HKSAR v. KOSAR MAHMOOD

CACC 274/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 274 OF 2010

(ON APPEAL FROM HCCC423/2009)

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REASONS FOR JUDGMENT

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

1. On 19 January 2012 we dismissed the applicant’s applications for leave to appeal conviction and sentence: in respect of the former he was represented before us, as he was at trial, by Ms M Panesar of counsel but in respect of the latter he was unrepresented. We indicated that we would furnish reasons for our decision in due course: these are they.

2. The applicant was convicted after trial before Deputy Judge A Chan and a jury of a single count of trafficking in dangerous drugs, which occurred on the night of 10 September 2009 at a barbecue area in the New Territories. The applicant was sentenced to undergo imprisonment for a period of 21 years.

3. When this matter first came before this Court, differently constituted, on 5 July 2011 it was adjourned to enable us to be furnished with a transcript of the closing speech for the defence together with any submissions which the parties wished to make upon a very specific issue identified by this Court, namely, a passage in the prosecutor's closing submissions appearing at page 275 C to N and R to T dealing with the issue of the credibility of the Customs officers which had been attacked throughout the trial. We now have that transcript. We also have Amended Further Perfected Grounds Appeal against conviction as well as supplementary written submissions for the applicant. We propose to deal with the six grounds for appeal initially advanced by the applicant and then the issue raised by this Court.

4. The facts upon which the prosecution relied were straightforward: shortly after midnight Customs and Excise officers saw the applicant riding a motorcycle which turned down a lane in the direction of the barbecue area. After arriving at the barbecue area the applicant stopped the motorcycle close to a saloon car. The applicant took a black bag from a box on his motorcycle, walked to the boot of the car, used a key to open that boot and then placed the black bag inside it. Thereafter he was intercepted by two officers. A key was seized from the applicant’s hand which, on questioning, the applicant indicated was for the car. That key then was used to open the boot and the black bag was retrieved from it. The applicant was arrested: he remained silent after being cautioned. Substances were present in the black bag which were subsequently analysed: it was an admitted fact that they contained 0.641 kg of heroin hydrochloride and 0.092 kg of monoacetylmorphine hydrochloride.

5. The defence to the charge proffered by the applicant was that his presence at the barbecue site at that time was due to the fact that he had been there previously in the evening for a social event and had left earlier only to return to collect a friend who had remained behind. He had not transported the black bag at any stage, taken it out of the box on his motorcycle or placed it in the boot of the car. Whilst disputing virtually every facet of the evidence of the prosecution witnesses, he particularly denied that the key to the boot of the car had been seized from his hand.

THE APPEAL AGAINST CONVICTION

6. Six grounds of appeal were advanced by the applicant in support of the application against conviction. We deal with each in turn.

Ground 1: upon conclusion of the applicant’s testimony, the judge asked questions which adversely affected or destroy his credibility before the jury.

7.  We have read the passages about which complaint is made. We do not intend to reproduce them for none was inappropriate. Although they were obviously directed at aspects of the evidence which the judge viewed as needing clarification, they were couched in moderate terms. Far from adversely affecting the applicant’s credibility, at least one of the questions afforded the applicant an opportunity of placing before the jury evidence which, if believed, would have advanced his case.

Ground 2: the first aspect to this ground is that prosecuting counsel in cross-examination of the applicant "erroneously" (A) suggested it was immoral for the applicant to leave an ill child at home, albeit with the applicant's wife, and go out with friends; (B) questioned the applicant as to whether he knew any reason why the three Customs and Excise officers would be framing him. The second aspect is a complaint that no direction was given in respect of a question which was disallowed.

8. Prosecuting counsel’s suggestion concerning the applicant going out whilst his child was ill was directed towards the applicant's credibility. It was a perfectly proper question to have asked, even if that conduct itself hardly could be described as "immoral".

9. Whilst it may be "... seldom helpful for the prosecution to cross-examine [an] accused about..." (per Chan PJ in WONG Kwok Wang, Warren v HKSAR (2009) 12 HKCFAR 218 §42) whether he knew of any reason why witnesses who were strangers to him might be testifying falsely against him, there is no bar as such to the question being asked. The prosecutor contented himself with the negative response received from the applicant in response to the question and did not attempt to pursue the matter further.

10. Moreover, the judge, when making reference to the applicant’s answer to this question during the summing up, specifically told the jury:

He could not help. Let me tell you this. It is for the prosecution to satisfy you that the prosecution witnesses are telling the truth and that the burden always remains with the prosecution... There is no obligation on the defendant to show that there is a motive to lie.

