HKSAR v. MUTENGU JOHNSON MIKAILI

CACC215/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 215 OF 2008

(ON APPEAL FROM HCCC 39 OF 2008)

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REASONS   FOR   JUDGMENT

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McMahon J (giving the judgment of the Court) :

1.  The applicant, a Ugandan citizen, was convicted by a jury before Beeson J of trafficking in 940.95 grammes of heroin.  He was sentenced to 20 years’ imprisonment.  He sought leave to appeal his conviction.  That application was dismissed by us on 29 April 2009 and we now give our reasons for so doing.

2.  The prosecution’s case at trial was that the applicant, having arrived in Hong Kong on 14 October 2007 was seen four days later by a police patrol on the 4^th Floor of Mirador Mansion in Nathan Road, Kowloon.  The police approached the applicant and identified themselves.  When he was told he would be searched he attempted to run away.  He was, however, caught by the police after a few steps and, after a brief struggle, was subdued.   The applicant was then searched and the drugs the subject of the offence were found in a plastic bag tucked into his underpants.  The applicant elected to remain silent after caution.

3.  His case at trial was that on the day of the offence, he was staying at Chung King Mansions when he was contacted by telephone and asked to go downstairs to meet a Nigerian friend called Obi in Nathan Road.  When he arrived at the meeting place a stranger met him who then took him into the nearby Miramar Mansion and to the 4^th Floor corridor.  That person told the applicant to wait there for Obi and gave him a plastic bag to give to Obi when he arrived.  The man then disappeared into one of the flats in the corridor. 

4.  The applicant’s case was that he did not know what was in the plastic bag but tucked it into his shirt while he lit a cigarette.  He denied that the plastic bag was ever placed in his underpants.  At about that time, the police arrived and immediately handcuffed him.  He did not run and there was no struggle.  He was handcuffed and the plastic bag was found inside his shirt.  His case was that he did not know that there were drugs in the plastic bag and had only noticed that its contents smelt something like a “cow medicine” he was familiar with in Uganda. 

5.  The applicant, who was represented at trial but not before us, has provided a number of self-drafted grounds of appeal.  In his grounds the applicant essentially complains about the directions the judge gave in her summing-up to the jury.  Those grounds may be fairly summarised as follows :

(1)  the judge failed to properly direct the jury as to the requirement that the prosecution prove the applicant knew the plastic bag contained dangerous drugs;

(2)  the judge effectively told the jury to disregard inconsistencies in the prosecution witnesses evidence, and particularly that the judge failed to properly direct the jury as to inconsistencies in the police evidence as to the reason for the arrest of the applicant, and as to why the flats on the 4^th Floor were not searched;

(3)  the judge’s directions concerning the approach to be taken to the evidence of police officers were confusing;

(4)  the judge gave the unfair impression that she took the side of and supported the police officers who gave evidence;

(5)  the judge wrongly directed the jury that if they were satisfied the drugs were not planted on the applicant by the police then they should return a guilty verdict; and

(6)  the judge wrongly directed the jury that if they were satisfied that the applicant attempted to flee from the police then they should return a guilty verdict.

Ground 1 — The element of knowledge

6.  At a very early stage of her summing-up, the judge had said :

“What is in dispute is whether he was in possession of the drug in the manner that the police say he was in possession of it, and whether he knew that what he had was dangerous drugs, and that he was trafficking in them.”

and shortly afterwards :

“... The prosecution do not have to prove specifically that he knew it was heroin hydrochloride that was the drug.  They have to show that he knew that it was a dangerous drug of some sort, but they do not have to show that he actually knew that it was heroin.”

and later in greater detail :

“Whereas in this case a question arises about the knowledge of the contents of the container or the nature of the substance in the container – in this case, the plastic bag – you have to be aware that suspicion is not sufficient, and knowledge has to be proved. …”

7.  There were further references by the judge to the requirement that the prosecution prove that the applicant knew that the plastic bag contained dangerous drugs, but the above excerpts from her directions are sufficient to establish that the jury can have been in no doubt that the prosecution had to prove that the applicant knew that the plastic bag in his possession contained dangerous drugs.

