HKSAR v. Ebhonun Akonjie Alex

CACC 163/2022 [2024] HKCA 1074

On appeal from [2022] HKCFI 3223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 163 OF 2022

(ON APPEAL FROM HCCC NO 101 OF 2021)

_______________

_______________

________________

J U D G M E N T

________________

1.On 7 September 2022, following a trial before Toh J (the Judge) and a jury the applicant was convicted of one count of trafficking in a dangerous drug, namely 296 grammes of a solid containing 256 grammes of cocaine (Count 1) and one count of conspiracy to traffic in a dangerous drug, namely 1,179 grammes of a solid containing 737.2 grammes of cocaine (Count 2). On 8 September 2022, the Judge sentenced the applicant to 12 years’ imprisonment on Count 1 and 20 years’ imprisonment on Count 2, with 10 years of the sentence for Count 2 to run consecutively to the sentence for Count 1, with 1 additional year as an enhancement and to run consecutively to the sentence of Counts 1 and 2, making a total sentence of 23 years’ imprisonment.

2.On 21 May 2024, the applicant filed a notice of application for leave to appeal against sentence out of time.  In the circumstances, it is required that the applicant apply for an extension of time in order to give notice of the application.  The applicant had previously applied for leave to appeal against conviction on 30 September 2022.  This was heard and refused by me on 12 April 2024.  The applicant filed an application for renewal of his leave application against conviction on 23 April 2024, which he subsequently abandoned on 21 May 2024 and was accordingly marked dismissed.

3.The applicant appears in person in support of his leave application against sentence out of time, having had legal aid refused.  He filed a written submission in English at the commencement of the leave hearing, which addressed the grounds of appeal that he had set out in previous correspondence.

The prosecution case

4.At about 10:25 am on 11 June 2020, the applicant, a Nigerian national, was intercepted by a Customs officer at Winslow Street, Hung Hom, Kowloon and was found to be in possession of a large carton box (the parcel).  It was not in dispute that the applicant had collected the parcel that had been sent from Nigeria to Hong Kong, and that he told the Customs officer the parcel contained a machine for washing carpet.[1]  The Customs officer inspected the machine and noticed a crack in the motor.  He suspected it concealed a compartment, and he told the applicant they would have to take him to the office to check it.  The applicant agreed and asked the Customs officer in English, “Is there something bad inside?”  The Customs officer told him there may be something inside the machine, so they had to check it.  The Customs officer escorted him to the baggage examination section in the Customs Arrival Hall of the Hung Hom Station for further investigation.  An examination of the machine revealed that it contained the drugs particularised in Count 1.[2]  The applicant was arrested and cautioned.  The Customs officer pointed to the three bags of white powder found and asked the applicant if he knew what they were.  The applicant said, “I don’t know”.  The Customs officer asked him, “Who owns this?”, and he replied, “My friend.  He asked me to bring the machine.”  When he was asked how they could find this friend, the applicant said his friend’s name was “Prince”, and he had his contact telephone number stored in his Samsung mobile telephone. The Customs officer searched the applicant and found three mobile telephones and an airway bill in his possession.  The airway bill (no. 32440530345) was dated 27 May 2020 and produced as exhibit P17 at trial.[3] 

5.The applicant agreed to take part in a controlled delivery operation by contacting Prince in order to give him the machine containing the drugs.  This took place at about 1:50 pm that day, but Prince did not show up, and the operation was terminated.

6.The prosecution relied on WhatsApp messages extracted from the applicant’s mobile telephone, including one which was sent from the applicant to Prince with the address details of the name Mr Sylvester Boma and the mobile telephone number +852-54117310 on 20 May 2020, prior to the collection of the parcel. 

7.The prosecution alleged that it could be inferred that the applicant knew the parcel contained drugs from the following matters: the applicant sent the delivery details of the parcel to Prince; he actively arranged for the package to be delivered to him; and he was in possession of the parcel containing a valuable quantity of drugs, with a street value of $431,864.  The prosecution also relied on the applicant’s statements in his first and second video recorded interviews conducted on 12 June 2020, including his text messages with others, including Prince, which were only in dispute as to their meaning.

