HKSAR v. SHAIK ABDUL ARSHAD

DCCC 1110/2017

[2018] HKDC 1213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1110 OF 2017

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REASONS FOR VERDICT

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1.  The defendant pleads not guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of the charge read as follows:-

“SHAIK ABDUL ARSHAD, on the 9^th day of August, 2017, at Room No. 2, Flat 3A, 4^th Floor, Tsim Sha Tsui Mansion, No. 87 Nathan Road, Tsim Sha Tsui, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 81.60 grammes of cannabis in herbal form, 167.00 grammes of cannabis resin, 8 tablets containing 1.20 grammes of 3,4-methylenedioxymethamphetamine and 7.29 grammes of a solid containing 5.24 grammes of cocaine.”

Prosecution case

3.  The prosecution called 2 witnesses.  PW1 PC10113 Li Wai Shing was the arresting officer.  PW2 PC9881 Sum Tak Wa was the exhibit officer.  2 more witnesses were tendered at the request of the defence for cross-examination.  They are PW3 Sgt52579 Yuen Wai Lun , a member of the police team involved in the operation, and PW4 Singh Sharanjit, who was the Hindi interpreter assisting the police in the post-arrest procedures, including the video-recorded interview under caution of the defendant.

4.  The prosecution’s case is simple and straight forward.  In the afternoon of 9 August 2017 a team of police officers, acting on information and armed with a search warrant, proceeded to Flat 3A, 4^th Floor, Tsim Sha Tsui Mansion, No 87 Nathan Road. 2 members of the team, viz, PW1 and PW3, proceeded to the premises first while the other team members, including PW2, waited at the lobby of the Ground Floor of the building.

5.  At around 5:40 pm PW1 and PW3 arrived at the 4^th Floor of the building.  They found the door to Flat 3A unlocked and was slightly ajar.  They went inside and found there to be a corridor with 2 doors leading to 2 rooms, Room 1 and Room 2 respectively.  They laid ambush at this corridor.  After about 20 minutes, at around 6 pm, they saw the defendant coming out from Room 2.  He was immediately intercepted by the 2 officers and taken back into Room 2.  Other members of the police team were informed to come to the premises to assist.

6.  A search was conducted on the defendant.  2 keys which could unlock the doors to Flat 3A and Room 2, a mobile phone and HK$4,090 in cash were found in the front left trousers pocket of the defendant.  Upon a thorough search of Room 2 conducted by PW2, a yellow-coloured plastic bag was found on top of the refrigerator inside the room.  The following items were found inside this plastic bag:-

(a) 22 transparent re-sealable plastic bags containing 81.60 grammes of cannabis in herbal form;

(b) 1 transparent re-sealable plastic bag containing 35 sticks (167.00 grammes) of cannabis resin wrapped in plastic;

(c) 1 transparent re-sealable plastic bag containing 8 yellow tablets (1.20 grammes of 3,4-methylenedioxymethamphetamine, commonly known as “Ecstasy”);

(d) 1 black paper box containing 17 transparent re-sealable plastic bags containing 5.24 grammes of cocaine;

(e) 1 electronic scales; and

(f) 263 empty transparent re-sealable plastic bags.

7.  The total estimated street value of all the dangerous drugs found was about HK$36,000.

Defence case

8.  The defendant elected not to give evidence nor did he call any witness.  The Admitted Facts (exhibit P20) indicated that he admitted to be the occupier of Room 2.  He also admitted to the presence of the yellow-coloured plastic bag together with its contents therein.  However, from the way the defence case was presented during cross-examination of the PWs and the contents of the cautioned interview (VRI) conducted shortly after midnight on 10 August 2017 inside the police station, the defendant was asserting that it was a set-up by someone who tipped the police.

9.  During the VRI the defendant asserted that he had been sick and sleeping in Room 2 the whole day.  There were 2 friends, RK and RAJ, who visited him at around 5:00 to 5:30 pm and wanted to take him to see a doctor but he declined.  They then left at about 5:20 pm.  He had not seen nor touched the yellow-coloured plastic bag until it was shown to him by the police.

The issues

10.  The defendant is denying any knowledge of the presence of the yellow-coloured bag and the contents of it in his Room.  The defence confirmed that no issue is taken on “trafficking”.  Thus the only issue in contention is whether the defendant was in possession of the yellow-coloured bag and if so, whether he knew the nature of the contents thereof.

Discussion

11.  The prosecution bears the burden of proof, it is for the prosecution to prove the guilt of the defendant beyond reasonable doubt.  The defendant has no burden to prove his innocence.  The defendant elected not to give evidence.  This is his right and no adverse inference would be drawn against him.

12.  The cautioned interview contained both admissions and exculpatory explanations.  I direct myself in accordance with the principles in relation to “mixed statements”.

13.  In the course of cross-examination of PW1, having established from the witness that the police acted on information received, Mr. Bullett for the defence asked this question: “Who was the informer?”.  This concerned the disclosure of the identity of an informer and was apparently contrary to s 57 of Cap 134.  I enquired with the parties if the proper procedure had been followed, whereupon Mr Percy objected to the question, stating that the prosecution had not been approached nor had he been forewarned of this line of cross-examination.  Mr Bullett presented 2 authorities,HKSAR v Agara [2014] 2 HKLRD 648 and HKSAR v Lam Yat Fung Timothy [2015] 4 HKLRD 679 to support his stance.  However, the procedures as laid down by the CA in those authorities had apparently not been followed.  Mr Percy also asked for time to take instructions on this issue.  The case was adjourned for the parties to discuss this matter.  Upon resumption of the hearing, I was informed by Mr Percy that the matter had been resolved between the parties and Mr Bullett also indicated that he would withdraw the question.  No further issue was taken by either party on this matter.

