HKSAR v. LIMBU PRASHANT

DCCC 689/2021

[2022] HKDC 597

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 689 OF 2021

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REASONS FOR VERDICT

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1.  The defendant is charged with one count of trafficking in a dangerous drug. He has denied the offence.

Prosecution Case

2.  The defendant signed for and collected from a customs officer posing as a courier two inbound parcels from India addressed to a “Mr. Saiwant Singh”.  Both parcels contained handbags and pouches.  Concealed in the linings of the handbags in both parcels were cannabis resin in plastic wrappings.

3.  The majority of the Prosecution case is not in dispute.  The material admissions made by the Prosecution and the Defence pursuant to s 65C of the Criminal Procedure Ordinance, Cap 221[1]are:-

(a)  On 25 February 2021, a warehouse assistant of Linehaul Express (HK)  Ltd (“Linehaul”)  handed over to customs officers in Hong Kong an inbound parcel numbered 814004 (“First Parcel”)  from India at the Cargo Examination Compound, Cathay Pacific Cargo Terminal (“Cargo Terminal”).

(b)  Upon examination, customs officers found 20 handbags and 64 pouches inside the First Parcel. 40 packets of what were later confirmed to be cannabis resin (Exhibit P1)  wrapped in plastic wrappings were found concealed in the inner linings of the 20 handbags.

(c)  On the same day, customs officers were notified by a staff member of Linehaul that there was another parcel numbered 814006 (“Second Parcel”)  inbound from India with the same consignee and description of goods as the First Parcel’s. Upon examination, customs officers found another 40 packets of what were later confirmed to be cannabis resin (Exhibit P10)  concealed in the inner linings of the 20 handbags inside the Second Parcel.

(d)  Around 10:40 am on 26 February 2021, a controlled delivery operation for the First and Second Parcels was conducted at Man Ying Street, Jordan, Kowloon. CO 14147 (PW3 in this trial), disguised as a courier from Linehaul, called the number +852 6485 6726 at 9:59 am and a male confirmed later to be the defendant picked up the call at 10:01 am and confirmed that he had two parcels to collect.

(e)  Around 11:14 am, the defendant approached PW3 opposite lamppost no. AB0598 on Man Ying Street. The defendant signed both parcels’ delivery records (Exhibits P8 and P17 respectively)  which were shown to him by PW3.

(f)  P1 and P10 were found by government chemist to contain a total of 8,063.29 grammes of cannabis resin.

(g)  The total street value of P1 and P10 was HK$266,088.57.

(h)  The defendant was arrested by PW3 on 26 February 2021 and was remanded in custody from 26 February 2021 to 1 March 2021.

(i)  The defendant voluntarily took part in a video-recorded interview[2] conducted with the assistance of a Nepali interpreter in the presence of his legal representatives between 4:42 pm and 5:15 pm on 27 February 2021.

(j)  The telephone number 5682 7017 is a prepaid telephone number which was activated on 27 February 2021.

(k)  On 26 February 2021, customs officers conducted a house/home search of the defendant’s home at 1/F, Flat 8, Man Ying Building, Ferry Street, Jordan, Hong Kong and neither drugs nor anything suspicious were found.

4.  Apart from the above admissions, the Prosecution called 4 witnesses, all of whom were customs officers (“CO”).

5.  PW1 was CO 14130.  He was the exhibits officers who unpacked the First Parcel to reveal its contents, which consisted of, inter alia, 40 packets of cannabis resin concealed in the linings of the 20 handbags in this parcel.

6.  PW2 was CO 14123.  He was the exhibits officer who unpacked the Second Parcel which contained another 40 packets of cannabis resin concealed in the linings of the 20 handbags in this parcel.

7.  The evidence of these two witnesses was not challenged by the Defence.

8.  PW3 was CO 14147.  He was the officer who made the controlled delivery on 26 February 2021.

9.  Posing as a courier in the controlled delivery operation, PW3 called the telephone number “+852 6485 6726” appearing on the delivery records and asked the other party in English (which was the language used by both PW3 and the defendant)  if he had ordered 2 parcels.  The other party hung up, and later returned the call and confirmed that he had ordered 2 parcels.  After a few telephone exchanges, PW3 finally met the defendant at Man Ying Street.

