HKSAR v. OKAFOR JOE K KINGSLEY

CACC 158/2019, [2023] HKCA 1327

On Appeal From [2019] HKCFI 1844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 158 OF 2019

(ON APPEAL FROM HCCC NO 250 OF 2018)

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REASONS FOR JUDGMENT

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Hon Macrae Acting CJHC (giving the Reasons for Judgment of the Court):

1.  On 7 May 2019, the applicant was unanimously convicted before Toh J (“the judge”) and a jury of one count of Trafficking in a dangerous drug, namely 343 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the following day, the applicant was sentenced to 15 years’ imprisonment. At the same time as the applicant was sentenced for the Trafficking offence, he was also dealt with in respect of a separate charge, to which he had earlier pleaded guilty but about which the jury knew nothing; namely, one count of Possession of an Identity Card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177. For this offence, he was sentenced to 8 months’ imprisonment, which the judge ordered to run wholly concurrently with the 15 years’ imprisonment for the principal offence.

2.  On 15 May 2019, the applicant filed a Form XI Notice applying for leave to appeal against conviction on the Trafficking count, in which he listed a number of grounds of appeal. He specifically stated in the Notice that he was not applying for leave to appeal against sentence. Nevertheless, on 23 October 2019, he filed another Form XI Notice applying for leave to appeal against sentence out of time.

3.  Both applications for leave were refused at a hearing before a single judge on 29 September 2020[1]. On 6 October 2020, the applicant filed a Form XIII Notice seeking to renew both applications for leave. There followed a number of documents filed by the applicant, in particular what he termed “new additional grounds” against conviction and/or sentence, dated 16 November 2020, 26 November 2020, 29 December 2020, 21 June 2021, 15 July 2021, 4 March 2022 and 11 April 2022. Regrettably, the applicant’s overall grounds were presented in such a confused and piecemeal fashion, supported by at times lengthy and separate submissions and affirmations, that it made it very difficult for this Court to know precisely what the applicant was or was not arguing, and to deal with his renewal applications in a coherent and orderly manner, given that only one of the original grounds of appeal appeared to have been renewed.

4.  Further, it was only after his leave application was refused by the single judge that the applicant raised for the first time, on 29 December 2020, a complaint against his trial counsel, Mr Trevor Beel. The responses of his trial counsel and solicitor to those complaints in turn prompted further replies from the applicant.

5.  When the matter came on for appeal on 27 September 2022, the Court was confronted with over 150 pages of hand-written grounds of appeal and submissions from the applicant, as well as other documents and attachments.

6.  In the circumstances, the Court resolved to treat the hearing of 27 September 2022 as a ‘directions’ hearing, in which the applicant was directed to consolidate his grounds of appeal against both conviction and sentence in one single document, and to file one single written argument in support of his grounds in no more than 15 pages, so that the Court could fully understand his complaints; and Mr Andrew Raffell, on behalf of the respondent, could properly respond to those grounds[2]. Accordingly, the Court gave the following directions prior to the hearing of 27 September 2022:

“The appeal papers have been presented in a piecemeal and developing manner by the applicant, which have resulted in an unclear and repetitious set of complaints, from which it is difficult to discern whether the grounds are a renewal of previous grounds of appeal, in whole or in part, a re-wording or a wholesale re-casting of the original grounds or new and additional grounds on which leave has not been sought. Since the judgment of the Single Judge was handed down on 29 September 2020, the applicant has filed no less than 7 further submissions relating to his original, varied or new grounds of appeal against conviction, comprising 55 pages and 1 further submission relating to his appeal against sentence, which is out of time in any event, comprising 20 pages.

There are, in addition, 5 affirmations filed by the applicant.

The way that the applicant has developed his case in this piecemeal fashion has led to counsel for the respondent having to deal on an equally piecemeal basis with his responses, resulting in no less than 6 submissions from the respondent, comprising 21 pages.

It goes without saying that the Practice Direction, which requires all submissions to be filed in a single document of no more than 15 pages has plainly not been complied with, leading to a thoroughly confusing and prolix set of appeal papers.

The case will not be heard tomorrow (27 September 2022). Instead, the hearing will become a Directions hearing, in which the applicant will be directed to put into one single document his grounds of appeal (without reference to any previous documents he may have filed) entitled ‘Perfected Grounds of Appeal’; without argument and with the reference only to any authorities on which he relies rather than quotation from those authorities. Those grounds which have not been the subject of a leave hearing will be clearly marked ‘new grounds of appeal’, so that the Court understands what is new and what is not.

The applicant will then provide one single document in legible handwriting of no more than 15 pages entitled ‘Written Argument/Submission’ in support of his Perfected Grounds of Appeal.

In response, prosecuting counsel will supply a single document entitled ‘Written Argument/Submission’ in response to the applicant's written argument/submission. It too will be no more than 15 pages in length.

There should be no necessity for any further documents in reply, since the applicant knows what the respondent is likely to say from this protracted filing of documents. He will have the chance to make any further submissions orally at the resumed hearing.

The dates for the filing of these documents by the parties will be discussed at tomorrow’s hearing.”

7.  What resulted from the directions hearing were five hand-written pages from the applicant, containing seven grounds (with sub-grounds) of what are termed “New Grounds of Appeal against Conviction”, and two “New Grounds of Appeal against Sentence” (with sub-grounds); together with a 15-page hand-written argument. The documents were both dated 17 October 2022. All of the grounds, with the exception of Ground 3(b) (as explained in the applicant’s written argument) were, indeed, new grounds, which had not been argued before the single judge more than two years earlier. It should be pointed out that by raising new grounds before this Court, when they had not been argued at the leave hearing before the single judge, nor been articulated until more than three years after his conviction, the applicant was effectively asking for an extension of time in which to apply for leave to appeal on new grounds of appeal: see HKSAR v Yim Shek Wo[3], at [51]-[53]. It is, of course, well-settled that the longer the delay, the more onerous is the duty on the applicant to show substantial grounds for the delay. In the event, given the passage of time, we decided to deal with his new grounds of appeal rather than remit the case back to the single judge to consider whether leave should be granted.

