HKSAR v. ABBAS SYED NADEEM

CACC451/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 451 OF 2009

(ON APPEAL FROM DCCC 842 OF 2009)

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JUDGMENT

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Hon Lunn J (giving the judgment of the Court) :

1.  The applicant, who appears in person, renewed his application before this Court for leave to appeal against conviction, his application to do so having been refused by a single judge on 8 September 2010. On the day prior to this hearing, the applicant abandoned his application for leave to appeal against sentence and it was dismissed.

2.  The applicant was convicted after trial by His Honour Judge Yung in the District Court on 11 December 2009 of a single charge of unlawfully trafficking in a dangerous drug, namely 33.32 grams of ketamine and 16.74 grams of cannabis resin, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The alleged offence occurred in the mid-afternoon of 18 June 2009 in a park at Signal Hill Gardens, Minden Row, Tsim Sha Tsui in Kowloon.

THE TRIAL

The prosecution case

3.  It was the prosecution case that whilst the applicant was alone in the park he had been approached by PC 53920, who was patrolling together with PC 8607. A search of the applicant revealed the presence in plastic bags of the dangerous drugs the subject of the charge in his right front trouser pocket.  The ketamine was contained in four plastic bags, themselves contained in a red bag. The cannabis was in two bullet packets.

The defence case

4.  It was the applicant’s evidence at trial that he was together with his friend Rashid, when he was approached by police officers and searched.  Nothing was found on him.  Thereafter, a search of the immediate vicinity of the park by a group of other police officers revealed the presence of the red bag containing the four bags of ketamine.  The police officers alleged falsely that the dangerous drugs had been found in his trouser pocket.  In a record of interview made under caution in the early evening of 18 June 2009 at Tsim Sha Tsui Police Station, conducted with the assistance of an Urdu interpreter, the applicant admitted that the cannabis resin was his, adding : “I use cannabis”, but he denied that the contents of the red bag belonged to him.  The applicant testified that he had himself handed over the cannabis resin whilst in the police station, it having been concealed in the foot of one of his socks.

REASONS FOR VERDICT

5.  The judge stated that he found the “central issue” in the case to be whether or not cannabis had been found upon the applicant at the scene of his arrest by the police officers or whether it had been handed over to the police by the applicant in Tsim Sha Tsui Police Station.  The resolution of that issue was highly relevant to the evidence of the applicant that the packets of ketamine had not been found on his person that had been “planted on him” after the police had failed to find any dangerous drugs on him.

6.  The judge accepted the submission made on behalf of the applicant that the reason given by PC 53920 for intercepting the applicant at the outset was “not very convincing”.  Furthermore, the judge stated that he found the explanation of the two arresting officers on the issue of whether or not they had collaborated in making their notebook entries to be “not satisfactory”.  Of that, he determined that whilst it affects “overall credibility” it did not necessarily “damage crucial evidence in every case”.  In addition, the judge stated that he had regard to the evidence of the protest that the applicant had made at the very first opportunity when an interpreter was available, denying that he was in possession of the ketamine.

7.  Notwithstanding those matters of concern, the judge determined that he was satisfied that the applicant was in possession of both ketamine and cannabis resin.  He rejected the applicant’s explanation in testimony for his possession of the cannabis resin in a public park in the middle of the afternoon, in particular that he had it for his own consumption.  In rejecting the explanation, the judge found that for a man of the applicant’s limited means it represented “precious property”, noting that he gave no clear reason why he should have taken it to a public park, knowing of the probable presence of police officers at that place, rather than having left it at his home in Jordan.  Also, he rejected the applicant’s testimony that he was present with a friend, Rashid, when first confronted by the police in the park. In the result, having regard to the manner and time of the possession of the cannabis resin by the applicant he drew the inference that the applicant was trafficking in the cannabis resin.

8.  Having determined that the applicant was possessed of the ketamine at the time of his arrest, and having regard to the substantial quantity of ketamine, the judge determined that he was possessed of the ketamine for the purpose of trafficking in it.

GROUNDS OF APPEAL AGAINST CONVICTION

9.  In support of his application for leave to appeal against conviction the applicant relies upon multiple home-made Grounds of Appeal, filed on 11 March 2011. He contended that, having determined that the evidence of PC 53920 and his colleague PC 8607 was “unsatisfactory” as to the circumstances in which they confronted the applicant and as to their making up of their notebooks and statements, the judge erred in determining that finding did not affect the “crucial evidence” that they gave of the applicant’s possession of the cannabis resin and ketmine at the time of his arrest.  Further, the judge failed to take into account the evidence that the applicant had lodged a complaint with the Complaints Against Police Office (CAPO) as soon as he was released from police custody, conduct which was consistent with his denial under caution that he had ever had the four bags of ketamine in his possession.  Next, the judge had failed to consider the admitted evidence that, notwithstanding the fact that the applicant challenged the police assertion of the discovery of the ketamine in his trouser pocket, the red bag and the plastic bags of ketamine contained therein had not been sent for fingerprint examination.  Having regard to the evidence of PC 53290 that, if the applicant had handed over the pellets of cannabis resin whilst in the police station, that officer knew that the act would have been captured on surveillance cameras, albeit that the film was no longer available, the judge erred in determining that he did not believe that the police officers would have been so “careless or stupid”.

A CONSIDERATION OF THE SUBMISSIONS

10.  It is trite law that a judge and/or jury may reject or accept some or all of the testimony of a witness or witnesses, and that an appellate court would interfere with such a determination only in exceptional circumstances.  Having identified areas in the testimony of the arresting officers, PWs 1 and 2, that concerned him, namely whether there were suspicious circumstances that gave rise to the initial confrontation of the applicant and the circumstances in which they made up their notebooks and statements, the judge was entitled to determine that he accepted the main thrust of their evidence, in particular that they found pellets of cannabis resin and packets of ketamine in his trouser pocket.

11.  Although the judge did not advert to the evidence that the applicant had lodged a complaint to CAPO as soon as he was released from police custody it is clear that he took into consideration, and stated that he did so, the intimately related evidence that the applicant had denied possession of the ketamine, in effect, as soon as he could do so.

12.  The admitted fact that none of the items said to have been seized from the applicant, in particular the red bag containing the four packets of ketamine, were sent for fingerprint examination was a contention advanced on behalf of the applicant at his trial.  That evidence was of no significance.  The absence of discernible identifiable fingerprints on an object establishes nothing.

13.  The judge’s determination that, if the pellets of cannabis resin had been handed over by the applicant to the police officers in the police station in full view of surveillance cameras, that he did not believe that in the knowledge of such cameras they would be so “careless or stupid” was made in the context of an assumption, on behalf of the applicant, that they had ‘planted’ the bags of ketamine on the applicant :

“ …if they were fabricating evidence there is no need at all to say that the two bullets (cannabis resin) were found at the scene.”

He was entitled to make such a finding.

CONCLUSION

14.  In the result, we are satisfied that there are no merits in any of the proposed grounds of appeal sought to be advanced by the applicant.  Accordingly, we refuse the application for leave to appeal against conviction.