HKSAR v. ONUMEME OKECHUKWU

CACC 41/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 41 OF 2012

(ON APPEAL FROM HCCC 80 OF 2011)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1. The applicant, who appears in person, seeks leave to appeal against his conviction, after trial before Bokhary J and a jury on 17 January 2012, of a single count of unlawfully trafficking in a dangerous drug, namely 0.71 kg of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant’s application for legal aid was refused on the merits on 26 April 2012 and 21 June 2012, as subsequently was his application to be represented under the Hong Kong Bar Association’s Free Legal Service Scheme.

THE TRIAL

The indictment

2. The indictment alleged that the applicant had unlawfully trafficked in 0.71 kg of cocaine on 29 July 2010 at the Hong Kong International Airport.

The prosecution case

3. No issue was taken with the prosecution case that on 29 July 2010 the applicant had arrived at Hong Kong International Airport on a flight from Lagos, Nigeria via Doha and that 35 pellets of cocaine had been found concealed in his luggage.  Similarly, it was an admitted fact that subsequently at Queen Elizabeth Hospital the applicant had discharged from his body a further 28 pellets of cocaine.  In total, the pellets contained the 0.71 kilograms of cocaine.

The defence case

4. The applicant, who was represented by counsel at trial, gave and called evidence in the defence case. Both his mother and his wife testified on his behalf.  The applicant testified that he did not know that he was carrying cocaine either in his body or in his luggage on his arrival in Hong Kong.  He said that he was a resident of Hong Kong, married to a Hong Kong resident, conducting legitimate business in Hong Kong.  He had no criminal convictions.  He first visited Hong Kong to do business in 2005, returning regularly in the following years.  In 2008, he opened a restaurant in Chungking Mansions selling Nigerian food.

5. On 23 July 2010, he had left Hong Kong and returned to Nigeria to attend a remembrance service for his father, who died in November 2009.  Having attended the service and whilst staying in a hotel in Lagos on his return travels to Hong Kong he was attacked and tied up by two men in his hotel room.  They sought repayment of US$4,000 which he had received from a Mr Dike for the sale of a vehicle, which he had shipped to Nigeria from Hong Kong and which had been seized by the Customs authorities in Nigeria.  He had been forced to drink some liquid which had left him drowsy and dizzy and forced to swallow unknown items.  He was threatened with death if he told anyone about what had happened to him.  He was told that on his arrival in Hong Kong someone would collect the money owed to Mr Dike. Then, he was taken to the airport where, in addition to his own black piece of luggage, a bag of rice contained in a red-and-white check nylon bag was checked in as his luggage flew to Hong Kong directly.  As a result, he was unable to retrieve that luggage whilst in transit to Hong Kong through Doha.

6. The applicant testified that whilst on board the aircraft in Lagos and prior to his departure he received a phone call from Mr Dike who told him to remember what had happened to him and said that he had Mr Dike’s ‘goods’.  From Doha the applicant had telephoned his mother and told her what had happened.  Although she had suggested that he inform the Nigerian police he did not do so, nor did he report the matter to the police in Doha.  He thought that the appropriate place to make a report was to the police in Hong Kong.  On his arrival in Hong Kong he had retrieved his own piece of black luggage from the baggage carousel, but had to wait a further period of time before he was able to retrieve the red-and-white check nylon bag.  Whilst he waited he had spoken to Customs officers.

7. The applicant’s mother testified that she had received a phone call at her home in Nigeria from the applicant on 27 July 2010, in which he told her that he was in Doha and that someone had threatened to kill him.  She had advised that he report that to the police.  She had herself reported the matter to the police in Nigeria.

GROUNDS OF APPEAL AGAINST CONVICTION

8. Attached to Form XI, by which the applicant gave notice dated 1 February 2012 of his intention to seek leave to appeal against his conviction, that the appellant contended that the judge had sought unfairly to influence the jury against his interests.  The judge complained that during his testimony, in the context of his evidence that he did not speak English or Cantonese fluently, the judge had raised the issue of how it was that in those circumstances he could conduct business in Hong Kong.  That was relevant to his evidence and that of his wife that he did conduct legitimate business in Hong Kong.

