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CACC 90 /2021
[2021] HKCA 1253
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 90 OF 2021
(ON APPEAL FROM DCCC NO 449 OF 2020)
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| BETWEEN |
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HKSAR |
Respondent |
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and |
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Hasan Md Mehedi |
Applicant |
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| Before: |
Hon Macrae VP in Court |
| Date of Hearing: |
25 August 2021 |
| Date of Judgment: |
25 August 2021 |
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J U D G M E N T
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1. The applicant was convicted after trial in the District Court, on 9 April 2021, before HH Judge Casewell (“the judge”) of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of the offence alleged that on 2 March 2020, outside No 69 Wyndham Street in Central, the applicant unlawfully trafficked in dangerous drugs, namely 12.67 grammes of a solid containing 8.57 grammes of cocaine and 12 tablets containing 1.2 grammes of 3,4-methylenedioxymethamphetamine. He was sentenced to 5 years’ imprisonment. The applicant, having had legal aid refused, appears in person in this application for leave to appeal against his conviction only.
The prosecution case
2. The applicant was intercepted in Wyndham Street by police, at approximately 9:10 pm on 2 March 2020, for a body search. He was arrested and brought back to Central Police Station where a more thorough body search was conducted, resulting in one of the officers discovering in the applicant’s right trouser pocket:
(a) One transparent re-sealable plastic bag containing 7.99 grammes of a solid subsequently found to contain 6.58 grammes of cocaine;
(b) One transparent re-sealable plastic bag containing 4.68 grammes of a solid subsequently found to contain 1.99 grammes of cocaine; and
(c) A tissue packet containing 3 orange tablets subsequently found to contain 0.45 grammes, and 9 black tablets subsequently found to contain 0.75 grammes, of 3,4‑methylenedioxymethamphetamine, making a total of 1.2 grammes of the drug.
3. The total retail value of the drugs at the time was $14,990.44. Following his arrest, the applicant participated in a cautioned video record of interview (“VRI”), the voluntariness of which was not in dispute[1]. At the start of the VRI, the applicant confirmed that he was fit to be interviewed[2]. He was asked why he had been in Lan Kwai Fong that evening[3], where had been before going to Lan Kwai Fong[4] and why the packet was in his trouser pocket[5]. To each of these questions the applicant said he wished to remain silent. He denied knowing what was inside the packets[6]. He eventually said he wanted the interview to “conclude quickly; because I have been involved for a long time, many problems, I am finding it difficult to speak; I am finding it difficult to sit down”[7]. Earlier, the applicant had explained that he was a Form 8 recognizance holder, that he had come to Hong Kong on 28 June 2014 and was receiving support from International Social Services of $1,800 per month[8].
4. Each of the officers denied that they had stopped and searched the applicant as a result of information received[9]. Whilst the applicant was being searched, it was noticed by one of the officers that he had injuries to his forehead, limbs and back. The applicant refused to disclose the reason for his injuries and refused medical attention[10].
5. On 5 March 2020 at Lai Chi Kok Reception Centre, a urine sample collected from the applicant tested negative for five types of drug[11].
The defence case
6. The applicant gave evidence. He testified that he had been drugged and assaulted as a result of a dispute over a loan paid to his family in Bangladesh, which he had failed to repay. After the beating, he was driven in a van to Wyndham Street[12], where he was then stopped and searched by the police. He denied having knowledge of the drugs found inside his pocket and said that he had never seen them before and had no idea how they had got there[13]. The applicant said the kidnappers were in the vicinity when he was arrested and that he pointed them out to the police and explained that he had been kidnapped, a matter he had told the police repeatedly on the way to the police station. However, they were uninterested and, accordingly, he lost faith in the police[14].
7. That explains why the kidnapping was not mentioned in his VRI. He said this was because he was sick, tired and in pain[15]. The kidnapping was, however, mentioned before a magistrate at Kwun Tong Magistrates’ Court when he was remanded in custody. As a result, the applicant was sent to hospital for medical examination. The resulting medical evidence (Exhibit D2) showed that the applicant had exterior injuries to his forehead, limbs and back. The judge considered these injuries to be consistent with him being assaulted[16].
