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Hksar v Okafor Charles Chukwuemeka

Judgment Cited authorities 2 Cited in 2 Precedent Map Related
Vincent
Judgment Date29 September 2017
Year2017
Citation[2017] 5 HKLRD 365
Judgement NumberCACC382/2015
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC382/2015 HKSAR v. OKAFOR CHARLES CHUKWUEMEKA

CACC 382/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 382 OF 2015

(ON APPEAL FROM HCCC NO 280 OF 2015)

________________________

BETWEEN
HKSAR Respondent
and
Okafor Charles Chukwuemeka Applicant

________________________

Before: Hon Lunn VP and Macrae JA in Court
Date of Hearing: 5 September 2017
Date of Judgment: 5 September 2017
Date of Reasons for Judgment: 29 September 2017

________________________

REASONS FOR JUDGMENT

________________________

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

1. Following his plea of guilty in the magistrate’s court, the applicant was committed to the High Court for sentence in respect of a single count of trafficking in 1.53 kilogrammes of a solid containing 761 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 9 October 2015, he was sentenced by Deputy Judge Stuart-Moore in the High Court (“the judge”) to 14 years and 6 months’ imprisonment.

2. On 3 November 2015, the applicant filed a Notice of application for leave to appeal against sentence (“Form XI”). Following the refusal of his application for legal aid on 22 December 2015, the applicant filed a Notice of Abandonment on 30 December 2015. His appeal was formally dismissed on the same day. However, some 10 months later, on 25 October 2016, the applicant filed an affirmation (the “1st affirmation”), seeking to treat his previous abandonment as a nullity and to reinstate his application for leave to appeal against sentence. In this 1st affirmation, the applicant alleged that officers of the Customs & Excise Department had ignored his request that enquiries be carried out in respect of information recorded on a piece of paper bearing some handwriting (the “Paper”), which was seized by Customs officers on the day of his arrest and sealed in a tamper-proof envelope, with code number V194916 and label CID/2/90/14 (B3).

3. On 7 August 2017, the applicant filed his 4th affirmation (the “4th affirmation”) (although he titled it as his 3rd affirmation), wherein he elaborated on the circumstances under which he had allegedly come to file his Notice of Abandonment. In essence, he asserted that he had initially laboured under the misconception that he could only proceed with his appeal against sentence if he was legally represented. However, in September 2016, he was moved to another prison facility, where he came to know that he could in fact have appeared in person and presented his appeal before the Court of Appeal, even though he was not legally represented. Accordingly, on 25 October 2016, he moved to nullify the earlier abandonment of his appeal.

4. On 5 September 2017, we refused the applicant’s application for leave to appeal against sentence and dismissed his appeal. We further made a “loss of time” order, pursuant to section 83W(1) of the Criminal Procedure Ordinance, Cap 221, that 3 months of the time during which the applicant has been in custody pending determination of this application shall not be reckoned as part of the sentence to which he is subject. We said we would give the reasons for our decision in due course. This we now do.

The prosecution case

5. According to the Summary of Facts admitted by the applicant, he arrived at Hong Kong International Airport as an incoming passenger from Cotonou in Benin, via Addis Ababa in Ethiopia, on 24 December 2014. He was selected for clearance by a Customs Officer at Customs Arrival Hall A of the Airport. No contraband was found during baggage examination and personal search. However, since internal concealment was suspected, the applicant was sent to North Lantau Hospital for medical examination. At about 3:50 pm on the same day, just before a rectal examination was due to take place, the applicant declared that he did not want his anus to be examined since he had 70‑80 pellets of “stuff” inside his stomach. The applicant was then arrested and cautioned. Upon caution, he said he had swallowed 78 pellets of cocaine. He would discharge the dangerous drug and contact the person in Cotonou, Benin, who would then tell him what to do next. He said he did not know anyone in Hong Kong.

6. The applicant was later transferred to Queen Elizabeth Hospital where, over the course of some 3 days, he discharged 78 pellets of suspected cocaine.

7. On 25 December 2014, a record of interview was taken from the applicant. Under caution, he asserted that he had been recruited by a person called “Onyema” in a bar in Cotonou, Benin. He subsequently agreed to deliver the “stuff” to Hong Kong for a reward of US$6,000. “Onyema” told him that, upon his arrival in Hong Kong, he would call the applicant and tell him what to do with it. The applicant swallowed the “stuff” in a hotel room in Cotonou on 22 December 2014. At the same time, he was handed an airline ticket for Hong Kong.

8. The applicant did not himself know the contact number of “Onyema”. He further explained that he did not know whether he would meet anyone in Hong Kong.

9. The suspected cocaine in question was later confirmed by a government chemist to be 1.53 kilogrammes of a solid containing 761 grammes of cocaine. The estimated street value of the dangerous drugs at the time of seizure was HK$1,464,210.

