HKSAR v. ECHENDU CHIJIOKE NICK

CACC 372/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 372 OF 2016

(ON APPEAL FROM HCCC NO 195 OF 2016)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  On 22 April 2016, the applicant pleaded guilty at the Eastern Magistrates’ Court to a single charge of unlawfully trafficking in a dangerous drug, namely 1.49 kilogrammes of a solid containing 645 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the High Court for sentence and duly came before Campbell-Moffat J (“the judge”) on 23 June 2016. Since the applicant indicated that he would be opposing the prosecution’s application for forfeiture of US$4,067 in cash seized from him upon his arrest, the judge adjourned the hearing until 6 July 2016 in respect of both sentence and forfeiture.

2.  On 6 July 2016, having heard mitigation and the application for forfeiture at the same time, the judge sentenced the applicant to 14 years’ imprisonment and made an order that the whole of the US$4,067 be forfeited under section 56(1)(a) of the Dangerous Drugs Ordinance, Cap 134.

3.  On 7 December 2016, the applicant filed a Notice of application for leave to appeal against sentence out of time by way of Form XI, applying for leave to appeal against the order for forfeiture only.  By that date, the application was 4 months out of time.

4.  On 11 August 2017, having heard argument from the applicant and the respondent, we refused the applicant leave to appeal against sentence out of time and dismissed his appeal.  These are our reasons for doing so.

Facts admitted by the applicant

5.  On 1 October 2015, the applicant arrived at Hong Kong International Airport from Lagos in Nigeria, via Dubai.  He was intercepted for Customs clearance and, since internal concealment was suspected, he was conveyed to North Lantau Hospital for medical examination, which confirmed that there were foreign objects inside his body.  The applicant was thereupon arrested.  In his possession was found cash in the sum of US$4,067 (the subject matter of the forfeiture application), HK$662.50 and Nigerian Naira 6,600 (the equivalent of about HK$140).

6.  On 1 and 2 October 2015, the applicant discharged from his body a total of 75 packets, which were subsequently found to comprise 1.49 kilogrammes of a solid containing 645 grammes of cocaine, the subject matter of the charge.

7.  Under caution, the applicant said that, acting on the instructions of a person known as ‘Victor’, and for a promised reward of US$3,000, he had swallowed the packets and carried them to Hong Kong in order to pass on to someone in Tsim Sha Tsui, Kowloon[1].

8.  The estimated retail value of the cocaine was HK$1,588,340 at the time of its seizure.

Forfeiture proceedings

9.  As we have noted, since the applicant indicated his intention to oppose the prosecution’s application for forfeiture, the hearing was duly adjourned until 6 July 2016.

10.  At the adjourned hearing of the forfeiture application and sentence on 6 July 2016, the applicant gave evidence but did not call any witnesses.  He testified that he was running a mobile telephone trading business and had previously come to Hong Kong on numerous occasions[2] in order to buy mobile telephones which he would then resell in Nigeria.  He adduced a number of documentary exhibits, including four invoices and two cargo receipts[3], showing that on 8 July 2012, 3 October 2013, 4 and 5 February 2015 and 14 and 17 June 2015, he had purchased in total more than 3,000 mobile telephones in Hong Kong.  He also produced a bank statement[4] and two money exchange receipts from a bureau-de-change[5] to demonstrate that, on 3 August and 15 September 2015, in Lagos, he had converted 490,000 and 489,755 Nigerian Naira respectively, both of which sums had been withdrawn from his bank account, into US$2,000 and US$1,999.  On 1 October 2015, when he entered Hong Kong, he brought with him the two sums of US$2,000 and US$1,999 together with US$68, which had been left over from a previous business trip[6] (thus making US$4,067).  He said it was his intention to use the US$4,067 in order to buy mobile telephones for his business[7].

11.  In cross-examination, the applicant accepted that during his visit to Hong Kong in June 2015 he had spent some US$21,000 on purchasing mobile telephones[8]. Prosecuting counsel (not Mr Tam) therefore asked the applicant why he had brought significantly less money into Hong Kong on this occasion than previously. The applicant responded that, in April/May 2015[9], a new policy had come into force in Nigeria restricting the maximum amount of money a person could take out of the country to US$5,000[10].  When asked whether he would have needed any of the US$4,067 for his living expenses in Hong Kong, the applicant said that he was also in possession of about HK$600, which would be sufficient for his purposes.

12.  The applicant was also questioned by the judge about the anticipated profits from his mobile telephone purchases.  Taking Exhibit D1-4[11] (an invoice recording his purchase of mobile telephones in June 2015 for US$20,943) as an example, the applicant claimed that he would anticipate a profit of between US$1,500 and US$2,000.[12]  He acknowledged that some mobile telephones were purchased on credit, and that his business was “not very good”[13].

The judge’s ruling on the forfeiture application

13.  The judge began her reasons for her decision by explaining that the prosecution had the burden of establishing on the balance of probabilities that the money in question was liable to forfeiture. Thereupon, the burden shifted to the claimant (Mr Echendu) to persuade the court, again on the balance of probabilities, why the money should not be forfeited but restored to him.  She referred to the relevant legal principles set out by the Court of Appeal in HKSAR v Ngoma Juma Shabani[14].