8.  There was nothing in this ground.

Ground 2 — Inconsistencies in the police witnesses’ evidence

9.  The general complaint made by the applicant under this ground is that the judge gave the following direction :

“If you think that there are inconsistencies or inaccuracies in the evidence of any particular witness, look to see what might explain those inaccuracies or inconsistencies.  Is it just a case of a witness being forgetful because of the events taking place some time ago; did the events take place in confused circumstances, and you will recall that one of the officers described the events preceding the arrest as being chaotic; has the witness made a genuine mistake; is the witness lying, as the defendant has alleged both PW1 and PW2 have done.”

By that direction, the applicant suggests the judge told the jury that they were to ignore any inconsistencies in the police witnesses’ evidence.

10.  That, however, is simply not so.  Immediately before that passage the judge had said this :

“Consider the evidence of the witnesses.  This is just generally.  Consider the evidence of each witness carefully.  Pay special attention to areas of the evidence that have been directly challenged by the defence.  That relates to the circumstances of the arrest, the position of the bag containing the dangerous drug when it was seized, what the defendant allegedly said, and whether or not he tried to escape, as the police officers said he did.”

and later :

“If you find that one or more of the witnesses has lied, consider whether the lie is told to establish or strengthen the case against the accused, as is suggested by the defence, or is it a lie to get the witness out of some particular difficulty which is really unconnected with the case.”

and concluded with this direction :

“You can accept or reject all or some of what a witness told you.  If you are of the view that you should reject part of the evidence of a witness, you are entitled to do so without rejecting all the evidence of that witness.  However, you should approach the remaining evidence with caution and satisfy yourself that it is reliable before you proceed any further.”

11.  It is quite plain that the jury were not in any way told to ignore any inconsistencies in the evidence of the prosecution witnesses.  The jury must have been perfectly aware that they should consider any such inconsistencies and decide whether, and if so to what extent, the witness’s credibility was undermined.

12.  A more particular complaint made by the applicant is that the judge did not properly deal with inconsistencies in the police evidence as to why the applicant was intercepted by the police in the 4^th Floor corridor in Mirador Mansion.  The applicant complains in this regard that the police witnesses were lying, as they had initially said that they had received information about the applicant from an informer, yet later had said that the applicant had been noticed during a routine patrol.

13.  Mr Cheng for the respondent, however, points out that the evidence of PW1 and of PW2, the two primary officers who gave evidence about this matter, was simply to the effect that their team had been instructed to carry out an anti-drug patrol in the vicinity of Nathan Road, Mody Road and Carnarvon Road in Kowloon, and at the end of the patrol had performed a “vertical” search of the staircases and corridors of Mirador Mansion.  Prior to their going on patrol they had been given information that a person of the applicant’s description may have been involved in drug trafficking activities in the area.  The applicant had been seen on the 4^th Floor of Mirador Mansion and, according to PW2, was acting suspiciously in that corridor, and it was at the time that he was under their observation that PW2 became aware that the applicant also matched the description of the person described in their earlier briefing.

14.  We accept, as Mr Cheng points out, that there is nothing inconsistent in the police evidence, which we might add was given during cross-examination, of their being briefed about the appearance of the applicant, and their then bearing this in mind when they conducted what appears to have been a routine anti-drug patrol.  There is no merit in this complaint and the judge was under no obligation and, given the state of the evidence, had no reason to point out that the police evidence was inconsistent in this regard.

15.  A final matter the applicant relies upon as an inconsistency or improbability in the prosecution evidence was that even though, when arrested at the scene, he had “pointed with his mouth” in the direction in which the person who had given him the plastic bag had gone, the police did not attempt to search any of the flats or premises on the 4^th Floor.

16.  The answer to this complaint is straightforward.  The police evidence was that no search had been conducted of any premises on the 4^th Floor for the simple reason that the applicant had said and done nothing at the scene to suggest that any of the 4^th Floor premises were connected with the drugs found on him.  The matter therefore resolved itself, as had other areas of evidence in the case, as a question of credibility, rather than of any inconsistencies within the police evidence.  This complaint was misconceived.

