HKSAR v. OKAFOR JOE K KINGSLEY

CACC 158/2019

[2020] HKCA 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 158 OF 2019

(ON APPEAL FROM HCCC NO 250 OF 2018)

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J U D G M E N T

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1.  On 7 May 2019, the applicant was convicted after trial before Toh J (the judge) and a jury by unanimous verdict, of one count of trafficking in a dangerous drug, namely, 499 grammes of solid containing 343 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 8 May 2019, the applicant was sentenced to 15 years’ imprisonment.

2.  On 15 May 2019, the applicant filed a notice applying for leave to appeal against conviction, in which he listed a number of home-made grounds of appeal.  He specifically mentioned in the notice that he was not applying for leave to appeal against sentence.  However, on 23 October 2019, he filed a notice applying for leave to appeal against sentence out of time.  He set out two grounds of appeal, which were written on his behalf by a fellow prison inmate, Mr Rurik Jutting.  These grounds have featured in various other cases that Mr Jutting has become involved, which complain about the legitimacy of enhancing a sentence for the international element in certain drug trafficking cases. 

3.  In the applicant’s affirmation accompanying the notice, which was also written by Mr Jutting, he asks for an extension of time to apply for leave to appeal against his sentence.  His explanation for the delay in filing the application is that his previous lawyers advised him he did not have a good basis to appeal against sentence.  He went on to state:

“(5)  Around two weeks ago, I asked an acquaintance of a friend in prison (‘acquaintance’) to review my appeal bundle and help try to identify grounds of appeal against conviction.

   (6)  Following his review, the acquaintance has informed me that, in his opinion, I have reasonable grounds to appeal against sentence as well as conviction and that, moreover, legal aid had been granted to the applicant in a different case (CACC 232/2018) to appeal against sentence on substantially identical grounds.

   (7)  I have read the grounds of appeal against sentence written for me by the acquaintance and, although I have essentially no legal knowledge, the grounds set out therein appear to me to be reasonable.”

4.  The applicant has made a series of applications for legal aid which have been all refused.  Legal aid to appeal his conviction was first refused on 9 September 2019.  After Mr Jutting became involved in the applicant’s case, further applications for legal aid to appeal against conviction and sentence out of time were refused on 16 December 2019, 8 April 2020 and 15 June 2020.  These repeated applications for legal aid followed the staggered filing of grounds and submissions in relation to this appeal.  

The prosecution case

5.  The prosecution case against the applicant centred on a parcel that was sent from Curacao to a man in Hong Kong called “Peter Johnson”.  Customs officers intercepted the parcel and, after a preliminary investigation, established it contained dangerous drugs that had been carefully concealed inside a drill.[1]

6.  On 27 October 2017, Customs officers called the number listed on the parcel (“5363 8908”) and spoke to a man who identified himself as Peter Johnson.[2]  The Customs officers repacked the parcel and on 27 October 2017 attempted to deliver it to the address shown on the parcel, which was in Kam Tin. 

7.  Two Customs officers, posing as UPS staff, went to the address.  One of the officers (PW1) called the number and spoke again to Peter Johnson, who said: “Yes I am coming.  Just wait outside.  I’ll be there shortly”.[3]  As no one came, another call was made to the same number, the man on the other end, again identified himself as Peter Johnson, but this time he simply said he was not coming. 

8.  Arrangements were then made for the parcel to be collected at a UPS office in Lai Chi Kok.  The applicant went twice to the UPS office on 30 October 2017, but did not collect the parcel.  This was captured on CCTV footage.  On both of these occasions, he was wearing a different set of clothes.[4]  The prosecution alleged he was checking out the location and had changed his dress in an effort to disguise his interest in the parcel. 