8.A further search of the applicant’s mobile telephone revealed WhatsApp messages concerning a bill of lading numbered 2173781945, which was put on the watch list.[4] On 13 June 2020, a parcel from Costa Rica with this bill of lading number was intercepted and found to contain the cocaine particularised in Count 2.[5]  The prosecution relied on the WhatsApp messages between the applicant and a person called “Nicky”, that there was an agreement to traffic in the dangerous drugs between them.  On 7 June 2020, the applicant gave the details of the airway bill to Nicky, who sent back to the applicant the same name and address details for Mr Albert Simon with the same mobile telephone number +852-54117310.  Nicky gave the applicant the bill of lading number and told him, “Track after Wednesday” and “DHL”.  In reply, the applicant said, “Ok.” 

9.It was the prosecution case that from the circumstances of the case, primarily that the applicant had the details of the airway bill and was in possession of the mobile telephone 54117310, an inference could be drawn that he had knowledge of the drugs and was party to a conspiracy to traffic in them.

The defence case

10.The applicant denied knowledge of the drugs in both offences in his two video recorded interviews and oral evidence in court.  In support of his case, he relied on his denial of knowledge of the narcotics upon his arrest.  During the controlled delivery operation, when he asked Prince to collect the parcel, Prince replied, “Okay”, but later said, “Sorry, I can’t come” in the WhatsApp messages, which was argued was consistent with his case that he was simply helping Prince collect the parcel. 

11.The applicant in his first video recorded interview, mentioned that it would be difficult for him to speak in English and not have a lawyer or an interpreter.  It was alleged that that was the reason why the Customs officer stopped the interview, in order to find an interpreter.  It was complained that the interviews were unfairly conducted because of the absence of an Edo or Esan interpreter.  It was also complained that the second video recorded interview was conducted without an interpreter, in circumstances where the applicant had difficulty speaking a language that was not his mother tongue. 

12.The applicant was not sure and did not know the full name of Prince, although he suggested that Sylvester could be his real name.  He testified that he simply acted as a middleman for a person called Martin, who had a store in Yuen Long.  In respect of Count 1, he said he helped Prince receive the parcel from Martin.  Having acquired the delivery details from Martin, he then sent them to Prince.[6] In respect of Count 2, he said he knew Nicky sometime in 2019, when he was arranging cargo for Martin.  On 6 June 2020, having acquired the delivery details from Martin, the applicant sent them to Nicky.[7] 

13.In the applicant’s defence, it was pointed out that there were other addresses and telephone numbers exchanged between the applicant and Prince and Nicky.  There was insufficient evidence to show that the parcel, which Nicky asked the applicant to track, was the one in Count 2. It was also pointed out that the applicant received no rewards, as indicated in his video record of interview, and there was no reference to drugs in any of the WhatsApp messages. 

The sentencing of the applicant

14.In mitigation, it was submitted on the applicant’s behalf that he was merely a courier[8]; he participated in a controlled delivery, notwithstanding it was unsuccessful[9]; there was no evidence of any reward received by him[10]; and that the totality principle would apply in respect of the sentences passed on each count[11].

15.In sentencing the applicant, the Judge took into account, the total quantity of cocaine involved of 993.20 grammes (256 grammes in Count 1 and 737.20 grammes in Count 2)[12]; the applicant’s status as a Form 8 recognizance holder[13]; his asserted role as a mere courier[14]; the international element involved[15]; and his participation in the controlled delivery[16].  Applying HKSAR v Abdallah [17] and R v Lau Tak Ming [18], where trafficking between 600 grammes and 1,200 grammes of cocaine corresponded to a sentence ranging from 20 to 23 years’ imprisonment, the Judge adopted a starting point of 22 years’ imprisonment.[19]  She gave a one year enhancement for the international element[20]; a 6 months enhancement for the aggravating factor of the applicant’s status as a Form 8 recognizance holder; and a 6 months discount for the mitigating factor of his participation in the controlled delivery.[21]  This resulted in a total sentence of 23 years’ imprisonment. 