8.  The applicant was convicted on 7 May 2019. Since then, the first scheduled hearing of this appeal was fixed for 22 March 2022. Unfortunately, the hearing had to be vacated because of the 2^nd General Adjourned Period, which affected all courts and took place between 7 March and 11 April 2022. The second date for the hearing of the appeal on 27 September 2022 became, as we have just explained, a directions hearing. The appeal was then re-fixed to 9 June 2023. However, one member of the Court was diagnosed with Covid two days before the hearing, which led to the hearing being vacated in advance. The matter was re-fixed to 18 October 2023. Unfortunately, another member of the Court succumbed to Covid and the hearing was again vacated in advance. In view of the fact that three of the vacated hearings were not the fault of the applicant, as well as the fact that nearly 4½ years had passed since conviction, the appeal was re-fixed at short notice to be heard on 2 November 2023.

9.  On 2 November 2023, having heard from the applicant, we refused leave to appeal on all grounds and dismissed his appeal against conviction. We also refused leave to appeal against sentence out of time and dismissed his appeal against sentence. Furthermore, we made an order of ‘loss of time’ for 3 months. We said we would give reasons for our decision in due course. These are the reasons.

The prosecution case

10.  The prosecution case against the applicant centred on a parcel (“the parcel”), which was sent from Curaçao, an island country in the Caribbean off the coast of South America, to Hong Kong addressed to a purported recipient in Hong Kong, named “Peter Johnson”. On 27 October 2017, the parcel was intercepted by Customs officers at the Express Cargo Terminal of Hong Kong International Airport and, after a preliminary examination, its contents were found to contain the cocaine particularised in the indictment. The drugs had been carefully concealed inside two pulleys of a drilling machine. The street value of the cocaine at the time was HK$614,269.

11.  On 27 October 2017, Customs officers called the local telephone number listed on the parcel, namely 5363 8908, and spoke to a man, who identified himself as Peter Johnson, about the delivery of the parcel[4]. Having re-packed the parcel, a controlled delivery was then made on the same day to the address shown on the parcel, which was in Kam Tin, New Territories. The two Customs officers who went to the address posed as UPS staff. One of the officers then made a telephone call to the same number and spoke to someone again claiming to be Peter Johnson, who said: “Yes I am coming. Just wait outside. I’ll be there shortly”[5]. However, nobody materialised, so another telephone call was made to the same number. The man at the other end of the line again identified himself as Peter Johnson, but said he was not now coming.

12.  Arrangements were then made for the parcel to be collected at a UPS office in Lai Chi Kok, Kowloon. CCTV footage revealed that, at 9:35 am and 2:19 pm on 30 October 2017, the applicant went to the UPS office on two separate occasions[6], yet he did not collect the parcel; further, he was seen wearing a different set of clothes on each occasion[7]. It was the prosecution case that the applicant was in fact checking out the location and had changed his clothes in an effort to conceal his identity and interest in the parcel.

13.  On 31 October 2017, the applicant went to the UPS office again. On this occasion, he presented himself as “Dennis Kelechi”. He asked for the parcel and signed a receipt for it in this name. He also produced a letter of authorisation purportedly from Peter Johnson for Dennis Kelechi to collect the parcel[8].

14.  After leaving the UPS office, the applicant was arrested and cautioned by Customs officers. He said he did not know what was inside the parcel: he was merely picking it up for a friend called Peter. The applicant was searched by the Customs officers, who found on him, amongst other things, the Identity Card of Dennis Kelechi, the applicant’s own Identity Card and two Nigerian passports in his own name[9]. Further, it was an admitted fact that the applicant had in his possession two mobile telephones, each containing a prepaid SIM card, which had been used to call the UPS hotline on 29 and 30 October 2017[10].

15.  It was admitted that the Identity Card in the name of Dennis Kelechi found on the applicant was in fact a replacement card issued by the Immigration Department to Dennis Kelechi on 21 July 2017. The same card had been reported lost on 1 November 2017[11].

16.  The prosecution invited the jury to draw the only reasonable inference that the applicant had falsely represented himself to be Dennis Kelechi because he was collecting a parcel, which he knew contained dangerous drugs, and therefore did not want to use his own name[12].

The defence case

17.  The applicant gave evidence at his trial but called no other witnesses. In summary, he testified that he had been set up by his friend “Petersen”, whom he had known for some 15 years. It was suggested that the arresting officer must have misheard him when he picked up the parcel because he had in fact said Petersen, and not Peter[13].

18.  The applicant was born in Nigeria. He came to Hong Kong in 1997 and since then he has been conducting business in second-hand electronic items, such as televisions[14]. His explanation for not producing his own Identity Card when collecting the parcel was that, having married and subsequently divorced a local woman, he believed his Identity Card was no longer valid. Furthermore, since his current passport was with the authorities, he only had an expired passport on his person[15].

19.  The applicant testified that when Petersen asked him to collect the parcel, he thought nothing of it, since Petersen had helped him send medicine to his mother in Africa. It was Petersen who told him to use the name Dennis Kelechi[16]; and who arranged for him to collect the Identity Card of Dennis Kelechi from another man called “John”.

20.  The applicant denied knowing either Peter Johnson or Dennis Kelechi[17]. However, he accepted that he had been “stupid” in helping Petersen out[18], and in using a stranger’s Identity Card[19].