9.  On 31 October 2017, the applicant went again to the UPS office.  He presented himself as “Dennis Kelechi” and asked for the parcel.  He signed a receipt for the parcel in this name.  He had on his person a letter of authorization from Peter Johnson for Dennis Kelechi to collect the parcel and an identity card belonging to Dennis Kelechi.  After he collected the parcel and left the UPS office, he was arrested and cautioned by Customs officers.  He said he did not know what was inside the parcel, but that he was picking it up for a friend of his called “Peter”.  The applicant was searched by the Customs officers who found on him, amongst other things, the identity card of Dennis Kelechi, as well as his own identity card in a wallet and two Nigerian passports in his name.[5] It was an admitted fact that the applicant had in his possession two mobile telephones that each contained a prepaid Sim card which had been used to contact the UPS hotline on 29 and 30 October 2017.[6] 

10.  The prosecution invited the jury to draw the only reasonable inference that the applicant presented himself as Dennis Kelechi because he knew he was collecting a parcel containing dangerous drugs and did not want to use his own name.[7]

11.  The issue of the applicant passing himself off as Dennis Kelechi is central to the complaints contained in the first two grounds of appeal against conviction.

The defence case

12.  The applicant gave evidence at his trial but called no witnesses on his behalf.  His case was that he had been set up by his friend, called “Petersen”, whom he had known for 15 years.  The arresting officer said, immediately upon arrest, the applicant said he had picked up the parcel for his friend, called “Peter”.  The applicant maintained he said Petersen, and not Peter, implying the officer must have misheard him.[8]  Nothing turns on the actual name he mentioned in this appeal.

13.  The applicant said he was a business man dealing in second hand televisions.[9]  His explanation for not producing his own identity card when he collected the parcel was that, having married and subsequently divorced a local Hong Kong woman, he was under the impression his Hong Kong Identity Card was no longer valid.  He said his current passport was with the authorities and therefore he only had an expired passport on him.[10]

14.  The applicant said that when Petersen asked him to collect the parcel, he thought nothing of it, as Petersen had, in the past, helped him send medicine back to Africa for his mother.  It was Petersen who told him to use the name Dennis Kelechi,[11] and arranged for him to collect the identity card belonging to Dennis Kelechi from a man called “John”.

15.  It is important to note that it was the applicant’s defence that he passed himself off as Dennis Kelechi because he had been requested to do so by Petersen. 

The grounds of appeal

16.  On 15 January 2020, the applicant filed with the court written grounds of appeal.  The document filed is entitled “amended grounds of appeal”, and is said to substitute all previously filed grounds of appeal.  It is written by Mr Jutting and amalgamates the grounds of appeal with the submissions in support of them.  The handwriting is tiny and very difficult to read.  The document sets out two grounds against conviction (Grounds 1A and 1B) and two grounds against sentence (Grounds 2A and 2B), with reference to forty authorities.  The arguments are convoluted and repetitious, and heavily accompanied by ancillary comments or points.

17.  On 3 April 2020, the applicant filed with the court reply submissions on Grounds 1A, 1B, 2A and 2B, with reference to four additional authorities.

18.  On 11 May 2020, the applicant filed with the court a third ground of appeal against conviction (Ground 3), which incorporated submissions that referred to four additional authorities.

19.  On 29 May 2020, the applicant filed with the court reply submissions on Ground 3.

The applicant’s submissions on conviction

20.  The applicant raises three grounds of appeal against conviction. 

21.  Before I address these grounds of appeal, it is important to bear in mind what was, and was not, in issue at trial.  The prosecution mounted its case against the applicant by highlighting the circumstances of his dealings with the Customs officers, posing as UPS staff, and the circumstances leading up to and surrounding the collection of the parcel by him, including passing himself off as Dennis Kelechi when he collected the parcel.  The prosecution invited the jury to draw the only reasonable inference that the applicant knew the parcel contained dangerous drugs.  The defence on the other hand submitted to the jury that this was not the only reasonable inference to draw and that the applicant adopted the persona of Dennis Kelechi because he believed his identity card was not valid and he was helping out his friend Petersen, who had set him up.  The issue for the jury, as invited by defence counsel, was whether they could draw two possible inferences from the circumstances, which would mean the inference the prosecution were inviting the jury to draw was not the only reasonable one.

