CACC 194/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 194 OF 2016
(ON APPEAL FROM HCCC NO 482 OF 2015)
________________________
BETWEEN
HKSAR
Respondent
and
Okorie Nwabueze Joseph
Applicant
________________________
Before: Hon Macrae JA and McWalters JA in Court
Date of Hearing: 6 January 2017
Date of Judgment: 6 January 2017
Date of Reasons for Judgment: 11 January 2017
________________________
REASONS FOR JUDGMENT
________________________
Hon Macrae JA (giving the Reasons for Judgment of the Court):
1. The applicant pleaded guilty at the Eastern Magistrates’ Court to one charge of trafficking in a dangerous drug, namely 1.36 kilogrammes of a solid containing 567 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”), as a result of which he was committed to the High Court for sentence. On 2 February 2016, he was sentenced by M Poon J to 13 years’ imprisonment.
2. On 13 June 2016, a separate hearing was held before the same judge in relation to the prosecution’s application to forfeit US$3,000 found on the applicant at the time of his arrest. On the same day, the judge found in favour of the prosecution and ordered the money to be forfeited under section 56(1)(a) of the Ordinance.
3. On 28 June 2016, the applicant filed a Notice of application for leave to appeal against his sentence (Form XI) out of time. By that stage, the applicant was clearly within time so far as his application for leave to appeal against the order for forfeiture was concerned. However, the application for leave to appeal against the sentence of imprisonment was made more than 4 months after sentence was passed.
4. The applicant has explained that the reason for the delay in appealing against his sentence of imprisonment was because he was advised by his lawyers that he could only give notice of his intention to appeal when the forfeiture proceedings had been concluded and the sentencing process completed. There are certainly dicta to the effect that an order for forfeiture forms part of the sentence[1] [2] . If it is part of the sentence, then, arguably, the 28 day period of notice “from the date on which sentence was passed”[3] will not run until all aspects of the sentencing process are complete. However, it is not necessary to decide the question definitively because we accept that the applicant was so advised by his lawyers.
5. It is clear from the transcript of proceedings of 2 February 2016 hearing that all parties, including the judge, apprehended that there would be future forfeiture proceedings. The applicant’s solicitor advocate had indicated during mitigation that he would be opposing any subsequent application for forfeiture, which the judge said she would deal with later; as she in fact did. It seems to us entirely credible that the applicant would have been advised, and would have believed, that the sentencing process was not complete until the judge had resolved the issue of forfeiture. Accordingly, even if it were necessary for the applicant to obtain leave to appeal out of time, we would have no hesitation in granting leave.
The facts
6. The applicant admitted the following facts. On 24 April 2015, he was intercepted by Customs officers at Customs Arrival Hall A of Hong Kong International Airport upon arrival from Enugu in Nigeria, having flown via Addis Ababa in Ethiopia. Upon a search of his baggage and body, nothing illegal was found. However, suspecting that he had internally concealed dangerous drugs, the applicant was taken by Customs officers to North Lantau Hospital for medical examination. An X-ray showed foreign objects concealed inside his body. The applicant was then arrested but remained silent under caution.
7. Between 24 April 2015 and 26 April 2015, the applicant discharged from his body a total of 86 pellets, later found to contain the dangerous drugs in question, at Queen Elizabeth Hospital. In a subsequent record of interview, the applicant again remained silent under caution.
8. The retail value of the drugs at the time of seizure was estimated to be HK$1,558,560. The applicant admitted upon his plea that he knowingly possessed the drugs for the purpose of unlawful trafficking.
Mitigation
9. In mitigation, it was said on behalf of the applicant that he had been a trader in goods but that his business had run into financial difficulties, after which he had become “generally unemployed”[4] . The applicant was approached and asked if he would deliver drugs for a reward of US$5,000. He agreed and it was said that he intended to use the opportunity of a trip to Hong Kong to buy mobile telephones, using US$3,000 of his own money, which he would then re-sell in Nigeria.
10. It was submitted that the applicant had acted out of “desperation … to obtain financial assistance”[5] . At the time, he owed a friend money and was seeking to raise money in an effort to restart his business in order to support his family. It was said that his wife and three children were on the verge of being made homeless as a result of his arrest, since his was their only source of income. It was also contended that the applicant had high blood pressure and had experienced pain and discharged blood whilst on remand at Lai Chi Kok Reception Centre.
11. Reference was made to the case of HKSAR v Aguma Dennis [6]
Reasons for Sentence
12. In her reasons for sentence, the judge accepted that a starting point of 18½ years’ imprisonment was appropriate, which she enhanced by 1 year to reflect the international element involved in bringing the dangerous drugs across the border into Hong Kong. A full one-third discount was then given for the applicant’s plea, resulting in a sentence of 13 years’ imprisonment.
Forfeiture proceedings
13. It was an admitted fact, for the purposes of the forfeiture proceedings, that the applicant had US$3,000 in cash in his possession at the time of his arrest.
