HKSAR v. Solomon Dominic Musa

CACC000617/1999

CACC 617/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 617 OF 1999

(ON APPEAL FROM DCCC NO. 264 OF 1999)

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Coram: Hon Stuart-Moore VP, Mayo VP and Stock JA in Court

Date of Hearing: 5 March 2002

Date of Judgment: 5 March 2002

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1By notice of motion dated 8 November 2001, the applicant seeks leave of this court to withdraw his notice of abandonment of his application for leave to appeal against conviction.

2Before his conviction, the applicant was the Principal Immigration Officer in Sierra Leone. He came to Hong Kong in February 1999, and was arrested in March 1999 after an undercover operation in which he was said to be selling diplomatic passports to an undercover agent to be used by whomsoever wanted their names inserted, and for whatever purposes suited them. He was tried in the District Court upon two charges: the first, upon which he was, on 18 November 1999, convicted, of attempting to transfer to another a travel document without reasonable excuse, contrary to section 42(2)(a)(ii) of the Immigration Ordinance, Cap. 115. There was an alternative charge of accepting an advantage as an agent of the Republic of Sierra Leone which related to the acceptance by the applicant of US$540,000 for these diplomatic passports. Given the conviction on the first charge, no verdict was delivered in relation to the second. The judge in the District Court sentenced the applicant to a term of three years' imprisonment.

3On 10 December 1999, the applicant gave notice of application for leave to appeal against conviction. After a number of adjournments to accommodate the applicant, the hearing of the application was set, ultimately, for 15 December 2000. By notice dated 11 December 2000, the applicant abandoned his application for leave to appeal against conviction. But a hearing before this court proceeded on 15 December, nonetheless, to determine an application by the Secretary for Justice pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221 for a review of sentence. That application was successful, and this court substituted for the sentence imposed by the trial judge a sentence of seven years' imprisonment. Thereafter the applicant sought legal advice and has instituted this application, in support of which he has sworn an affidavit dated 30 October 2001.

4The essence of his account is that he was obliged to abandon his appeal because it was made clear to him by his Government at home in Sierra Leone that abandonment was a condition precedent to diplomatic action by that Government to secure, or to attempt to secure, his release from custody in Hong Kong and his return to Sierra Leone; but that the Sierra Leone government has reneged on that understanding. He says that he knows the President of Sierra Leone, and spoke to him in February 2000; and that in March 2000 the President sent him a fax, instructing him to withdraw his appeal and that he, the President, would then liaise with the Government of the Hong Kong Special Administration Region for a reprieve.

5The applicant says in this affidavit that he agreed to take this course but insisted that his criminal record in Hong Kong "be eliminated". However, despite correspondence with the Sierra Leone Embassy in Beijing, which correspondence he says supports the abandonment direction, nothing much happened. Then, on 16 October 2000 he received a visit from the Foreign Minister of Sierra Leone, a Dr Banya. It is common ground that such a visit took place. Dr Banya was on his way to London from a visit to Beijing. Dr Banya told him, according to this affidavit, that the President believed in his innocence and would take action through diplomatic channels to secure his release but that he, the applicant, had to abandon the appeal.

"... as a pre-condition of this I had to abandon my appeal. He said my appeal would embarrass the Government of Sierra Leone. Further, with pending appeal proceedings, the President was not able to arrange for the diplomatic action with the Chinese Government. He further asked me not to disclose the arrangement to anyone including my legal adviser so as not to create possible hinderance to the arrangement."

6He asserts that he had no option but to cooperate, and to abandon the appeal, for if he did not, then, when eventually he returned to Sierra Leone, the Government there would be in a position to punish him for not cooperating. He contends that Dr Banya said to him "Drop the appeal and go home." And importantly, the applicant adds: "At that time, I verily believed his words without suspicion. ... Therefore on 28 November 2000 I gave formal notice to the Court of my abandonment of my appeal." The reference to 28 November is a reference to the date of the letter signifying abandonment, but was not received by the court until 8th or 9th December. He adds that after the Review hearing on 15 December, he wrote asking the Embassy in Beijing to take action to send him home. We do not have a copy of the letter. There is however a copy of the letter from the Embassy of 21 December which, he says, asks for court documents confirming the abandonment of the appeal. Yet nothing happened, and he realised that he had been betrayed by his own Government, but does not know the true reason for that betrayal.