11. That was an appropriate direction to have given. It was submitted on behalf of the applicant that the judge should have continued to direct the jury that they should not speculate why the Customs officers might lie and that the failure to do so suggested the applicant had a reason to lie. That was a submission that verged on the fanciful.

12. As to the second aspect, the question asked by prosecuting counsel was "Now, your account of what you say happened with these officers..., you've never advanced that before, have you?". Ms Panesar asked for the question to be repeated. It was not. Prosecuting counsel immediately indicated that he was "... only taking it that far." It was the judge who then indicated to prosecuting counsel that he anticipated the question may be inappropriate to which prosecuting counsel reacted, appropriately, by simply saying "All right" and moving on to another topic. There was thus no evidence before the jury that the applicant’s account had not been advanced previously.

13. It is fair to say that this brief exchange was one of many interjections and asides that occurred between counsel and the judge during the trial. It would have been open for the judge to have directed the jury either at the time or during the course of the summing up to the effect that prosecuting counsel's question should be ignored. Equally, it was open to the judge to deal with the incident on a "least said, soonest mended" basis. Clearly, he chose to follow the latter course which, in the circumstances, cannot be criticised sensibly. For the sake of completeness, we noted that there was no indication on the record that Ms Panesar asked at any stage that such a direction be given - relating to what, in the context of the trial overall, was a trivial matter.

Ground 3: a number of complaints are made

-  the judge’s direction that the jury "may wonder why a customs officer would suddenly asked the defendant to confess possession of dangerous drugs" was wrong given that the applicant had not made any admission under caution and had asserted that he had resisted threats, assault and inducements.

14. This complaint took what the judge said out of context. The judge laid clearly before the jury the fact that the defence case was impropriety on the part of the Customs officers - not only by giving false testimony against the applicant but also by brutalising him. The context was that the phrase used by the judge appeared after a reminder that the applicant had not signed a document after his arrest and was in these terms:

There is no signature of him on Notice to Persons in Custody, tamperproof evidence bag. You may also ask why a customs officer would suddenly ask the defendant to confess possession of a dangerous drug. If you remember the defendant’s evidence he once mentioned that some customs officers offered him drink, sexy photographs, and songs in order to please him.

15. The remark was a sensible and appropriate one when viewed in proper context.

-  the judge erred in failing to direct the jury to consider whether the applicant would have made an admission about the car key when he had refused to say anything else or sign any documents.

16. The judge had told the jury that they had to determine the credibility and reliability of the evidence of the prosecution witnesses. The judge had made that quite plain to the jury. It was a matter for the jury whether or not they accepted that the applicant had made the admission concerning the car key: the jury were well aware that no other admissions had been made by the applicant. It is not necessary for a judge to traverse every minute point that is made either for or against the prosecution or defence: the judge had given the jury the standard direction that it was not necessary for them to decide every point that had been raised in the course of the trial.

-  the judge erred in his direction regarding the seizure of the car key.

17. Once again, this ground ignored the context of the criticised phrase which was expressed at a stage when the judge was dealing with the evidence of an independent prosecution witness, PW8, a security guard, whose evidence the defence suggested contradicted the prosecution evidence in a number of respects, not least the point where the applicant had been intercepted by the Customs officers. It was quite plain that the point the judge was making was that only the applicant had been intercepted at the scene and then suggested to the jury that a matter which they may wish to consider was, in those circumstances, from where the car key had been obtained if not from the applicant: this was relevant to their assessment of the testimony of  PW8.

18. The judge, of course, had made it abundantly clear to the jury on a number of occasions that the applicant's position was that he had never been in possession of the car key, had made no admissions concerning it and that false testimony was being given against him.

-  the judge had destroyed the value to the defence of the testimony of the security guard by mis-characterising it.

19. What the judge said concerning this witness is worthy of quoting in full because it illustrates, first, the judge’s endeavour to ensure a fair and balanced summing up and, second, the selectively incomplete quotations proffered in support of the applicant’s submissions:

In this case, you may think, members of the jury, the most important prosecution witness is PW2 for he was the only one who claimed to have witnessed the defendant's handling of the dangerous drugs. The defence says PW2's account cannot be right for his account of events was severely undermined, contradicted, by another prosecution witness, PW8, the security guard.

