HKSAR v. SANTOS RAFAEL

DCCC 987/2020

[2021] HKDC 916

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 987 OF 2020

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REASONS FOR VERDICT

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1.  The defendant is charged with one count of trafficking in dangerous drugs, contrary to section 4(1)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong. The defendant pleaded not guilty to the charge. The entire prosecution case is admitted by a set of Admitted Facts. Witness statements from two different C&E officers are produced as exhibits pursuant to section 65B of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong.

2.  On 28^th June 2020, a white padded envelope was intercepted and examined at the Hong Kong International Airport by a Customs & Excise officer.  The defendant’s name and his home address were written on the envelope.  A laminated plastic bag was folded within a postcard inside the envelope.  Inside this laminated plastic bag was another transparent bag which contained the suspected dangerous drugs.  Ion analyser and a macro test were carried out and both showed positive results for MDMA.  The Government Chemist confirmed that the transparent plastic bag contained 29.3 grammes of a solid containing 21.3 grammes of MDMA. 

3.  Two failed controlled deliveries were attempted by the C&E officers on the 13^th and 14^th July 2020 at the address on the envelope.   The officers left a notification of mail notice.  On 15^th July 2020, the defendant attended the Shek Kip Mei Post Office, produced the said notification notice and received the envelope containing the transparent bag and the dangerous drugs from a C&E officer who posed as a post office worker.  The defendant then left the post office with the envelope at 1:24 pm on the same day and was arrested one minute later. 

4.  After being told he was arrested for committing a suspected offence under the Dangerous Drugs Ordinance, he was cautioned and questioned by a C&E officer.  He told the officer in English that the parcel belonged to his friend called Hanza who is named “Pablo Escobar” in his phone contact list.  He did not know what was inside the parcel.   He was supposed to wait for Hanza’s call after he received the parcel and he received no reward for doing so. 

5.  At 1:29 pm on the same date, defendant agreed to take part in a controlled delivery to attempt to get Hanza to come to receive the parcel.  The defendant agreed to call Hanza through WhatsApp under the supervision of a C&E officer at 1:41 pm and 1:45 pm.  Both calls were picked up by an unknown person.  In the first call, defendant indicated he had received the envelope and he was instructed to go to Tung Chung.  In a second call, defendant asked for the whereabouts of Hanza.  Hanza replied he was at Tung Chung and requested the defendant to bring the envelope to Kwai Hing.  At 12 pm, defendant indicated that he wished to terminate the attempted controlled delivery as he no longer felt safe. 

6.  WhatsApp messages contained in the defendant’s mobile phone during the period from 9^th July to 15^th July 2020 showed that defendant and Hanza were expecting a parcel to be delivered to Jordan or Shek Kip Mei.  Defendant was instructed by Hanza to check whether the parcel had arrived almost every day.  Defendant also uploaded the images of a notification notice through WhatsApp to Hanza and he was told to collect that parcel. Subsequently, C&E took a cautioned video-recorded interview with the defendant. In the interview, Defendant admitted that he had picked up two parcels for Hanza around May or June in the post office before and passed them to Hanza near his home in Kwai Hing.  He knew Hanza’s full name is Hanza Waseem.  He met Hanza in Lang Kwai Fong a year ago and they were acquaintances.  He only knew Hanza lived in Kwai Hing.  He did not know what was inside the parcel and he helped Hanza with no reward as he was always nice to everyone.  He had asked Hanza what was inside those parcels but Hanza just mentioned it was a letter or mail with no exact details provided to him.  When being asked whether there were other ways to contact Hanza, defendant replied that he did not know his contact numbers. Previously, they used Facebook for communication but Hanza had blocked him.  He had already deleted the Facebook messages with Hanza.  He was told by Hanza to contact through WhatsApp instead.  When being shown of his mobile phone, defendant explained that he did not bother to look at the numbers and he just simply saved the phone numbers that Hanza gave him.  When being questioned why he saved Hanza’s name in his phone contact list as “Pablo Escobar”, defendant replied it was just their style and insisted “Pablo” ’s real name is Hanza.  Defendant asserted that he had no knowledge as to what was contained inside the envelope.

