HKSAR v. Modebelu Kenenna Christian

CACC 62/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 62 OF 2017

(ON APPEAL FROM HCCC 523 OF 2014)

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REASONS FOR DECISION

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1.The applicant was convicted after trial of two counts of ‘conspiracy to traffic in a dangerous drug’ (Count 1 and Count 2) and one count of ‘trafficking in a dangerous drug’, namely 2,920.95 grammes of cocaine (Count 3).  He was sentenced to a total of 27 years and 9 months’ imprisonment.  Before me, he applied for bail pending appeal which application was dismissed.  These are my brief reasons.

2.The applicant has advanced four grounds of appeal under which there are a number of sub-grounds (see the document attached to his Form XI dated 15 March 2017).  For his bail application, he put before me another document whose contents were, to a great extent, an overlap of those in the one just mentioned.  I will deal with the grounds he raises in seriatim.

3.Ground 1A alleges that the trial judge was wrong to direct the jury to ignore and/or disregard the possibility of whether “PW1 had brought the red/white/blue bag with all the dangerous drugs to the Applicant’s room”.  Obviously, this complaint relates to what the judge said in her summing-up, at Appeal Bundle 29I-S.  Putting those remarks in their proper context, however, the judge was simply directing the jury that counsel’s suggestions were not evidence and must be ignored unless they were agreed by a witness.  That being a correct statement of the law, this ground is not made out.

4.Ground 1B complains that the judge misdirected the jury that “expensive” jewellery was found inside the Applicant’s room.  But this is not what the judge said.  See Appeal Bundle 46S-47D.  She said, “You will remember in fact that there was a considerable amount of jewellery which was accepted to be his within the black briefcase.”  She did so whilst revisiting the evidence concerning the Tai Pak Street flat, and its possible with connection the Applicant, that flat being where the drugs were found.  I cannot see any prejudice arising from the judge’s remarks.

5.Ground 1C complains that the judge was wrong to direct the jury that that the inconsistencies between PW1’s witness statements and VRI transcripts might be a matter of misinterpretation (Igbo to English). It is argued that the certified translation of those documents should be made available to the jury.  These complaints relate to the passages in Appeal Bundle 27I-28J.  The context is on how defence counsel had “made much of [such] inconsistencies”, and on how PW1 had replied to those criticisms (“…. he has not always agreed that what has been recorded is what he said”).  I do not think the judge was wrong in her observation and, in any event, she had left the matter entirely to the jury.  There was no need to put the original documents, not to mention their certified translations (if any), before them.

6.Ground 1D criticizes the judge for suggesting to the jury that the other nine persons, whom PW1 had allegedly seen swallowing drugs in Lagos, had also come to Hong Kong.  See Appeal Bundle 42N-Q, 48L-49J and 50A-F.  Albeit it true that there is no evidence that the bulk of the drug was retrieved from those nine persons, the prosecution case was that the drugs were collected from different couriers using their bodies to import them.  In any event, the real basis of Count 3 was that the drugs were found inside Room C of the Tai Pak Street flat, a room over which the Applicant had control.

7.Ground 2 alleges that the search of Room C was a violation of the Applicant’s privacy rights.  Given the fact that the police were at all times keeping the Applicant under surveillance, they should not have entered into Room C in his absence; the end result is that the seizure of all the case exhibits was illegal, it is said.  This ground is misconceived. The police had a search warrant for entering Room C, if necessary by forcible entry.  There is no legal requirement for executing that warrant in the presence of the Applicant.

8.The next complaint attacks PW1’s credibility as a witness.  As regards particulars, the Applicant relies on four matters constituting Ground 3A (PW1’s passport shows that he could not have been in Lagos at the same time as the Applicant), Ground 3B (PW1 claimed that “Chief” had given him the Applicant’s name and phone number on a piece of paper, which PW1 claimed was lost upon PW1’s own arrest, and which was just a bald assertion), Ground 3C (no fingerprint was found on the carton of milk which PW1 said was bought by the Applicant, which cast doubt on PW1’s evidence) and Ground 3D (PW1 was inconsistent as to whether it was he who initiated contact with the Applicant).  However, these were all evidential matters of which the jury were aware and, on two of the more important ones (Grounds 3A and 3B), the judge had dealt with in appropriate detail in her summing-up (Appeal Bundle 49J-U and 50L-U).  The absence of fingerprint evidence is neutral.

9.Ground 4 complains that it was unfair to charge PW1 with trafficking in only 31 pellets of cocaine, which is the number PW1 claimed to have swallowed and secreted into Hong Kong; DNA tests should have been conducted to establish how many of the 391 pellets were in fact discharged from PW1’s body.  This complaint is misconceived.  The question to be decided in this case was whether the Applicant had trafficked in all the drugs seized. Whether some or most or all of those drugs were brought into Hong Kong by PW1 was not directly relevant.

10.In the Applicant’s additional document (see paragraph 2 above), the credibility of PW1 is once again attacked by reference to a complaint that PW1 had made against the Applicant – whilst they were both detained pending trial.  It is emphasized that the complaint had been proved to be false by prison records, a matter forming part of the Admitted Facts.  However, on that too the judge had given the jury proper directions (Appeal Bundle 53H-T) and if the jury still believed PW1, which they did, that is the end of the matter.

11.Failing to show that his pending appeal is, prima facie, likely to be successful, the applicant’s application for bail pending appeal was refused.

Ms Vinci Lam, SADPP of the Department of Justice, for the respondent

The applicant in person, present