PW8 was a security guard working for Billion Rising Hong Kong Building Materials Wholesale Centre Ltd. The whole site at 590 Ma Tin Tuen, according to him, belonged to his employer. The site was sublet to various business enterprises.

He was on duty on the morning of 10 September 2009. According to his evidence, shortly after midnight, while he was in the washroom, he saw a motorcycle entering the site. By the time he finished, he went out to have a look and noticed the motorcycle was then far away. He saw a few people running after the motorcycle. He rushed down to see what was going on. When he was about 10 to 20 feet from this group of people, he was told that the police were working. He saw the motorcyclist being pinned down on the ground. At that time the motorcyclist still had his helmet on. He was an Indian/Pakistani. PW8 was then asked a number of questions by this group of people. He was asked if he knew the motorcyclist and details of the motorcycle etc.

Members of the jury, the defence says that PW8, being an independent witness, has no reason to take side. He does not know the defendant and has no reason, therefore, to lie. The defence says that his account of events clearly supports what the defence says as to what had taken place that night.

Members of the jury you have listened to the evidence given by PW8. You have been able to observe his demeanour when he gave his evidence. Although in the course of answering questions he was not able to recall a lot of details, he had nevertheless told you clearly what he saw Customs Officers do to the motorcyclist.

Members of the jury, how much weight you are going to give to PW8’s evidence is of course a matter for you. Looking at the sequence of events as they unfold, you may think that by the time PW8 came out of the washroom and by the time he walked down to that group of people, the transfer of the black bag from the motorcycle to the Toyota private car had already been completed. As such, PW8 might have only witnessed the latter part of what happened that night.

Do you remember the interception point, the transfer of the black bag from the motorcycle to the Toyota private car before interception? When PW8 came out, walked down, he witnessed the interception. Nevertheless, the latter part he saw was still quite different from what the customs officer said.

20. That seems to us, having read the transcript of PW8’s evidence, to be a fair summary, albeit brief, of what he said. The judge clearly laid out for the jury, both at the beginning and end of this passage, the fact that there seemed to him to be conflicts in the prosecution evidence. The effect, if any, that those conflicts may have had on the jury's decision was, naturally, a matter for the jury.

Ground 4: the summing up was unfair and imbalanced because it destroyed and/or undermined the defence and points favourable to the defence whilst bolstering the case of the prosecution.

21. In support of this ground six specific complaints were made concerning passages in the summing up describing certain passages as “advocacy” on the part of the judge. Such a description is wholly unwarranted.

22. Each of the matters about which complaint was made was a matter upon which the judge was entitled, and in some instances obliged,  to comment to the jury or to commend to them for their consideration. We have considered each passage individually as well as the effect of them cumulatively. The judge did not exceed the limits of good sense or fairness and approached his task neutrally. We are satisfied that, when looked at overall, the judge complied with the requirements, expressed by Litton PJ in Tang Siu Man v HKSAR (1997-98) 1 HKCFAR 107 at 121B that: "When it comes to the summing up, the fundamental rule is that this must be fair and balanced, so that the jury can properly weigh up the true issues."

Ground 5: the judge failed to give a Liberato direction.

23. The Court of Final Appeal in Jim Fai v HKSAR (2006) 9 HKCFAR 85 §16-17 said:

16. However, there is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury's deliberation of their verdict. It is only when the jury feel sure that the prosecution evidence is true and can be relied on that they can convict the accused. If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, I are not to convict upon it. On the other hand, when it comes to defence evidence, even if the jury totally reject it, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused. If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case. In that case, the jury have to acquit him.

17. This crucial difference between the treatment of prosecution evidence and defence evidence necessarily follows from an application of the principle that it is for the prosecution to prove the guilt of an accused beyond reasonable doubt. It is therefore essential, in order to be fair to the accused, that the jury should be properly directed on this aspect in clear and simple terms. As Brennan J said in Liberato & Others v R (1985) 159 CLR 507 at 515: "The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."...

24. What the judge said in this matter was entirely consistent with that decision when viewed in the light of his earlier directions on the burden and standard of proof.  He said:

It is for you to decide whether you believe the defendant’s evidence or his witnesses’ evidence, whether it may be true or whether you reject it. If the account given by the defendant, in any aspect, is or may be true, in that aspect of his account must not be rejected. If the defence put forward by him might be true, then he is entitled to be acquitted of the charge.

However, even if you entirely reject the account given by the defendant and reject the defence he put forward to the charge, that does not relieve the prosecution of their burden of proving the defendant's guilt before you can convict him.

