of the transcript:

"Q. Did you see, did you make a note, of whether he (Inspector Wright) was carrying anything when you saw him?

A. When I first saw him he wasn't carrying anything. When he had spoken with the 2nd defendant and the other male, he was carrying something, he was given something."

16. It is difficult to see how complaint can be made of what the trial judge said to the jury. The evidence of the witness was that Inspector Wright was not carrying anything when he spoke with the 2nd defendant and the other male, and that he was then carrying something. Indeed he used the words "he was given something". It seems to us clear that the judge in his paraphrase of the evidence in no way misrepresented it.

17. We turn to Ground 10. This suggests that the judge erred by entering into the arena on the side of the prosecution. It is suggested that this is evident from the way in which he ruled in relation to defence applications. It is further alleged that he took the work of the prosecution on his own shoulders and improperly refused to step down. We have examined the transcript with care. There is nothing in any part of the transcript that indicates that the judge entered the arena. He conducted the trial with admirable fairness. We reject without hesitation the suggestions both that he was partial to the prosecution and that he sided against the defence.

18. We turn to Ground 11 where it was suggested that the judge erred when he failed to discharge the jury after "highly prejudicial evidence had been given". The "highly prejudicial evidence" was a reference to "a kilo" which appeared in the transcript of one of the telephone conversations. The prosecution and defence had agreed that this reference should be edited from the tape and deleted from the transcript. We pause to say that we are not sure why this was agreed. It seems to us to have been admissible and important evidence. However that may be, such an agreement was reached. The passage in the transcript reads as follows:

"Second Male:

I got my own money at the moment. Still I've lost that money to do with the kilo at the moment but I've got my own money back together and I told Billy to meet at 10 o'clock outside the watering hole and then we will just do as I said before. I will put my money in the bank. If you bring the drugs I will take you to the bank, give you the cash and then separate. Is that okay?"

19. There, as can be seen, is mention of "the kilo". When it was discovered that these words appeared in the transcript but not in the edited tape counsel for the defence made an application that the judge discharge the jury. Not surprisingly the judge refused to do so. He said:

"I will of course tell the jury that they are not to speculate about that as they haven't heard evidence."

20. When the transcript is looked at, it is clear what he meant by this. He told the jury during the course of the trial and again during the summing up that the only evidence was what they heard on the tape and that the transcript was not evidence:

"You have been played tapes which the Crown say contain part or all those conversations. Remember, members of the jury, when any parts of the tapes have been deleted, it is because it has been agreed between the Crown and the defence that those matters are not relevant to your consideration, therefore do not speculate as to what may be in the deleted parts."

21. We are satisfied that the matter was properly dealt with by the trial judge. Indeed, as we have already said, we think the defence was fortunate to have had that part of the evidence withdrawn from the jury's consideration.

22. Ground 12 submits that the trial judge erred in admitting the evidence of the fingerprint because there were no reference numbers in relation to the DHL pouch (Exh.9) upon which the fingerprint was found. We find it difficult to understand what exactly is meant by this ground. The important evidence was that of the fingerprint officer which was that he had found the fingerprint of the 1st defendant on that pouch. While there may have been some confusion as to reference numbers there was nothing to suggest that this evidence either should not have been relied upon or was improperly admitted. There is no merit in this submission.

23. The 13th Ground submits that the judge wrongly ruled that "the police failure to arrest the defendant during the first transaction and continuous encouragement is within the Common Law principle". This ground suggests that there was impropriety upon the part of the police in their allowing the matter to develop as far as it did. We reject that without hesitation. This was an undercover operation. The police were seeking to obtain as much evidence as they could as to the source of the drugs and as to the activities of the persons involved in the drug transactions. It was entirely legitimate for them to continue their investigation in the way in which they did and to arrest the applicants at the time when they did. There is nothing in the suggestion that the police should have truncated their investigation and made arrests immediately after the first offence. They were dealing with persons who were clearly intent upon pursuing a course of drug trafficking and they were entitled to continue their investigations in an endeavour to uncover the full extent of the illicit operation.

24. We turn then to Ground 14, which was that the judge erred in "that he failed to clear up the ambiguity and/or inconsistent verdicts given by the jury on the first count where (D1) was found guilty but (D2) was found not guilty". This ground is completely misconceived. The 2nd applicant was clearly given the benefit of the doubt by the jury as he was not actively involved in the transfer of drugs. The 1st applicant was convicted, the jury being clearly satisfied, as the evidence indicated, that he was the prime mover and, indeed, the person who handed over the drugs.

