HKSAR v. MD RAJIB

CACC 223 /2019

[2020] HKCA 532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 223 OF 2019

(ON APPEAL FROM HCCC NO 330 OF 2018)

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J U D G M E N T

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1.  On 9 July 2019, following a trial before Andrew Chan J (“the judge”) and a jury, the applicant was unanimously convicted of a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). On the same day, the applicant was sentenced to 9 years’ imprisonment.

2.  The particulars of the count alleged that, on 4 January 2018, at Flat A, 2^nd Floor, Grandview Mansion, 119 Chatham Road South, Tsim Sha Tsui, Kowloon, the applicant trafficked in 95.6 grammes of a solid containing 52.5 grammes of cocaine.

3.  The applicant filed a Notice of Application for leave to appeal against his conviction and sentence (Form XI), stating his general dissatisfaction with the outcome of his trial.  Having been refused legal aid, the applicant now pursues his application unrepresented.  On 18 June 2020, the applicant finally filed his grounds of appeal, which I shall deal with in due course.

4.  The prosecution case relied on the evidence of two police officers; namely, PC 9881 (“PW1”) and PC 19218 (“PW2”).  On 4 January 2018, PW1, PW2 and other members of their team were on anti-narcotics duty, in the course of which they went to 2^nd Floor, Grandview Mansion, 119 Chatham Road South, Tsim Sha Tsui, acting on information that a South Asian male, about 30 to 35 years of age and 1.65 metres tall with short hair and stubble, was storing and trafficking in dangerous drugs in Room A of that address.  It should be noted that the information on which the officers were acting was elicited by the defence from PW1 in cross-examination in order to establish the applicant’s defence that he had been deliberately “set up” by somebody.

5.  The officers laid ambush at the 2^nd floor staircase at about 16:30 hours.  At 19:55 hours, they saw the applicant, who matched the description in the information, and another male (later known as Sumon) arriving at Flat A on the 2^nd Floor.  The applicant and Sumon entered Flat A, which was sub-divided into several units.  PW1 and PW2 immediately approached and saw the applicant take out a key to open the door to Room A.  PW1 then intercepted the applicant and Sumon.

6.  PW1 and PW2 revealed their police identities and showed the applicant and Sumon their warrant cards.  Another member of their team, Sergeant 52570, showed the search warrant to the applicant and Sumon and explained the gist of its contents, although PW1 was not sure the applicant understood its contents.  PW1 then asked the applicant if he was living in Room A, to which he replied “Yes”.  The applicant was searched but nothing suspicious was found on him.  Meanwhile, PW2 seized the key which the applicant had been holding, and which was found to unlock the door to Room A.  Sumon also had a key in his possession but it did not fit the lock to Room A.

7.  PW2 searched Room A in the presence of both the applicant and Sumon.  At the bedside cabinet, PW2 found a white plastic basket. In the white basket, there was one black plastic bag (“Exhibit P1”), HK$2,500 cash and some documents, namely, an International Social Services agreement, some hospitals bills and letters addressed to the applicant.  Inside Exhibit P1, there were 4 transparent re-sealable plastic bags containing a white solid suspected to be a dangerous drug.  PW2 found no other significant items during the search.  PW2 could not find any female clothing or belongings in Room A and denied that he had found a tenancy agreement with the name “Emily” on it.

8.  After the search, the applicant was arrested by PW1 for trafficking in a dangerous drug but he was not cautioned because of communication difficulties.  The applicant was handcuffed and taken to Tsim Sha Tsui Police Station.  At 22:30 hours on 4 January 2018, in the presence of the duty officer at Tsim Sha Tsui Police Station, the 4 plastic bags containing suspected dangerous drugs were weighed.

9.  What happened thereafter was presented at trial by way of Admitted Facts.  On the following day, 5 January 2018, at about 19:45 hours, PW1 formally cautioned the applicant and recorded his response in a Pol 857 form, which response was later confirmed in the presence of his lawyer and a Bengali interpreter at a video-recorded interview conducted at 22:19 hours, as follows[1]: “Yes, understood.  But police did not find anything at my home.  They have shown me the drugs only at the police station.  They had searched my home in front of me”.  What was said in the Pol 857 form and the video-recorded interview were admitted to have been made voluntarily^[2].

10.  On 8 January 2018, Exhibit P1 and its contents were taken to the Government Chemist for analysis, which revealed that the 4 plastic bags contained 95.6 grammes of solid containing 52.5 grammes of cocaine^[3]. The street value of the dangerous drugs was either HK$100,954 (as cocaine powder) or HK$120,265 (as crack cocaine)^[4].