9. In subsequent written submissions to the court, repeated in submissions to the single judge prior to the hearing before the court, the applicant sought to be provided with CCTV film kept by the Hong Kong Airport Authority relevant to his arrest on 29 July 2010 and asked that a Security Guard permit issued in his name, which he said it had been taken from him by Customs officers on that date, be returned to him.

A CONSIDERATION OF THE SUBMISSIONS

The issue of the applicant’s legitimate business activities

10. There is no transcript of the applicant’s testimony available to assist the court in respect of the applicant’s submission that in the course of his testimony the judge had interjected casting doubt on his testimony in respect of his legitimate business activities in Hong Kong.  However, there is available the judge’s summing up. There, the judge reminded the jury at some length of the evidence relevant to that issue, (appeal bundle, page 13 L-P) :

“ He told you about his background, about first arriving to Hong Kong in 2005 to do business by buying garments, motor parts and electronic items here and shipping them to Nigeria, making a profit. He spoke of coming here on business about five times between 2005 and 2007.

In 2008, he said, he started a restaurant in Chungking Mansion, selling Nigerian food.  That restaurant business ceased after his arrest in July 2010.  He also spoke about doing other jobs in Hong Kong.”

11. Similarly, the judge reminded the jury of the testimony of the applicant’s wife (appeal bundle, page 21 P - 22 E) :

“ She married the accused on 31 March 2009. She is employed as a shipping supervisor. She had known the accused more than three years before they married. Before the marriage, she knew that the accused was engaged in buying goods in Hong Kong and having them transported to Africa. She did not meet him through any involvement on her part and shipping goods to Africa.

After the accused obtained a Hong Kong identity card, he opened an African food restaurant in Chungking Mansion. After his arrest, the restaurant was closed down. The restaurant business covered expenses but did not make much money.

The accused was also a security guard.  He worked at Lan Kwai Fong pubs on Fridays and Saturdays between 10 pm and 3 am.  It seems that he started in May 2010.  During the time he was working as a security guard, he was also running the restaurant and shipping things to Africa.  He once told her that he shipped vehicles, and she saw shoes and garments.”

12. Having invited the jury to have regard to that testimony, and having suggested to the jury that the fact that a person operated a legitimate business did not prevent him from trafficking unlawfully in dangerous drugs, the judge went on to observe (appeal bundle, page 22 K-M) :

“ And of course the case against the accused is not based on his having no legitimate business dealings in Hong Kong or elsewhere. It is based on the dangerous drugs in his luggage and inside his body.”

13. Clearly, there is nothing on the face of the summing up that in any way evidences judicial skepticism, let alone judicial bias against the applicant, in respect of the evidence led in the defence case of the applicant’s legitimate business activities prior to his arrest.  In that context, it is to be noted that, in any event, not only had the judge directed the jury repeatedly that they were the sole judges of the facts but also she had directed the jury (appeal bundle, page 2 D) :

“ if I seem to express a view of the facts, you must reject that view if it does not commend itself to you.”

CCTV film and the applicant Security Guard’s permit

14. The applicant having requested at the hearing before the single judge on 2 August 2012 that steps be taken to locate any CCTV film kept by the Hong Kong Airport Authority of the circumstances of his arrest and the whereabouts of a Security Guard’s permit which he contended had been seized from him at the time of his arrest by Customs officers, the respondent was asked to making enquiries in respect of those matters.  In the result, the respondent advised the court by a letter dated 20 August 2012 that such CCTV film no longer exists, it being the practice to keep such film for no longer than one month.  Further, the Customs authorities have indicated that no such Security Guard’s permit was seized from the applicant.  In any event, as counsel for the respondent has submitted neither of those matters were raised at trial, where the applicant was represented.  Moreover, as counsel had pointed out in oral argument today a certificate evidencing the fact that the applicant had been trained as a security guard that was handed in evidence and marked as exhibit D1 in the trial itself.

Conclusion

15. We are satisfied that there is no merit in any of the matters sought to be advanced by the applicant in support of his application for leave to appeal against conviction. Accordingly, the application is refused.