7Mr Mullick appears on behalf of the applicant. He puts the application on the footing that the applicant was, when he abandoned the appeal, acting under a mistake of fact, namely, the mistaken assumption, founded on pressure and assurances, that once he abandoned the appeal, his Government would be taking steps to have him reprieved and sent home. He was duped, so that his mind did not go with his act. That being so, the abandonment was a nullity.

8We do not intend here to rehearse the basis upon which an abandonment might be treated as a nullity since, for reasons which we shall shortly state, it is unnecessary to do so. It is accepted by Mr Mullick that the burden of establishing the nullity is on the applicant. We find that the applicant has failed to establish the premise upon which he advances his case. In other words, the suggestion that he was forced to abandon the appeal is not established. We find it a most unlikely scenario and one which is not only unsupported by the documents or by the common sense of the matter but, more importantly, is quite contrary to clear pointers which emerge from the correspondence. Furthermore, even if it were the case that representations were made that if he abandoned his appeal, steps would be taken on his behalf to secure his release, it is not shown that he relied on such representations. On the contrary, again, the evidence is replete with indications that he was not, when he abandoned the appeal, acting in reliance on any such hope.

9Nor do we intend here to rehearse in any detail the history of correspondence between the applicant and the court, and between the applicant and the Hong Kong SAR administrative authorities and with the Government of Sierra Leone. It is copious, significantly more voluminous than that exhibited to the applicant's affidavit, and we have the benefit of a bundle of correspondence prepared by the respondent, running to 70 pages, much of it in the applicant's own manuscript, which we have read. It suffices to make the following observations:

(1) The applicant starts from a position where his credibility is not high. There is in the proposed appeal no attack on the findings of fact by the judge and those findings of fact, which are supported by the strongest of evidence, show that the applicant spun before that court a wholly implausible story. To this day he insists that he had authority to do what he did. Yet the evidence was that what he was doing was not merely selling diplomatic passports, but was selling them to whomsoever came along and for whatever nefarious purpose they were required, and with a view that anyone's name be inserted. It is notable how, in his continuing assertion of lawful authority, he shies away from these essential features of the case.

(2) There is not a document from the Sierra Leone authorities showing that the Sierra Leone had instructed the applicant to abandon his appeal. Nor is there a single document from the applicant to the Sierra Leone authorities to show that the applicant had been told or had been instructed to abandon the appeal - none before and none after the abandonment, and none even after the Government of Sierra Leone allegedly reneged on the deal. All there is is correspondence in which the only person who raises the question of abandonment is the applicant, and in so far as there are one or two letters from the Sierra Leone Embassy in Beijing mentioning abandonment, that is in response to suggestions made to them by the applicant that the appeal has been abandoned. The fax said to be from the President of Sierra Leone dated 23 March 2000 is one which the applicant says is "a fax message from the President instructing me to withdraw my appeal". The fax says nothing of the sort, certainly not on its face. It simply says that he is prepared to ask the Sierra Leone Embassy in Beijing to ask the Government here to grant a reprieve. It is notable that, despite the suggested instruction from the President in March 2000, the applicant did not withdraw his appeal.

(3) There is no logic in the contention that the applicant was instructed by the Sierra Leone authorities to abandon the appeal because they wished to avoid publicity. There had already been a lengthy trial. Quite what harm further publicity was to do is not explained. A further motivation is put to us today on the applicant's behalf by Mr Mullick. It is suggested that if the appeal was abandoned the applicant's position in Sierra Leone would be unaffected, in other words, that he would get his job back. This is entirely new, and the first whisper we have heard of it. It is not in the affidavit, and it is in none of the correspondence.

(4) It appears from the correspondence that in or about May 2000 the Embassy had been told by the applicant that he had instructed the solicitors to abandon the appeal. There is no evidence from the solicitors that such an instruction had been given. If it had, it was, self evidently, not implemented. We are told orally today by Mr Mullick on the applicant's behalf that no such instructions were in fact given or formally given. Why, then, the Ambassador was told that that they had been we do not know.

