HKSAR v. EZEH KINGSLEY CHIBUEZE

CACC 97 /2022

[2023] HKCA 1033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 97 OF 2022

(ON APPEAL FROM HCCC NO 228 OF 2020)

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REASONS FOR JUDGMENT

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1.  The applicant was indicted on two counts of trafficking in dangerous drugs, namely, 9.33 grammes of a solid containing 7.85 grammes of cocaine and 71 tablets and 11.49 grammes of tablet fragments containing a total of 12.48 grammes of 3, 4-methylenedioxymethamphetamine (the subject matter of Count 1), and 5,834 grammes of a crystalline solid and solid containing 5,794 grammes of methamphetamine hydrochloride (commonly known as “Ice”), 995 grammes of a solid containing 794 grammes of ketamine, and 953 grammes of tablets, 288 tablets and 101.30 grammes of tablet fragments containing 457.64 grammes of 3, 4-methylenedioxymethamphetamine (the subject matter of Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  Following a trial in the High Court before D’Almada Remedios J (“the judge”) and a jury, the applicant was, on 13 June 2022, unanimously convicted on both counts and sentenced to 27½ years’ imprisonment.  By way of a Form XI notice filed on 7 July 2022, he has sought leave to appeal against his conviction only.

3.  This matter first came before me on 21 July 2023.  On that day, however, the applicant declined to have the interpreter assigned to him by the Court for the purposes of this hearing, on the basis that he claimed he could not understand him properly.  The assigned interpreter had in fact served as the applicant’s interpreter throughout the trial and no concerns had been expressed to the judge, either by the applicant or his counsel, as to his proficiency or competence.  Upon my further enquiry, the interpreter said that this was the first time he was aware the applicant had made such a complaint.  Nevertheless, since the applicant had refused to have the respondent’s submission translated to him by the interpreter before the leave hearing, and claimed not to understand what I was saying to him in English in the dock, I felt it prudent to adjourn the matter for a new interpreter to be found and for the matter to be fixed in accordance with counsel for the respondent’s diary within 3 months.

4.  The hearing was accordingly re-fixed to 31 August 2023 with a new interpreter in attendance to assist the applicant and the Court.  On that day, having heard from the applicant in person, I refused leave to appeal against conviction and indicated that I would hand down my reasons for so doing on 6 September 2023.  These are my reasons.

The prosecution case

5.  On the night of 9 September 2019, the applicant was intercepted by the police between the 7^th and 8^th floors of a building at 19 Hung Kwong Street in To Kwa Wan, Kowloon.  At the time of his interception, he was carrying a red plastic bag containing the drugs particularised in Count 1.  There were subsequently found on his person two mobile telephones and a bunch of keys, one of which could open the door to Room F on the 8^th floor of the building (“Room F”).  When arrested and cautioned, the applicant responded, “I am only bringing this bag of drugs to the person waiting for me downstairs for $4,000”^[1].

6.  Using the key found on the applicant, the police then gained entry to Room F, where the subject matter of Count 2 (some of which were openly displayed in transparent plastic bags^[2]), as well as some drug paraphernalia including two boxes of empty re-sealable transparent plastic bags, an electronic scale, a spoon and some scissors, were found in the bedroom.  When again cautioned, the applicant said, “This room is for storing the drugs.  I took the red plastic bag from here”^[3].

7.  A short while afterwards, another person called Robert Ake (“Ake”), on whom another key to Room F was found by the police, was arrested between the 1^st and 2^nd floors of the same building.  In respect of Ake, the charge in Count 2 was originally laid against both him and the applicant.  Nevertheless, the charge against Ake was withdrawn by the prosecution on 5 October 2020^[4].

8.  On the morning following his arrest, a total of two video‑recorded interviews (“VRIs”) were recorded with the applicant.  In them, he repeatedly claimed that Ake (whom he referred to as “7-Eleven” or “Victor”) was his “boss” in the drug trafficking operation^[5]. He said that a key to Room F had been given to him by Ake, who would instruct him to bring the dangerous drugs from there to other people.  He also admitted using the drug paraphernalia in the room to put the Ice into the smaller plastic bags^[6]. The applicant’s DNA was found on one of the plastic bags containing Ice (“Exhibit P30”)^[7].