22.  There was no issue taken by the defence as to the wrongful acts of the applicant passing himself off as Dennis Kelechi, as this was part of the facts of the offence, nor was any issue taken about the lies he told about adopting the persona of Dennis Kelechi, as it was admitted by him that he lied about his identity at the request of Petersen.  There was also no issue taken about the prosecution failing to put its case to the applicant when he testified at trial.

Ground 1A: limited admissibility of evidence of uncharged acts and inadequate direction

23.  This ground alleges the prosecution relied on evidence of uncharged acts which were criminal (or otherwise seriously wrongful) for which the applicant was not charged in the indictment. 

24.  The uncharged incidents complained of are as follows:

(1)  The applicant being in possession of a Hong Kong Identity Card belonging to Dennis Kelechi following his arrest.[12] 

(2)  The applicant pretending to be Dennis Kelechi in a telephone conversation with a UPS employee.[13]

(3)  The applicant presenting to an undercover officer (at the UPS office) a purported letter of authorisation stating he was Dennis Kelechi.[14]   

25.  The applicant contends these acts could only be admitted as evidence if they were adduced for a specific and limited purpose, coupled with an appropriate direction from the judge.  Various authorities are cited in support of this proposition.[15]  The applicant argues none of these uncharged acts were reasonably probative of the issue whether or not it could be reasonably inferred the applicant had knowledge of the dangerous drugs inside the parcel.  As already pointed out, there was no issue taken about the uncharged acts at trial.

26.  The applicant further contends the prosecution case, as evidenced by prosecuting counsel’s cross-examination of the applicant and closing address, may have reasonably led the jury to believe the evidence of uncharged acts was relevant “and usable, not only as circumstantial evidence … but also as evidence of disposition to criminality and also disposition to untruthfulness”.[16]

27.  The applicant submits prosecuting counsel in cross-examining the applicant, made repeated emphasis of the wrongful nature of the applicant’s acts.[17]

28.  The applicant further submits the clear intention of the prosecution’s closing address was to establish that the applicant, because of his past unlawful acts, was someone with greater propensity to commit trafficking in a dangerous drug.  This was simply not the case.  The prosecution alleged that the applicant passed himself off as Dennis Kelechi because he knew the parcel contained dangerous drugs and did not want his true identity to be known. 

29.  The applicant contends, quite regardless of the judge’s discussion with counsel about keeping the issue of the identity card away from the jury, the judge nonetheless questioned the applicant about it in front of the jury.[18] This is not correct.  The judge in discussion with counsel said that she did not think it was a problem for the prosecution to rely on the identity card of Dennis Kelechi as part of its case.[19]

30.  The applicant complains about matters put to him in cross-examination, where he was questioned that it would be wrong to use someone else’s identity card,[20] and to sign a document with someone else’s purported signature. [21]

31.  The applicant also takes issue with the prosecuting counsel’s closing speech, questioning any connection or relationship by the applicant with Dennis Kelechi but this was all in relation to the fact he was not Dennis Kelechi.

32.  The applicant further contends the problem was compounded by the judge in her summing-up, by failing to direct the jury as to the limited use with which these uncharged acts could be used.  The applicant makes three distinct points.

33.  First, the judge wrongly directed the jury to the effect that all evidence adduced, including the evidence of uncharged acts, was generally usable for any and all purposes which the jury deemed themselves to be relevant in the determination of the charge.  The judge should instead have directed the jury that evidence of uncharged acts was, in law, usable only as circumstantial evidence which was potentially relevant to an essential element of the offence charged, particularly, in this case, the applicant’s knowledge that the parcel contained drugs.