Ground 6: there is a lurking doubt it because it was "inherently improbable" that the applicant would have transferred the dangerous drugs in view of the proximity of the Customs and Excise officers.

25. A similar submission was made at trial: it was obviously rejected by the jury. What the applicant may or may not have heard or may or may not have done in any given situation is entirely speculative.

26. There was no merit in any of the grounds of appeal against conviction.

27. We turn to the issue raised by this Court. It arose from the manner in which the prosecutor dealt with the allegations of impropriety levelled by the applicant against the Customs officers when he said:

According to his evidence, he is not the criminal in this case. The real criminals, according to the logic of his evidence, are the Customs officers, who went into the witness box and gave evidence in this court. They are the guilty people in this case, because what have they done? According to the defendant, they have framed him up for a crime that he did not commit; a very, very serious allegation, you might think, members of the jury.

How have they done that? How does he say they have fitted him up for a crime which he did not commit? Well, first of all he must be saying that they have done that by committing perjury. They have gone into the witness box and told lies in an effort to get him convicted of this crime which he did not commit. So they have committed perjury. How else? They have invented a crime which had not been committed, and they have falsely accused him of committing that crime. They have attempted to pervert the course of justice, in other words, by setting him up for this crime; a serious offence. They have manipulated evidence - manipulated evidence - in other words, they have brought false evidence to this court. They have involved themselves in a conspiracy and it can only be a conspiracy amongst at least three of those Customs officers, to frame him for the crime which he did not commit; and of course he alleges that they have assaulted him.

Those really are the issues that he says have worked against him by the prosecution witnesses. They are a very, very serious allegation.

...

Now, that must be the logic of those allegations: that they are a totally corrupt group of law enforcement officers. But I doubt that anyone who has sat and listened conscientiously to the evidence in this case would seriously reach that view themselves, and let me say at once that you have impressed as a very conscientious jury.

28. It is self-evident from that extract that the prosecutor was characterizing for the jurors the nature of the allegations by the applicant against the prosecution witnesses, the Customs officers. The whole tenor of cross-examination of the Customs officers - as well as throughout the closing speech on behalf of the applicant - was that the prosecution witnesses were lying.

29. It would have been open to defence counsel, had she been so minded, to have raised this passage with the judge after the conclusion of the prosecution's speech and before commencing upon her own. She did not do so.

30. She repeatedly reminded the jury during her closing speech that the defence stance was that "there is a lot of suspicion here in the way the prosecution case is being presented"; that the defendant "had no hesitation in saying... that the witnesses had lied"; that the failure of one witnesses to identify the position of a motorcycle "means the evidence was manipulated" and "the defendant says that the evidence was manipulated by the Customs and Excise officers."; continuing "Indeed, this would neither be the last case nor the first case where such an allegation has been made of manipulation of evidence"; and "What does matter is if our finest members of the disciplined forces come here and tell you lies, members of the jury? That would be a very serious matter." - echoing what the prosecutor had said

31. We recognise that the prosecutor expressed himself in robust terms but we do not regard the quoted passage as being an invitation to treat the evidence of Customs officers as being evidence from a privileged group of witnesses whose testimony is worthy of belief merely because of their status. Our attention has been drawn to the familiar warnings sounded by the Court of Final Appeal in HKSAR v LEE Fuk Hing (2004) 7 HKCFAR 600. They apply to comments being passed by a judge, not by counsel, although we recognized that there may be instances where it may be appropriate for a judge to comment on a matter spoken to by counsel but only after discussing it with counsel. That situation simply did not arise here. We did not regard the prosecutor as having gone beyond the bounds of what is permissible or fair.

32. There was simply no substance in the submission that by characterising the applicant as being dishonest in his testimony that has the effect of lawfully putting the applicant’s character in issue. In any event, the judge gave the jury a clear character direction.

THE APPEAL AGAINST SENTENCE

33. The applicant simply indicated to us that because he had not committed the offence he considered the sentence as being excessive.

34. In our view the judge was correct in aggregating the two different substances in the light of the evidence of the Government Chemist that they were of equal potency. The total quantity of dangerous drugs which the judge took into account for the purpose of sentencing was 733 grammes. In HKSAR v Abdallah [2009] 2 HKLRD 437 this court, differently constituted, indicated that for trafficking between 600 and 1200gm of heroin a starting point of between 20 and 23 years imprisonment was appropriate after trial. The judge took a starting point of 21 years imprisonment and found there was no mitigation available to the applicant. He was correct in this finding.