9.  The landlady of the premises on 8^th floor of the building, was called to testify as PW8.  She said that, through a real estate agent, she had leased out Room F, which was a subdivision of her property, to a man called Kouassi Jean-Baptiste, whom she had never herself met in person^[8].  The tenant’s telephone number stated in the lease agreement happened to be the same telephone number (of Ake) mentioned by the applicant in his first VRI^[9].

10.  The retail values of the dangerous drugs in Counts 1 and 2 were $16,460 and $4,879,017 respectively^[10].

The defence case

11.  Prior to the trial of the main issue, the applicant elected to have a voir dire in order to challenge the voluntariness of his verbal admissions, his signatures on the post-recording of those admissions and his VRIs.  The principal objections to admissibility were: (i) the applicant was subjected to police misconduct including threats, oppression, inducement and assault; and (ii) the VRIs were conducted in the absence of an Igbo interpreter^[11]. At the conclusion of the voir dire, the judge found that the verbal admissions, the post-record and VRIs were all voluntarily made or signed, and there was no basis for the court to exercise its discretion to exclude any of them from the consideration of the jury^[12].

12.  The applicant elected to testify and further called Dr Lin Tsz Kin (who had medically examined him following his arrest) as DW2. His defence was this^[13]. He had been given a spare key to Room F by his friend Ake, but he had not been to the premises until the day of the offence; accordingly, he had no prior knowledge of any dangerous drugs inside the unit.  On the day in question, while he was in Mongkok, he received a call from Ake, who was then in Ma Tau Kok (strictly speaking, at 14 Pang Ching Street).  Ake claimed to be feeling unwell and asked the applicant to collect a packet of Panadol from Room F and bring it to him.  The applicant therefore went to the address by taxi.  Having successfully let himself into Room F and collected what he believed was Panadol, he left the premises and was arrested by the police in respect of the Count 1 offence.  He said that the police subsequently gained entry to Room F using another key, which had not been seized from him; and claimed that he was not present in the room during the entire search.

13.  The applicant also repeated his allegations of police misconduct before the jury.  In particular, he said he had signed on the police officer’s notebook, and said what he did in the VRIs, only as a result of assaults, threats and inducements by the police.  He also said that the VRIs were conducted without the presence of an Igbo interpreter, the Igbo language being his native tongue.

14.  It would appear that Dr Lin was called by the defence, with a view to establishing that the applicant had told him about the assault.  In the event, Dr Lin testified that he could not in fact recall if the applicant had made an allegation of assault to him^[14].  In cross-examination, the witness said that the applicant did not wish to lodge a complaint of assault[15]. When the judge sought to clarify this evidence, Dr Lin explained that his recorded note was a collective term (which I take to mean a combined term) to indicate the non-recording of the applicant wishing to make or lodge a complaint of assault^[16]. He was, however, unable to tell if the applicant had actually told him of an assault but nevertheless decided not to lodge a complaint.  When both counsel sought to explore this matter further, the judge pointed out^[17]:

“…a complaint of an assault, again is necessarily hearsay. It is not the truth that an assault has; this doctor cannot give the truth that an assault happened. All he can say is that the person had made the complaint, the fact of a complaint. That is it… The only evidence that a doctor can give, such as him, his evidence is material as to any medical issues.”

The summing-up

15.  In relation to the applicant’s admission, the judge gave the jury the following directions, which were in general compliance with Specimen Direction 39.1^[18]:

“In deciding whether you can safely rely upon the admissions or statements, you must decide the following issues. One, did the defendant in fact make the admissions or statements? If you are not sure that he did, you must ignore them. Two, if you are sure that the defendant made the admissions or statements, you need to decide whether they were or may have been made or given as a result of the improper conduct by the police.

