HKSAR v. Joshua Chukwudi Philip

CACC 363/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 363 OF 2011

(ON APPEAL FROM HCCC NO. 58 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the Court):

Introduction

1.From 1 August 2011 the applicant was tried before Macrae J and a jury on an indictment containing one count of trafficking in a dangerous drug, namely 417.72 grammes of a solid containing 342.29 grammes of cocaine.  On 16 August 2011 he was convicted by the verdict of the jury and sentenced on the same day to 14 years imprisonment, which sentence was ordered to run consecutively to a sentence of 6 months imprisonment which had previously been imposed on him in respect of the offence of breach of condition of stay.  The applicant filed a notice seeking leave to appeal both his conviction and sentence but on 14 December 2011 the applicant’s application for leave to appeal against sentence was dismissed upon his filing a Notice of Abandonment on that day in respect of that application.

2.On 13 December, we dismissed the applicant’s application for leave to appeal his conviction and said we would provide our reasons for so doing at a later time.  This we now do.

The Trial

3.The prosecution case was that on the morning of 30 October 2009 the applicant took delivery of a parcel addressed to a Mr Stanley Yak, 1/F, 75 Nam Cheong Street, Shamshuipo, Kowloon.  The name of the addressee seems to have been misspelled and should have been Stanley Jack.  The parcel was sent by speedpost from Buenos Aires in Argentina to Hong Kong.  The premises at this address is the Silver Star Guest House.

4.The applicant accepted receipt of the parcel from the postman and in order to do so presented to the postman an unsigned and undated letter in the name of Stanley Jack and a photocopy of what purported to be the identification page of a passport issued to a Stanley Jack.  It was an admitted fact that the machine readable part of this document bore the name of another person and that the Immigration Department had no record of this person or of Stanley Jack having entered or left Hong Kong between 1 January 2004 and 16 February 2010.

5.After accepting the parcel the applicant returned to Room 2 of the guest house and then five minutes later came out from that room without holding anything.  He was then intercepted by the Customs and Excise Officers.  A body search was conducted of him but nothing of any significance was found.

6.The applicant then stood outside Room 2 as a Customs Officer searched the room.  That Customs Officer found a black travellers bag on the floor and inside it was the postal package that had just been delivered.  There was also the photocopy of the identification page of a passport and the authorization letter for the collection of the parcel that the applicant had presented to the postman.

7.A Customs Officer then opened the parcel with a cutter and found inside an aluminum metal cylinder.  Attached to the parcel was an airway bill in respect of it.  At that point the applicant was cautioned and arrested and taken together with the exhibits to Customs and Excise’s Office in Tsing Yi. There, the aluminum cylinder was drilled into and cocaine was detected inside it.  Later, it was broken open and found to contain the quantity of cocaine particularised in the charge.  The applicant was then interviewed under caution in the presence of an interpreter.  This cautioned interview was challenged by the applicant in a voir dire but ruled admissible.

8.The applicant elected not to testify and so the defence case was effectively what was said by him in his record of interview.  According to the applicant in that interview he had gone to the Silver Star Guest House to help someone else in response to a telephone call he had received that morning from a number which was hidden.  The caller, who said that he had been given the applicant’s number by a male friend, told the applicant that he was on his way to Vietnam and asked the applicant to help him receive the parcel.  The applicant said that the caller did not tell him what was contained in the parcel and did not offer to pay him any money.  The caller told the applicant that someone would give him a document to enable him to receive the parcel.

9.Subsequently the applicant received some documents, being the letter of authorization and the copy of the passport identification page, from another person.  The applicant said that he did not know the caller who phoned him or the person who gave him the documents and when the applicant received the documents he said he was instructed to go to the guest house to receive the parcel.  The applicant said he did not book the room in the guest house or pay for it.  He said that after collecting the parcel he left the room but was then intercepted by the Customs Officers.  He emphasised that he did not know what was in the parcel when he received it and had not been paid anything for receiving it.

10.At trial the only issue was whether the applicant knew the parcel contained dangerous drugs and had the intention to exercise custody or control over them.

The Grounds of Appeal

11.As the applicant was not legally represented in this application we only had before us comments he had made in his home-made grounds of appeal and in other letters that he had written to the court.  His complaints can be categorized as follows:

(i) there were procedural irregularities prior to his trial in that:

(a)  Customs Officers did not show him the dangerous drug when he was arrested; and

(b)  the applicant was not present when Customs Officers opened the metal cylinder and did not show to him a CCTV recording of this taking place.

