HKSAR v. HOSSAIN ABUL

DCCC 906/2021

[2022] HKDC 893

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 906 OF 2021

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Reasons for Verdict

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1.  The defendant was charged with one count of trafficking in a dangerous drug, namely, 12.74 grammes of cocaine.  He pleaded not guilty to the charge.  Upon conclusion of the trial, I now deliver the reasons for verdict as follows. 

The Prosecution’s Case

2.  The prosecution’s case is straightforward. On 13 June 2021 at about 9:50 pm, 2 police officers in uniform were on patrol along Nathan Road, Tsim Sha Tsui.  They saw 2 non-ethnic Chinese male passengers alighting from a taxi outside Mirador Mansion.  One of the males was wearing a green-coloured upper garment and the defendant was wearing a shirt in purple. Upon seeing the uniformed police officers, the defendant immediately turned around and walked in a different direction while the man in green shirt walked towards Mirador Mansion.  One of the officers, PW1, gave chase and intercepted the defendant.  PW1 saw the defendant dropping 2 packets onto the ground.  These 2 packets were found to contain cocaine.  A cautioned interview was conducted at a later stage, and the defendant made certain exculpatory statements. 

3.  The defendant elected not to give evidence, but it is his defence that he had no knowledge of the content of the 2 packets that were seized by the police. 

Admitted Facts

4.  Pursuant to s.65C of Cap 221, both parties admit the following facts: -

(1)  P-1 is one plastic wrapping containing 9.62 grammes of a solid containing 6.33 grammes of cocaine.

(2)  P-2 is one plastic wrapping containing 9.8 grammes of a solid containing 6.41 grammes of cocaine.

(3)  P-3 is the document of Pol.153 issued to the defendant by PC10426 on 13 June 2021.

(4)  The defendant’s mobile phone together with the SIM card are produced and marked as P-5 and P-7.

(5)  The sketch drawn by PC10426 is produced and marked as P-17.

(6)  P-18 is another Pol.153 issued by DPC20656 on 14 June 2021.

(7)  The video-recorded interview is produced as P-19, with its transcript marked as P-19A and certified English translation as P-19B. The voluntariness of the interview is not challenged.

(8)  Certain footage of the CCTV of Mirador Mansion is contained in one USB which is produced and marked as P-26.

(9)  A photo album containing 18 still images of the CCTV footage abovementioned is produced as P-30 (1 to 18).

(10)  The chemist certificate is produced as P-27.

(11)  A photo album containing 16 images is produced as P-29 (1 to 16).

(12)  The street value of the dangerous drug at the material time is $22,838.

(13)  The identity of the defendant is not in issue.

(14)  The defendant has a clear record in Hong Kong.

PW1 PC10426 Chu Kwun-keung

5.  The Prosecution called only one witness to testify.  He is PC10426.  He joined the force in 2009 and was on duty on 13 June 2021.  At the material time, he and Sgt6209 were conducting anti-crime patrol on foot in Tsim Sha Tsui area.  When walking along Nathan Road near Mody Road, PW1 spotted a taxi at the front door of Mirador Mansion with 2 non-ethnic Chinese males alighting from the taxi.  The first one was one wearing a green top and the second one, a purple shirt. Later, PW1 corrected this piece of evidence when being cross-examined, saying that the first one alighting the taxi should be the defendant who was wearing a purple top at the time. The 2 males paused for a short while when spotting the police officers.  The defendant turned around and walked towards another direction while the man in the green shirt continued to walk towards Mirador Mansion.  Their movement was depicted at the sketch drawn by PW1 (Exhibit P-17). 

6.  PW1 and Sgt6209 felt suspicious and they intercepted these 2 males separately.  PW1 chased after the defendant, the man in the purple shirt.  PW1 saw the defendant dropping 2 packets from his left hand onto the ground.  These packets were just within 30 cm from the defendant.  PW1 immediately picked the packets up.  The packets were wrapped by a transparent plastic sheet containing some white powder.  The packets and the outfit of the defendant can be seen at photo 1 and 4 and 5 of the photo album P-29.

7.  Another officer in plainclothes came to assist PW1.  The defendant was handcuffed and body searched.  PW1 found the defendant’s identity document indicating that the defendant is a Form 8 holder.  The defendant also has one mobile phone. The Sergeant brought the man in green shirt over. 

8.  Eventually, a police car arrived at the scene. PW1 and the defendant boarded the police car while the man in green shirt was still escorted by Sgt6209 outside the police car.  The defendant used simple English to say that the male in green shirt gave him $100 to carry the stuff.  When PW1 showed the defendant the 2 packets that he seized, the defendant nodded his head and said yes. 

9.  PW1 declared arrest of the defendant and the other male for the offence of trafficking in a dangerous drug, and they were then brought back to the Tsim Sha Tsui Police Station.  Because of his English standard, PW1 did not caution the defendant at the time. PW1 identified himself, Sgt6209 and the 2 males from the CCTV footage (Exhibit P-26)  and from the still images (photo 13 to 16)  of the album (Exhibit P-30).  It is clear from the footage that at 21:41:25 hours, both the defendants and the man in green shirt alighted from the taxi and they parted right away. 

10.  Under cross-examination, PW1 agreed that, as can be seen from CCTV footage, it was the defendant who alighted first and the man in green shirt followed.  At that time, PW1 was near Mody Road as shown in the sketch (Exhibit P-17)  and was about 20 to 30 metres away from the spot where the taxi stopped.  It was from his experience that PW1 found it suspicious when he saw both males alighted from the taxi but, upon seeing police officers, walked to different directions.  PW1 did not accept that he did not see the defendant dropping the packets. 