In respect of his signature, the defendant’s signature, in the notebook, bear in mind the defendant said he was assaulted by the arresting officer, Sergeant Cheng Tsz-hung - that is PW5, D Sergeant 51618 - who was a member of the arresting party, and DPC3998, who is PW6, who is now a Detective Sergeant who was at that time a DPC, Do Rego Keith, also a member of the arresting party. The defendant said the sergeant beat him with his fists, the arresting officer also beat him and handcuffed him immediately with his hands behind his back, and 3998 kicked his legs, causing his phone to drop and break, and he was beaten all over his body for four to five minutes and, at that time, he was crying.

At the police station, the defendant said he signed the notebook because the arresting officer threatened him with the clench of a fist by the arresting officer and he was scared and signed the notebook. He also said he was slapped by the arresting officer and he was also told that if he admitted the drugs were his and implicated ‘7-Eleven’ or Robert Ake, the police would not charge him and he could testify against ‘7-Eleven’. These are what you call “inducements”. And, in this case, the defendant says he was assaulted, threatened, coached and induced to say what he did in the video recorded interviews.

The defendant also says he does not speak fluent English, but pidgin English.  It was not fair to conduct the interviews with him in English, as his native language is Igbo.  Members of the jury, if what the defendant says is true or may be true, you must disregard the admissions altogether and you must treat the defendant as not having said anything in answer to the police questions or allegations.  As I have explained earlier, this is not something that can be used against the defendant in any way.  So if you conclude the admissions were or may have been obtained by the police officers as a result of improper conduct, then disregard the admissions, even if you think they are true.”

16.  The judge also summarised the evidence of DW2 to the jury and instructed them how the evidence could be used in the context of the defence allegation of assault.  The judge directed^[19]:

“Dr Lin Tsz-kin. That is defence witness 2. He was the medical officer of Lai Chi Kok Reception Centre and he was the medical officer in September 2019. He says that he can only remember examining the defendant from his medical record and he examined the defendant on 12 September 2019 at 10.23 am. So that would be approximately two days, three days after his arrest.

And he said a note on the medical record was that the defendant was not going to lodge a complaint at this moment and had his rights explained. The doctor said, in a general situation, he would write down if someone mentioned that he was being assaulted and not lodged a complaint yet, so it was a general complaint.

He said, on physical examination, there were no obvious signs of recent injury. He said if someone had a swelling one to two days earlier, after being beaten continuously for four to five minutes, it is likely he would be able to observe swelling on the day he examined the defendant, but the swelling would be less. You will recall the defendant said there was swelling on the trunk of his body. He, however, did not see any swelling.

It is for you to decide, members of the jury, if the evidence given by the doctor supports the defence case that he was assaulted by the police officers.  Let me remind you, any complaint made to the doctor is not evidence of an assault.  It is only evidence that a complaint was made.  So it is not the truth of an assault but only that a complaint about an assault was made.”

17.  As for the involvement of Ake in the offence, the judge told the jury^[20]:

“The relevance of Robert Ake being arrested and charged is however before you to consider if what the defendant is saying is true or may be true. The defence case is that Robert was arrested on the ground floor at approximately the same time as him. It was Robert who rented Room F, not the defendant. The prosecution in this case are not suggesting that the defendant was the tenant or that he rented Room F or that he was the occupier of Room F. So that really is not in dispute.

The defence is saying the drugs, if there were any drugs in the room, they belonged to Robert and at the time the defendant went into the room, they were concealed. The defendant had no knowledge of drugs in Room F. The defendant had the key to Room F because Robert gave him the keys when Robert rented this Room F as a spare key to keep for Robert if Robert were to lose his own key, because Robert was in a habit of losing things.

It is the defence case that the police told the defendant they knew the defendant did not know about the drugs inside the room, but that if the defendant said he knew about the drugs inside the room and was carrying the pellet and the tablets in the red plastic bag, the defendant could testify against Robert and the defendant would not be charged and would be free to go home. He therefore made those admissions. However, this never happened. Instead, Robert’s charge was eventually withdrawn and the defendant was charged. The defendant feels aggrieved that he is charged and not Robert.

