R. v. Frank Oweh

CACC000208/1994

IN THE COURT OF APPEAL

1994, No. 208
(Criminal)

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Coram : Hon. Macdougall, V.-P., Penlington & Liu, JJ.A.

Date of hearing : 14 February 1995

Date of judgment : 14 February 1995

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction and sentence in respect of an offence of trafficking in dangerous drugs.

2. The applicant was unrepresented on his application for leave to appeal against conviction, legal aid having been granted only in respect of the application for leave to appeal against sentence.

Conviction

3. The evidence for the Crown, which was substantially not in dispute, was that on 7th April 1993 the applicant arrived at Kai Tak Airport from Thailand and entered the transit lounge. He had a ticket to Lagos via Amsterdam. He presented a Nigerian passport to the immigration officials which however aroused their suspicion because some chops in it appeared not to be genuine. It also bore a departure chop from the Philippines, not from Bangkok where his flight had originated. He was taken to an interview room and was then found to be also in possession of another passport, one purporting to be issued by the government of Sierra Leone which bore a genuine Bangkok departure chop for 7th April. The immigration officials decided to search the applicant's brown bag which he had carried with him on the aircraft. They found inside the lining of that bag a kraft paper packet which aroused their suspicions. They decided to call in members of the Customs and Excise Department who opened the packet and found that it contained white powder which they suspected to be a dangerous drug. That suspicion proved to be correct. In fact the packet contained 3,693 grammes of a mixture in which was 3,306 grammes of no. 4 heroin.

4. There was some evidence, which was disputed, that at the time the packet was found in the applicant's bag he appeared to be agitated and that when he was asked by an immigration official, "Is it powder?" he nodded his head.

5. It was the applicant's evidence that he had been given the bag in Bangkok by a man called Mike Obi but that he had no idea that it contained the packet. He denied all knowledge of the dangerous drug. He said that as far as he was concerned, the bag simply contained his own personal belongings and that he was on his way back to Lagos transiting through Hong Kong and Amsterdam. He said that the man Obi had promised that he could arrange for the applicant to have a visa for Holland but that this arrangement had not worked out. He said that Obi had told him he could apply for such a visa in Bangkok. The applicant denied that he had been nervous when his bag was examined by the immigration officials at Kai Tak Airport and he did not nod his head when asked whether the content of the packet was white powder.

6. We have read the transcript of the trial judge's summing up and are satisfied that the evidence was adequately put before the jury by the judge and that he directed them on matters of law in a manner which cannot be faulted. We are satisfied that there was ample evidence upon which the jury could be satisfied beyond any reasonable doubt that the applicant was fully aware of what was inside the lining of his bag and that this conviction is neither unsafe nor unsatisfactory. The application for leave to appeal against conviction is therefore refused.

Sentence

7. The applicant was sentenced to 23 years' imprisonment. This was on the basis of the authority of R. v. Lau Tak Ming [1990] 2 HKLR 370 which sets out the guidelines for sentences for this type of offence. This court there said that possession of more than 600 grammes of heroin fell into the "very large quantity" category of offence for which a sentence after trial in excess of 20 years imprisonment would be appropriate. This was a sentence passed after trial for a quantity very greatly in excess of 600 grammes, in fact some six times that amount. Mr. Percy fairly conceded that he could not argue that the sentence was wrong in principle, bearing in mind the quantity of heroin involved. His contention was, however, that the trial judge had not taken into account that, the applicant being a Nigerian, imprisonment in Hong Kong for such a long period as this will impose unusual hardship on him.

8. The applicant speaks quite good English, as do other prisoners in Hong Kong who are not Chinese. Regrettably, there are other Nigerians in prison in Hong Kong serving sentences for similar offences and it is a constant source of amazement that persons of Nigerian citizenship coming through Hong Kong Airport seem to think that they are able to bring in substantial quantities of heroin without detection. Quite properly, checks are made on them and their chances of getting through undiscovered are remote.

9. The factor of a foreigner being imprisoned in Hong Kong was considered recently in a decision referred to us by Mr. Percy, Attorney General v. Pedro Nel Rojas, application for review no. 15 of 1993. Their reference was made to R. v. Shipra [1988] 2 HKLR 493. That case however concerned a person who spoke neither English nor Chinese. In R. v. Ohmert, Crim. App. no. 213 of 1985, it was said that:

"While it is quite right to say that anybody caught in somebody else's country and not speaking the local language will find prison a more disagreeable experience than would otherwise be the case that in general is not a circumstance which the court will take into account in mitigation to any substantial degree."

10. Here, the applicant will not be isolated in prison. We do not consider that the factor of being a foreigner called for any reduction in the sentence passed by the trial judge. It was accepted in the court below that the applicant was a courier. But as has been said on many occasions in this court, couriers play a very important role in the international drug traffic and is not a factor which should be taken into account.

11. We do not consider that the sentence passed caused for our intervention and the application for leave to appeal against sentence is accordingly refused.

Representation:

Mr. Duncan Percy instructed by D.L.A. for the applicant re. sentence only

The Applicant in person re. conviction

Mr. D.G. Saw, S.C.C., for the Crown