The reasons for verdict
8. The judge rejected the applicant’s testimony. While he acknowledged that his injuries were consistent with the applicant having been assaulted, the judge nevertheless found there was little reason why someone would plant drugs on the applicant. Since the drugs had a street value of some $14,000, which also happened to be the amount the applicant claimed had originally been loaned to his family, the judge asked why the alleged kidnappers who had loaned him this money would then “throw away another $14,000 simply to teach the (applicant) a lesson”[17].
9. The judge drew a distinction between the applicant having been indebted and assaulted and yet also being in possession of drugs[18] with the requisite knowledge[19]. He found it significant that the applicant’s trousers were tight fitting (as shown by the photographs), thus making it unlikely that he did not know about the drugs in his pocket[20].
The applicant’s submissions
10. The applicant has filed submissions in his own hand, in which he raises various factual issues he says were not adequately dealt with by the judge. Amongst other things, he argues that the evidence was insufficient to prove he had the requisite knowledge, as there was no fingerprint or DNA evidence relating to the applicant found on the bags containing the drugs. Many of his submissions reflect his evidence and the defence arguments at trial.
The respondent’s submissions
11. Ms Rosa Lo, on behalf of the respondent, submits that the applicant is effectively now seeking to re-argue the defence case at trial. She says that the applicant’s failure to mention the kidnapping was only part of the circumstantial evidence; but, the fact there may have been a kidnapping did not mean the applicant was not in possession of dangerous drugs for the purposes of trafficking. Ms Lo argues that the judge engaged in a comprehensive review of the evidence and analysed it properly, before rejecting the applicant’s account.
Consideration
12. I have read the applicant’s handwritten submissions to the court and I agree that they are essentially a repeat of the arguments which could have been, or were, made at trial. The judge has fully dealt with the evidence as it related to the question of possession and found the only other explanation put before the court to explain the applicant’s possession was “unbelievable and untruthful”[21], and a story “created to account for the presence of the drugs in his pocket”[22]. And, as the judge remarked, even if the applicant was in debt and assaulted, it did not mean that he was not in possession of the drugs[23].
13. As for the absence of fingerprints, Exhibit D4 established that no marks of any value were found on the exhibits concerned. The judge did not need to deal with or refer to evidence that proved nothing one way of the other. I can see nothing wrong or incorrect in the judge’s assessment of the evidence or in the conclusions to which he came.
14. Accordingly, I find no reasonably arguable grounds of appeal against conviction, and the application for leave to appeal against conviction is refused. The applicant is duly advised that he has the right to renew his application to the Court of Appeal of three judges, but he is also warned, if he chooses to do so, that the Court of Appeal has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.
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(Andrew Macrae) |
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Vice President |
Ms Rosa Lo SPP, of the Department of Justice, for the Respondent
The Applicant appeared in person
[1] Admitted Facts: AB, p 6 at [7].
[2] AB, p 17 counters 31-32.
[3] AB, p 37 counters 254-255.
[4] AB, p 37 counters 259-260.
[5] AB, p 41 counters 297-307.
[6] AB, p 39 counters 275-280.
[7] AB, p 43 counter 313.
[8] AB, p 35 counter 221 & 237.
[9] AB, p 8N-P.
[10] Admitted Facts: AB, p 8 at [5].
[11] Admitted Facts: AB, p 6 at [9], the drugs tested for were amphetamine, benzodiazepine, cannabis, cocaine and opiate.
[12] AB, p 9N-P.
[13] AB, p 9P-S.
[14] AB, p 10C-E.
[15] AB, p 10G-H.
[16] AB, p 10J-L.
[17] AB, p 12A-C.
[18] AB. p 13A-D.
[19] AB. p 13G-H.
[20] AB. p 12M-P.
[21] AB, p 13E.
[22] AB, p 13B-C.
[23] AB, p 13C-D.
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