(ii) regard was not had to the fact that during the cautioned interview the applicant was not feeling well and was tired from the lateness of the night.  The Customs Officers simply took advantage of his adverse condition and as a result he was not able to present his explanation as well as he could;

(iii) the conviction was against the weight of the evidence in that:

(a)  there was no evidence to show that he knew drugs were contained in the parcel, or even that there was a metal cylinder in the parcel; and

(b)  the evidence reveals that the whole incident was a set up and in this respect the applicant relies on the fact that there was no evidence to show any telephone contact by him with Argentina;

(iv) at the trial one or more of the jurors were sleeping; and

(v) the summing-up of the judge was unbalanced and unfair in that:

(a) the judge gave an impression to the jury that the applicant was in one way or another connected to a drug trafficking syndicate;

(b) the judge highlighted the fact that the applicant was an overstayer and tried to portray him in a bad light;

(c) the judge did not properly direct the jury on what it was that the prosecution had to prove and what evidence was required to show drug trafficking; and

(d) the judge spent more time discussing the prosecution case and said little in respect of the defence case.

Discussion

12.The applicant claims in respect of the evidence that it was insufficient to justify his conviction and that it all pointed to him having been set up. As in so many drug cases this was a case of circumstantial evidence where the jury were required to decide whether they could be satisfied beyond reasonable doubt in respect of the element of possession.  Proof of this element necessarily was by means of inference as there was no direct evidence to establish that the applicant had knowledge of the contents of the parcel.  On the evidence produced by the prosecution it was open to the jury to find that the only reasonable inference that could be drawn was that the applicant did have knowledge of the drugs contained in the parcel.  In the circumstances of this particular case it cannot be said that there was any impropriety in the directions given to the jury on the drawing of inferences or in respect of the jury ultimately drawing an adverse inference.

13.In respect of the applicant’s complaint that insufficient regard was had to his physical condition during his record of interview with the Customs Officers we note that the judge gave very full directions to the jury as to the applicant’s position in respect of this interview saying:

“Although you will bear in mind what Mr Adams (the applicant’s trial counsel) says that while his explanation is essentially true, it may not be the full and accurate account he might have given if the two officers conducting the interview had asked the right questions, or conducted it when he was not so tired and unwell.”

14.Prior to this he had set out in some detail the evidence of the Customs Officers as to the applicant’s appearance during the interview, their concern that he did not seem well and the fact that was taken to Caritas Medical Centre for treatment.  The issue as to the weight to be given to the contents of the record of interview was put fully and fairly to the jury.

15.In respect of the claim of having been set up all that needs to be said is that there was nothing in the evidence which would have enabled the jury to conclude that unknown persons had taken advantage of the applicant and for reasons unknown had falsely implicated him in this offence.

16.In respect of the claimed irregularities in the handling of the drugs we cannot see how that affected the fairness of the applicant’s trial as his counsel admitted the chain of exhibits.  There was no issue taken with the fact that drugs were concealed in the metal cylinder that had been posted from Buenos Aires and the only issue at trial was, as we have said, the element of possession.

17.As to the claim that in the course of the trial one or more jurors were observed to be sleeping, we note that there is no mention of this in the judge’s summing-up and we are informed by the applicant himself that no complaint was made of this in the course of the trial.  We specifically asked counsel for the respondent to make enquiries of prosecuting counsel in respect of this matter and she has informed the court that there was no occasion in the course of the trial that counsel or trial judge mentioned having observed a juror sleeping. There is no substance to this allegation.

18.In respect of the judge’s summing-up we found no merit in the applicant’s complaints.  The judge clearly set out the elements of the offence which had to be proved by the prosecution and of the matters of which the jury had to be satisfied before they could convict the applicant.  Insofar as there was a defence case the judge referred to it.  The criticism of the judge’s summing-up that it was unbalanced and unfair is unsubstantiated.

19.The criticism that the judge referred to the applicant as being an overstayer is misconceived.  What the judge was doing in fact in respect of this matter was trying to avoid the jury from being prejudiced against the applicant because of the fact that he was overstaying.

Conclusion

20.We carefully considered the applicant’s complaints in respect of his trial and of the judge’s summing-up and we could find no merit in them.  We therefore dismissed the application for leave to appeal against conviction.

Miss Agnes Chan ADPP, of Department of Justice, for the respondent

The applicant appeared in person