7.  The estimated street value of the MDMA seized was between HK$2,744 and HK$4,200. 

8.  Defendant elected not to give evidence nor call any defence witness.

9.  In the final submission and in reply to the defence and the court, counsel for the prosecution urged the court to take judicial notice that “Pablo Escobar” was a well-known notorious drug trafficker and it is not a coincidence that the defendant saved this name in his phone contact list for Hanza.  The only irresistible inference must be that the defendant has knowledge that he was dealing with a drug trafficker and that the envelope in question contained dangerous drugs.

10.  I bear in mind that the prosecution bears the burden of proof and the standard is beyond reasonable doubt.  The defendant has no duty to prove anything. 

11.  The defendant has a clear record.  I will give myself a good character direction regarding propensity. 

12.  I have considered all the oral and written submissions by counsel for the defence. 

13.  The prosecution case is based entirely on circumstantial evidence.  It seeks to rely on certain facts including but not limited to:-

(1)  Defendant was a recipient of the envelope and he was the one who collected the same in the post office;

(2)  That the defendant used the name “Pablo Escobar” to conceal the identity of Hanza;

(3)  The reason why he used the name “Pablo Escobar” ;

(4)  The WhatsApp messages between Hanza and the defendant to show that the defendant went to the post office on the day in question to assist Hanza to retrieve an envelope with the knowledge that the envelope contained dangerous drugs.

14.  In the interview, defendant mentioned that he did not know the phone numbers of Hanza. In fact, he had saved Hanza’s phone number in his phone contact list as “Pablo Escobar”.  As a general principle, that an accused lied cannot by itself be proof of guilt.  It could be at best indicative of guilt but never probative.  It is only in circumstances where one is satisfied that the accused had lied because he was unable to account innocently for the evidence against him.

15.  I noted that shortly after the arrest the defendant had told the C&E officer that the parcel belonged to his friend Hanza whom was named “Pablo Escobar” in his phone contact list.  Later when a notification popped up in his WhatsApp indicating that “Pablo Escobar” had sent a WhatsApp message to the defendant’s WhatsApp, defendant told the officer that this “Pablo Escobar” was relevant to the case. Although I find the defendant’s explanation that he substituted the name of Hanza by “Pablo Escobar” in his phone contact list for stylish purposes implausible, I cannot say for certain that he deliberately concealed Hanza’s identity from the evidence. 

16.  Based on the chronology of events, his answer that he did not know Hanza’s contact number in the interview could well be accounted for by a number of reasons.  Perhaps his explanation that he did not look at the phone numbers could possibly be true.  I did not believe that the defendant would assist a friend for nothing by not only providing his own address as recipient for the parcel but went to the mailbox and post office in different locations almost every day within a week to check if the parcel had arrived.  I find his explanation that he did this because he was nice to everyone incredible.

17.  It is obvious that the defendant and Hanza were anxiously waiting for the parcel to arrive and at some stage considering whether the parcel was lost.  However, they had never discussed what was contained inside the parcel in the conversations. 

18.  In respect of judicial notice, whenever a fact is so generally known that ordinary persons may be presumed to be aware of it, a court may take judicial notice of the fact either with or without further enquiry if it is satisfied of the existence of the fact or after enquiry from sources the court considers to be reliable.  A judge or magistrate may take judicial notice of matters within the geographical area and that are notorious and known to the ordinary person but those matters should not be considered to be conclusively proved and may be disputed by calling evidence to the contrary.

19.  It is questionable whether this court can take judicial notice that “Pablo Escobar” is a notorious drug trafficker known to the general public in Hong Kong.  Even if the court accepted as a fact that “Pablo Escobar” is a famous drug trafficker, there is no evidence that the defendant knew of the same.  No inferences can be drawn as to the reason why the defendant decided to use this name instead of Hanza in his mobile phone contact list.  The evidence taken to its highest could only infer that the defendant knew that he was dealing with some contraband or illegal items for Hanza.  Extremely suspicious as it may be, on the facts this is not sufficient to show that the defendant knew that the envelope contained dangerous drugs.

20.  I find that the prosecution has failed to discharge the burden of proving its case beyond reasonable doubt and the defendant is acquitted of the charge.