10.  PW3 asked the defendant if he had come to receive the parcels, the defendant said “yes”.  He then showed the defendant the First Parcel’s delivery record and, pointing at the receiver’s name on the parcel, asked the defendant, “Mr. Saiwant Singh. Is that you?”  The defendant replied “yes”.  PW3 then pointed at the receiver’s address while reading it out and then asked the defendant if the address was his address.  The defendant again said “yes”.  PW3 then asked the defendant if the receiver’s telephone number “+852 64856726” written thereon was his telephone number.  The defendant also said “yes”.  PW3 then went on to ask the defendant to confirm if the receiver’s name, address and telephone number written on the Second Parcel’s delivery record were his.  The defendant confirmed that they were.

11.  The defendant received both parcels from PW3 after signing the delivery records for them.  Thereupon, PW3 revealed his identity as a customs officer, and proceeded to arrest and caution the defendant.  The defendant was then taken inside a nearby government car for questioning.  Before asking him further questions, PW3 asked the defendant, “Do you speak and listen English?”  The defendant said “yes”.

12.  Inside this government car, the defendant said under caution that he was not the receiver “Mr. Saiwant Singh” named on the delivery records, and that he didn’t know him; the address on the delivery records was not his address, but the telephone number was his; he was collecting the parcels for a friend who used an unknown number to call him.  He said he could not find this friend.  The defendant said he would keep the parcels at his home on 1/F, No 8, Man Ying Building and wait for his friend’s call.  The defendant said he was not receiving any rewards for collecting the parcels.

13.  The defendant was taken to his home for a house search.  The two parcels were opened and their contents revealed to the defendant at his home.  Having been reminded of the caution, the defendant said he had no knowledge of the bags in the parcels, or of the dangerous drugs inside.

14.  The defendant was then taken to the C&E Headquarters Building, where PW3 made a record in his notebook between 1:30 pm and 4:15 pm on 26 February 2021 of what happened during the controlled delivery up to the time when the defendant was brought back to his own home and questioned under caution[3] (“the post-record”).

15.  This post-record was made in English, which was the language used by the witness and the defendant throughout their encounters.  No interpreter was present in the course of the making of this record.  PW3 said he had no difficulty communicating with the defendant, and at no stage did the defendant indicate that he did not understand or had difficulty understanding the witness.  It appeared to this witness that the defendant understood him during the course of the post-recording.

16.  Upon conclusion of the post-recording, the defendant was asked to read through the record and to make whatever corrections, alterations or additions he wished to make.  The defendant did so.  He was then asked to and did write out the declaration at the very end of the post-record.

17.  The following day, PW3 conducted a video-recorded interview mentioned in paragraph 3 (i)  above.  During this interview, the defendant said that he had been told by a friend called “Salwant Singh” whom he had known for 4-5 years to collect the parcels.  This friend told him that the parcels contained “cultural bag”.  His friend’s contact telephone number was 5682 7017.

18.  The admissibility of both the post-record and the VRI was not challenged.  Defence counsel Mr Allan only called into question the accuracy of the post-record, on the basis that as English was not the defendant’s mother tongue, he may not have correctly understood what was said by PW3 to him during their encounters and what was recorded in the post-record.

19.  As to why he did not ask for the assistance of an interpreter in the making of the post-record even though an interpreter was there to translate the contents of the Notice to Persons in Custody (“the Notice”)  to the defendant at 4:35 pm the same day, PW3 said his concern at that time was to make the post-recording as soon as possible.  When he started the post-recording, he did not know that an interpreter would be summoned.  Moreover, the decision on the calling of an interpreter was not for him to make.

20.  In any event, PW3 said that at no time did the defendant ever indicate to him that he had difficulties understanding this witness, or what was recorded.  PW3 said he and the defendant could communicate in English, and the defendant could read English.

21.  PW4 CO 1934 was the last prosecution witness.  He served the Notice on the defendant at 11:30 am on 26 February 2021 in a C&E vehicle.  As this witness was about to explain the contents of the Notice to the defendant in English, the defendant told him that he could read, and he proceeded to read it.  After a while, this witness asked the defendant if he understood its contents.  The defendant replied “yes”, and then signed on the Notice to acknowledge his receipt of it.  PW4 said the English/Nepali interpreter arrived at their office at 4:27 pm on 26 February 2021.  Apart from interpreting the contents of the Notice, the interpreter also interpreted the contents of the post-record to the defendant.

22.  At the conclusion of the Prosecution case, the Defence rightly conceded that there was a case to answer, which was also the court’s ruling.

Defence Case

23.  The defendant elected not to give evidence.  He did not call any witnesses.

Discussion

24.  It is not in dispute that the defendant signed for and received the First and Second Parcels from PW3 who was then posing as a courier, and that these two parcels did contain cannabis resin, a dangerous drug.