34.  Secondly, the judge specifically directed the jury that these uncharged acts were not, in law, usable to show the applicant was the “sort of person” who was prepared to commit a serious criminal offence. It is argued that an ordinary citizen in Hong Kong would recognise that being in possession of a Hong Kong Identity Card which had been reported lost, and, being in possession of a fake authorisation letter and representing to others that you were that person, are acts which are wrong in themselves.

35.  Thirdly, the judge failed to give a direction to the jury in the terms as stated by Li CJ in Zabed Ali[22]:

“… it should be observed that if the evidence of bad character or propensity is admitted in accordance with the principles discussed above, it would be necessary for the judge to give an adequate direction to the jury as to how to approach the evidence. The jury should be directed as to the matter in issue to which such evidence might be relevant and how it might be relevant. And the jury should be told that the fact that the accused has a bad character or the propensity as shown by such evidence does not mean he is guilty of the offence charged. See Archbold (2003) para. 13-41.”[23]

The respondent’s submissions

36.  The respondent, represented by Mr Raffell, points out that the evidence concerning the lost identity card and the authorisation letter, were of strong probative value, which outweighed any prejudicial effect.  He submits its probative nature lay in the fact it supported knowledge on the part of the applicant that the parcel contained dangerous drugs.  He also submits the use of such evidence by the prosecution was confined to him asking the jury to draw the inference that the applicant sought to conceal his true identity because he knew the package contained dangerous drugs, that is, it was used as evidence to show the applicant’s guilty knowledge, not, as evidence of bad character.

37.  Mr Raffell argues that the relevance of this evidence was never in doubt and reliance on it by the prosecution was not objected to by the defence.  In fact, it was part of the defence case that the applicant passed himself off as Dennis Kelechi and that he was put up to it by his friend Petersen.

Discussion on uncharged acts

38.  It was not in dispute at trial that the applicant passed himself off as Dennis Kelechi when he collected the parcel, containing drugs, from the UPS office.  Indeed, it was an admitted fact that the applicant had in his possession the lost Hong Kong Identity Card of “OBI Dennis Kelechi” when he was arrested after collecting the parcel.[24]

39.  The parcel was addressed to Peter Johnson and the applicant testified that he had been requested to collect it for his friend, Petersen.  He had a letter of authorisation from Peter Johnson for Dennis Kelechi to collect the parcel.

40.  As the judge pointed out to the jury, the only issue was “whether the defendant knew there were dangerous drugs inside the drill in the parcel when he claimed it and took it out of the UPS office and was he therefore trafficking in the dangerous drugs.”[25]

41.  A key aspect of the case against the applicant was whether the jury could draw the only reasonable inference that he knew he was collecting a parcel, containing dangerous drugs, from the circumstances leading up to and including the collection of the parcel by the applicant under an assumed name.  This was explained to the jury by the judge as follows:

“ So if you decide from a set of facts that it gives rise to two different inferences, one is for him, one is against him, then you cannot draw the one against him. You can only draw an inference if it is the only reasonable inference you can draw from the fact which you find proved.

      So the prosecution says the only reasonable inference you can draw in this case, from all the surrounding circumstances, is that he knew there was dangerous drug inside the parcel because Mr Raffell has already said to you, he says, ‘Well, look at the background before he collected the parcel’.

      The calls to the UPS Office, the transcript in the jury bundle of the call from Doris Lau of UPS to the defendant, which is at item 12. And the defendant assumed the persona of Dennis. He said he, in fact, pretended to be Dennis in the conversation. And Doris Lau reminded him that he has to produce a letter of authorisation and the defendant said to her that they could not produce, because he travels now.

      And Doris Lau then said to him in the transcript, at item 8, ‘Can you contact him to get the letter?’ And then eventually, it was agreed that the defendant will collect the parcel with the letter.

      So take all this into account. Also the prosecution says the defendant turns up at the UPS Centre three times and on the last occasion then produced a letter of authorisation for Dennis Kelechi to collect the parcel. He then posed as Dennis Kelechi and signed the receipt for the parcel as Dennis Kelechi. He also had in his possession an identity card of Dennis Kelechi. And so Mr Raffell says that it is because he knew he was collecting a parcel with dangerous drug and was not going to use his own name.