11.  Evidence of the dosage of cocaine taken by abusers was also admitted by way of a summary of the opinion of Dr Cheung Wai-him, a specialist in psychiatry and in the dosage rates of dangerous drugs, who considered that it would take a recreational cocaine user 52 to 53 days, and a regular cocaine user 26 to 52 days, to consume all of the dangerous drugs in question^[5].

The defence case

12.  The applicant’s case at trial was that he was not in possession of the dangerous drug at the date of the offence; specifically, he did not see the police officers find Exhibit P1 inside Room A.

13.  The applicant gave evidence in his defence.  He had come to Hong Kong from Bangladesh in 2014 and made a non-refoulement claim. He had had a girlfriend called Fatima Khatun since 2016.  He had a friend called Sohel, who was also from Bangladesh and was married to a Filipina called Emily.  Sohel and Emily used to live in Room A of Flat A, 2^nd Floor, Grandview Mansion until Sohel was arrested for drug offences and sent to prison.  Emily then returned to the Philippines to give birth to their baby.  In around July 2017, at Sohel’s suggestion, the applicant and Fatima moved into Room A.  Having given birth, Emily returned to Hong Kong and lived with the applicant and Fatima in Room A.  The applicant then learned that Emily had found a new boyfriend called Salim, who was Pakistani.  In December 2017, Emily lived in Room A but sometimes she would stay with Salim.  On about 26 December 2017, Emily moved out from Room A.  On 1 January 2018, the applicant received a telephone call from Salim, who threatened to kill the applicant and demanded to see him immediately.  The applicant thus went to see a friend of Salim’s, who told him to move out of Room A and once the problem was sorted out, the applicant could move back.  The applicant acted on the advice and immediately moved to a guest house in Jordan.

14.  On 4 January 2018, Fatima called the applicant to tell him that Emily had apologised and would be returning to the Philippines; accordingly, the problem had been resolved.  However, since Emily needed help, the applicant went to Room A, although he had not made any previous arrangement to meet or see her there.

15.  Sumon accompanied the applicant to Room A.  After the applicant had opened the door, PW1 and PW2 approached the applicant.  PW1 took the applicant into Room A and handcuffed him. During the search in Room A, PW1 and PW2 claimed they had found drugs but the applicant did not see them find anything.  The applicant maintained that he only saw Exhibit P1 for the first time at Tsim Sha Tsui Police Station.  The applicant said that when he and the officers were inside Room A, he had shown PW1 a pink basket^[6], in which there was a tenancy agreement in Emily’s name; however, PW1 told him to put the basket back.  The applicant insisted that what he had said in the video recorded interview was the truth.

16.  The applicant’s girlfriend, Ms Fatima Khatun, also gave evidence.  The crux of her testimony was that she lived with the applicant in Room A, that Emily’s Pakistani boyfriend had threatened the applicant and that Emily called her to apologise to the applicant on 4 January 2018.

17.  Ms Lee Kai-wing also gave evidence for the defence.  She was one of the operators of Wing Sing Hong, a guest house in Nathan Road, Kowloon.  She testified that a person by the name Md Rajib stayed in the guest house for two nights commencing on 2 January 2018.

18.  In a nutshell, the defence case was that the applicant had been “set up” by someone who gave the description of the applicant to the police; and that the police failed to investigate properly the other people who had access to Room A, and who might have been trafficking in the dangerous drugs in Exhibit P1^[7].

Issues at trial

19.  The first issue was whether Exhibit P1 was found in Room A as alleged the prosecution.  If the jury were sure that Exhibit P1 was found in Room A, the second issue was whether the applicant was in possession of Exhibit P1 with the means of access to Room A at the time of the alleged offence.  If the answer to the second issue was affirmative, the remaining two issues were whether the applicant knew that Exhibit P1 was a dangerous drug; and if so, whether the applicant was in possession of Exhibit P1 for the purpose of trafficking.

20.  The determination of the first and second issues by the jury largely depended on their assessment of the credibility of the witnesses, while the remaining issues relied for their determination on circumstantial evidence.

Appeal against conviction

21.  The applicant’s grounds of appeal are as follows: (i) The drugs were not found in the applicant’s home; (ii) No proper direction was given concerning the absence of fingerprints on the dangerous drugs; (iii) No proper direction was given as to the applicant’s good character; (iv) The applicant did not have enough funds for a private lawyer; (v) One of the police team was in custody for serious offences; (vi) The applicant asked for an Appeal Aid Certificate; (vii) Since the case was circumstantial, the judge did not direct the jury on alternative scenarios, consistent with innocence; and (viii) There were many weaknesses in the prosecution case.