25.  From the evidence of PW3 about the delivery and the handover of the two parcels to the defendant, which was not disputed by the defence, I find it proved beyond reasonable doubt that the moment the defendant received the two parcels from PW3, he acquired physical possession of the two parcels which contained a dangerous drug.

26.  Section 47 of the Dangerous Drugs Ordinance, Cap 134 reads:-

“47. – (1)  Any person who is proved to have had in his physical possession-

(a)  Anything containing or supporting a dangerous drug;

(b)  The keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug;

(c)  (Repealed 62 of 1994 s.6)

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2)  Any person who is proved or presumed to have had such drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

(3)  The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug.”

27.  By reason of my finding it proved that the defendant at the material time had physical possession of the two parcels which admittedly contained cannabis resin, section 47 is thereby engaged, and the defendant is presumed under subsection (1)  to have had such drug in his possession; the defendant is further presumed under subsection (2)  to have known  the nature of such drug.

28.  Once the presumptions arise, the defendant bears the burden of rebutting them.  In HKSAR v Hung Chan Wa[4], the Court of Appeal held that the presumptions set out in subsections (1)  and (2)  of section 47 shall be construed so as to create an evidential burden only. On appeal to the Court of Final Appeal[5], this decision was affirmed.

29.  Of the principles set out by the Court of Appeal in Hung Chan Wa[6]to be applied when either or both of the above presumptions are engaged, it would be helpful for the present purposes to quote principles (2)  and (3):-

“(2)  The burden may be discharged regardless of the quarter from which the evidence derives. In other words, the evidence upon which the accused may rely in this regard may emanate from the prosecution or in the testimony adduced by the accused.

(3)  An evidential burden is not discharged by the mere mouthing of words by an accused, whether to the police upon apprehension, or to the court in testimony, that he was unaware that the container housed a dangerous drug. It is, as Lord Steyn commented in Lambert, at page 572:

‘…important to bear in mind that it is not for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter…’”

And whilst the exculpatory evidence may come from any quarter, we respectfully endorse the conclusion by Lord Hope in the same case, at page 588, that:

‘…an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support his defence.’”

30.  Stock JA (as he then was), giving the judgment of the Court of Appeal in HKSAR v Yeung Wai Ho Henry, put it like this: “…The mere fact of giving evidence does not discharge the evidential burden; it must be evidence on the issue in question and more than a bald denial of knowledge; there must be some evidence which if believed could be taken by a reasonable fact finder to support the assertion of lack of knowledge; and further, the evidential burden may be discharged even if the accused does not give evidence – it may be discharged by evidence given by a witness on his behalf or even by evidence emanating from prosecution testimony.”[7]

31.  As was his right, the defendant elected not to give evidence, or call witnesses on his behalf.  The defence relied entirely on evidence emanating from the prosecution case.  Such evidence includes what the defendant said under caution on 26 February 2021 when he was questioned by PW3 in the government car and at his home, as recorded in P19, and what he said in the VRI held on the following day, as recorded on Exhibit P21.

32.  With regard to what the defendant said under caution to PW3 in the government car and in his home, defence counsel Mr Allan pointed out, both in his cross-examination of the prosecution witnesses and in his submissions, that by reason of the fact that English was not the defendant’s mother tongue, the defendant did not have a sufficient understanding of what was said to him in English by PW3 (whose mother tongue was not English either)  and what was written down in PW3’s notebook as a post-record.  However, Mr Allan never put or suggested to any of the prosecution witnesses what it was that the defendant had misunderstood or mistaken the officer for saying, or which answers of the defendant’s given under caution were inaccurately understood or recorded by PW3 as a result of the defendant’s (or even PW3’s)  lack of proficiency in the English language.

33.  I find that the defendant had no problem understanding what was said by PW3 or understanding the contents of the post-record which was written in English.  I accept this officer’s evidence that before asking the defendant questions under caution in the government car, he had asked the defendant: “Can you speak and listen English?”, to which the defendant had replied in the affirmative.  I accept PW3’s evidence that at no stage did the defendant indicate to him that he had difficulty understanding him.  I also accept PW4’s evidence that when he was about to read over the contents of the Notice to the defendant, the latter told him that he could read English, and then proceeded to read the document himself.

34.  I can find no evidence in support of defence counsel’s submission that the record of the conversation between PW3 and the defendant in English may not have been completely accurate. I find that the post-record Exhibit P19 is an accurate record of what transpired between the defendant and PW3 on 26 February 2021.