      The defence on the other hand, Mr Beel says, ‘Well, the defendant was set up. He trusted his friend Petersen, and was only helping Petersen out’. And he, Mr Beel, says he did not appear nervous or anxious. If he knew there were drugs inside the parcel, he would appear nervous or anxious. And Mr Beel addressed you on the fact that, in effect, using the name of Dennis Kelechi, would not work if Customs Officers knew already there were drugs in there. They would arrest him on the spot. And so using the name of Dennis Kelechi would not work.

      If Customs Officers did not know there were drugs in the parcel, then the defendant would have taken the parcel away. So eventually, if the defendant was, or if the defendant had passed the parcel on to someone else and investigation is made, if a Custom Officer turns up at the UPS Centre, they would only see that it was a Dennis Kelechi who came to collect the parcel.

      So it is all a matter for you to weigh up, but that is what Mr Beel said, that from the circumstances, you can only draw two possible inferences. One is against the defendant, but also on the other hand, one which is in favour of the defendant. And in those circumstances therefore, you cannot find that the inference against the defendant is the only reasonable inference and therefore in those circumstances, you cannot convict the defendant.

      It is a matter for you, members of the jury, and I think as I have said, the most important matter for you is that you use your common sense and experience as men and women of this world when you are deliberating in the jury room when you are analysing the evidence.

      So it is a simple case. It is not a complicated case, as far as evidence is concerned. But it is not as simple as counsel says because you have to analyse the evidence and make a determination as to what you decide its relevant evidence and whether from the evidence which you have decided are relevant, whether you can draw the only reasonable inference you can draw, that the defendant knew there will was drugs inside the parcel or, as Mr Beel said, that you cannot be sure he knew. So that is a matter for you.” [26]

42.  In his closing address to the jury, prosecuting counsel concluded his remarks by telling them:

“And you may well think that a man who would pick up a package in the name of a stranger for no real good reason cannot be telling you the truth. You may well think it must be the case that he did that because he knew what was in that package. …”[27]

43.  In his closing address, defence counsel accepted the applicant passed himself off as Dennis Kelechi, and he addressed the jury on the matter as follows:

“Now, as Mr Okafor has openly admitted, he did a stupid thing. He pretended to be Dennis Kelechi. He accepts that he knows that was wrong. Now, you mustn’t look at this as to whether you would have done this or whether you would do this stupid thing, whether did Mr Okafor do it. We are not here to judge people because we all know people do stupid things in life. So just because you wouldn’t have done it doesn’t mean that Mr Okafor didn’t do it.

Now, the theory if we saw a case theory or whatever, the theory of the prosecution is that the reason why Mr Okafor pretended to be Dennis Kelechi was because he knew that there were drugs inside the parcel. That might well be possible. I mean even if he had not pretended to be Dennis Kelechi it’s still possible that he knew that there were drugs in the parcel. It’s always a possibility, but you are not here to find out what is possible or what you suspect. You have to be sure that Mr Okafor knew there were drugs in the parcel before you can find Mr Okafor guilty, not possible but sure. If you can’t be sure then you must find Mr Okafor not guilty.

…

Now, as I have told you earlier, you can have two inferences at the same time with different conclusions. … The first inference, as suggested by the prosecution, is that he pretended to be Dennis Kelechi in order to protect himself because he knew there were drugs in the parcel, distance himself if anything went wrong.

