The Queen v. Ejimukonye Ejimugo

CACC000367/1994

IN THE COURT OF APPEAL

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Coram: Hon Sir T.L. Yang, CJ, Penlington, JA & Stuart-Moore, J in Court

Date of hearing: 4th January 1995

Date of delivery of judgment: 4th January 1995

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JUDGMENT

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Stuart-Moore, J; (giving the judgment of the Court):

1. On 15th July 1994, this applicant was convicted by H.H. Judge W. Wong of trafficking in 5.33 kilogrammes of cannabis, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. He now applies for leave to appeal against his conviction and the sentence of 2 years and 9 months that was imposed.

2. The facts were very straightforward. On 6th April 1994, during a check of parcels sent from Nigeria by Speedpost, a Customs Officer discovered the presence of cannabis packed in four plastic bags inside a box which was addressed to Dr C.T. Hendricks of AZ Trading Company at an address in Nathan Road. The parcel, after it had been resealed, was later taken to that address by a Customs Officer who was disguised as a postman. However, the parcel could not be delivered because a man who was working at the premises said that the owner was out. It was in those circumstances that a collection card was left behind and the parcel was, for the time being, taken away.

3. On the 8th April 1994, two males of African appearance went to the speedpost counter at Middle Road Post Office in Tsimshatsui. This applicant who was D2 in the trial was with Chijioke Umeh also known by a first name of Kevin and who, in the trial, was D1. D1 produced the collection card for the box and stated that he wanted to collect it on behalf of its owner. As both D1 and D2 left the post office, they were stopped. When the applicant was later searched, he was found to be in possession of a piece of paper on which the details were recorded of the parcel's addressee. He also had in his possession a passport that was not his own. Enquiries subsequently revealed that the owner of AZ Trading Company was a Mr Fida Hussain (PW7) who, in turn, had seen a Nigerian customer calling on a number of occasions between 2nd April until 7th April 1994 asking about the parcel. On 7th April, the customer was given the collection card that had been left behind. Mr Hussain was able to identify this applicant as that customer.

4. In his account to the Customs, the applicant made no admissions and stated merely that he had been asked by another Nigerian to accompany him to the post office to collect the parcel, but that he had no knowledge of the contents of that parcel. He also denied any knowledge of the piece of paper that was allegedly found in his trousers and he made out, at the time of his arrest, that the passport had been issued to himself.

5. At the trial, the applicant gave evidence and said that his first visit to the post office with D1 was on 7th April 1994. He had met up with D1 by pure coincidence. For some reason the parcel on that day could not be collected and so both men returned on 8th April 1994. They went to the counter of the post office where D1 received the parcel of drugs and signed for that package It was just after that that both D1 and this applicant were arrested.

6. During the course of his evidence, the applicant explained that the passport that had been found on him had got into his trousers because he had borrowed the trousers as his own clothes were all in the wash. That was a reflection of what he had told Customs Officers at the time of his arrest. He explained, however, during the course of his evidence, that his reason for not telling the Customs at first that this was a passport belonging to his cousin was that he did not want to get his cousin into trouble once he realised that drugs were in the package.

7. The learned judge disbelieved the applicant in his evidence that he had never been to the premises where the parcel was addressed. He found that this was not a case of mistaken identity as there had been quite a number of visits spread over several days. Perhaps more importantly, so far as the finding of the piece of paper is concerned in the applicant's trousers and also his cousin's passport in the same pair of trousers, the learned judge did not believe the applicant's account and was driven to the conclusion that the applicant was well aware of the contents of this parcel. Putting it bluntly, there was a very clear link between the applicant and the parcel through that piece of paper, and if the applicant were stopped, he could produce a passport that would provide him with a false identity. The evidence of that was overwhelming and we can see no reason to disturb the learned judge's findings.

8. As to the sentence, we have in mind the guidelines which are set out in the case of the AttQrney General v. Chan Chi Man [1987] HKLR 221. The sentence imposed was exactly in accordance with the guidelines and accordingly. We refuse the applications for leave to appeal against conviction and sentence.

Representation:

Mr G. DiFazio, C.C., for Crown.

Ejimukonye Ejimugo/Applicant in person.