You may understand the grievance the defendant feels that Robert was not charged, but you should not base your verdict on sympathy or prejudice against any party to this trial:  that is either the prosecution or the defence.” 

The grounds of appeal

18.  In his Form XI, the applicant’s principal complaint was that the judge unfairly presented the case to the jury on the basis that Ake was not complicit in the offence, although the evidence demonstrated otherwise.  The applicant put the matter in his Form XI notice as follows (the reference to “D2” is obviously to Ake):

“1. On this case, based on the D2.

2. The judge did not take a judicial notice to look into the case of the D2.

3. Meanwhile the judge went on to dismiss the case of the D2[;] the judge did not look into the report of the landlady because it concern(ed) D2[;] the judge hide the word of the doctor, said by doctor in the court concern my health wish.”

19.  On 9 December 2022, the applicant filed a home-made submission consisting of 3 pages, containing a total of three grounds of appeal.  Setting aside his repeat allegation relating to Ake, the additional allegations may be summarised as follows:

(a)  The judge wrongly admitted the applicant’s VRIs (or, generally, his out-of-court statements) into evidence. 

(b)  The judge was wrong to tell the jury that the evidence of DW2 could only show that the applicant complained of being assaulted by the police, but was not evidence of such assault.

(c)  The judge failed to tell the jury that Ake was the tenant of Room F.  The applicant made two further points in this regard: first, the registered tenant was of the same nationality as Ake; secondly, there were various belongings of Ake in Room F.

Attached to his home-made submission were three letters (and the photograph of a person), which the applicant said were all sent to him from Ake in September 2019.  Again, he asserted that those letters would show that Ake was complicit in the offence.

20.  On 9 June 2023, the applicant filed with the Court a further set of home-made submissions consisting of 6 pages (excluding attachments), in which he made these further allegations:

(a)  PW8 should not be believed, for her evidence in court was either inconsistent with her witness statement, or it went beyond what was contained in her witness statement.  For example, her evidence in court was that the estate agent collected the rent for her as a middleman, but that was not stated in her witness statement.

(b)  He was beaten up, induced and coached by the police, as a result of which he signed on the police notebook and said what he did in his VRIs.

(c)  In respect of his DNA found on Exhibit P30, it can be explained by the possibility that his DNA was first transferred to Ake, with whom he had shaken hands, after which Ake had touched the packet.

(d)  The police deprived him of his right to an Igbo interpreter.

(e)  The police failed to fully record all the events following his arrest.

The respondent’s submissions

21.  Ms Jennifer Fok, on behalf of the respondent has submitted, in respect of the applicant’s out-of-court statements, that no error can be detected in the judge’s reasoning on the voir dire resulting in the admission of those statements.  In any event, most, if not all, of the applicant’s grounds of objection against the admissibility of the out-of-court statements during the voir dire were re-litigated before the jury and covered in the applicant’s own evidence and/or defence counsel’s closing speech.  The jury had received a very fair summing-up from the judge on the matter but nevertheless rejected the applicant’s story. 

22.  Concerning what DW2 might have said about the applicant’s complaint, Ms Fok contended that the content of the complaint would be hearsay evidence if it was being relied on as to its truth.  She submitted that the judge’s direction on the matter could not be impugned.

23.  As to the involvement of Ake, it was submitted that the defence case in respect of his involvement was fully canvassed before the jury and the question was whether the judge’s direction on the matter was fair.  On this question, the respondent argued that the judge could not be criticised for asking the jury not to speculate as to why the charge against Ake was subsequently withdrawn by the prosecution, but instead to focus on whether the prosecution could prove its case against the applicant.  In this regard, the judge’s direction was impeccable.