Now, I have already said, I suggested to you that, when properly considered, that really doesn’t make sense. … For the sake of argument we have put the prosecution’s inference on the table. Next to it on the table I will place the inference that he pretended to be Dennis Kelechi because he believed he couldn’t collect the parcel as he had no valid ID card.”[28]

44.  Lord Herschell makes the point in Makin v Attorney-General (NSW) (1894) AC 57, at 65:

“the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused”

45.  The Court of Final Appeal has acknowledged that the principle in Makin has been developed.  The test now in relation to Lord Herschell’s statement is that “if the evidence is relevant to an issue in the case, for reasons other than to show a mere propensity to commit another offence, it may be admissible, notwithstanding that it also shows propensity”.[29] 

46.  This rule effectively excludes evidence which is adduced merely to show the bad character of the accused,[30] the Court of Final Appeal in Zabed Ali outlined the approach to be taken on the question of admissibility as follows:

“(1) The matters in issue which the prosecution has to prove to establish guilt, having regard to the charge, must first be identified. For this purpose, the defences open to and any specific defence raised by the accused would be taken into account. However, in the well-known words of Lord Sumner in R v Thompson [1918] AC 221 at p.232:

The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.

    Obviously, if a fact which the prosecution has to prove is accepted by the defence, it would not be in issue.

(2) The evidence the admissibility of which is in question should be focused on.

(3) The following questions should then be asked: what is the matter in issue to which the evidence is said to be relevant and why, that is, what is the reason for saying that the evidence is probative of that matter in issue?

(4) If in answer to those questions, it is concluded that the evidence is relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, that is, it is not mere propensity evidence, then the test in DPP v P [1991] 2 AC 447 has to be applied in deciding as a matter of law whether it is admissible: whether its probative force in support of an allegation against the accused is sufficiently great to make it just to admit it, notwithstanding that it is prejudicial to the accused. It is only where the test is satisfied that the evidence would be ruled admissible as a matter of law. If it is not satisfied, the evidence would be ruled inadmissible. But if in answer to the above questions, it is concluded that it is mere propensity evidence, then it would be inadmissible on the basis of the exclusionary rule.” [31]

47.  In my view, the evidence that was led by the prosecution in relation to the applicant passing himself off as Dennis Kelechi was not led as evidence of bad character or to show that he had a propensity to engage in drug trafficking.  It was relevant evidence that went to the issue of his knowledge as to whether the parcel he was collecting contained dangerous drugs.  That is how it was addressed by the parties and the judge before the jury.  It would have been clearly understood by the jury that the evidence was not before them as evidence of bad character or propensity.

Ground 1B: inadequate direction on the applicant’s lies

48.  The applicant submits the judge should have given a lies direction to the jury.

49.  The applicant has identified three issues at trial which he considers were lies that warranted a “Lucas direction”.[32]  

(i)  the applicant lied to Ms Doris Lau (the Customs officer posing as a UPS employee) by pretending to be Dennis Kelechi in a recorded telephone conversation on 30 October 2017;[33]

(ii)  the applicant lied to an undercover Customs officer when he pretended to be Dennis Kelechi at the UPS centre on 31 October 2017;[34]

(iii)  the applicant falsely signed the receipt for the parcel using the name Dennis Kelechi.[35]

50.  The applicant submits that these “undisputed lies” related solely to his false adoption of the persona of Dennis Kelechi and did not involve any statements relating to his knowledge of the contents of the parcel.  They were therefore concerned with a separate and distinct issue to the essential elements of the offence with which the applicant was charged. The applicant referred to R v Burge and Pegg [1996] 1 Cr App R 163, at 173.

51.  The applicant notes that the prosecution relied on the “undisputed lies” as proof of the applicant’s guilt of the charge.  In these circumstances, it is argued that the judge should have given a lies direction, with suitable modification to take into account the fact that the applicant had fully admitted lies when he testified.

52.  The prosecution relied on the fact that the applicant falsely represented himself as Dennis Kelechi when he collected the parcel.  The applicant testified that he did this at the request of Petersen, acknowledging it was “wrong” and “a stupid” thing to do.[36] 

53.  The defence on the other hand put forward the applicant’s explanation as to why he passed himself off as Dennis Kelechi, and invited the jury to draw an innocent inference for why he did so.  It is therefore important to bear in mind what defence counsel said to the jury in presenting the defence case to them which has been set out above in paragraph 43.