14. The applicant gave evidence in the forfeiture proceedings to the effect that he started his business in the year 2000 and first travelled to the Mainland on business in 2007. In 2009, he lost money on a business deal concerning glass for motor car windscreens. Thereafter he rented a shop to store goods and sell mobile telephones. He had previously been to Hong Kong in 2014 to buy mobile telephones. At the beginning of 2015, he had US$4,300 in savings in his bank account. The US$3,000 found in his possession was taken from his savings and was intended for the purchase of mobile telephones. He said his solicitors had attempted to contact the bank in question, but were unable to obtain evidence of the withdrawal, since the bank required the applicant’s signature on company letterhead, which he was unable to provide.
15. In cross-examination, he was asked why he had no documents in his possession upon arrest evidencing his business in buying or selling mobile telephones: he said he did not consider it necessary. He conceded that he did not know the name of the shop at which he had previously bought mobile telephones, save that they were bought in Chung King Mansions in Tsim Sha Tsui, Kowloon. It was put to the applicant in effect that it did not make sense that he would come from Nigeria to Hong Kong in order to traffic in dangerous drugs of substantial value and yet be expected to use his own money to finance his air ticket and his entire 15-day stay in Hong Kong in the process. He disagreed and said he trusted that he would be paid afterwards.
16. In her ruling, the judge addressed the conditions for making an order for forfeiture set out in HKSAR v Ngoma Juma Shabani [7] prima facie connection existed between the money and the commission of the drug trafficking offence. She noted that upon his arrest, the applicant had said nothing about the money, and his antecedent statement recorded that he was unemployed. The first time the explanation of buying and selling mobile telephones had been proffered was in mitigation; and it was only in giving evidence during the forfeiture proceedings that the applicant claimed to have told Customs officers about his mobile telephone business.
17. Accordingly, the judge held as follows:
“Even if he did withdraw such from his own account, it does not negate the inference that the money was used in connection with a drug trafficking offence, for the following reasons:
(1) It is noted that apart from this significant amount, the rest of the money in Nigerian and Ethiopian currency, as well as Hong Kong currency, are insignificant.
(2) He landed in Hong Kong as a visitor. According to his flight records, he was to stay in Hong Kong between 24 April and 7 May 2015.
Given the fact that he has discharged the pellets he swallowed within two days from his arrival, it is reasonable to infer that the 15 days was to allow him to complete his commission of the offence of trafficking, whilst the US$3,000 was used both as a guise for him to portray to the Immigration as having means to support himself during his stay, should the need arise, and to support himself until the trafficking offence is completed, in the sense that he handed those pellets over to the other person at the time.”
18. The judge duly ordered the money to be forfeited under section 56(1)(a) of the Ordinance.
Grounds of appeal
19. In his grounds of appeal against sentence attached to his Form XI, the applicant questioned the judge’s findings and claimed that he had in fact told Customs officers when questioned that the money was for the purpose of buying mobile telephones. He also queried the judge’s finding that he would use the US dollars for transportation to and from the airport, when in fact he had other currency on him at the time for that purpose.
20. In respect of his sentence of imprisonment, it was submitted that his children and wife in Nigeria needed the applicant’s income to pay for school fees and rent. He pleaded for a shorter sentence, since he had not used or sold the drugs to anyone and had tried to assist the authorities by offering to switch on his mobile telephone so that his contact could reach him. However, he was told that the telephone had already been seized as an exhibit and could not be touched. He also averred that he had helped to stop others from carrying dangerous drugs from Nigeria to Hong Kong by writing to his friends through his wife.
21. In a letter to the court filed on 22 November 2016, the applicant reiterated that his health conditions were as described in mitigation, and explained how his previous business of importing motor car windscreens and door glass from China had failed in 2009. He submitted that he had subsequently opened a shop, renting out the shop to others and also selling mobile telephones himself. He again claimed that he had withdrawn the US dollars from his own bank account, part of which was used to pay for his air ticket to Hong Kong. The applicant pleaded that his wife and children were in a very difficult situation and mitigation letters from his children and wife were attached to his letter.
22. In his address to us this morning, he has repeated some of these submissions, asking us to release the money to him so that he can remit it to his family, who are suffering badly as a result of his arrest and incarceration.