The sentence passed by the judge

21.  In sentencing, the judge accepted that, whilst there was no evidence that the applicant was the mastermind of the offence, a lot of planning had clearly gone into the offence, given that an authorisation letter and an Identity Card belonging to another person were used by the applicant so that he could collect the parcel using another’s identity[20]. Regardless of his precise role, the drugs would not have been successfully collected without the applicant’s participation and, had he not been intercepted, a substantial amount of cocaine would have reached the streets of Hong Kong[21].

22.  The judge directed herself in accordance with the guidelines in R v Lau Tak Ming & Another[22] and Attorney General v Pedro Nel Rojas[23], identifying the appropriate band of sentence as 12 to 15 years’ imprisonment for trafficking in 343 grammes of cocaine narcotic. Accordingly, she adopted an initial starting point of 14 years’ imprisonment[24].

23.  The judge found that there was an international element present on the evidence, since the parcel had been sent to Hong Kong from overseas, which the applicant must have known when he collected it. She considered that it made no difference whether the drugs were brought into Hong Kong by a courier from abroad, or sent from abroad into Hong Kong. She therefore enhanced the sentence for this factor by one year, resulting in a final sentence of 15 years’ imprisonment[25].

The appeal against conviction generally

24.  The applicant has raised seven grounds of appeal, some of which included various sub-grounds, which were not necessarily related or relevant to the main ground or, indeed, to each other. As we have said, only Ground 3(b) related to an issue raised before the single judge. Ground 7 is a fresh complaint alleging flagrant incompetence by his trial counsel. The following is a summary of his grounds of appeal.

Ground 1: The single judge’s decision was “tainted by apparent bias”

25.  By this ground, the applicant complains, inter alia, that the single judge, in refusing him leave to appeal, had failed to read his grounds of appeal and made his decision “based on the prosecution side of the case”. It was said that such a refusal was “tainted by apparent bias”.

Ground 2: The Igbo interpretation at trial was poor, inadequate and lacking in accuracy

26.  The applicant asserts that the Igbo interpretation he received at trial was substantially impaired, which deprived him of a fair trial. However, no meaningful particulars were given in respect of this ground.

27.  Ground 3 is comprised of three distinct sub-complaints, which do not bear any relation to each other and are in fact separate grounds of appeal:

Ground 3(a): The unanimous verdict of the jury was perverse

Ground 3(b): The evidence of “uncharged acts” and telephone calls were wrongly admitted into evidence

Ground 3(c): The case was not properly investigated by the Customs & Excise Department

28.  Ground 3(a) contends that the jury’s guilty verdict was “against the weight of the evidence”, as there was no direct evidence in the case to prove the applicant’s knowledge of the drugs. Besides, the applicant also complains that the judge pressured the jury to reach a verdict by telling them “four to three is not a verdict”[26].

29.  Ground 3(b) alleges that the judge unfairly allowed the prosecution to adduce the evidence of “uncharged acts” and the telephone calls as part of its case. The uncharged acts of which complaint is made were: (i) the applicant’s possession of an Identity Card belonging to another; (ii) the applicant’s assumption of the name and identity of Dennis Kelechi; and (iii) his presentation of a purported letter of authorisation stating he was Dennis Kelechi.

30.  By Ground 3(c), the applicant complains that the Customs & Excise Department had failed properly to investigate the case; and, in particular, failed to look for and/or apprehend the intended recipient of the parcel.

Ground 4: The summing-up by the judge was confusing and inadequate in its contents

31.  The applicant complains that the judge failed to “properly, clearly and adequately direct the jury in law and procedure” on the law of trafficking in a dangerous drug, circumstantial evidence and inferences. Further, he criticises the judge for unfairly refusing the jury’s request to inspect witness statements during their deliberations.

32.  Ground 5 is made of three distinct sub-complaints, which again bear no relation to each other:

Ground 5(a): The applicant was “entrapped” by Customs officers

Ground 5(b): The applicant’s statements were improperly obtained

Ground 5(c): Prosecuting counsel made unfair and improper remarks during the applicant’s cross-examination and in his closing speech

33.  By Ground 5(a), the applicant argues that Customs officers had “tampered with the evidence”, by which he meant the parcel and its contents, and used the same to “entrap” him, even though they knew he was not the intended recipient of the parcel.

34.  Ground 5(b) argues that he was “forced, persuaded and induced” by Customs officers (acting in concert with the Igbo interpreter) to participate in the making of a post-recorded statement and video-recorded interview (“VRI”). As a result, his right of silence was infringed[27].

35.  By Ground 5(c), it is alleged that prosecuting counsel in his closing speech unfairly drew attention to, and commented upon, the parts of the VRI which the judge had earlier ruled inadmissible, yet the judge did nothing to prevent the remarks or remedy the situation[28]. Further, unfair remarks were made regarding the applicant’s acquaintance with Petersen during cross-examination[29].

36.  There are two distinct complaints in Ground 6, which also bear no apparent relation to each other:

Ground 6(a): The prosecution failed to make proper disclosure to the defence at trial

Ground 6(b): The prosecution failed to put material evidence into the Admitted Facts

37.  By Ground 6(a), the applicant complains that the prosecution, in breach of its duty of disclosure, failed to serve on him certain material evidence in their possession, which may have been relevant to the defence case.

38.  Ground 6(b) argues that the prosecution failed to include the full details of the parcel, in particular, the airway bill number, in the Admitted Facts[30].

Ground 7: The applicant’s trial representatives were flagrantly incompetent[31]

39.  By this most recent ground, the applicant complains that he received inadequate legal representation before and during his trial. In particular, he accuses defence counsel of failing to act on his instructions, and to challenge the “basic facts” of the prosecution case in his defence[32].

40.  The applicant also complains that his trial counsel “manipulated” him into accepting that he was “stupid” by helping Petersen, and admitting the same in front of the jury, which course was prejudicial to him. He claims that this led the judge to make similar prejudicial remarks in her summing-up[33].