54.  The judge explained to the jury the respective cases of the prosecution and defence which has been set out above in paragraph 41. 

The respondent’s submissions

55.  Mr Raffell submits there was no need for a lies direction in this case, and that the applicant had given his account of what had happened, which in the end, simply failed to persuade the jury.

Discussion on the lies direction

56.  The prosecution relied on the fact that the applicant pretended to be someone else in order to conceal his identity as he was there to pick up a parcel containing dangerous drugs.[37] 

57.  It is generally understood that a “Lucas direction” on lies told by the accused either out of court or in court may be required in the circumstances as stated in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113.

58.  The applicant passing himself off as Dennis Kelechi was an essential feature in the case against him for trafficking in dangerous drugs.  On this aspect of the evidence, the prosecution submitted that he concealed his identity and used the persona of another to collect the parcel.

59.  The question for the jury was whether they accepted the applicant’s explanation for why he presented himself as Dennis Kelechi. If they did not, it was open to them to take this evidence into account, together with all the other evidence, in deciding whether the applicant was guilty of charge.  This was not a case warranting a “Lucas direction”, nor was one requested by defence counsel in discussions with the judge about her summing-up.  In all likelihood, a lies direction would have unnecessarily complicated the matter before the jury.[38]

60.  As stated by the Court of Final Appeal in Yuen Kwai Choi, where the rejection of any explanation by the accused almost necessarily left the jury with no choice but to convict as a matter of logic, or where the jury were asked to decide on the truth of what the accused said as a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.[39]

61.  In the present circumstances, there was no danger of improper use by the jury of the “undisputed lies” and there was no risk of miscarriage of justice.  The fact that the applicant passed himself off as Dennis Kelechi was part of the alleged criminality of his trafficking in the dangerous drugs.[40]

62.  I am not persuaded that this ground of appeal is reasonably arguable.

Ground 3: The rule in Brown v Dunn

63.  This ground alleges the prosecution breached the rule in Browne v Dunn (1893) 6 R 67.  The complaint is that prosecuting counsel, when cross-examining the applicant, did not put to him matters in issue, or matters seeking to contradict or discredit him.

64.  It is complained there was inadequate puttage in relation to the applicant’s priority in collecting the parcel over his son’s welfare; and the vague connection with Petersen.  It is also complained that prosecuting counsel failed to cross-examine the applicant about matters he mentioned rhetorically in his closing address, namely, why the applicant did not question Petersen about the use of the name of Dennis Kelechi; why Petersen specifically asked the applicant to collect the parcel; and why Petersen did not ask John to collect the parcel.  These are matters that all arose from the evidence, which prosecuting counsel quite legitimately raised for consideration.

The respondent’s submissions

65.  The respondent submits that the rule in Browne v Dunn was adhered to and therefore no issue arises.

Discussion on the rule in Browne v Dunn

66.  The applicant’s complaint under this ground is misconceived both in terms of the rule in Browne v Dunn and its application to the particular circumstances of this case. 

67.  The rule in Browne v Dunn ensures a witness has the opportunity to explain a matter of substance if the opposing party intends to later contradict or discredit the witness in relation to it.

68.  It was apparent from the start that the prosecution case against the applicant was that he collected a parcel from the UPS office knowing it contained dangerous drugs.  When the applicant gave evidence, he was extensively cross-examined as to his account of his involvement in the offence.  There can be no doubt from reading the transcript of the entirety of his evidence that he was being challenged as to the circumstances that led him to collect the parcel and his claim that he did not know the parcel contained dangerous drugs.  The challenge also extended to his knowledge of and dealings with Petersen.  It is clear that prosecuting counsel was seeking to establish that he was not speaking the truth and should not be believed.