16.The Judge sentenced the applicant on the basis of the total quantity of drugs in the two counts, but at the same time, she set out the starting point for each count according to the sentencing guidelines for the quantity of drugs involved.  Of Count 1, she adopted a starting point of 12 years’ imprisonment and, of Count 2, of 20 years’ imprisonment (which, according to the guidelines, could have been 12 years and 10 months’ imprisonment and 20 years and 8 months’ imprisonment respectively).   She ordered that 10 years of the sentence on Count 2 to run consecutively to the sentence of 12 years on Count 1.  She treated the enhancement for the applicant’s status and the discount for his participation in the controlled delivery as cancelling each other out, as they were both assessed at 6 months. She further added one year for the international element and arrived at a total sentence of 23 years’ imprisonment.[22]

The grounds of appeal

17.The applicant in his notice for leave to appeal out of time said his sentence was manifestly excessive when compared with the sentences of other inmates who had been convicted of similar offences.  

18.In his grounds of appeal dated 16 August 2024, the applicant acknowledged that the total amount of cocaine involved in the two counts fell within the range of a minimum sentence of 20 years, but complained that the partially consecutive element for Counts 1 and 2 rendered the overall sentence unfair.  He also complained that no credit was given for his co-operation with the police in the controlled delivery and the fact that he was not the main culprit.  

19.In his grounds of appeal dated 19 August 2024, the applicant argued that a total sentence of 20 years’ imprisonment should have been imposed by ordering wholly concurrent sentences for the two counts.

Discussion

20.In R v Wong Kai Kong & Anor[23], it was held that in considering whether leave should be given to appeal out of time, a court will take into account: (i) the length of the delay; (ii) whether the applicant has a reasonable explanation for the delay; and (iii) whether sufficient grounds of appeal are shown.  In determining whether to grant leave, it was open to the court to look at the grounds of appeal to check that by refusing leave to appeal, it was not shutting out a substantial and plainly arguable ground of appeal. 

21.The procedural time limits to apply for leave to appeal are imposed for good reason and therefore, “substantial grounds must be shown for the delay” before an extension of time is granted.  It is well-settled that the longer the delay, the more onerous the duty on the applicant. 

22.The applicant was sentenced on 8 September 2022, and on the same day, he signed the application for leave to appeal against conviction, which was filed with the court on 30 September 2022.  The leave application to appeal against sentence was filed on 21 May 2024, which is about 20 months out of time.  

23.I am not convinced by the applicant’s explanation.  The Form XI that the applicant signed for his conviction appeal also had a provision to appeal his sentence.  He said he could have filed his application earlier when he first noticed the excessiveness of his sentence but considered it was “less important” because of his conviction appeal, which he was “very sure” would be successful.  In the circumstances, he thought a sentence appeal would be a “waste of time” if his conviction appeal was successful.  He claimed he made this decision without legal advice.  However, he said in oral submissions that he had a lawyer assigned to him when applying for leave to appeal against conviction.  He stated that he advanced his conviction appeal on grounds filed by counsel, who later advised him not to pursue a renewal of his conviction appeal after leave was refused.  He filed his leave application against sentence out of time after he had abandoned his notice of renewal of application after refusal by a Single Judge.  

24.I find that no reasonable account has been given by the applicant for the inordinate delay in filing his application for leave against sentence out of time.

25.I will nevertheless consider the grounds of appeal to check that by refusing leave to appeal against sentence, I am not shutting out a substantial and plainly arguable ground of appeal. 

26.The applicant claims that his sentence was excessive, particularly when compared with the sentences given to other prison inmates for similar offences.  He has not provided details of these other cases, but it would not have assisted him as the function of the court, when a complaint of this nature is made, is to determine whether the sentence imposed in the case under consideration was in accordance with the relevant sentencing principles and guidelines as properly applied to the circumstances of the offence and the offender.