The appeal against sentence out of time

41.  The application for leave to appeal against sentence was some 5 months out of time. In an accompanying affirmation to his Form XI Notice (dated 15 October 2019), the applicant stated that he had not applied for leave, because he did not believe he had reasonable grounds to appeal, based on the advice rendered by his trial representatives. However, he was later advised by a fellow inmate in prison that he did have reasonable grounds to appeal.

42.  Two grounds of appeal against sentence have been averred. There are two specific complaints under Ground 1:

Ground 1(a): The trial representatives wrongly advised the applicant that he had no reasonable ground to appeal

Ground 1(b): The trial representatives failed to advance the mitigation of the applicant’s assistance to the Customs & Excise

43.  Under Ground 1(a), the applicant contends that his counsel’s view that there were no grounds of appeal against sentence (or conviction) was “absurd”. Under Ground 1(b), complaint is made that his counsel had acted incompetently by failing to inform the judge of the applicant’s assistance to the Customs & Excise Department.

44.  Ground 2 also comprises two separate and distinct complaints:

Ground 2(a): The judge adopted an excessive starting point 

Ground 2(b): The enhancement for the “international element” did not apply 

45.  Ground 2(a) speaks for itself. The applicant also claims that he gave assistance to the Customs & Excise Department. Ground 2(b) contends that since there was no evidence, direct or indirect, capable of proving that the applicant was involved in the importation of the parcel into Hong Kong, an enhancement for the international element ought not to have been made.

The trial representatives’ response

46.  The applicant’s complaints against his counsel were first articulated in a letter to the court dated 28 October 2020, which was about a month after the judgment of the single judge was handed down. Mr Beel and Mr Brian Littlewood, the applicant’s counsel and solicitor at trial respectively, were directed by the Registrar of Criminal Appeals to file replies in response to the applicant’s allegations.

47.  In a 24-page document entitled “Response to Complaints” dated 15 April 2021, together with various supporting material, Mr Beel maintained that he defended the applicant in accordance with his instructions and to the best of his ability. He accepted that the “basic facts” of the prosecution case were not challenged, but explained that this was done because the only real issue in the case was the applicant’s knowledge. In support of his approach, Mr Beel exhibited to his affirmation two sets of instructions (for the trial proper and the voir dire respectively) and a copy of the Admitted Facts, all of which bore the applicant’s signatures. Mr Littlewood supported Mr Beel’s answers in their entirety.

48.  The following matters are worth noting from Mr Beel’s response. Firstly, Mr Littlewood’s firm was already the fourth set of solicitors assigned to represent the applicant by the Director of Legal Aid. Mr Beel, in a letter to Mr Littlewood dated 15 March 2019, noted that the applicant was “a client that requires a particular finesse”.

49.  Secondly, Mr Beel had conducted five pre-trial conferences with the applicant and, in accordance with the applicant’s instructions, he had personally attended the offices of the Customs & Excise Department at Hong Kong International Airport in order to inspect the applicant’s telephones for information which might be useful to the defence.

50.  Thirdly, the applicant had never indicated or expressed any wish to have an Igbo interpreter to assist him in conference; nor did he reveal any difficulty in speaking or understanding English. In fact, at his trial, he elected to give evidence in English, notwithstanding that an Igbo interpreter had been arranged for him by the court. In this connection, we can make our own observation that from the plethora of documents, letters and affirmations written and filed by the applicant, and from his oral submissions before this Court, the applicant has had no difficulty at all in expressing himself and understanding English clearly. Indeed, as we observed to the applicant at the hearing of the appeal, he had very quickly dispensed with the services of the Igbo interpreter appointed by the court and proceeded to advance all his arguments and engage with members of the Court entirely in English.

51.  Fourthly, following the applicant’s conviction and sentence, it was Mr Beel’s professional judgment that there was nothing in the trial, or in the sentencing process, that would have amounted to a reasonably arguable ground of appeal. He added that, although the applicant did offer to participate in a controlled delivery operation, such offer was eventually turned down by Customs officers on operational grounds; nor was there something in the applicant’s non-prejudicial statement, which would have benefitted him. The judge was nevertheless urged not to enhance the sentence for the international element, since there was no evidence that the applicant had instigated the plan to send the cocaine to Hong Kong, nor been part of the group that had arranged for its transmission[34].

The respondent’s submission in reply (on conviction)

52.  Mr Raffell submitted that Ground 1, which sought to argue with the single judge’s reasoning, did not amount to a proper ground of appeal. In respect of Ground 2, the applicant’s complaint regarding the quality of the Igbo interpretation lacked all credibility, given that he first raised it several years after his trial, and when he had displayed a clear proficiency in English throughout the proceedings.

53.  Regarding Grounds 3(a) and (b), Mr Raffell submitted that the unanimous verdict of the jury was plainly not perverse in the face of overwhelming evidence of the applicant’s guilt; nor was the evidence of the Identity Card of Dennis Kelechi and telephone calls inadmissible in law. As for Ground 3(c), it was misconceived. The arrest of the intended recipient of the parcel (if, indeed, there existed such a person and he could be located) would not be relevant to the only real issue in the trial, which was the applicant’s knowledge that the parcel he was collecting on 31 October 2017 contained dangerous drugs. In respect of Ground 4, Mr Raffell submitted that the judge had directed the jury properly, and the directions given by her were in line with the standard directions required by law.

54.  It was argued that Grounds 5(a) and 5(b) were totally unfounded. There was nothing in the evidence to suggest that Customs officers had entrapped the applicant; and in any event, entrapment would not have amounted to a defence in law: see R v Looseley Attorney General’s Reference (No 3 of 2000)[35]. Nor did the defence apply for a stay on this ground. In respect of Ground 5(c), Mr Raffell submitted that a decision had been made by the prosecution not to rely on the contents of the VRI. Any points made in cross-examination or in prosecuting counsel’s closing address to the jury had nothing to do with the VRI, which was not part of the prosecution’s case. The jury would have known nothing about the VRI, or its contents.