Consideration

24.  The applicant has put forward before me a number of allegations by way of three sets of written documents/submissions filed at different stages.  He has also made oral submissions.  His arguments may be reduced to four main points.  First, he was obviously not happy to see the prosecution against Ake discontinued, resulting in a trial against himself alone, which was accordingly unfair to him.  Secondly, he considered that his out-of-court statements should have been withdrawn from the jury; or the judge should at least have told the jury that those statements were in fact improperly obtained.  Thirdly, he believed that Ake was the person who rented Room F, and that PW8 wilfully concealed this fact and her direct dealings with him from the jury. Finally, he asserted that the DNA evidence against him was neither here or there. 

25.  In respect of the first point, it has been recently reiterated by the Court in Secretary for Justice v Lee Ying Tung[21] that the decision to prosecute (or not to prosecute), and the charges to be laid against an accused, are generally matters for the prosecution, not the judge.  In her summing-up, the judge acknowledged that “[t]he defendant feels aggrieved that he is charged and not Robert (Ake)”; but pointed out that what she was not entitled to do (and correctly refrained from so doing) was interfere with the prosecution’s decision not to continue prosecuting Ake.  Since it was a trial of the applicant, not of Ake, it was incumbent on the judge to ensure that the jury would not use the evidence involving Ake against the applicant in any impermissible way.  Her directions were emphatic in this respect and, on the face of it, they were correct.  The judge was right in these circumstances to ask the jury to focus on the case of the applicant alone.

26.  At the hearing, I explored with the respondent why the decision had been taken not to proceed against D2.  I was then informed that, on 10 September 2019 (well before the charge against Ake was withdrawn), the applicant had in fact given a lengthy non-prejudicial statement fully implicating Ake as the mastermind of this drugs operation.  I was provided with that statement and it clearly implicates Ake.  Evidently, the applicant must have subsequently changed his mind and decided to plead not guilty and not cooperate further with the prosecution.  In those circumstances, and without the applicant’s evidence, the prosecution did not consider they had a strong enough case against Ake.  Hence, a year later, the charge against Ake was formally withdrawn.

27.  Yet, at the hearing before me, and before the non-prejudicial statement was revealed to the Court by Ms Fok, the applicant had categorically told me that he had never intended to implicate Ake, whom he had only met at the police station on the night of his arrest.  This assertion was at variance with the elaborate non-prejudicial statement he had given to the police in September 2019.  Given the applicant’s decision not to cooperate with the prosecution further, I can understand why the decision not to continue with the prosecution of Ake was made. 

28.  As regards the second matter, in respect of the circumstances in which the applicant came to make his out-of-court statements, the applicant gave evidence both on the voir dire and in the trial proper. Regarding his evidence in the voir dire, although admissibility was ultimately a legal issue, it depended on a factual assessment of the witnesses by the judge, who was entitled to accept the testimony of the prosecution witnesses and reject the applicant’s evidence and credibility in determining whether the admissions were voluntary.  As to his evidence in the trial proper, whether the jury accepted and relied upon what he had said in his out-of-court statements was again a factual matter for them to resolve, upon proper directions from the judge.  In light of their unanimous verdict, the jurors clearly rejected the applicant’s account.  I should also mention that Dr Lin could not properly give direct evidence about the alleged assault, since he obviously never witnessed it taking place. 

29.  As for the third issue, it is worth noting that, when summarising the defence case to the jury, the judge said^[22]:

“The relevance of Robert Ake being arrested and charged is however before you to consider if what the defendant is saying is true or may be true. The defence case is that Robert was arrested on the ground floor at approximately the same time as him. It was Robert who rented Room F, not the defendant. The prosecution in this case are not suggesting that the defendant was the tenant or that he rented Room F or that he was the occupier of Room F. So that really is not in dispute.”

The applicant considers that a real estate agent would not usually collect rent from the tenant on behalf of the landlady.  Indeed, the same view was expressed by defence counsel in his cross-examination of PW8.  But as the judge correctly pointed out to counsel, “[t]his is her evidence, … ‘The middle person collected money for me’”^[23].  In any event, whether the evidence of PW8 and police officers should be believed was a matter for the jury.  It is not the function of the Court of Appeal to assess, or re-assess, the credibility of witnesses it has not had the advantage of hearing and seeing.

