HKSAR v. HOSSAIN ABUL AND ANOTHER

DCCC 661/2019

[2020] HKDC 713

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 661 OF 2019

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Reasons for Verdict

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1.  Both defendants in this case have been jointly charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Both pleaded not guilty to this charge.

2.  The particulars are that on 14 March 2019 at Room 2, 3rd Floor, 31 Hankow Road, Tsim Sha Tsui, Kowloon, they unlawfully trafficked in dangerous drugs, namely 8.3 grammes of a solid containing 6.72 grammes of cocaine and 0.93 grammes of a crystalline solid containing 0.84 grammes of methamphetamine hydrochloride.  Both men are Bangladeshi nationals seeking asylum in Hong Kong.

3.  Much of the prosecution’s case was admitted by both defendants.  It was admitted that on 14 March 2019 police officers conducted an anti-narcotics operation on the 3rd floor of 31 Hankow Road.  At 10.02 pm on 14 March 2019, the 1st defendant arrived outside the only flat on the 3rd floor and opened the main door with a key.  He was then immediately intercepted.  There were eight subdivided rooms inside those premises.  He had a key to Room 2 and the police officers, upon opening the door to Room 2, found the 2nd defendant on the top bunk of a bunkbed in a very small room.  There was one room, and one bathroom. 

4.  Documents belonging to the 1st defendant were found on the bottom bunk whilst documents and personal belongings of the 2nd defendant were found on the top bunk.  On top of the small fridge in the room, the police found a transparent plastic bag of cocaine and a smaller bag of ‘Ice’.  They also found a straw that had been fashioned and modified into a scoop or a spoon, as well as an electronic scale and 20 small transparent resealable plastic bags.

5.  Both defendants were arrested at the scene and taken to Tsim Sha Tsui Police Station.

6.  On the following day, they were interviewed with the assistance of a Bengali interpreter.  Their video recorded interviews were admitted into evidence and not challenged.  Both deny all knowledge and possession of the drugs found on top of the fridge.  There were no admissions.

7.  In the Admitted Facts, P23, it was agreed that the DNA of the 2nd defendant was found on the plastic straw, P6.  It was also agreed that both defendants had clear criminal records.  It was agreed the 1st defendant submitted a urine test upon admission to Lai Chi Kok Reception Centre which showed negative results for the presence of certain dangerous drugs.

The prosecution’s case

8.  The police officer that intercepted the 1st defendant as he opened the main door to the flat was PW1.  He said that when the 1st defendant approached the door he kept looking downstairs, which made him appear suspicious.  This was why PW1 went down to intercept him as he opened the door.  He established that this defendant was a Form 8 Recognizance form holder and asylum-seeker.  They conversed in simple English.  He told this officer that he lived in Room 2 and gave him his key.  PW1 said that when he opened the door the 2nd defendant was sat upright on the top bunk smoking a cigarette.

9.  In cross-examination, his observation that the 1st defendant was acting suspiciously at the front door was challenged.  He disagreed.  He also disagreed that the 2nd defendant was not sat upright smoking but was in fact fast asleep and had to be woken up.

10.  PW2 was the police officer that guarded the 2nd defendant during the search and was his arresting officer.  He too saw the 2nd defendant sat on the top bunk smoking a cigarette when they entered Room 2.  He asked the 2nd defendant to come down and sit on the lower bunk with the 1st defendant.

11.  In cross-examination by Mr Pannu for the 1st defendant, PW2 agreed that he did say in his witness statement that he handcuffed the 2nd defendant because he suspected he may flee the scene.

12.  In cross-examination by Mr Percy for the 2nd defendant, it was put to PW2 that the 2nd defendant was physically ill at the time and gave him no reason to believe that the 2nd defendant would run away. PW2 denied this but agreed that both defendants were handcuffed to leave the premises.

13.  He also denied that he had to shake the 2nd defendant’s shoulder to wake him up from the top bunk.  He disagreed he was not smoking when they entered the room.  He disagreed he was in fact ill.  It was suggested that the documents he says he found under the 2nd defendant’s pillow were in fact in his shirt breast pocket.  He denied all the allegations put to him.He did admit that the 2nd defendant told him, for the purposes of his antecedent statement, that he had no education.  He was also a Form 8 Recognizance holder seeking asylum in Hong Kong.

14.  PW3 was a property agent of sorts who had rented the room from the owner.  He rented it in order to sublet it.  He had rented it between March 2017 to March 2018 to another asylum-seeker.  His evidence was ambiguous because he said he either kept it vacant after the lease expired but he was not sure and needed to check his documents.  He is sure there were no squatters but did produce to the police a bank document of $3,000 on 4 March 2019 for the rent of March.

15.  The 1st defendant had told the police in his video recorded interview that the room rent was $3,000.  He had been there for about a year, with the 2nd defendant coming later.