55.  Mr Raffell denied any alleged non-disclosure on the prosecution’s part under Ground 6(a), as evidenced by the lack of any complaint by the defence about non-disclosure, or late disclosure. It seems that the applicant had received two bundles before trial but not properly read one of them. As for the alleged incompleteness of the Admitted Facts in Ground 6(b), it was submitted that they were compiled after discussion between counsel for both parties. Further, the applicant was allowed time to consider the Admitted Facts before he accepted them in open court. In any event, those matters, which the applicant claimed were missing, would not have affected the issue of his knowledge.

56.  It was submitted that Ground 7, concerning the allegation of flagrant incompetence, lacked any credibility and substance. Firstly, notwithstanding that the applicant had confirmed unequivocally before the single judge that he did not have any complaint against his trial counsel, he then proceeded to conjure up complaints against him as soon as he was refused leave to appeal. There was not a single incidence of any dissatisfaction with his lawyers recorded during the trial. Further, the matters raised by the applicant in his affirmations failed to indicate any incompetence at all on the part of his counsel. Moreover, as the basic facts were all unobjectionable, probative and admissible, the applicant’s trial representatives could not be faulted for not challenging them.

The submission on sentence

57.  Mr Raffell submitted that the initial starting point adopted by the judge was within the applicable range of the relevant trafficking guidelines. Furthermore, the evidence demonstrated that when the applicant went to the UPS office to collect the parcel containing the drugs, he must have known that UPS was not a local post office and that the parcel had been imported from abroad. In the circumstances of the case, the 1-year enhancement for the international element was appropriate and entirely justified. As counsel for the respondent, Mr Raffell reiterated that the applicant had not provided any useful information to the Customs & Excise Department. He submitted that the overall sentence of 15 years’ imprisonment could not be faulted.

Discussion on conviction

58.  We wish to say at the outset, and we shall refer to this matter again later, that the applicant has complained, sometimes in very strong language, about almost everyone involved in the process of his trial and conviction. These include the Customs & Excise Department and its officers, prosecuting counsel, the Igbo interpreters provided by the police, the court and his solicitors (although it is clear he needed no assistance with interpretation at all), his own counsel, the trial judge, not to mention the single judge, the Registrar of Criminal Appeals, the Judiciary and judicial system. Some of the objects of these criticisms are often made and are a routine part of the nature of an appeal. However, we strongly deprecate the intemperate language the applicant has used of the judgment of the single judge, which he described as “regrettable and absurd”, “based on error, and misguided” and “completely based on bias and prejudice”, to quote merely some of the epithets used.

59.  Nor can we accept that when the Registrar of Criminal Appeals quite properly pointed out to the applicant, who had sought to raise a new ground concerning counsel’s incompetence following the refusal of leave, that the Court of Appeal had warned applicants of the consequences of loss of time where unwarranted allegations against counsel were advanced as grounds of appeal[36], the Registrar should then have been accused of behaving “like a gangster” in “threatening” the applicant. Furthermore, whilst we can understand the applicant’s disappointment that his appeal should have been adjourned twice because two different members of this Court had succumbed to Covid shortly before his appeal was to be heard, the suggestion in a letter to the Court, dated 18 October 2023, that the reasons for the adjournment were “shocking and unacceptable”, “unbelievable” and “unreasonable excuses”, when Covid was already at an end yet members of the Court were “getting sick whenever it is a day left to my appeal case date hearing”, as a result of which he had “suffered a great injustice (at) the hand of Hong Kong court and legal system”, was totally uncalled for and unjustified. As we have pointed out, despite the Court’s difficulty on 18 October 2023, we were able to re-convene at short notice a mere 15 days later to hear and determine the applicant’s appeal.

60.  It was because of the applicant’s criticisms of the judgment of the single judge in particular that I asked him, when the appeal commenced, if he had any application to make and, specifically, whether he had any objections to the composition of the Court. He said he had none. Accordingly, the appeal proceeded.

61.  We may dispose quickly of Ground 1. It is not a valid ground of appeal in itself to complain about the reasoning of a single judge, whose task is only to determine whether there are reasonably arguable grounds of appeal. There is even less justification for complaint when most of the grounds advanced before the single judge, as in this case, were never in fact renewed before the Court of Appeal. And there can be no valid criticism of apparent bias in respect of the judgment of the single judge, who dealt with all of the matters raised by the applicant, and who properly and painstakingly explained his reasoning over some 27 pages as to why he did not consider there were any reasonably arguable grounds of appeal against either conviction or sentence. Moreover, the applicant was now before the full Court and, although most of his grounds of appeal against conviction were new, we decided to hear his application for leave at the same time as the hearing of the appeal rather than remit those grounds which had not been argued at the original leave application to the single judge; which would have only served to delay the matter further.

62.  In respect of Ground 2, we have already mentioned that the applicant was highly proficient in English, electing, indeed, to give his evidence before the jury in English. The paperwork generated by the applicant himself in this application is all in English and his language is completely understandable. In a lengthy hearing before this Court, he was able to comprehend throughout what the Court was saying and was more than capable of arguing his points and presenting his grounds of appeal articulately in English, with all necessary page references. Although, he was provided with an interpreter by this Court, the interpreter’s services were quickly dispensed with after a few sentences and the applicant chose to present his entire appeal before us in English.

