HKSAR v. Ugwuamaka Chigozie Solomon

CACC 431/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 431 OF 2011

(ON APPEAL FROM HCCC 423 of 2010)

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Before: Hon Fok JA, Macrae and McWalters JJ in Court

Date of Hearing: 11 December 2012

Date of Judgment: 11 December 2012

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J U D G M E N T

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Hon Macrae J (giving the judgment of the Court):

1.The applicant was convicted before Deputy Judge Longley and a jury of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sentenced to 20 years’ imprisonment.  The quantity of drugs concerned was 942.43 grammes of a solid containing 759.75 grammes of cocaine, with a street value of just over HK$1 million.  He appeals by counsel against conviction and in person against sentence.

The facts

2.On 9 July 2010 the applicant, who is Nigerian, was observed by customs officers walking along a path which connected with Pat Heung Road, Kam Tin, in the New Territories.  One of the officers noticed the applicant looking around and formed the impression that he was looking to see if anyone was following him.  He was accordingly intercepted, informed that he was suspected to be in possession of dangerous drugs and that the officers wished to search him.  After an initial body search was conducted, a rucksack which the applicant had been carrying was examined.

3.In the rucksack the officers found two fruit juice cartons containing some egg shaped pellets which the officers believed to be dangerous drugs.  Accordingly, one of the officers cautioned and arrested the applicant in both Chinese and English for contravening the provisions of the Dangerous Drugs Ordinance.  He said that there was no reaction from the defendant to being arrested and cautioned.  The applicant was subsequently conveyed to the Customs Drug Investigation Bureau in Rumsey Street, Hong Kong Island, where he was formally interviewed under caution.

4.The applicant gave evidence and his account of what happened when he was intercepted by customs officers differed from their evidence in a number of respects.  Whereas the customs officers maintained that the applicant had said nothing after he was intercepted, the applicant testified that he had in fact said several things.  When asked what he was carrying, he had responded “Nothing special”.  When he was asked what was in his rucksack, he said that it contained working clothes and fruit juice which a friend had given him earlier.  When the officers told him that they suspected he was in possession of dangerous drugs, he told them that he did not understand what they were saying; and when they asked him where he was going, he said he was going home.  After being informed that the officers had found dangerous drugs in his rucksack, the applicant said he told them that he did not know what they were talking about.

Appeal against conviction

5.On behalf of the applicant, Mr Loughran has argued one ground of appeal which is that the applicant's response (or, rather, lack of it) to his arrest and caution for the offence of trafficking was not properly or fairly dealt with by the deputy judge in his directions to the jury. In particular, he submits that the deputy judge’s directions did not sufficiently convey to the jury the vital importance of appreciating that the applicant’s silence (if that is what they found it to be) could not be used against him.  The passage in the summing up of which particular complaint is made comes immediately after the deputy judge had reminded the jury that according to the arresting officer, he read the caution printed in his notebook out to the applicant and arrested him in both Chinese and English but there was no reaction.  The direction was as follows:

“Well, members of the jury, do bear in mind the wording of the caution and that wording reminds a person that he is under no obligation to say anything. So you may think that it would be very unfair, even if you were satisfied that the defendant spoke English or Chinese, to draw any inference adverse to him from his failure to say anything bearing in mind that he had been told that there was no obligation for him to say anything. If you are satisfied that the defendant was silent, his silence then should not be used as the basis for making any adverse inference against the defendant.”

6.Mr Loughran argues that not only did the deputy judge fail to give the standard direction on silence that is routinely given in such cases but he qualified the approach not to use silence against the applicant by wrongly introducing a discretionary element into the jury’s consideration of his response.  The deputy judge effectively left it open to the jury either not to use the applicant's silence against him if they thought it unfair, or to use it against him if they thought it was fair.  This, it is said, ran counter to the well-settled imperative that no adverse inference can be drawn from the fact that an accused has exercised his right of silence.

7.With respect, we cannot agree with counsel’s interpretation of this passage in the summing up.  As we have observed, the passage follows immediately upon the section of the summing up dealing with the arrest and cautioning of the applicant.  In that context, the deputy judge was explaining to the jury why it was that it would be very unfair to draw any inference against the applicant for his silence when he had just been told that there was no obligation on him to say anything; assuming that he even understood what had been said to him in either Chinese or English.  Having explained the rationale for his direction, the deputy judge then emphatically told the jury that if they were sure he did remain silent (and there was a clear dispute about that), his silence should not be used to draw any adverse inference against the applicant.

8.If the words in the second sentence of the impugned direction, namely “you may think that”, had not been used, Mr Loughran could not sensibly have complained.  However, these words govern the explanation for the direction: the actual direction as to how the jury were to regard the applicant’s silence which immediately followed was that they should not use the applicant’s silence to draw any adverse inference against him. 

9.Whilst it is true that the deputy judge did not recite the standard direction dealing with silence upon arrest and caution, we think there was no danger from what he said in this passage or in the summing up as a whole that the jury might have thought they could use the applicant’s silence against him.

10.There is no merit in this ground of appeal. Since it is the only ground of appeal mounted in the application for leave to appeal against conviction, the application must be refused.

Appeal against sentence

11.The applicant appeals in person against sentence.  He reminds us this morning that he had never been convicted of any offence before and argues that the sentence of 20 years’ imprisonment was in the circumstances too high.

12.The sentence for trafficking in this quantity of cocaine was at the bottom of the range of sentences open to the deputy judge after trial under the guidelines set out in HKSAR v Abdallah [2009] 2 HKLRD 437.  Indeed, the applicant could not have complained if he had received a slightly higher sentence. 

13.There is likewise no merit in this application and the application is also refused.

Ms Vinci Lam, SADPP (Ag) of the Department of Justice, for the respondent

Mr Paul Loughran, instructed by Messrs Yip & Co, assigned by Director of Legal Aid, for the applicant (re: leave to appeal against conviction)

Applicant, in person (re: leave to appeal against sentence)