25. We come finally to the 15th Ground, which suggests that the judge erred "in that he intervened to prevent the defence case from being fully put in order to show the extent of prejudice and set up." We reject without hesitation the suggestion that the judge intervened in any improper way. The transcript references given in this regard show that the trial judge quite properly queried the relevance of a line being pursued in cross-examination. He having done so, defence counsel did not thereafter pursue that line of questioning.

26. As we have already said, the judge conducted what was a long and, at times, contentious trial with admirable care, patience and fairness. There is nothing in any of the grounds raised by the 1st applicant and his application for leave to appeal is therefore dismissed.

27. We turn then to the grounds of the 2nd applicant.

28. The 2nd applicant sought an adjournment which was refused. He then announced that he was unable to conduct his defence because he had no knowledge of law and said no more. We will, therefore, deal with the written grounds which he submitted.

29. The first of these grounds suggests that the judge assumed the role of prosecutor. It goes on to state that "a submission was entered by the defence to discharge of the Learned Judge at the outset of the proceedings, that application the Learned Judge abjectly refused for no apparent reason." We have read a long, involved and not easily comprehensible submission that was made requesting that the judge discharge himself. The full flavour of this submission can only be obtained by setting it out in full:

"Court: I'm sorry, I just don't understand what you're talking about, Mr. MacKenzie-Ross. What are you referring to ?

Mr. MacKenzie-Ross: Well, my Lord, that's another matter. That's another matter. We've had that both on the previous day that the case was heard and we've had it throughout today. I'm sorry, but I usually make myself extremely clear.

Court: You're not today, Mr. MacKenzie -Ross, I can't understand the basis. Perhaps you can just be more specific about in what way you allege I've entered into the arena.

Mr. MacKenzie-Ross: Certainly, my Lord. If your Lordship would like to have the matters played over so that we can see the areas in relation to that. One has got the application which I didn't make as a result of seeking instructions earlier and that was on specific matters relating to your Lordship's indication as to how the Crown might proceed in relation to the whole case. An indication which was not exactly either being sought nor was it one which your Lordship needed to say anything about at all. But your Lordship did. And I made the matter quite plain at that stage, what's happened is that prior to the luncheon adjournment, I raised certain matters in relation to the handling of the first tape which was being sought to be put in and the fact that it ought not to be put in until the matter is finally concluded as to whether or not the tapes should be admitted in evidence. And to seek to make a tape which is just being produced, we have got no evidence as to how it came into being and, as I understand it, from looking at the -- the difficulty, of course, is that the more I say, the more it gives your Lordship to give the opportunity to say, well, we'll correct that. We'll allow the prosecution to do this, that or the other.

Now, I've been around long enough not to be caught in that way. Where one sees the way in which matters are proceeding, I can understand the concern of a lay client if he sees that the objections are being rolled over and matters of rulings are being handled in a way which suggests to him, as he has written to me, to say that he feels that his trial is being prejudiced in such a way. And the fact that your Lordship is indicating, well, we can just allow before cross-examination for this to be done indicates, no doubt, to him that that's another indication of what is taking place. It's as simple as that. So that if one had it played over, the production of the envelope is a classic instance so that the passing of the envelope to the jury so that they can look at it to see what the witness is saying, we are getting to a stage where we've now got an inquisition going on into which the jury are being invited to take part in order to look at something in order to get them to prove that some piece of what the officer is saying is in some way correct.

I've never encountered that in all my years of practice; too many possibly people might say. But I have never encountered that anywhere that proceedings should carry on in that way. There was that taking place so that we can try to correct a question of presentation, in order to see how we can best get around it. In fact, I've made a note, for example, just to be absolutely specific; your Lordship asked these questions because my learned friend had put this, "On which part of the tape did you put the label?" Answer: "At the window side." And, of course, we then go on where he is shown the property envelope and the tape marking and the officer gives something which is marked apparently on the cover. And I think at one stage of that exchange, I said that he'd actually mentioned a label but that wasn't enough for your Lordship because your Lordship proceeded to ask him questions which before any question of cross-examination had arisen from this officer, or indeed has yet, to ask about who wrote it on the tape, which side does it appear and the tape and the wrapping. 'Did you write it on the tape itself or on a paper label?' 'I wrote it on plastic.' 'When you say the plastic, was it on the cover or on the tape itself?'

