R. v. DANIEL AFAMEFUNE OKONKWO

IN THE COURT OF APPEAL

1995, No. 388

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court): The applicant was convicted of trafficking in 6,255 grammes of herbal cannabis by His Honour Judge Surman in the District Court on 24 May 1995 and was sentenced to 3 years imprisonment. He now seeks leave to appeal against both that conviction and the sentence.

The facts

2. The facts are simple. He arrived in Hong Kong on 29 December 1994 from Lagos via Addis Ababa and Dubai, carrying a suitcase containing the cannabis in false linings both at the top and the bottom of the suitcase. The drugs were contained in four packages. The applicant was also carrying a key to the suitcase in his pocket.

The trial and this application

3. The defence advanced at trial was that he had come to Hong Kong as a trader in earrings to buy goods here. He knew nothing of the contents of the suitcase which he had brought to Hong Kong at the request of a life-long friend called Michael whom he was to meet on 31 December at the Kowloon Hotel. The person 'Michael' was to follow from abroad. The trial therefore turned upon the presumption under s.47 of the Dangerous Drugs Ordinance whereby the burden of proof - that he did not know that he had drugs in his possession and did not know of their nature - was upon him but only, of course, on the civil standard.

4. The judge set out the presumption under that section correctly and correctly stated the standard of proof which rested upon the applicant. In the result he was not able to accept the applicant's evidence. He rejected it and gave a number of reasons. First, that the applicant was unlikely to be able to afford the airfare and the amount in cash that was on him when he was arrested on what he had told the judge of his earnings in Nigeria. Secondly, the suitcase; he doubted the applicant's evidence of the man 'Michael' and also pointed out that there was no evidence from Michael to support the account and also that there had been no intervention by Michael since the applicant had been arrested to substantiate or confirm his existence.

5. Today the applicant has produced to this Court some letters which he says came from Michael and it might be said that it was somewhat optimistic of the judge to expect some intervention on this applicant's behalf from another person who, on the applicant's evidence, must have been involved in the importation of the drugs.

6. However, that was by no means the only basis upon which the judge acted. He also looked at the suitcase itself. Having done so - and, of course, he had in mind that it had been damaged in the search - he came to the conclusion that the applicant must have known of the presence of the drugs in the suitcase. For these reasons, he rejected the evidence.

The conclusion

7. He was the hearing and seeing judge and although his reasons were expressed at times in words which give the applicant some reason to complain - such as when he said that the applicant had not 'convinced' him that he knew nothing about the drugs - it is quite clear from a reading of the whole judgment that the judge was applying the law correctly upon the presumption under s.47 of the Ordinance. There is no basis upon which this Court can give the applicant leave to appeal against his conviction and that application is dismissed.

The application for leave to appeal against sentence

8. This was a sentence passed after trial. It was a sentence of 3 years. The guidelines applicable at the time of this offence and trial were under AG v Chan Chi Man [1987] HKLR 221 where the tariff after trial for over 6,000 grammes is 36 to 48 months. As it happens, the same tariff for that amount is also the present guideline under the R v Chan Siu Ming and anor, Application for Review No. 12 of 1994. The judge therefore sentenced the applicant at the lowest end of the recommended scale. There are no grounds for saying in these circumstances that this sentence was either wrong in principle or manifestly excessive. The application is refused.