63.  It seems to us that the reason behind this ground of appeal was the applicant’s disagreement with the Admitted Facts, in particular as to whether they accurately recorded that he had made calls to UPS, when he insists UPS had called him. His complaint is that he was misled by the interpreter supplied to him by the defence into signing the Admitted Facts, which were untrue. We shall deal with this specific issue later. For the present, however, we do not accept that the applicant was in need of any interpreter in reading, understanding and authorising his counsel to accept the Admitted Facts. He has shown such a detailed command of the papers in this appeal, which include transcript, submissions, summing-up and sentencing remarks, as well as documentary evidence (both used and unused) that it is fanciful to suppose he would have agreed to his counsel signing something on his behalf, which he did not understand or agree with. Our experience with the applicant is that if he does not agree with something, he says so and does so vehemently. In fact, Mr Beel’s evidence is that the applicant was given the Admitted Facts to read and retain a copy and actually signed his agreement to their contents on a copy of the document, which he produced. There is nothing whatsoever in this complaint.

64.  We shall leave Ground 3(a) until the conclusion of our consideration of the first six grounds of appeal. In respect of Ground 3(b), we do not accept that the evidence of the Identity Card of Dennis Kelechi or the telephone calls were “uncharged acts”: they were important, relevant and admissible pieces of evidence of the applicant’s impersonation of someone he was not, so as to distance himself from the crime of trafficking in the parcel of cocaine alleged. As part of this complaint, it was argued that on the evening of 6 May 2019 (the jury being sent out to deliberate on 7 May 2019), the case number to which the applicant had pleaded guilty, namely possession of an Identity Card relating to another, was published along with the present case number, on the judiciary website. Furthermore, the two case numbers were displayed on the Court List on 7 May 2019. Mr Beel rightly drew this matter to the attention of the judge, whilst at the same time observing, “I think the best thing to do is obviously nothing is mentioned”[37]. He continued by stating his concern that if the matter were drawn to the jury’s attention, it might make it into a bigger issue than it really was[38]. With this assessment, the judge agreed[39].

65.  We accept that the two case numbers should not have been listed together at that stage of proceedings, but we do not think the jury would have been remotely interested in the matter of court listing and its possible implication, even if they had noticed it, of which there is no realistic likelihood or suggestion. In any event, the judge received submissions from the defence and agreed with defence counsel that the best thing to do was to ignore it. We agree with Mr Beel’s assessment and the judge’s decision.

66.  Ground 3(c) is a complaint that Customs officers did not properly investigate the matter and endeavour to locate Peterson or Peter Johnson, assuming they were different people and even existed. Even the applicant asserted that Peter Johnson was in Nigeria at the time of collection of the parcel. We regard this criticism as misconceived. The only real issue for the jury to determine was whether at the time the applicant picked up the parcel on the day in question, he knew that it contained dangerous drugs. Whether other people existed and were involved in this enterprise in Hong Kong or elsewhere did not resolve that issue. There is nothing in this ground.

67.  By Ground 4, the applicant complains of inadequate and unclear judicial directions by the judge in her summing-up. Two matters in particular were raised in this regard: first, the judge refused to allow the jury to inspect “all witness statements”, which the jury had requested by way of a question during their deliberations[40]; second, the judge instructed the jury that “four to three is not a verdict”[41] (although this matter was argued also under Ground 3(a)).

68.  In respect of the first matter, the judge was entirely correct as a matter of law and procedure not to give the jury the witness statements to review, since the statements of witnesses were not evidence, as Mr Beel himself rightly acknowledged when the judge raised the jury’s question for the consideration of the parties[42]. The testimony of the witnesses in court was the evidence, and, as the judge explained, what was said outside court was not evidence[43]. As for the second matter, it was of course correct that a four to three majority either way did not constitute a verdict. Although the judge did not go on to say what should happen if that situation arose, clearly such a situation did not arise because the verdict was unanimous. There is nothing whatsoever in this ground.

69.  We may dispose of Ground 5 very quickly. Customs officers did not entrap the applicant in law, nor did they tamper with the evidence in a way which would have vitiated the conviction. Furthermore, it was an Admitted Fact that the drugs found inside the parcel “have not been improperly altered or tampered with in any way”[44]. As for the applicant’s statements being improperly obtained so as to infringe his right of silence, the prosecution never sought to adduce or rely on the applicant’s VRI.

70.  Nor do we accept that prosecuting counsel made unfair and improper remarks, either during cross-examination or his closing address to the jury. One of the remarks complained of during cross-examination was that prosecuting counsel asked the applicant to address his answers to the jury and not to him[45]. We see nothing wrong with that, nor did Mr Beel for the defence, for he made no complaint to the court. Moreover, the applicant may not have liked the points which Mr Raffell had made in his closing address, but we can see nothing objectionable about making them. There is absolutely nothing in these complaints.

71.  Ground 6 alleges that the prosecution failed to make proper disclosure to the defence at trial. When we explored this matter with the applicant, it became clear that this was a reference to two different bundles of statements and documents he had received, some of which documents in one bundle were not included in the other. It then emerged that one of the bundles included unused material and, in any event, the applicant had received it well before the commencement of the trial but said he chose not to examine it, thinking the two bundles were the same. He has clearly demonstrated an ability to scrutinise and understand all the material in this case and we do not accept that there was any non-disclosure as alleged. The assertion behind this ground of appeal was demonstrably untrue, since the prosecution had made proper disclosure.

72.  A further aspect of this complaint is that the airway bill number, a reference to which the applicant has found in a witness statement, was not included in the Admitted Facts. We fail to see what relevance this has, unless it is being suggested that the applicant was given or picked up the wrong parcel. That was never his case. There is nothing whatsoever in these complaints.