27.As already indicated, the Judge adopted a starting point of 22 years’ imprisonment, according to the sentencing guidelines for the total quantity of cocaine involved.  This was to the applicant’s benefit as the starting points for each count were 12 years and 20 years respectively, which combined resulted in a total sentence of 32 years’ imprisonment.  In such circumstances, the court would apply the totality principle and determine an appropriate sentence, having considered that the applicant’s criminality involved two offences as well as any other aggravating or mitigating factors.  There can be no complaint for the resultant sentence, given that the quantity of drugs in the second count warranted a starting point of 20 years’ imprisonment.

28.There is no substance to the applicant’s complaint that no consideration had been given to the fact that he was not the main culprit and had received no reward.  The submission have been made to the Judge in mitigation, and when sentencing the applicant, she treated him as a courier.[24] The effect of the tariffs stipulated in Lau Tak Ming and Pedro Nel Rojas [25] and extended for large quantities of both heroin and cocaine in Abdallah apply to a defendant who was involved at the lowest level, namely as a courier or storekeeper.  

29.No complaint can be levelled against the Judge, in addressing the aggravating factors of the international element involved in the two cases and the applicant’s status as a Form 8 recognizance holder at the time of the offences.  The Judge did not treat as an aggravating factor the applicant’s offending consisted of two counts of trafficking, one after the other, which would have warranted a further enhancement to his sentence.  No criticism can be made of the Judge’s finding of an international element in this case, given that the applicant was involved in trafficking cocaine concealed in two different parcels from overseas,[26] and the enhancement of one year to the sentence of 22 years’ imprisonment: HKSAR v Herry Jane Yusuph [27]; HKSAR v Lee Ming Ho [28]. 

30.The applicant was a Form 8 recognizance holder, who arrived in Hong Kong in 2017.  The applicant’s status as an asylum seeker in Hong Kong was an aggravating factor, warranting an enhancement to his sentence.  The applicant was treated leniently with the enhancement of 6 months to his sentence, which could have been higher for a serious offence of trafficking in dangerous drugs: HKSAR v Ali Saif [29].

31.The applicant’s complaint that the Judge gave him no credit for his participation in the unsuccessful controlled delivery is incorrect.[30]  As is apparent from her reasons for sentence, the Judge took into account the nature and circumstances of participation in the controlled delivery, and he was appropriately treated with a discount of 6 months to his sentence.[31]

32.None of the arguments advanced by the applicant are reasonably arguable.  There is no basis for complaint of the total sentence he received, having been convicted of the two offences of trafficking in dangerous drugs after trial.

33.The application for leave to appeal against sentence out of time is refused.  Nevertheless, the applicant is reminded of his right to renew his application for leave out of time to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time 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.

Mr Benny Wong, SADPP, of Department of Justice, for the respondent

The applicant appeared in person

[1]  Appeal Bundle (AB), 22N-O. 

[2]  AB, 22Q-23A.

[3]  AB, 23D-N. 

[4]  AB, 27C-F.

[5]  AB, 28N-U.

[6]  AB, 32H-O.

[7]  AB, 33P-34C.

[8]  AB, 65N.

[9]  AB, 66K-N.

[10]  AB, 66P-Q.

[11]  AB, 66R.

[12]  AB, 60N-Q.

[13]  AB, 61M.

[14]  AB, 61O-P.

[15]  AB, 61R-S.

[16]  AB, 61T-62B.

[17]  HKSAR v Abdallah [2009] 2 HKLRD 437.

[18]  R v Lau Tak Ming [1990] 2 HKLR 370.

[19]  AB, 62C-F.

[20]  AB, 62G.

[21]  AB, 62H-K.

[22]  AB, 62M-P.

[23]  R v Wong Kai Kong & Anor[1990] 1 HKC 279.

[24]  AB, 61O-Q.

[25]  Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

[26]  AB, 61R-S.

[27]  HKSAR v Herry Jane Yusuph[2021] 1 HKLRD 290.

[28]  HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, at [70] and [74] at 1216-1218.

[29]  HKSAR v Ali Saif CACC 309/2017, [2018] HKEC 1567, 14 June 2018.

[30]  AB, 61T-62B.

[31]  HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, at [33].