16.  PW4 was the exhibits officer who searched the premises and found the drugs and other paraphernalia on top of the fridge.  He also drew a sketch of the small room, P25.  He also recalled the 2nd defendant sitting up on the top bunkbed smoking a cigarette and, in cross-examination, denied that he was in fact fast asleep when the police entered.  He gave evidence that he found documents relating to the 2nd defendant, a mobile phone and two keys, as well as $1,700 cash under the 2nd defendant’s pillow on the top bunk.  He also denied finding the 2nd defendant’s documents in a shirt pocket and the cash and mobile in a jacket pocket.  It makes sense that if the 2nd defendant was living there at the time that his personal belongings and valuables were with him in his bed in such a small room.

17.  I found the police officers truthful witnesses and I accepted their evidence as reliable and credible.

18.  The 1st defendant elected not to give evidence.  That was his right.

19.  The 2nd defendant elected to give evidence and presented a cut-throat defence.  He covertly taped the 1st defendant after they were charged.  I did not admit the taped conversation into evidence as I found it equivocal and in parts ambiguous.  There is no other evidence to directly implicate the 1st defendant over the 2nd defendant.

20.  The 2nd defendant said in evidence that all the drugs belonged to the 1st defendant when, in his video recorded interview and at the first opportunity to exonerate himself after arrest, he said he had never seen the drugs before.  That, I did not believe.

My findings

21.  The prosecution has the burden to prove this charge against both men beyond reasonable doubt.  There is no direct evidence of trafficking.  I have to determine whether the only inference to draw is that one or both of the defendants were dealing in or with the dangerous drugs or possessing the dangerous drugs for the purposes of trafficking.

22.  The prosecution is relying on circumstantial evidence to add up to an irresistible inference that the men were jointly trafficking the drugs found on top of the fridge.  The law is that, when drawing inferences from evidence, the court may only draw an inference if that inference is the only reasonable inference to draw from proved facts.  If, from the facts proved, there is a reasonable inference to draw against the defendant as well as one in his favour, the adverse inference cannot be drawn.

23.  What does the prosecution say it relies on to draw the inference? 

24.  The prosecution is relying on undisputed facts such as the drugs were in plain sight to anyone who entered the room, let alone lived in the room.  It would be unbelievable to say they had not seen those drugs nor had any knowledge of those drugs.

25.  Other facts such as the suspicious behaviour of the 1st defendant when he entered the premises and the feeling the arresting officer had that the 2nd defendant wanted to flee the room.

26.  Then there is the evidence that both men admitted living in that room at the time of their arrest, D1, the 1st defendant, longer than the 2nd defendant.  Both men had keys to the room. 

27.  The most damning evidence against the 2nd defendant is his DNA found on the straw.

28.  Another admitted fact is that the drugs were valued at over $8,000 at the material time. 

29.  The defendants were asylum-seekers supported by the ISS, receiving $1,500 per month in food, coupons or vouchers or a card, as well as $200 or $300 in cash.  Their rent was paid but paid directly to landlords.

30.  The prosecution is suggesting that neither defendant could afford to buy the drugs and therefore must have been supplied it for the purposes of trafficking, selling onto others.  The presence of the electronic scale and small transparent resealable plastic bags give rise to the inference that they were used for packing the drugs into smaller bags for sale or delivery with the straw. 

31.  If there were only one defendant here with circumstantial evidence such as I have just described above, then the prosecution would have a much stronger argument to suggest that there was an irresistible inference that that one person was in possession for the purposes of trafficking those drugs. All the facts relied upon by the prosecution would be enough if one man was present.

32.  However, here there are two men present. Neither man admit possession or trafficking.  There is no admission.  Both men have clear records in Hong Kong.  It is relevant in that they have both been here for years.

33.  There is the evidence of the DNA on the spoon, meaning the 2nd defendant did touch it, contrary to what he told the police under caution and said in evidence, but who is to say that the 2nd defendant did not touch the straw before it was modified into a scoop, most likely for the purposes of packing drugs into smaller bags, or that it was picked up by him and not necessarily used by him for that purpose?  Without more, it is not enough to prove he was in possession of those drugs next to the straw for the purposes of trafficking.

34.  Anyone entering the room would have seen those drugs on the fridge.  I have read what they, the defendants, said to the police under caution and I do not believe that neither had any knowledge of the drugs on the fridge.  I am sure they were both lying to distance themselves from the drugs and they failed.

35.  I believe the evidence of the police officers in their entirety. However, all those facts proved are not enough to prove the charge beyond reasonable doubt.  Of course, both men are suspicious, but the standard of proof is high and the circumstantial evidence not enough to draw the only reasonable inference that they were trafficking in those dangerous drugs.

36.  Accordingly, both defendants are acquitted of this joint charge.