30.  In respect of the fourth matter, the applicant has repeated his defence at trial and put forward the possibility of a secondary transfer of his DNA onto the packet of drugs.  However, on this matter, the judge directed the jury in the following terms^[24]:

“Members of the jury, what you must be sure is that the defendant’s DNA, if you find it was his DNA that was on the plastic bag, was not as a result of a secondary transfer but a primary transfer. That is that the defendant physically touched the bag.”

It is not reasonably arguable to impugn this direction, which was the fair and correct way to put it.

31.  It must be said that the case against the applicant was, on the face of it, a very strong one, comprising (according to the prosecution): (i) physical possession of the drugs in Count 1; (ii) physical custody of a key to Room F, where almost HK$4.9 million worth of drugs in Count 2 (some openly displayed) were found, together with the applicant’s acceptance that he had in fact been in that room a short time before; (iii) a signed oral admission; (iv) a full verbal confession by way of video-recorded interview; and (v) DNA evidence on an article inside Room F containing some 300 grammes of Ice.  Furthermore, the applicant’s account before the jury was that he had been framed up by police officers in respect of the drugs in Count 1; beaten up and had admissions fabricated against him in respect of both the drugs in Counts 1 and 2; tricked by someone into believing he was collecting some innocuous Panadol from a place where there happened to be a haul of almost HK$4.9 million worth of dangerous drugs; and been the unfortunate and unwitting victim of transferred, secondary DNA evidence on one of the containers of a substantial quantity of Ice. 

32.  Moreover, the jury were being asked to accept that the applicant had taken a taxi from Mong Kok to To Kwa Wan, to a room he had never been before, in order to collect some Panadol for a friend he did not know much about, who was to be discovered between the 1^st and 2^nd floors of the same building on the same night at almost the same time.  It must be said that the evidence and inferences therefrom were highly compelling, yet the judge’s summing-up appears to have been scrupulously fair.

33.  In respect of the withdrawal of the charge against Robert Ake, such a decision by the prosecution has in the past prompted me to be concerned as to why it was taken, and to grant leave on the basis that the matter warranted closer examination at the appeal: see HKSAR v Ma Ka Kin[25].  However, that case was a far cry from the circumstances of this case.  In Ma Ka Kin, it was said by the Court which later examined the matter that “there were clearly some extraordinary, if not unprecedented, features to this case”[26], which did “not reflect well on the legal profession or the legal system”[27].  Moreover, the evidence against the appellant was described by the Court in that case as “weak”, and the background “more than ‘dubious’”[28]. The appellant there had never had physical possession of any drugs, nor was he ever intended to have possession of them; nor did he make any relevant admissions. The evidence against him bore no comparison with the strength of the evidence in the present case.

34.  Had the applicant followed through on his non-prejudicial statement and given evidence for the prosecution against Ake, having pleaded guilty himself to both counts, he would be in a very different position today.  Having decided not to give evidence against Ake and to plead not guilty, he cannot now complain if he was proceeded against alone.

35.  It is not, in my judgment, reasonably arguable to criticise the judge for the way she put the matter to the jury in her summing-up, which was arguably entirely correct; nor is it a reasonable argument that the prosecution of the applicant alone, after the withdrawal of the charge against Robert Ake, was unfair.  Whatever the extent of the evidence against Robert Ake, and whatever his involvement or lack thereof, the jury’s task was to decide whether the applicant, against whom there was a considerable body of evidence, was guilty or not guilty of the offences.  That is what the jury were clearly told.  There was no application for a stay of proceedings in the wake of the withdrawal of the charge against Robert Ake, nor was there any application of no case to answer at the close of the prosecution case: in any event, neither could realistically have succeeded in the face of such a strong case against the applicant.

36.  What the jury made of the evidence was a matter for them: clearly they did not believe the applicant’s account or accept that it might have been true, nor did they entertain a reasonable doubt about his guilt, for they convicted him unanimously, notwithstanding the giving of a full and elaborate Liberato direction by the judge[29].