11.  PW1 maintained that the defendant was holding the 2 packets and when intercepted, the defendant opened his hand and dropped the packets.  The interception was by random and by chance, not because of any tip-off. The defendant told PW1 in the police car that the man in green shirt would pay him $100 for carrying the stuff.  PW1 understood that the stuff that the defendant referred to was the 2 packets as PW1 was showing the same to the defendant. 

The video-recorded interview (VRI)  on 14 June 2021

12.  The voluntariness of this VRI (Exhibit P-19), and the accuracy of the transcripts (Exhibit P-19A and 19B)  was not challenged. For the present purpose, the entries of the police translator (denoted as “B”)  are listed out as follows: -

Entry 62	(the identity document)  is an RBCL document issued by the Immigration Department.
Entry 161	(concerning the male in green shirt)  “I don’t know him”.
Entry 171	I don’t know this Kenyan male (referring to the male in green shirt)  but he said to me, “I will give you $100 HK dollars. You have to take this thing to that place.”.
Entry 182 & 186	the defendant confirmed the stuff refers to the 2 pieces of white objects as shown.
Entry 200	the Kenyan male asked me to give this thing to a certain person, but at this time the police officers arrived.
Entry 208 & 212	the defendant don’t know to whom he was supposed to give the 2 objects.
Entry 218	the Kenyan male gave the objects to him about 5 minutes before the police officer arrested him.
Entry 224 & 230	he boarded the taxi in To Kwa Wan, and the Kenyan male was already in the taxi.
Entry 248 & 275	it was the Kenyan male who asked the taxi to stop (at No. 54 Nathan Road).
Entry 306	I have no knowledge about the dangerous drug. I don’t know what it is about.
Entry 336 & 338	this man paid him $100 dollars to bring this thing.
Entry 394	the defendant has been using the phone about 2 years ago.
Entry 414	the defendant doesn’t have the means to contact (the Kenyan male).
Entry 449	the defendant does not have the habit (of taking drugs).

The Defence Case

13.  Upon conclusion of the Prosecution’s case, there was no half-time submission.  The defendant elected not to give evidence and no other defence witness was called.

Analysis of Evidence

14.  The defendant is a Form 8 recognisance holder, and it should be stressed that there is no bias against the defendant in relation to his status.  On the other hand, the defendant has a clear record in Hong Kong.  That means legally the defendant is a man of good character, and his propensity to commit any criminal wrongdoing is low. The defendant elected not to give evidence in court.  That is his legal right and the Court cannot draw any adverse inference against the defendant. But that also means the defendant himself cannot provide first-hand evidence to challenge or shatter the evidence submitted by the Prosecution. 

15.  The VRI is tendered as an exhibit and its voluntariness is not challenged.  That said, I would not accept what the defendant said in the VRI as credible evidence.  He said he boarded the taxi in To Kwa Wan when the male in green shirt, or what he called the Kenyan male, was already in the taxi.  The defendant said he had no money to take the bus, and the Kenyan male happened to be around and offered to give the defendant a ride. The defendant claimed that 2 objects were passed to him 5 minutes before the police officers appeared.  From the photo album P-29 (photo 1 to 3), some white-coloured solid was wrapped by a transparent plastic sheet.  The Kenyan male, whom the defendant said he did not know him and has no means to contact him, offered to pay him $100 for bringing the 2 objects to somewhere and someone. 

16.  Defence counsel in his closing submission submitted that the defendant accepted that these 2 objects or packets were found near the defendant when the latter was intercepted by PW1.  No allegation of planting was made.  Effectively the defence accepted that at the material time, the defendant did possess the 2 packets.  The defence simply is that the defendant has no knowledge of the content of the 2 packets. 

17.  What was said by the defendant in the VRI cannot be viewed as the defendant’s testimony in court with the same weight. As I found what was said by the defendant in the VRI not credible, at least part of it, I have to rely on those evidence tendered by the Prosecution and to draw the necessary inference, if any. 

18.  I accept the testimony of PW1 and regard PW1 as a credible witness.  He saw the defendant and the male in green shirt alighted the taxi outside Mirador Mansion and suddenly parted and walked to different directions.  PW1 saw the defendant dropping the 2 packets of wrappings onto the ground.  The defence did not deny the defendant at the material time did possess these 2 packets. The fact that the defendant dropped these packets, when being intercepted by the police officer, clearly shows that the defendant knew these packets contained dangerous drugs.  The defendant said he was to be paid $100 for carrying these packets.  The packets were wrapped by a plastic sheet and the defendant can feel the weight of the content.  I do not accept the defendant was offered a taxi ride by chance in To Kwa Wan by the male in the green shirt.  I do not accept that the defendant does not know the male in green shirt at all. In fact, from the CCTV footage, the defendant can be seen appearing near Mirador Mansion at least on 2 occasions, that is at 19:57 hours and 20:36 hours, well before he was intercepted near Mirador Mansion at about 21:41 hours.  He chatted with some other males on these 2 previous occasions.  That provides the circumstantial evidence well before the arrest of the defendant. 

19.  After considering all the available evidence as a whole, I am of the view that the only reasonable and irresistible inference is that the defendant was possessing the 2 packets with knowledge that they contained dangerous drug.  He was offered $100 for the delivery, even though he did not receive the reward in the end. 

20.  In the circumstances, I convict the defendant of one count of trafficking in a dangerous drug.