Mitigation

10. The applicant was 50 years of age at the time of his sentence. He was originally from Nigeria. He was married and had five children, aged between 2 and 16. Counsel for the applicant at the sentencing hearing, informed the court that the applicant was the sole provider for his family.

11. Counsel explained that the reason the applicant had decided to commit the offence was because he was experiencing financial problems after raising funds for the medical treatment of his younger sister. At the time, an old friend called “Francis” offered him a reward of US$6,000 in order to deliver dangerous drugs to Hong Kong. It was said that the applicant did not receive any advance payment and his younger sister had passed away after his arrest. The children were no longer in school and the family had been evicted from their apartment because they had no money to pay for the rent.

12. It was submitted that the applicant was a poor and illiterate man, who had been prevailed upon whilst in financial straits to take a desperate risk. He himself was unaware of the actual quantity of the drug involved.

Reasons for sentence

13. Having considered the quantity of narcotic involved and the mitigation put forward, the judge considered the appropriate starting point to be 20 years and 9 months’ imprisonment, in accordance with guidelines set out in HKSAR v Abdallah[1]. He further enhanced the starting point by 1 year for the international element involved in bringing the drugs across the border into Hong Kong before discounting the notional sentence after trial by one-third for the applicant’s guilty plea. There being no basis for any further reduction, the applicant received a final sentence of 14 years and 6 months’ imprisonment.

Grounds of appeal against sentence

14. The applicant has filed three sets of homemade Grounds of Appeal, dated 19 October 2016, 6 March 2017 and 24 April 2017 respectively. In his “Revised Grounds of Appeal (Sentence)” dated 6 March 2017, he stated that his initial Grounds of Appeal of 19 October 2016 were superseded.

15. In the applicant’s two latest sets of Grounds of Appeal, the applicant claimed that his sentence should be further reduced because he had provided information to Customs & Excise Department. However, the Customs & Excise Department had failed to follow up his information and make arrests of others involved in the case.

16. In the applicant’s 1st affirmation, he asserted that he had brought the Customs & Excise Department’s inaction to the attention of his then solicitors and counsel, but they had “failed to take note of this and did not pursue this”.[2] The applicant made further allegations against the Customs & Excise Department as well as the Legal Aid Department in his 2nd affirmation dated 26 June 2017(the “2nd affirmation”), and in his 3rd affirmation dated 18 July 2017 (the “3rd affirmation”). The Customs & Excise Department were accused of redacting crucial information from the original copy of the Paper, as well as a note seized from another defendant, one Onuoha Ferdinand Chetam (“Onuoha”). The Legal Aid Department, on the other hand, stood accused of collusion with the Customs & Excise Department and/or the Department of Justice.

Respondent’s submissions

17. Mr Ira Lui, on behalf of the respondent, submitted, firstly, that in determining whether or not the applicant’s act of abandonment can be treated as a nullity, this Court must be satisfied that the abandonment was not the result of a deliberate and informed decision on the applicant’s part. He argued that, as a matter of common sense in most cases, a person signing an important legal document that would deprive him of the right of appeal would be taken to be aware of what he is doing and to understand the consequences of signing such a document. There was nothing to suggest that such considerations did not apply to the applicant, where the document, which was voluntarily obtained and signed by him on 30 December 2015, made it abundantly clear that he was “abandon(ing) all further proceedings in regard to the appeal”.

18. Furthermore, in his 1st affirmation, as well as in his Grounds of Appeal dated 6 March 2017, the applicant asserted that upon the refusal of legal aid in December 2015, he had ‘lost all hope of pursuing this appeal’, since he was ‘under the mistaken belief...

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2 cases
  • Hksar v Malik Mohammad Tariq Also Known As Mohammad Tariq Malik
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 9 Noviembre 2022
    ...[10] R v Tang Wing-hung, unrep., CACC 390/1996, 25 February 1997, at [2], [3], [9] and [10]. [11] HKSAR v Okafor Charles Chukwuemeka [2017] 5 HKLRD 365, at [12] HKSAR v Kofi Frimpong [2021] 4 HKLRD 128. [13] Ibid., at [17]. [14] HKSAR v Wong Chun-yin [2021] 5 HKLRD 44, at [21]-[23]. [15] HK......
  • Hksar v Dong Juan
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 2 Junio 2020
    ...AB, pp 4-5, para 1. [16] AB, p 13F. [17] HKSAR v Wong Lin Hung (2016) 19 HKCFAR 578. [18] HKSAR v Okafor Charles Chukwuemeka [2017] 5 HKLRD 365. It should be noted that the applicant’s further appeal for leave to the Court of Final Appeal in FAMC 46/2018 was also dismissed on 11 January 201......

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