Ground 3 — The approach to police evidence

17.  The applicant complains about this direction given by the judge concerning the police evidence generally :

“In this case, all the prosecution witnesses were police officers.  Do not think that because a police officer has special training that he might be a better or more honest witness than a layman.  That may be so, or it might mean simply that a police officer appears to be a better witness because he has more practice at giving evidence in court.  Similarly, a police training does not mean that a police officer is better or more accurate at assessing distances or remembering times, or that he is any better at recalling the physical details of somebody’s face or clothing or of a scene than anybody else.

Although police officers have some training in giving evidence, that need not mean that they attend court often enough to be practiced witnesses.  You might expect senior officers to be composed, calm and articulate when they give evidence, but that might not necessarily be the case with a more junior officer, or an officer who does not go to court very often.

However, you must not be fooled by a composed, articulate witness into thinking that such composure must mean that the witness is truthful.  It could simply mean that that witness is a proficient and practised liar.  It is a matter for you to assess the evidence of the witnesses in each case.”

18.  Bearing in mind that all of the three prosecution witnesses were police officers, that direction of the judge was clear and fair.  It combined a warning that police officers were not by that status clothed with additional credibility, together with what was effectively a warning that the demeanour of a witness was not necessarily a reliable guide to his credibility.  There is nothing in this complaint.

Ground 4— The judge appearing to be biased in favour of the police witnesses

19.  There was nothing whatsoever in the judge’s summing-up to suggest she may have appeared to the jury to favour the police witnesses in any way.  On the contrary, she dealt with the police evidence objectively and succinctly.  She dealt with the applicant’s own evidence at length and fairly.  The applicant has not provided us with any basis for his suggestion that the judge may have appeared to favour the police evidence and this complaint is also without merit.

Ground 5 — The “planting” of drugs reference

20.  The applicant complains of the following passage in the judge’s summing-up :

“The accused did not have to give evidence.  He has a right to silence, and he can, if he wants to, sit back and watch the prosecution try and establish its case against him so that you are sure about his guilt, without doing or saying anything at all.  In this case, he chose to give evidence, and he did so in some detail, and he has alleged that the officers have given false evidence.

He has not said that they framed him by planting the drugs on him, but he certainly says that they have told lies about almost everything that happened at the scene at Mirador Mansion.”  (emphasis added)

21.  The applicant says that these comments of the judge were effectively a direction to the jury to convict if they accepted that the drugs were not “planted” on the applicant by the police.  We do not agree.The judge’s comments were a broad but fair summary of the scope of the issues which arose concerning the events at the scene of the applicant’s arrest.  The evidence of the applicant and the police in that regard could not have been more different.  The police said the applicant had, after their initial enquiries of him, run away and then struggled when caught.  The applicant’s evidence was to the effect that the police had come up to him and immediately handcuffed him, that he had never attempted to flee and that there had been no struggle.  What was common ground was that the applicant had possession of the drugs, although the police said they were found tucked into his underpants and it was the applicant’s case that he had put them inside his shirt so as to be able to light a cigarette.

22.  The judge’s comments were a reflection of this.  In the context of the summing-up as a whole the jury were made well aware that although there was no issue that the applicant had possession of the drugs in the plastic bag found on his person, there was a fundamental issue as to whether he knew that the bag contained dangerous drugs.

23.  The comments of the judge complained of by the applicant in no way suggested that the jury should convict if they accepted that the police had not “planted” the drugs on the applicant’s person.  This ground was devoid of merit.

24.  Ground 6 — the flight direction

25.  This was the most substantial ground advanced by the applicant.

26.  One of the fundamental issues during the trial was whether the applicant had attempted to flee when the police said they wished to search him.  The applicant’s evidence was that the police had never said this to him but that one of them had simply reached inside his shirt and taken out the packet of drugs.  He was adamant that he had never attempted to flee and that he at no stage struggled with the police.