69.  In HKSAR v Chan Hing Kei [2020] 1 HKLRD 1082, the principle as stated by Lord Herschell in the Browne v Dunn was explained.  It is the duty of counsel to make it plain to a witness that his evidence is not accepted and this need not be done in minute detail.  As stated by Lord Herschell:

“Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”[41]

70.  The matters complained about under this ground that the applicant submits were not raised with him when cross-examined by prosecuting counsel, were the subject of questioning by way of challenge.  When reading the transcript in its entirety, it is clear that prosecuting counsel was taking issue with the applicant’s connection and dealings with Petersen and his account of the events leading up to and including the collection of the parcel.[42] 

71.  No question of unfairness to the applicant arose.  Defence counsel knew exactly the case the prosecution were alleging against the applicant as evidenced by the content of his closing address.

72.  I am satisfied that this ground of appeal is not reasonably arguable.

The applicant’s submissions on sentence

73.  The applicant raises two grounds of appeal against sentence, although, the two are effectively linked to one another.

74.  Ground 2A complains that the judge erred in determining there was an international element. The applicant submits there was no evidence adduced at trial capable of proving the applicant was involved in the importation of drugs into Hong Kong four days prior to the arrival of the parcel, that is four days prior to the date of the offence.

75.  Ground 2B complains that as the applicant was not charged with importation of drugs into Hong Kong, it was not open to the judge to sentence upon the basis of an aggravating factor in finding there was an international element.

The respondent’s submissions

76.  The respondent submits the applicant must have known when he went to collect the parcel that it had been imported into Hong Kong, as UPS is an overseas postal service.

Discussion on the international element

77.  The application for leave to appeal against sentence is out of time by some five months.  No valid explanation has been provided to justify the delay.  The appropriate circumstances for this Court to extend time for an applicant to file an application for leave to appeal have been explained in R v Wong Kai Kong and Anor [1991] HKC 279.  I find no basis to grant an extension of time.  It is usual for a court to consider whether there is any merit to the appeal, in order to ensure it is not shutting out a plainly arguable ground which the applicant could and should have mounted.

78.  The applicant’s submission ignores the facts and circumstances of the case that guided the judge in finding there was an international element in the applicant’s commission of this offence.  In fact, this court has been seriously misled by the applicant’s failure to refer to highly relevant evidence in relation to the international dimension. 

79.  It was an admitted fact that the applicant had two telephone conversations with a Customs officer, posing as a UPS officer, in which he passed himself off as “Dennis”.  Transcripts of the conversations were produced into evidence, but was not included in the Appeal Bundle.  The officer made arrangements with the applicant to collect the parcel, in which she said that “regarding your shipment from overseas to Hong Kong, your shipment is ready at the Lai Chi Kok service centre.”  The applicant confirmed he had this conversation with the officer.[43]

80.  Furthermore, there was the parcel and the shipping document, depicted in exhibit P40, Photographs 1 and 18, which were not referred to in the applicant’s submission, nor included in the Appeal Bundle.  They clearly show that the parcel had been sent from overseas. Exhibit P40 was produced in evidence by way of admitted fact.[44]  The applicant also had stored on his mobile telephone the UPS tracking number for the parcel, which he disclosed to UPS staff in order to collect it.[45]

81.  By collecting the parcel, knowing that it contained dangerous drugs which had been sent from overseas, the applicant was facilitating the importation of the dangerous drugs into Hong Kong.  There was obviously an international element involved in the offence and the judge properly took it into account when she sentenced the applicant.  See HKSAR v SK Wasim [2020] 2 HKLRD 1139, at [38]; and HKSAR v Ali Qasim, unrep., CACC 332/2018, 14 January 2020, at [27] and [29].

82.  I am satisfied that the two grounds of appeal against sentence are not reasonably arguable.

Conclusion

83.  It follows from what I have said, that I am not persuaded that there are reasonable grounds of appeal against conviction and sentence out of time and I accordingly refuse the applicant leave to appeal his conviction and sentence out of time.

84.  I inform the applicant that he has the right to renew his application for leave to appeal against conviction and sentence out of time to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court could make an order for the loss of any time which he has spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.