73.  It is here we should deal with Ground 3(a). There was nothing perverse about this verdict at all. The facts and inferences, which flowed from the evidence against the applicant, were cogent and compelling. Not only had he displayed over the course of two days a particular interest in the parcel in question, he had plainly attempted to impersonate someone, who had lost his Identity Card, in order to collect a parcel from overseas addressed to somebody he said he did not even know at the apparent instigation of a supposed friend. The issue was whether the jury could be sure that the applicant knew there were dangerous drugs in the parcel when he collected it. The jury were plainly satisfied of that issue and unanimously convicted him of trafficking. There is nothing in this ground of appeal.

74.  We come finally to the allegation of flagrant incompetence against the applicant’s trial counsel. Before hearing from the applicant on Ground 7, we asked him to consider over an adjournment whether he was intending to pursue this ground of appeal, and drew to his attention the seriousness with which appellate courts have viewed such complaints, if they were later found to be wholly unwarranted and without merit. The reason we did this was, firstly, because the applicant had accused the Registrar of Criminal Appeals of threatening him like a “gangster” when he had said the same thing, and the applicant may not have properly understood the serious position he was in; and, secondly, because it was difficult to see how the particular complaints against Mr Beel could sensibly amount to an allegation of flagrant incompetence.

75.  The applicant suggested, for example, that he had been required by Mr Beel in conference to confess, in front of the jury, his “stupidity” for doing what he did. This had led in due course to the following evidence in examination-in-chief[46]:

“Q. So you would agree as you said that looking back on what you did in hindsight it was a bit of a stupid thing to do.

A. Yes, because I trusted him so much so I just feel like to help him, you know, and realise the stupid thing that I did.”

In cross-examination, the applicant repeated several times that he had been stupid to use another person’s identity to collect the parcel[47]. In our judgment, the applicant was by this evidence attempting to explain his actions and present himself in the only sensible way he could, short of acknowledging actual knowledge of the contents of the parcel. If Mr Beel encouraged him to do so, he would have been stating the obvious. Yet defence counsel is now being criticised as flagrantly incompetent for the advice.

76.  It is here that we should return to the issue of the signing of the Admitted Facts, for it also alleged that Mr Beel exerted undue pressure on the applicant to agree them. We note, however, that in a copy of the Admitted Facts attached to Mr Beel’s response, the applicant has written a sentence in Igbo language above his signature. The sentence, which was translated for us by the court interpreter, reads as follows: “I personally accept what is written on top of this paper above”. It is the applicant’s contention that the Admitted Facts are not correct in saying that the two pre-paid SIM cards found in the applicant’s possession had been used to contact the UPS Hotline or Customer Service Centre on eight occasions. Relying on a statement he has extracted from the unused material, where the statement maker told Customs & Excise that there were no records within UPS of calls being received from the applicant, the applicant claims the Admitted Facts are therefore incorrect and should never have been agreed by his counsel and adduced in evidence.

77.  This contention led this Court to adjourn the matter for the respondent to explain the basis of this evidence to us. Having done so, it became quite clear that, whilst UPS may not have kept records, the relevant telephone company did. We were taken to those records, contained in the jury bundle and exhibited before the jury, which clearly established that what was stated in the Admitted Facts was correct. Yet the applicant, in defiance of this evidence, continued to maintain in answer to questions from this Court that he had never called UPS. We completely reject this contention, which was plainly designed to support the notion that he had been pressured into agreeing an inaccurate set of Admitted Facts. However, they were not inaccurate.

78.  Although the applicant maintained, upon reflection, that he was not making a complaint of flagrant incompetence against defence counsel, it became clear that he very quickly resiled from that position. We wish to state that we have read Mr Beel’s submissions to the jury and to the judge, as well as the evidence of the applicant, which defence counsel had led at trial. We have also read the 24-page response (with numerous attachments) of Mr Beel to the applicant’s complaints against him, which he has explained took no less than eight days to prepare for the Court. We can state categorically that Mr Beel’s conduct and performance at this trial was entirely competent and in the applicant’s best interests.

79.  Even the complaint against counsel’s competence, which only surfaced after leave by the single judge was refused on 29 September 2020, emerged in a piecemeal fashion, with the first complaint against counsel being made on 16 November 2020, more than 18 months after the applicant’s conviction. That allegation, however, was confined only to a complaint that counsel had “failed to represent the applicant properly in mitigation”. It is noteworthy that at the hearing before the single judge when the applicant made the point that he had explained something to his counsel regarding the telephone calls, which his counsel did nothing about, the single judge pointed out that this was not a ground of appeal and enquired whether the applicant was raising a new ground of appeal. To this specific question, the applicant said “No”.

80.  On 26 November 2020, the applicant nevertheless broadened his complaints of flagrant incompetence by his counsel to “during and before the trial”. These included allegations that Mr Beel visited the applicant in Stanley prison on five occasions without an Igbo interpreter. We have already addressed the issue of the applicant’s fluency in English. Another complaint was the allegation that he had been forced into conceding that he had been stupid to act as he did, which matter we have also already addressed. There were other complaints that Mr Beel did or did not do certain things, which the applicant regarded as important to his defence; in particular, he relied on Mr Beel’s concession that he did not challenge the “basic facts” of the prosecution case. Without addressing each and every complaint, we have considered them but we do not accept them, nor do we find that the applicant was inadequately or incompetently defended in any way at all.

81.  That Mr Beel did not challenge the basic facts of the prosecution case is what one would readily expect where the real issue was a narrow one, and essentially a question of the defendant’s knowledge: that is invariably a defence approach in such cases, which sensibly seeks to focus on that issue. As we have explained, the applicant drew back from his complaint of flagrant incompetence during the appeal, but his position then seemed to change as he developed his oral submissions. We found no merit whatsoever in Ground 7.

82.  For these reasons, the application for leave to appeal against conviction was refused, and the appeal against conviction dismissed.

83.  We turn now to our consideration of the applicant’s appeal against sentence out of time.

Discussion on sentence

84.  The applicant complains about the arithmetical starting point and the enhancement of 1 year’s imprisonment for the international element. He also says he should have been given credit for offering to assist the authorities.