14.  So far as the evidence of PW4 is concerned, he said he had no independent recollection of the events occurred on 9 and 10 August 2017.  He was cross- examined by Mr Bullett in relation to the accuracy of part of the transcripts of the VRI, in particular, @ 557 of exhibit P17.  The defence also objected to the admissibility of @712 to @802, on the grounds that they are irrelevant and the prejudicial effect far outweigh the probative value.

15.  So far as @557 is concerned, PW4 agreed that the transcript did not accurately reflect what the defendant had said in Hindi as PW4 had made some mistakes in the interpretation during the VRI.  The accurate interpretation of what the defendant had said at @557 should be as follows:-

“I woke up, and I got afresh. After afresh, I was going to see doctor. Then I come back.”

16.  As to @712 to @802, they were questions and answers relating to past experience of the defendant in taking dangerous drugs.  The defendant admitted that he had taken some form of dangerous drugs given to him by his friends during social occasions in discos but had no idea what those drugs were.  That was the extent of his admissions.  Mr Bullett submitted 2 authorities, HKSAR v Zabed Ali (2003) 6 HKCFAR 192 and HKSAR v Ngie Hon Miu (No 2) [2016] 1 HKLRD 991 in support of his application.

17.  The prosecution objected to this application, on the grounds that the evidence is relevant to the previous experience the defendant has with dangerous drugs, and thus the issue of knowledge.  There is no question of uncharged conduct as there is insufficient evidence to support any possible criminal charge against him purely from the relevant part of the transcript in issue.

18.  Whether a piece of evidence is relevant to an issue in a trial depends on the way the parties present their respective cases.  Given that this case involves a total denial of possession, I do not see the past experience in taking unspecified type of dangerous drugs by the defendant relevant to any issue in the case.  Even if I am wrong on this, I find that the answers by the defendant are highly prejudicial to him, and far outweigh whatever probative value there maybe to any issue in the case.  Accordingly, I ruled that the part of the transcript from @712 to @802 in P16, P17 and P18 to be inadmissible.  I will ignore those parts of the exhibits during my deliberation.

19.  The defendant was seen to be covered by a dark-coloured blanket throughout the interview.  The defence submitted that this is clear evidence to support his claim during the VRI that he had been sick on that day.  I do not agree.  The defendant was arrested at about 6 pm by the police for a very serious offence.  He was taken to the police station and detained until the VRI, which took place just after midnight.  It was suggested to PW2 in cross-examination that at the time of the interview, the air conditioner in the room was on and at high speed, to which the officer agreed.  Under such circumstances, it would not be surprising that the defendant felt cold and was provided with such a blanket.  There was no other admissible evidence to support the other allegations made on behalf of the defendant, eg, that he had requested for medical treatment, or that he had been provided with medication (Panadol) twice, whilst in police custody prior to the VRI.  Further, the defendant appeared to be alert and coherent in answering the questions put by the officers.  He was obviously able to understand English and even Punti.  He answered some of the questions in English (eg @316, 439, 486, 714 and 939) and in Punti (eg @172, 225 & 390).

20.  It was alleged by the defence during cross-examination of the police witnesses that the defendant was in Room 2 in pajamas when the police parties entered.  These allegations were all denied by the PWs.  It was revealed during cross-examination of these witnesses that there had been some confusion as to where the keys, mobile phone and cash were found on the defendant, the left or right trousers pocket. PW1 was re-called for further cross-examination on this issue.  It was PW1’s explanation that he might have wrongly recorded in his statement that they were found in the front right trousers pocket when in fact it was the left front pocket where these items were found, as he testified in court. This is a minor discrepancy which causes me little concern.

21.  It is an admitted fact that the various dangerous drug exhibits and their wrappers were subsequently sent for fingerprint examination without any useful result.  The defence submitted the lack of fingerprint evidence, in the context of the present case, tends to support the defendant’s assertion that it was a set-up, as only the informer would have cleared all the fingerprints from the exhibits.  I cannot accept this contention.  There is no evidence before me to suggest that the result of the examination was a result of deliberate fingerprint cleaning exercise.

22.  I have carefully considered all relevant evidence.  I accept that all PWs are honest and truthful witnesses.

23.  The room was rented to the defendant for 1 year by an organization called ISS which was mainly concerned with providing assistance to asylum seekers like the defendant.  He was alone in Room 2 with the keys to the main door of Flat 3A and Room 2 in his possession.  It is difficult to accept that any person could come and go in Room 2 without restriction like the defendant had alleged.  It is equally difficult to accept that 2 friends came to try to take him to see a doctor but left just before the police arrived, because he had declined their offer.  Yet he would try to go to see a doctor soon afterwards.  I have no hesitation in rejecting the exculpatory explanations given by the defendant in the VRI.

24.  Having considered all the evidence and the submissions in the case, I come to the conclusion that the defendant was leaving Room 2 when he was intercepted by the police officers laying ambush outside.  He was fully aware of the presence of the yellow-coloured bag and the nature of the contents thereof in his Room.  The way the dangerous drugs were packed, and the presence of the other paraphernalia clearly demonstrated that the defendant was in possession of the dangerous drugs for trafficking.

Conclusion

25.  The prosecution has proved all the elements of the offence to the necessary standard.  The defendant is convicted as charged.