Again, one wonders why these questions are being asked by the judge. 'When you say at first you wrote over the cover or on the tape itself?' 'The cover.' 'On the plastic cover?' 'Do you recognise the handwriting?' And all that is being asked by your Lordship. One can't but wonder why when this case is being presented by the Crown and we have an adversarial system. And one might have thought that perhaps that sort of questioning of this witness could have been left until after any cross-examination or any attempt had been, as he hadn't finished giving his evidence, to clear up that sort of thing by the Crown. So I am not at all surprised that one of the accused considers that your Lordship has entered into the arena on behalf of the prosecution. It can't be for the purpose of doing anything other than to elicit evidence from this witness in order to cover material which could easily have been exploited in cross-examination as to the weight to be attached to what this witness is saying. That seems to me to be quite contrary to the usual proceedings.

So that's the situation. And I must say I felt myself as to really what was one's role in looking at the way in which this evidence was being produced, what was being placed to the jury and the questions your Lordship was asking so it doesn't really surprise me that when I came back from lunch the client has written to me in terms.

Court: And your application is what?

Mr. MacKenzie-Ross: My application is this, that the trial should be heard by another judge.

Court: I refuse the application."

We are satisfied that the judge was completely correct in refusing to accede to this application. He gave directions as to the way in which exhibits were to be handled and as to the course which the trial was to follow. There was no reason of any sort why he should have discharged himself.

30. The second ground is that there was "no established identification upon the hearing of the proceedings". We have already dealt with the question of identification. What we have said in relation to Grounds 1, 2 and 3 argued by the 1st applicant applies equally to this ground. We need not deal with it further.

31. The 3rd and 4th Grounds which suggest that there was no or no sufficient evidence on which to found a conviction have no merit of any sort.

32. The 5th Ground is that "certain evidence was improperly admitted upon the hearing of the proceedings". The 2nd applicant was unable to indicate to what exactly he was referring in this ground. We take it that he was relying upon the same sort of complaints as were advanced by the 1st applicant which we have rejected.

33. In his 6th Ground, he relies upon the same ground as that relied upon by the 1st applicant regarding the transcript of the telephone conversation which contained a word which should have been deleted. We have already dealt with this matter.

34. He also relies in his 7th Ground upon the suggested misdirection as to the evidence of Inspector Snaith. We have already dealt with that matter.

35. He finally argues in Ground 8 that he has been the victim of racial prejudice. He particularizes this saying that the judge "specifically stated before the jury 'As you have heard from the evidence of the inspector and the witness, who are also Europeans', is an indication that the judge indirectly addressed the jury to accept their evidence just because they are Europeans and was highly prejudicial to the defence." We think it important to set out what the judge actually said:

"And you have heard evidence from several officers, most of them Europeans, about the arrest. Senior Inspector Harding told you that he was walking straight for the 1st defendant and the 1st defendant moved aside somewhat apologetically. Inspector Snaith said that the 2nd defendant was at a ledge where you can write out things when he approached the 2nd defendant. And Detective Sergeant 11290 said that the 2nd defendant had a piece of paper with him and appeared to be about to fill it in."

36. We find no suggestion of any sort in these words that those officers, because they were European, were entitled to be accorded some greater degree of credibility than other witnesses. We reject without hesitation the suggestion that the trial judge was in some way indicating that the evidence of Europeans was preferable to that given by other witnesses.

37. The grounds which have been urged by the 2nd applicant are without merit and his application is also refused.

38. In this matter, the two applicants are citizens of Nigeria. Whether or not they came to Hong Kong to commit offences we do not know. The fact of the matter is, however, that, having arrived in Hong Kong, they abused the hospitality of this territory by committing serious drug trafficking offences. They then, as was their right, pleaded not guilty to the charges brought against them. They had a long involved trial which was conducted, as we have said, with eminent patience and fairness by the judge who, at the conclusion of it, convicted and imposed proper sentences upon them. They then sought to appeal against their convictions. They have made persistent endeavours, including applications for adjournments, to obtain legal aid to assist them to pursue what has, in the outcome, been a wholly worthless appeal. We now consider, pursuant to s.83W, whether the time between the entry of the appeal and its hearing should not be counted towards sentence. We are satisfied that we should so order. We direct that in the case of each applicant six months of the time between their lodging of the appeal and today shall not count towards sentence.