The respondent’s submissions
23. Mr Matthew Leung, on behalf of the respondent, submitted, in respect of sentence, that the starting point of 18½ years’ imprisonment adopted by the judge was already lenient, given that a strictly arithmetical calculation of the appropriate sentence under the relevant guidelines would have produced a starting point of over 19 years’ imprisonment[8] HKSAR v Anyalechi [9]
24. Mr Leung contended that the family circumstances of the applicant could not amount to any mitigation for serious cases of international drug trafficking, and that the applicant’s remorse had already been taken into account by his guilty plea. He submitted that the alleged offer to assist Customs officers had not been mentioned in mitigation, despite a very full oral submission supported by a comprehensive written argument in support. In any event, the nature of such assistance now asserted by the applicant was of little or no value. As for the applicant’s claims to have deterred others from bringing dangerous drugs into Hong Kong, Mr Leung argued, on the basis of recent authority from this Court, that any post-sentence assistance was a matter for the executive to consider[10]
25. With regard to the order for forfeiture, it was submitted that if money was possessed in order to enable the applicant to present himself to Immigration officers as a legitimate businessman able to support himself in, and thereby gain entry into, Hong Kong so as to complete his offence, as the judge had found, such money was used in the commission of or in connection with an offence. Once the prosecution had proved a prima facie case that the money was liable to forfeiture, the burden shifted to the applicant to demonstrate why the court should make an order in his favour.
26. In this regard, it had been submitted in mitigation on the applicant’s behalf that the applicant was unemployed and in a dire financial situation. That he would, in such circumstances, have been prepared himself to finance not only his air ticket to Hong Kong, but also his 15-day stay in the territory, was simply unbelievable.
Consideration
27. In respect of the sentence of 13 years’ imprisonment, the sentence was within the range of sentences open to the judge in accordance with the guidelines laid down by the Court in R v Lau Tak Ming [11] Attorney General v Rojas [12]
28. Furthermore, the enhancement of 1 year imprisonment for the international element involved in importing the dangerous drugs into Hong Kong, was entirely in accordance with the suggested range of enhancement prescribed in HKSAR v Chung Ping Kun [13]
29. As for the applicant’s domestic circumstances and the unfortunate problems faced by his family, they cannot provide any reason to reduce an otherwise proper sentence for an offence as serious as the international trafficking of dangerous drugs into Hong Kong. In respect of the disputed assistance supposedly offered to the authorities, we agree with Mr Leung that, even assuming it was offered, it was insufficient to warrant any further discount.
30. There can be no complaint about the sentence of imprisonment passed. For the above reasons, we refused the applicant leave to appeal against his sentence of 13 years’ imprisonment.
31. In relation to the appeal against the order for forfeiture of US$3,000 cash, the judge found, on the basis of the Summary of Facts admitted by the applicant, that there was a prima facie connection between the applicant’s possession of the US$3,000 and his commission of an offence of trafficking in dangerous drugs. That connection had been put in writing by prosecuting counsel at the hearing of the application for forfeiture, on the following basis inter alia :
(i) The applicant would have required money to facilitate his travels from Nigeria, via Ethiopia, to Hong Kong, where, according to the applicant’s air tickets, he was to stay for 15 days between 24 April and 7 May 2015, so as to complete his trafficking of an extremely valuable consignment of cocaine. The other money found on the applicant, namely HK$10, NGN1350 (Nigerian Naira equivalent of HK$52.68) and ETB50 (Ethiopian Birr equivalent of HK$17.64) would not have been sufficient to facilitate his objective and support himself in the process;
(ii) The applicant was said in mitigation to be in dire financial straits, yet able to procure US$3,000 of his own money to purchase mobile telephones, for which there were no documents produced indicating that he was trading in such a business;
(iii) There was no banking evidence to show that the money in question had ever come from the applicant’s own bank account.
32. These were formidable points, the first of which was more than sufficient in itself to ground a prima facie connection between the money in question and the applicant’s offence of trafficking. We agree with the judge that the prosecution had plainly established a prima facie case for forfeiture. The next issue for the judge, therefore, as she properly recognised, was whether the applicant had made out his claim to the money on the balance of probabilities.
33. The judge clearly accepted the points being made by the prosecution and gave cogent reasons (at para 17 supra ) why she was not prepared to accept the applicant’s claim, but instead prepared to order forfeiture. We can see no errors in her reasoning or in her assessment of the applicant’s evidence.
34. For the above reasons, the application for leave to appeal in relation to the order for forfeiture was also refused.
(Andrew Macrae)
(Ian McWalters)
Justice of Appeal
Justice of Appeal
Mr Matthew Leung SPP, of the Department of Justice, for the Respondent
The Applicant appeared in person
[1] See HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, at 699, para 30 and footnote 2; and para 31 and footnote 3.
[2] See, for example, R v Joyce (1989) 11 Cr App R (S) 253, at 256.
[3] Section 83Q(2) Criminal Procedure Ordinance, Cap 221.
[4] Written submissions in mitigation, Appeal Bundle p 18, para 11.
[5] Written submissions in mitigation, Appeal Bundle p 19, para 16.
[6] (unrep., CACC 185/2015, 22 December 2015).
[7] [2015] 5 HKLRD 57.
[8] 19.175 years’ imprisonment in respect of 567 grammes of cocaine to be exact.
[9] [2016] 2 HKLRD 20.
[10] See HKSAR v Akinyi Grace Sylvia (unrep. CACC 324/2015, 5 May 2016).
[11] [1990] 2 HKLR 370.
[12] [1994] 1 HKC 342.
[13] [2014] 6 HKC 106.