27.  The judge in this regard told the jury :

“You will see from his evidence that the police officers have been challenged on almost every particular of their evidence, in particular when they stopped him, whether they said anything to him to say that they were police, when he was handcuffed, whether or not he ran.  The mere fact that he runs does not necessarily mean that he is guilty, of course, but if you accept what the police officers say and the circumstances under which the police officers say, you may be able to draw the inference that he was aware of what he had, that he was aware that what he had was dangerous drugs, and that he did not want to stop and be searched by the police because of that factor.”

28.  The applicant complains that this direction was tantamount to instructing the jury that, if they accepted the police evidence that the applicant attempted to flee, they should convict.

29.  We do not think that to be so.  The judge told the jury that even if they accepted that the applicant attempted to run away “that does not necessarily mean that he is guilty”, and there is no merit to this aspect of the applicant’s complaint.

30.  What is true however is that the judge did not give a “full” flight direction, i.e. a direction in terms of that suggested in HKSAR v. Mo Shiu Shing (1999) 1 HKC 43 at pages 60-62.

31.  In the present case, unlike the position in Mo Shiu Shing,the applicant’s evidence was that he had not fled or attempted to flee; had not opposed his arrest in any way and that the police evidence to the contrary was wholly fabricated.  The police evidence was that, after the applicant had been approached by them and informed that they were police and that they wished to search him, the applicant had simply commenced to run away.  On their evidence there was nothing to suggest any “innocent” reason for him having done so.  On the applicant’s evidence the police had wholly fabricated their evidence in this regard and he had never attempted to flee or oppose his arrest.  In his evidence he therefore put forward neither explicitly nor by implication any “innocent” reason for his flight.

32.  Nevertheless the evidence of the applicant’s flight was an important aspect of the prosecutions case against the applicant.  As the judge said when she concluded her summing-up of the prosecution evidence :

“So that was the prosecution evidence.  You have to consider what they have said.  You have to consider whether what they have said is accurate and whether you believe those officers.  If you believe them, you have to decide whether you can draw the inferences that they ask you to make about the knowledge that can be inferred from the defendant’s behaviour; in other words, his behaviour was such – by running away, by having the drugs in his underpants, by loitering at that particular place – that he must have had the drugs for trafficking and he was there for that particular purpose, and that his behaviour indicates also that he knew that what he was carrying was dangerous drugs.”

33.  In our view the fact that the applicant’s case was that he had not run away does not mean that a flight direction need not have been given.  In the event the jury had rejected the applicant’s evidence in this regard and accepted that of the police, the requirement remained for a direction as to the approach they should take to the evidence of flight.  Any such direction should, as stated by this court, differently constituted, in Mo Shiu Shing, have made clear to the jury that the evidence of the applicant’s flight could be no more than supportive of the prosecutions case if there was no “innocent” explanation for his running away.

34.  As said in Mo Shiu Shing per Stuart-Moore JA at page 62F :

“… we strongly recommend, that, where it is necessary and appropriate to direct upon ‘flight’ because the prosecution has attached proper significance to it, that, the jury is told this may be supportive of the prosecution case if it has been proved that no innocent reason existed to run away.  In some respects, stated in this way, the direction is doing no more than starting the obvious.”

35.  But given the circumstances of this case, while we accept that the direction to the jury on the evidence of the applicant’s flight fell short of what it should have been, there can be no doubt that the jury’s verdict would inevitably have been the same even had a fuller direction been given.  That is because there was no suggestion of any “innocent” reason for the applicant having run from the police and because, given the nexus between the finding of the drugs upon the applicant’s person and his flight, there was no possibility of the jury convicting on the evidence of flight alone.  That evidence could only have, in the circumstances of the case, been regarded by them as ancillary to and merely supportive of the rest of the evidence in the prosecution case.

36.  Accordingly, while we have concluded that there was an irregularity in the judge’s directions in that the jury were not properly directed as to the approach they should take to the evidence of flight, it was our view that the proviso to section 83(1) of the Criminal Procedure Ordinance should be applied.

37.  In the end result, given our conclusions as to this final ground, we granted leave to appeal, treated the hearing as the appeal and dismissed the appeal.