HKSAR v. MBACHU CHARLES SUNDAY

CACC 307/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 307 OF 2009

(ON APPEAL FROM HCCC NO 105 OF 2009)

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Hon Barnes J (giving the Reasons for Judgment of the court):

Introduction

1.  The applicant was the 2^nd accused in the trial.  He was jointly charged with one OBIAGWU Oluchukwu Christian (“Obiagwu”) with one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.  The particulars of the offence were that the two accused:

“… on the 31^st day of October, 2008, at Flat B, 1^st Floor, No. 22, Fuk Wa Street, Shamshuipo, Kowloon, in Hong Kong, robbed NJOKU VICTOR NNAMDI of cash $169,433 United States currency, two mobile phones and one portable computer, KO Yiu-hung of one mobile phone and CHAN Chun-hong of one mobile phone.”

2.  Obiagwu pleaded guilty to the offence while the applicant pleaded not guilty.  The applicant was tried before the late Mackintosh J and was found guilty by the jury.  He was sentenced to 15 years imprisonment.  Obiagwu was sentenced to 10 years imprisonment upon his plea.

3.  The applicant filed a Notice of the Application for leave to appeal against conviction and sentence on 21 September 2009.  On 2 July 2010 the applicant filed a Notice of Abandonment.  His application therefore stood dismissed by operation of law, namely, Rule 39 of the Criminal Appeal Rules, Cap 221A.  Two years later, on 18 July 2012, the applicant applied to treat his Notice of Abandonment as a nullity and to revive his application for leave to appeal against conviction.  The applicant did not explain in the supporting affirmation why he had filed the abandonment.

4.  At the conclusion of the hearing, we dismissed his application to treat the abandonment as a nullity.  We remarked in passing that there was in any event no merit in the grounds he wished to advance.  We indicated that we would hand down our reasons in due course, which we now do.

Prosecution case

5.  It was an admitted fact that on 31 October 2008, a robbery took place at the premises particularized in the charge, where X Pert Exchange Limited (X Pert) carried out its business.  X Pert provided cash remittance services primarily to the Nigerian community in Hong Kong.  A Nigerian member of staff (Victor) of X Pert was robbed of US$169,433 and a laptop computer.  Two Chinese customers were each robbed of his mobile phone during the robbery.

6.  It was an admitted fact that Obiagwu was one of the robbers who had committed the robbery.

7.  It was also an admitted fact that parts of the stolen money were found on the applicant’s person (US$10,000) and his home (US$705).  The only issue during the trial was whether the applicant was the other robber.

8.  As to the evidence against the applicant, they can be shortly stated as follows:

(1) The positive identification by Victor that the applicant was one of the robbers — the one who pretended to be a customer and spoke to him asking about remittance.

(2) The applicant’s fingerprints and DNA were found on the two knives left by the robbers.

(3) The applicant’s confession to one of his fellow Nigerians, a member of a search party (voluntarily formed by the Nigerian community in Hong Kong) to locate the culprits — after viewing the closed-circuit television footage of the robbery.

(4) The discovery of US$10,000 of the stolen money on the applicant’s person and US$705 of the stolen money found at the applicant’s home.

(5) The applicant’s full confession, during video‑recorded interviews with the police after his arrest, of his participation in the robbery with Obiagwu.

Defence case

9.  The applicant’s case, in a nutshell, was that he was an innocent dupe wrongly framed up by Obiagwu and others.  He did not take part in the robbery.  Victor had wrongly identified him as one of the robbers.  Obiagwu had asked him to buy the two knives and he left his fingerprints and DNA on them when he examined them.  He did not make any confession to the fellow Nigerian.  Despite the admitted facts, he testified in court that he did not have the US$10,000 stolen money on his person and the US$705 found at his home was his own money.  He said the police did not explain his rights to him before the video‑recorded interviews were conducted.  He was forced and induced by the police to make the confessions — with the police rehearsing with him beforehand so that he could provide the answers during the interviews.

Circumstances of his filing of the Notice of Abandonment

10.  The applicant informed this court that the reason why he filed the Notice of Abandonment was that he was trying to get the necessary documents to support his appeal.  He said he was trying to look into the bundle of documents used during the trial.  He did not apply for an adjournment and he did not realize that the effect of filing an Notice of Abandonment would result in dismissal of his application.

A consideration of the submissions

11.  We deal with the issue of the abandonment first.  It was noted in the case of HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1, once an appeal was abandoned and thus dismissed, the Court of Appeal had no inherent jurisdiction to permit an appeal to be reopened unless the abandonment was treated as a nullity, or the matter was referred to the Chief Executive under section 83P of the Criminal Procedure Ordinance, Cap 221.  The kernel of the nullity test was that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, ie the defendant’s mind did not go with the act of the abandonment (see R v Medway (1975) 62 Cr App Rep 85).

12.  Applying the relevant test, we could not see that the abandonment “was not the result of a deliberate and informed decision” on the part of the applicant.  There was nothing to show that the applicant’s mind did not go with the act of the abandonment.  We were not satisfied that the applicant succeeded in showing that the abandonment was a nullity.

13.  We think it advisable that Notice of Abandonment should indicate to applicants the effect in law of an abandonment.  Such a step is fair and also likely to lessen the number of unmeritorious applications to revive appeals.

14.  Though wholly unnecessary to do so, we state nonetheless that the evidence against the applicant was overwhelming and the conviction was neither unsafe nor unsatisfactory.