35.  Mr Allan pointed out that the defendant never admitted knowledge of the presence of the cannabis resin, which was well-concealed in the linings of the handbags inside the two parcels. In fact, once the contents of the parcels and the cannabis resin concealed in the handbags were revealed, the defendant immediately told PW3 that he did not have any knowledge about the drugs concealed inside the handbags.

36.  He submitted that such denial, coupled with the defendant’s cooperativeness with the customs officers, the lack of any attempt to escape from the officers’ custody, and the absence of drugs or other contraband on his person and in his home, showed that the defendant’s claim of lack of knowledge about the presence of drugs in the parcels might be true.

37.  The lack of attempt to escape, the absence of contraband on the defendant’s person and in his home, and his seemingly cooperative manner by themselves are not necessarily indicia of innocence.

38.  In considering whether the defendant’s denial of knowledge under caution is true or might be true, it is necessary to consider, among other things, the entirety of the defendant’s behaviour and his answers to questions other than those about his knowledge of the presence of drugs in the parcels.

39.  In the course of his encounters with PW3, the defendant had not been open and frank right from the beginning.  Before PW3 revealed his identity as a customs officer, the defendant, no doubt thinking that PW3 was a courier, claimed himself to be the receiver stated on the parcels “Mr. Saiwant Singh”, and his address to be the address written on the parcels as the receiver’s address when he was collecting the parcels.  These claims were obviously untrue, in light of what we now know about his name and address.

40.  After PW3 arrested and cautioned him, the defendant, in answer to PW3’s asking if he had any knowledge about the receiver “Saiwant Singh”, said: “It’s not me.  I don’t know him”; with regard to the receiver’s address, he told PW3 that it was not his address.  However, he maintained throughout that the receiver’s telephone number was his own telephone number.

41.  As to why he was there to collect the parcels, he told PW3 that his friend had told him to come and receive the two parcels, that his friend used an unknown number to call him, and that he could not find this friend.  The defendant said he would put the parcels in his room and wait for his friend to call him.

42.  However, on the following day in the VRI, what the defendant told the interviewing officers about this friend was quite different from what he had said the previous day.  In this interview, he said that this friend was “Salwant Singh”, (a name which is different from the name of the receiver on the parcels “Saiwant Singh” by just one letter).  He further said that he had known this friend for 4-5 years. In answer to the question “Do you have any contact of your friend?”, the defendant answered with a telephone number “5682 7017”[8].

43.  In the course of just one day, from the defendant’s own mouth, information about this friend of his had changed from someone whom the defendant could not find to someone bearing the name “Salwant Singh” who had a contact telephone number which the defendant was able to tell the interviewing officers about.

44.  Mr Allan submitted that since the telephone number 5682 7017 that the defendant gave as Salwant Singh’s was a genuine number, as evidenced by the fact that it was an activated number, this shows that what the defendant said about this person was true or might be true.

45.  If the telephone number, which clearly is a means of contact, that he gave during the VRI was indeed his friend’s number, then it renders untrue his claim made the day before to PW3 that he could not find this friend.

46.  However, it is even doubtful whether this number was indeed his friend’s telephone number, in view of the admitted fact that this telephone number was activated on 27 February 2021.  By the time of the activation of this number, the defendant had already been arrested in connection with the present case and was in custody.  If this number was activated after his arrest, how could this telephone number have been his friend’s contact?

47.  He was just as evasive when it came to his knowledge about what the parcels contained.  When the contents of the parcels were revealed to the defendant at his home, and he was asked if he had any knowledge about the pouch bags and handbags inside, his answer was “No, first time see them”.  During the VRI, he was asked whether his friend had told him what was inside the parcels; initially he said “no”, but he went on to say “ar no, I was not told anything, only they had given a short information saying that there will, that is a cultural bag”[9].

48.  It can thus be seen that the defendant chose not to be frank about his identity and his address when he collected the parcels; his answers about the particulars of the friend who had allegedly sent him to collect the parcels changed from one day to the next; and his claim of lack of knowledge about the bags inside the parcels was similarly lacking in consistency.

49.  I can find nothing in the prosecution case which could lend credence and support to the defendant’s claim of lack of knowledge.  His assertion that had no knowledge about the drugs inside the parcels was nothing more than a bald denial of knowledge.

50.  Having carefully considered all the evidence and Mr Allan’s submissions, I find that the material relied on by the defendant in rebuttal fails to cast doubt upon the truth of the facts presumed.

51.  The defendant has therefore failed to rebut the presumptions of possession and of knowledge arising under s 47.  I find him guilty as charged.