HKSAR v. OKAFOR PETER ERIC NWABUNWANNE

FAMC No. 37 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 37 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 437 OF 2010)

____________________

_________________________

DETERMINATION

_________________________

Mr Justice Chan PJ:

1.  At the conclusion of the hearing, we dismissed the application for leave to appeal with reasons to be given later. Here are our reasons.

2.  The applicant, a Nigerian, was convicted after trial in the High Court of trafficking in dangerous drugs. Initially he applied for leave to appeal under both the point of law and the substantial and grave injustice limbs. In his amended notice, he had abandoned the point of law ground.

3.  The applicant arrived in HK as a visitor. A few hours after arrival, he went to the Accident and Emergency Department at Kwong Wah Hospital complaining about abdominal pain. He admitted to the doctor who attended him that he had swallowed 30 bags of cocaine. This was apparently confirmed after a medical examination. He was later transferred to Queen Elizabeth Hospital where the bags of cocaine were discharged in his excretion 2 days later.

4.  Apart from the cocaine retrieved from his system, the prosecution also relied on what he had orally admitted to a woman police officer (PW1) at Kwong Wah Hospital and a post record entry in her police notebook made at Queen Elizabeth Hospital.

5.  The gist of his oral admissions was that he was asked to carry the cocaine to Holland in return for US$5,000 of which he had already received half, that he swallowed the drugs voluntarily for money and that he did this because he had a financial problem. At Kwong Wah Hospital, he did not sign in PW1’s police notebook recording what he had said, giving the reason that he was in pain. Later, a post record entry in the officer’s notebook was shown and read to him by PW1 at Queen Elizabeth Hospital when he was handed a Notice to Persons in Custody. He added something in the notebook entry to the effect that he was paid by a Mr Chan who arranged for this trip and who had taken advantage of his financial problem and that he also wanted to beg for mercy. Having added all these, he then signed in the notebook. 

6.  The applicant’s defence was that he was under duress to carry the drugs as directed. He gave evidence and, contrary to what he had earlier admitted to the police, alleged that while he was in the hospitals, he had told the doctor and PW1 that he was forced to swallow the cocaine and that he had been threatened that if he reported to the police, his wife and children would be in danger. He also claimed that he signed in the post record entry because PW1 had promised to contact the Interpol so as to ensure his family would be protected.

7.  The admissibility of his oral admissions and the post record entry in the notebook was challenged at the trial. After a voir dire, the judge said:

“Having considered fully the evidence and the submissions I find that what the prosecution seeks to produce are admissible. That is the oral exchange, the notebook entries and the notice. I also see no cogent reason to exercise my discretion to exclude any of them. That is my ruling.”

8.  The adequacy of this ruling was one of the main grounds of appeal in the Court of Appeal. After a review of the relevant authorities on the principles regarding the duty of a trial judge to give reasons for his ruling after a voir dire on the admissibility of challenged evidence against interest, the Court of Appeal rejected this ground, holding that in the circumstances of this case, the basis of the ruling was clear and the judge could not be criticized. 

9.  In seeking leave to appeal on the substantial and grave injustice ground, Mr Philip Dykes SC on behalf of the applicant accepted that the applicable law was that as stated by the Court of Appeal. However, he submitted that it was unfair to obtain the admissions in question, given the applicant’s conditions while he was in hospital and that in those circumstances, the judge should have given more detailed reasons for admitting these admissions and refusing to exercise his discretion in excluding them. It was further argued that contrary to what was held by the Court of Appeal, the voluntariness of these admissions was a live issue, not merely their accuracy, but this issue was missed in the appeal and the Court of Appeal had failed to deal with it.

10.  It is true, as Mr Dykes submitted, that what the prosecution sought to adduce in evidence at the trial: the oral exchange between the officer and the applicant and the notebook entries following arrest and subsequently at Queen Elizabeth Hospital, was challenged on the ground that they were not voluntary and in that sense, voluntariness was in issue. However, it must be noted that although it was alleged (which the prosecution disputed) that the applicant was threatened or induced to sign in the notebook because of PW1’s promise to report the matter to the Interpol, there was no allegation that he was forced, induced or threatened to say what he had said to the officer or what he had added in the notebook. The voluntariness of what he had said or added was not challenged and was not the basis of the objection.

11.  This was clear from the transcript to which Mr Kevin Zervos SC, DPP leading Ms Irene Fan for the prosecution helpfully drew our attention. Page 83 of the transcript shows that leading counsel (not Mr Dykes) for the applicant identified the grounds for objection as: “they were not voluntary in the sense that they were taken in circumstances of oppression in that the accused was too ill to give such statement” and even if they were held to be voluntary, the court should exercise its discretion in excluding them since they were inaccurate and obtained without first administering a caution and it was unfair to admit them because of the applicant’s physical condition. 

12.  The allegation which was now made before this Court was that the admissions in question was involuntary since the applicant was threatened or induced to sign the notebook entries. But this was not the same as the allegations made at the trial.

13.  When refusing leave to appeal to the Court of Final Appeal, the Court of Appeal (para. 6) also noted that the allegation that “there was an inducement to the applicant by the police to say at least part of what he said” was not raised and not argued as a ground of appeal before that court.   

14.  The basis of the judge’s ruling was clear from the circumstances as revealed in the transcript and it was not necessary for him to provide any further reason in his ruling than what he had stated. Voluntariness in the sense as it was now argued before this Court was not in issue before the Court of Appeal and the applicant cannot be heard to complain that that court had failed to deal with it. 

15.  The truth of the matter is that while the applicant was in hospital, it was an emergency situation and clearly he was, as the Court of Appeal noted, “anxious to unburden himself” as to what had happened to him earlier. There was no question of any unfairness to admit what he had said to the doctor or the officer under those circumstances.

16.  The real issue before the judge as it was before the Court of Appeal was whether PW1 had accurately and faithfully recorded what he had said to her (paras. 47 & 50) This was properly disposed of in the courts below.  The challenge to admissibility in the present case had “in reality nothing to do with admissibility (voluntariness) or discretion (unfairness)” and was “patently unmeritorious” (para. 29).

17.  We are not satisfied that it is reasonably argued that the applicant has suffered any substantial and grave injustice. His application for leave to appeal must therefore be dismissed.