(5) In his affidavit, the applicant says that after letters from the Embassy in May "nothing further was then heard from the Government of Sierra Leone as to the diplomatic action to take me back to Sierra Leone". Yet in a letter, not exhibited to the affidavit, and dated 15 June 2000, the applicant wrote to the court referring to that very correspondence and saying "I write to inform the court that I have since received instructions from AG the President to abandon my appeal and allow my government to take appropriate diplomatic action which I do not know about". (Emphasis added) He here returned to a frequent refrain which was his desire to expunge the criminal record, and he added that he had told the President that he was willing to abandon the appeal "if the court will allow it, because the prosecution has appealed".

(6) There are throughout the correspondence a number of attacks by the applicant upon the credibility and trustworthiness of various persons or bodies, including his own Government. There are notable examples of this in June, July and August 2000. Very significantly, we note that in November 2000, but three weeks after his meeting in Hong Kong with the Foreign Minister of Sierra Leone whose word, according to his affirmation, he so trusted, the applicant wrote to the court complaining about the conduct of his Government, and saying that he was willing to abandon the appeal only if his criminal record were expunged, and saying that he insisted on proceeding with his appeal despite his Government's efforts to secure his release. This sits decidedly ill with assertions that he was bending to instructions of the Foreign Minister given in October. It is apparent to us that the applicant was hoping all along to secure some agreement by the authorities in Hong Kong to allow him to go; to expunge his conviction by some administrative or court induced measure. This frequently mentioned condition also sits ill with the contention that he had to obey an unconditional demand by his Government that before any approach was made he must abandon his appeal.

(7) We note that a diplomatic approach was in fact made on his behalf by the Sierra Leone authorities, and that that was as early as February 2000. We see that from correspondence from the Foreign Ministry of the People's Republic of China (PRC) in Beijing to the Director of Administration in Hong Kong, by which the Foreign Ministry reported a meeting in February 2000 in Sierra Leone between the Ambassador to the PRC and the Foreign Minister of Sierra Leone, at which the Sierra Leone Foreign Minister expressed the hope that the Hong Kong SAR might reduce the sentence, or deport the applicant, or transfer him to Sierra Leone to serve the balance of his sentence. The suggestion that the Sierra Leone Government was only prepared to make representations if and once the applicant abandoned his appeal, is fundamentally contradicted by this episode.

(8) The suggestion that anything said to him by the Foreign Minister in October was influencing the applicant not to pursue his appeal is further undermined by the fact that correspondence with the court in November and in early December shows the applicant intent on proceeding with his appeal. For example, the applicant filed full amended perfected grounds of appeal in his own hand dated 4 December 2000 which, he said, he intended to argue. On 5 December he wrote saying that his legal aid certificate had been discharged because counsel was not prepared to argue grounds of appeal against conviction. Yet he makes it clear in that letter that he intends nonetheless to proceed, and that he intends to submit written argument. It is true that his letter of abandonment dated 28 November talks of an instruction by his Government not to proceed, but this was not sent until after the letters of 4th and 5th December.

(9) It is evident that not long before the December hearing the applicant was having trouble with those assigned to represent him. He was not happy with the advice he had been receiving in relation to the appeal. There is in the circumstances good reason to believe that the abandonment of the appeal had everything to do with an appreciation of the chances of success on appeal, and his fear of the respondent's Review, and of the impact that pursuit of an appeal against advice might have upon the court's attitude to sentence. There is also every reason to believe that his correspondence with the courts suggesting that he might abandon his appeal was based on a hope that he could effect some deal by which he could be allowed to return home, whilst at the same time not conceding that any abandonment was an acceptance by him of guilt.

10It should be self evident from these comments that the applicant's contentions in support of his application are not credible. He has failed to establish, even on a balance of probabilities, that he was given the instructions which he says he was given; and he has failed to show that, even if the instructions were given, he had relied upon them; and he has failed completely to show that his decision was other than a free and fully informed decision. The factual basis upon which this application is launched is far from established and, accordingly, the application is dismissed.

Representation:

Mr John Mullick instructed by Messrs Yaddy Cheung & Co. for the Applicant

Mr I C McWalters, SADPP of the Department of Justice for the Respondent