85.  The judge expressed, in her reasons for sentence, that there was a lot of planning involved, but the evidence did not show the defendant to be the mastermind”[48]. We accept that there may not have been sufficient evidence that the applicant was the mastermind, but his involvement and culpability were certainly greater than that of an unconnected person merely going to retrieve a parcel from the post office, knowing there were dangerous drugs inside. The applicant went to the UPS office three times over the course of two days, which together with the making of various telephone calls to UPS, says much about how interested and careful he was to find out about and retrieve the parcel. When, on 29 October, he was instructed by UPS to produce an authorisation letter in order to collect the parcel on behalf of the purported recipient, it was the applicant’s telephone number which duly appeared on the authorisation letter, supposedly signed by Peter Johnson on 30 October 2017 (Exhibit P26); although the telephone number was, according to the letter, ascribed to Dennis Kelechi, whom the applicant was impersonating. Moreover, according to the applicant, the signatory to the letter was Peter Johnson who, assuming he existed at all, was at the time in Nigeria[49].

86.  These facts demonstrate that the applicant was far more concerned with this transaction than as a mere collector or courier of a parcel: he was closely involved in orchestrating and managing its collection. As for his knowledge that the parcel was coming from abroad, that was obvious from the fact that it was UPS parcel delivery. Despite the applicant’s submission to us that it could have been a local delivery within Hong Kong, his evidence-in-chief was rather different, viz.[50]:

“On the morning (of 30 October 2017) I went there around 8-something, 8:45, then I waited until the UPS opened then I approached the staff in the counter. I told him that a friend of mine asked me to check if I could help him to collect a parcel that was sent to Hong Kong to another person.” (Emphasis supplied)

He further showed the tracking number of the parcel to UPS staff[51], which was also consistent with his understanding that the parcel had come from abroad. If that was not already obvious, during the telephone conversation between the officer of UPS Customer Service and the applicant on 30 October 2017 (Transcript at Exhibit P43), the applicant (who was already pretending to be Dennis Kelechi) was expressly told “your shipment from overseas to Hong Kong, your shipment is ready at the Lai Chi Kok service centre” (emphasis supplied).

87.  The arithmetical starting point of 14 years’ imprisonment for the quantity of cocaine involved was unimpeachable. However, the applicant’s role and culpability in facilitating the entry of the cocaine into Hong Kong was, as we have said, higher than a mere courier with knowledge of the presence of dangerous drugs and, given his involvement, would have merited an enhanced starting point of 15 years’ imprisonment. The applicant did not have the benefit of a clear record or any other relevant mitigation. We do not accept that he provided any assistance to the authorities, which was of any practical use. It was for these reasons that the application for leave to appeal against sentence out of time was refused and the appeal dismissed.

88.  However, we would add this. The applicant may consider himself fortunate in one respect. The sentence of 8 months’ imprisonment following a plea of guilty for Possession of an Identity Card belonging to another person could well, subject to totality, have been ordered to run partly consecutively and partly concurrently to the principal sentence. In the circumstances of this case, we would have ordered 4 months of the sentence for this offence after plea to run consecutively to the 15 years’ imprisonment for the offence of trafficking, the remaining 4 months’ to run concurrently; thus making an overall sentence of 15 years and 4 months’ imprisonment. However, we shall not interfere with the overall sentence passed for both offences, particularly in view of our consideration of the question of ‘loss of time’, to which we now turn.

Loss of time

89.  In this particular case, the applicant had made an application for leave to appeal against conviction, and against sentence out of time, and had been refused leave on both applications on 29 September 2020, the single judge having given comprehensive reasons why he was refusing leave in a 27-page judgment. Notwithstanding the refusal, and despite the warning of the single judge, the applicant renewed his application and then added a number of new grounds of appeal, on which leave had not been sought and which were technically out of time, including one that his counsel at trial had been flagrantly incompetent. He was specifically warned by the Registrar of Criminal Appeals and by this Court, in line with the Practice Direction, yet he seemed incensed that the Registrar should have seen fit to draw this to his attention. We have found that there was no merit whatsoever in any of the applicant’s grounds and absolutely no warrant or justification for the complaints against counsel, which, as we have explained, the applicant at first resiled from at the appeal hearing, before nevertheless persisting with the complaint.

90.  We invited the applicant to address us as to why we should not make an order under section 83W of the Criminal Procedure Ordinance, Cap 221 (“the Ordinance”). He urged us not to make such an order, saying that he had been handicapped by not having a lawyer to assist him. Having heard the applicant, we do not think he was handicapped or would have been put off arguing this appeal, which has occupied us for the best part of a day. In the result, the grounds put forward were wholly without merit or justification. We have already mentioned that defence counsel took some 8 days to prepare a comprehensive response to the applicant’s allegations, yet the applicant persisted.

91.  It must be reiterated that one of the unfortunate effects of applicants putting forward wholly unmeritorious appeals where leave has already been refused is that appellants who have been granted leave because they have reasonably arguable, and possibly successful, appeals are prevented from being heard earlier in what is a busy Court of Appeal. Inevitably, that will result in them waiting longer in custody for their appeals to be determined.

92.  Since the applicant’s appeal was totally devoid of merit and he had been warned several times in various ways of the consequences of renewing his application, and of persisting with his complaint against counsel, we considered that we should make an order for loss of time of 3 months, although we gave consideration to a longer term. Accordingly, in the exercise of our powers under section 83W of the Ordinance, we ordered that 3 months of the time the applicant has spent in custody pending the determination of his appeal should not be reckoned as part of the sentence to which he is for the time being subject.

Mr Andrew Raffell, counsel on fiat, instructed by the Department of Justice, for the Respondent

The Applicant appeared in person