37.  As for the complaint about the adequacy of the interpretation rendered to the applicant, it is noteworthy that this complaint was not one of the grounds articulated in the applicant’s original Form XI notice filed on 7 July 2022.  Nor was there any mention of such a complaint in the applicant’s home-made grounds of appeal filed on 9 December 2022.  And nor was the complaint that is now made against the interpreter’s competence articulated in the applicant’s letter of 9 June 2023.  Given that there was never any complaint about the court interpreter documented in court until the hearing of this application on 21 July 2023, this is not a complaint that has any substance on appeal, let alone reasonable arguability.

38.  As for the absence of an Igbo interpreter during the VRIs, both interviews were conducted by DPC 10536 in Chinese with a Senior Inspector translating the questions and answers into English.  It is quite obvious from his answers to questions throughout the interviews that the applicant is perfectly fluent in English. Indeed, he said as much about his fluency in English at the commencement of the first VRI[30]; and, again, at the outset of the second VRI[31]. I do not see the complaint that the VRIs were unfair because there was no Igbo interpreter present when they were conducted as being reasonably arguable.

39.  Ultimately, I can see no reasonably arguable errors on the part of the judge in summing up either the law or the facts of what was, on the face of it, a very strong case.  The application for leave to appeal must be refused.

40.  The applicant is informed that he has a right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also warned that that Court has the power to order the loss of any time he has served in custody pending the hearing of the appeal, if it were to come to the view that there was no justification for the renewal of the application.

Post-script

41.  At the end of the applicant’s reply to Ms Fok’s submission, he made a request for certain contact details contained in his watch and telephone to be supplied to him from his property so that he could contact his family in Nigeria and let them know what has happened to him and where he is.  Since this is an administrative issue for the Correctional Services Department, I do not wish to say anything more than obviously the family of the applicant should be apprised of the applicant’s predicament, if they do not know already.  I am not making a direction to any authority, but whether the police or the welfare officer of the Correctional Services Department inside the prison where the applicant is being held considers it appropriate to assist on this issue is a matter for them, but the Court would obviously hope that his family would be informed of his situation, if that has not already been done.

[1]   Appeal Bundle (“AB”), p 58G-H.

[2]   AB, p 13B-D.

[3]   AB, p 61T-U.

[4]   Admitted Facts, at [9]; AB, p 10.

[5]   See, for example, transcript of the applicant’s first VRI at counters 234, 580 and 645.

[6]   Transcript of the applicant’s first VRI, counters 359-361: AB, p 188.

[7]   AB, p 13H-J.

[8]   Transcript of PW8’s evidence: AB, pp 254K-255C.

[9]   Transcript of the applicant’s first VRI, counter 640: AB, p 134.

[10]   Admitted Facts, at [3]; AB, p 10.

[11]   AB, p 268.

[12]   AB, pp 252-253.

[13]   See AB, pp 14I-15M.

[14]   Transcript of DW2’s evidence: AB, p 263K-L.

[15]   Ibid., AB, p 264P-Q.

[16]   Ibid., AB, p 265J-M.

[17]   Ibid., AB, pp 266S-267E.

[18]   AB, pp 34C-35J.

[19]   AB, pp 74H-75B.

[20]   AB, pp 19T-20O.

[21]   Secretary for Justice v Lee Ying Tung (Unrep., CAAR 12/2022, 21 June 2023), at [63]-[64].

[22]   AB, pp 19T-20C.

[23]   AB, p 258B-C.

[24]   AB, pp 29T-30B.

[25]   HKSAR v Ma Ka Kin [2021] 4 HKLRD 83.

[26]   Ibid., at [33].

[27]   Ibid., at [34].

[28]   Ibid., at [57].

[29]   AB, pp 31M-32G.

[30]   Transcript of the applicant’s first VRI, counters 77-83: AB, p 91.

[31]   Transcript of the applicant’s second VRI, counters 67-73: AB, pp 164-165.