14.  The judge then found, on the basis of the agreed Summary of Facts, the applicant’s record of interview[15] and his antecedent statement, that the prosecution had proved a prima facie connection between the money and the applicant’s trafficking of dangerous drugs.

15.  In rejecting the applicant’s story, the judge reasoned as follows, inter alia[16]:

“You have relied upon a number of documentary exhibits to show that you have previously come to Hong Kong and traded in mobile ’phones. Unfortunately for you, your testimony was not consistent, and the figures in the invoices do not tally in any way to the bank statement which you produced. You gave no proper explanation for why you would have so much cash available to you whilst making a less than 2 per cent[17] profit on your trading, and at the same time, telling the court that business was not good.

I note also that you would have had to have satisfied the Hong Kong Immigration Authorities that you were a legitimate businessman when you entered this country, and that you had the means to support yourself and to return to Nigeria. You would not have an opportunity to traffic in dangerous drugs in this country unless you can first do that. The $662.50 of Hong Kong money and the 6,600 Nigerian Naira were not sufficient to do that. The US$4,067 was.

Even if you had come by it honestly, which I do not accept, you were using it to facilitate your admission to Hong Kong. You would also have had to secure onward transportation, hotel and food bills during your stay before passing the dangerous drugs onto dealers here in Hong Kong. You said, I note, that the reward of US$3,000 was not to be received until you returned to Nigeria, so you would have had to have relied on any other moneys you had in your possession.

I find that the irresistible inference is that the moneys you had on you were in your possession for the purpose of satisfying the Immigration Authorities, and for your subsistence, and as such, Mr Echendu, they do fall to be forfeited under subsection 1(a).”

Reasons for lodging this application out of time

16.  In his affirmation filed on 7 December 2016, the applicant explained why the present application had been made 4 months out of time.  He said:

“I want to take my time to think and study my documents and know why judge confiscate the fund despite the genuine evidence provided to Court proved abortive. And also bring myself together and think what went wrong about the documents before appealing against confiscation order.”

Grounds of appeal

17.  In his homemade grounds of appeal attached to his Form XI, the applicant maintained his position that the US$4,067 was legitimate income from his mobile telephone trading business.  He further questioned why the US$4,067 should have been forfeited, when the HK$662.50 and Nigerian Naira 6,600, which were also found in his possession at the time of arrest, were not forfeited.

18.  The applicant has also filed four sets of written submissions/letters in support of the present application.

19.  In his 7-page written submissions filed on 21 April 2017, the applicant made a number of representations which may be summarized as follows:

(a)   the US$4,067 in cash had nothing to do with drug trafficking but was related to his mobile telephone business;

(b)   he now needed the money in order to support his wife, who was unemployed, and his family;

(c)   he had been unfairly treated because he knew of three prisoners who had also been convicted of trafficking in dangerous drugs yet no forfeiture order was made against any of them.  They were the defendants in:

i.   HKSAR v Diallo Ousmane HCCC 311/2015;

ii.   HKSAR v Okoye Chigozie Emmanuel HCCC 260/2015; and

iii.   HKSAR v Kanfune Bashiri Rajabu HCCC 366/2011 (an application for leave to appeal against sentence was brought to the Court of Appeal but refused[18]);

(d)   he had mentioned to Customs officers that the money concerned was for his mobile telephone business.  He had also told them that he was yet to receive the promised reward of US$3,000;[19] and

(e)   contrary to the judge’s findings, the correct figures in the invoices in fact tallied with those in the bank statement, and he had made a profit of more than 2%.

20.  In his 5-page written submissions filed on 2 June 2017, the applicant repeated most of the representations already made in his previous written submissions, as well as his evidence given in the forfeiture proceedings.  He emphasised that Customs officers had recorded in his statement that the money concerned was for his mobile telephone business. Further, he referred to four other cases, in which he claimed the defendants in other drug trafficking cases were not subject to any forfeiture orders, namely:

(a)   HKSAR v Nwagu Tochukwu Chiazam HCCC 71/2016;

(b)   HKSAR v Onuoha Ferdinand Chetam HCCC 282/2015[20];

(c)   HKSAR v Cook Neville Roger Alexandra HCCC 185/2016; and

(d)   HKSAR v Onyeka Emmanuel Okwuchukwu HCCC 444/2016.[21]

21.  Finally, on 9 June 2017, the applicant filed two further sets of written submissions.  In the first set of submissions, dated 7 June 2017, the applicant described his recent family circumstances.  He said that his children missed him and his younger child had suffered a burn to his face.  To discharge his responsibility as a father, he wished to retrieve the money in order to pay schools fees and provide support for his children.  In the second set of submissions, dated 8 June 2017, the applicant said that the quality of his evidence during the forfeiture proceedings was affected because he was not himself at the time and was afraid of the lengthy period of imprisonment.