Appeal against sentence

22.  Defence counsel acknowledged that there was little he could say on behalf of the applicant by way of mitigation, but advocated a sentence in view of the quantity concerned of 8 years’ imprisonment^[8]. By reference to the quantity, the judge adopted 8 years’ imprisonment as the appropriate starting point after trial, which he then enhanced by 1 year for the applicant’s status as a non-refoulement claimant at the time of his commission of the offence.  The resulting sentence was 9 years’ imprisonment.

23.  The applicant has not advanced any specific ground to support his appeal against sentence, apart from the assertion before me today that other defendants in a similar position have had their sentences enhanced by only 3 months’ imprisonment for the non-refoulement factor.  Therefore, the 1 year’s enhancement was too long.

Discussion (on conviction)

24.  I shall deal with each of the applicant’s grounds of appeal against conviction, although Grounds (iv) and (vi) are not valid grounds of appeal.  Of course, if I were to find that there was any merit in any of the other grounds of appeal, I would, of course, grant him an Appeal Aid Certificate. 

25.  As for Ground (i), whether dangerous drugs were found in the premises, and whether the applicant was living there at the time, were the very issues at trial, on which the whole defence was focussed, and about which the jury were properly reminded[9]. That was what the case was primarily about.

26.  As for Ground (ii), the issue of fingerprints was never raised by highly experienced defence counsel in his closing address. He would have appreciated that the absence of fingerprints, without explanation in the evidence or by way of Admitted Fact, was neither here nor there.  So far as Grounds (iii) and (v) are concerned, these complaints are not correct.  The judge did give the applicant the benefit of a good character direction in accordance with the Specimen Direction[10]; while there is no basis for the allegation that a police officer involved in this investigation has been arrested or detained.  I am assured by Ms Chan that proper enquiries have been made and the allegation is simply not true.

27.  As for Ground (vii), this appears to engage the issue of inferences in the context of circumstantial evidence, on which issues the judge gave proper directions[11], again in accordance with the Specimen Directions.

28.  Having looked at the papers in this matter and reviewed the judge’s summing-up, I can see no other valid grounds of appeal against conviction.  These were essentially factual matters for the jury to decide, in accordance with proper directions of law.  I can see no basis for criticising the judge’s summing-up or for impugning the verdict.  Accordingly, I see no reasonably arguable grounds of appeal and leave to appeal against conviction must be refused.

Discussion (on sentence)

29.  The applicable sentencing guidelines are contained in R v Lau Tak Ming & Another [1990] 2 HKLR 370, which suggests a starting point of 8 years’ imprisonment for trafficking in 50 grammes of heroin narcotic.  Here the quantity was 52.5 grammes of cocaine narcotic.  The case of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 has extended the sentencing guidelines in Lau Tak Ming to cocaine.

30.  Since the applicant is a non-refoulement claimant, committing an offence while his claim is being processed is an aggravating feature.  In HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, the Court declined to lay down guidelines for such enhancements, saying that the matter was best left to the discretion of sentencing judges; while in HKSAR v Ali Saif [2018] 6 HKC 19, the Court said that any enhancement on this basis should not be less than 6 months’ imprisonment for a serious offence of trafficking in the District Court or High Court.  As Ms Chan points out, the applicant in Shah Syed Arif had trafficked in 55.88 grammes of cocaine and an enhancement of 1 year’s imprisonment was held to be appropriate by the Court.  In the present case, the applicant had trafficked in 52.5 grammes of cocaine narcotic.

31.  I do not consider that there are reasonable grounds of appeal against sentence.  This was a serious offence involving a substantial quantity of cocaine worth more than HK$100,000 being trafficked by a non-refoulement applicant, who is expected to behave himself while he remains at large in Hong Kong, and not resort to crimes which not only damage the reputation of the city in which he is supposed to be seeking refuge, but also damage the health of the people from whom he is supposed to be seeking help.

32.  Having refused the applicant leave to appeal against conviction and sentence, I should advise him that he has the right to renew either application to the Court of Appeal.  However, he should also be warned that the Court of Appeal has the power to order that any time during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the sentence to which he is subject, if it came to the view that there was no justification for the renewal of the application.

[1] Exhibit P22: AB, pp 125-126, Entry 134.

[2] Admitted Facts at AB, pp 7-8, para 1.

[3] Admitted Facts at AB, p 8, para 2; P26.

[4] Admitted Facts at AB, p 8, paras 3-4.

[5] Admitted Facts at AB, pp 8-9, para 5.

[6] Exhibit D1.

[7] Defence closing speech, AB, p 268F-N, pp 270F-271R.

[8] AB, pp 39Q-40G.

[9] AB, p 34J-K.

[10] AB, p 16F-O.

[11] AB, pp 19A-21L.