HKSAR v. Chukwuleta Sunday Freedaline and Another

CACC 62/2017

[2019] HKCA 738

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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Before: Hon McWalters JA in Court

Date of Hearing: 26 June 2019

Date of Judgment: 26 June 2019

Date of Reasons for Judgment: 2 July 2019

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REASONS FOR JUDGMENT

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1.The 1^st applicant was convicted of conspiracy to traffic in a dangerous drug and the 2^nd applicant was convicted of this same count, a further count of conspiracy to traffic in a dangerous drug and a third count of trafficking in a dangerous drug after trial before Campbell-Moffat J (“the judge”) and a jury. The 1^st applicant and Okoye James Azuka (“PW1”) were amongst a number of West African drug mules who trafficked cocaine to Hong Kong by means of internal concealment. The 1^st applicant and PW1 travelled to Hong Kong on the same flight.

2.The prosecution case was that the 1^st applicant and PW1 entered into separate conspiracies with the 2^nd applicant, and other persons unknown to traffic the drugs they transported within their bodies. These conspiracy offences were the subject of the first and second counts in the indictments. The 2^nd applicant was temporarily resident in Hong Kong pending processing of an asylum claim and it was to his flat the 1^st applicant and PW1 were instructed to go in order to excrete the cocaine pellets from their bodies.

3.When the police investigation was turned overt the flat of the 2^nd applicant was searched and a large quantity of cocaine pellets was found in it. These drugs were the subject of the third count.

4.After his arrest PW1 agreed to become a prosecution witness and was the main evidence in the prosecution case in respect of all charges.

5.The two applicants did not give evidence at their trial but their case was that PW1 was a liar and it was he who had brought all the drugs to the 2^nd applicant’s flat.

6.After their sentencing the prosecution applied for forfeiture of monies seized from the 2^nd applicant. The 2^nd applicant did not object to this application and so an order was made accordingly.

7.Both applicants applied for leave to appeal against their convictions. The 1^st applicant also applied for leave to appeal against his sentence. The 2^nd applicant made a similar application out of time but made it clear that he was only concerned with appealing the forfeiture order.

8.At the hearing of the applications the 1^st applicant was represented by Mr Phil Chau on the instructions of the Director of Legal Aid but the 2^nd applicantwas unrepresented as he had been refused legal aid. I granted the 1^st applicant leave to appeal against his conviction and sentence and the 2^nd applicant leave to appeal against his conviction but not his sentence. I said I would later hand down my reasons for so deciding and this I now do.

9.In respect of the 1^st applicant I found all his grounds of appeal reasonably arguable. In respect of the 2^nd applicant I did not grant leave to appeal in respect of any of his homemade grounds but rather on the basis that grounds 1, 3 and 4 of the 1^st applicant’s Perfected Grounds of Appeal would, arguably, if successful, redound to the benefit of the 2^nd applicant. I also granted an appeal aid certificate to the 2^nd applicant so that he would have legal representation at the hearing of his appeal.

10.In respect of the 2^nd applicant’s application out of time to appeal against his sentence the 2^nd applicant said that he had received advice from his lawyer that he should not oppose the application for forfeiture but rather concentrate on his appeal against conviction. This advice the 2^nd applicant said he followed notwithstanding that he had documentary proof, which he had shown to his lawyer, that the monies seized from him had been given to him by friends in order for him to buy mobile phones for them. However, since being sentenced his family was being troubled by the persons who had given him their monies for these mobile phone purchases. He maintained that there was nothing to connect the monies seized from him with the dangerous drugs in respect of which he had been convicted of trafficking.

11.The position of the 2^nd applicant is that when he did not oppose the forfeiture application he believed there was nothing to connect his monies to the dangerous drugs and that he had in his possession documentary records to prove this fact. Nevertheless, he decided to act upon his lawyer’s advice. This decision was clearly an informed and considered decision. He now wishes to resile from this decision because of the circumstances that have occurred in relation to his family.

12.I am not persuaded that anything the applicant has told me would provide a reasonably arguable ground of appeal for successfully appealing the consent order which the judge made. Furthermore, in my view, notwithstanding past Court of Appeal practice to the contrary, there is a large question mark over whether an appeal against sentence can be used as an appeal mechanism for appealing a forfeiture order.[1]

13.I informed the 2^nd applicant of his right to renew his application for leave to appeal against sentence before the Court of Appeal and also of that court’s power under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 which that court could exercise adversely against him should he renew his application and should the Court of Appeal find no merit in it.

Mr Derek Wong SPP, of the Department of Justice, for the respondent

Mr Phil Chau, instructed by Robertsons, assigned by DLA, for the 1^st applicant

The 2^nd applicant appeared in person