22.  In oral submissions before us, the applicant produced a photograph of his child with burns to his face, as well as the registration document of his company in Nigeria and the company bank statement from 1 December 2014 to the end of May 2015.  He amplified the submission that he has repeatedly made that the US$4,067 had nothing to do with his drug trafficking offence, which was a separate matter from his legitimate mobile telephone business.

Respondent’s submissions

23.  Mr Felix Tam, on behalf of the respondent, submitted that there was no valid justification for the applicant’s delay in appealing since he would not have reasonably required 4 months to consider the relevant documents for the purpose of lodging the present application.

24.  In respect of the application for forfeiture, Mr Tam submitted that the judge was entitled to disbelieve the applicant’s story: it was her function to evaluate the evidence placed before her.  In any event, the judge found that the applicant was using the US$4,067 in cash to facilitate his entry into Hong Kong so as to carry out his drug trafficking activities. He further pointed to the following factors, which he submitted reinforced the judge’s findings:

(a)   the applicant was bringing with him into Hong Kong significantly less money than previously;

(b)   given the statement in his antecedent statement (which was not disputed) that the applicant was earning an average monthly income of about HK$3,900, the US$4,067 represented the equivalent of about 8 months’ income; and

(c)   notwithstanding the alleged restriction on money leaving Nigeria, the two invoices exhibited as Exhibits D1-3 and D1‑4 showed that the applicant had spent about US$21,000 in June 2015 on purchasing mobile telephones in Hong Kong.

25.  As regards the complaint that money found in the possession of other defendants charged with trafficking had not been confiscated, Mr Tam submitted that each case had to be considered on its own facts and the fact that a forfeiture order was or was not made in one case in different circumstances did not mean that it could or could not be made in another.

26.  As for the applicant’s alleged financial hardship, Mr Tam contended that he was very much the author of his own misfortune.

Discussion

27.  We could see no reason to justify the applicant being 4 months out of time in his application for leave to appeal the forfeiture order.  He has clearly come to change his mind and file a Notice of appeal, following discussions with other prisoners as to whether forfeiture orders were made in their particular cases; and also, perhaps, because of his reduced family circumstances as a result of his incarceration.  However, he must equally have known from his discussions with other prisoners that the courts have routinely made such orders in trafficking cases of this nature.  He should also realise that this Court has emphasised time and again that time limits laid down by statute in respect of the lodging of appeals are to be observed and will not be lightly disregarded.

28.  Since we see no reason to justify the applicant’s appeal out of time, his appeal can be refused on that basis alone. However, lest we should be shutting out a plainly arguable ground of appeal which the applicant could and should have mounted, we have gone on to consider the merits of his application.

29.  Having done so, we could see no basis for interfering with the judge’s decision to order forfeiture in this case.  The judge correctly approached the issue of forfeiture, heard and saw the evidence, made appropriate determinations of fact and credibility and ordered forfeiture under the correct provision.

30.  Even if the applicant could be said to have had a legitimate business in buying and selling mobile telephones, he was plainly using his status as a businessman in order to gain entry to Hong Kong, so as to traffic in a large and very valuable quantity of dangerous drugs secreted within his body.  Indeed, he disclosed his reasons for coming to Hong Kong to Customs officers in the interview on which he relies, when he explicitly explained that his purpose was “to buy mobile ’phones for my business in Nigeria and to bring the stuff in my stomach to Hong Kong”[22].  Moreover, his other currencies alone would not have been sufficient to sustain him for very long in Hong Kong.  As such, the money in issue fell to be forfeited under section 56(1) (a) of the Dangerous Drugs Ordinance.

31.  We see no reason to impugn the judge’s findings of fact and credibility.  Even if the 2% profit was a mistake on her part and the alleged profit was in the region of 9%, it did not affect the obvious fact that the applicant came to Hong Kong posing as a businessman in order to traffic in dangerous drugs, in the commission of which, or in connection with which, he was in possession of US$4,067.

32.  The application for leave to appeal against the forfeiture order was accordingly refused.

33.  Although the applicant made no complaint in respect of the period of custody imposed upon him, namely 14 years’ imprisonment, we also examined the propriety of the overall sentence passed.

34.  The applicable guideline band for trafficking in 645 grammes of cocaine was 20 to 23 years’ imprisonment in respect of 600 to 1,200 grammes of cocaine[23]. The judge took a starting point for such a quantity of 20 years and 3 months’ imprisonment, which she enhanced for the international element of bringing the drugs across the border into Hong Kong by 1 year and 3 months, making an overall sentence after trial of 21 years and 6 months’ imprisonment.  She then gave the applicant a 6‑month discount “for the efforts you have made to deter others” from trafficking in dangerous drugs[24], and further afforded him a one‑third discount for his early guilty plea.  The resulting sentence was 14 years’ imprisonment.

35.  We could see nothing wrong with the judge’s arithmetic in assessing the starting point for sentence and its enhancement, nor could there be any complaint in the reduction the judge gave from the notional sentence after trial, which was properly within her sentencing discretion.

36.  The application for leave to appeal against sentence out of time was accordingly refused.