HKSAR v. SK NIZAMUDDIN

DCCC 599/2018

[2019] HKDC 276

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 599 OF 2018

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REASONS FOR VERDICT

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1.  This is a drug case which originally involved two defendants, D1 and D2, who were jointly charged with one count of trafficking in 6.505kg of cannabis resin, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  D1 pleaded guilty and was convicted accordingly.  D2 pleaded not guilty and therefore required a trial.

The prosecution case

3.  Although 4 customs officers (PW1 to PW4) were called, their evidence was short and not challenged.  In fact, the prosecution case was basically included in the admitted facts (P41) and can be summarised as follows:

(a) At around 7 am on 30 November 2017, D1, an arriving passenger from Kolkata, India, was intercepted at the Hong Kong International Airport for customs clearance.

(b) When requested, D1 unlocked his suitcase (P3) which contained two boxes (P4 and P15).

(c) In Box P4, there were 26 boxes of Jaljira Powder Boxes (labelled 100 g), 10 boxes of Jaljira Powder Boxes (labelled 50 g) and 4 Shalimar Flavouring Packets. In Box P15, there were 21 boxes of Jaljira Powder Boxes (labelled 100 g), 10 boxes of Jaljira Powder Boxes (labelled 50 g) and 8 Shalimar Flavouring Packets.

(d) On examination, each of the 47 Jaljira Powder Boxes (labelled 100 g) was found to contain a tinfoil bag. In each of the said tinfoil bag, a packet (consisting of plastic wrappings) was found to contain cannabis resin in carbon paper.

(e) In total, there were 47 packets which contained a total of 6.505 kg of cannabis resin, as listed in the particulars of the charge.

(f) D1 was arrested and he expressed his willingness to cooperate with customs officers to participate on a controlled delivery operation. At around 12:40 noon, officers together with D1 went to a room of Flat 135 of “Apple Hostel” in Chungking Mansions, Tsim Sha Tsui.

(g) D1 later received several calls to his mobile phone and he gave the address to the caller. At around 3:39 pm, D1 received another call. A few minutes later, D1 opened the door and D2 entered.

(h) At around 3:45 pm, D2 was arrested. Under caution, D2 replied to the questions of customs officers in English. In summary, he said he came to the room to collect some Indian food to home. He did not know D1 and he got the address on the phone. Those replies were later post-recorded in the officer’s notebook (P42) and signed by D2.

(i) At around 5:30 pm, D2 led the officers to his residence in Tokwawan. Upon search, a carton box containing 8 Jaljira Powder Boxes (labelled 100 g) which were identical to the Jaljira Powder Boxes found in the suitcase (P3) was found under a bed.

4.  A video-recorded interview recorded in a disc (P43, its transcripts P44, and the translation P44A) was conducted the next day where D2 stated under caution that:

(a) He was from India, and had been living in Hong Kong for about 2.5 years;

(b) He lived in the Tokwawan address with his cousin, and his cousin’s wife;

(c) He used to do daily cleaning in the house, but he was not paid for that;

(d) He was unemployed;

(e) International Social Service provided him with food and rent;

(f) He said that he did not know D1 and he went there to collect his food;

(g) He said that he received a call from an unknown male in India saying his food was with a person, and he had to go to that person. Then he was given a contact number and was instructed to call the said number in order to collect his food;

(h) He said that he ordered the said food from India about a month ago;

(i) The said food belonged to him, but he said that he did not know what was inside the said food;

(j) He bought the Jaljira Powder Boxes seized from his address, from Tokwawan multiplex which has Indian stores;

(k) He said that he had no knowledge of the cannabis resin seized; and

(l) He agreed that the Jaljira Powder Boxes seized from his address were similar to the Jaljira Powder Boxes seized from the suitcase.

5.  The street value of the cannabis resin seized (P1 and P2) is estimated to be around HK$468,360.

6.  Photograph of some of the exhibits in the case including D1’s suitcase (P3) and the contents are produced in an indexed album as an exhibit (P46).

7.  There were no dangerous drugs found or seized from D2’s home address.

8.  D2 has a clear record in Hong Kong.

9.  After the close of the prosecution case, no half time submission was made and I ruled that D2 had a case to answer.

The defence case

10.  D2 elected to give evidence but called no other witnesses.  His live evidence was basically in line with his version given at the cautioned interview.

Parties’ submissions

11.  Both the prosecution and the defence made closing submissions.

12.  The prosecution submitted that guilty knowledge of the drugs on the part of D2 is the only reasonable inference to draw from the evidence.  It was submitted that it was not a coincidence for the drugs to be concealed in 47 boxes of Jaljira Powder in D1’s suitcase and that 8 boxes of the same powder were found at D2’s home.  There was, as submitted, no reason for the drug supplier to send such a valuable consignment to an innocent recipient, in particular, there was no address on the parcels.

13.  D2 was also attacked on his credibility with reference to several inconsistencies in his video-recorded interview and live evidence, for instance, from whom he was provided with the details of the person to contact, whether it was food or drink or sweet or Jaljira Powder that he intended to collect.  When I raised in court the issue of actus reus in this case, Mr Whitehouse for the prosecution submitted that D2 was trafficking as he was dealing with the drugs by arranging with D1 to go to the hotel room to pick up the drugs.

14.  After the adjournment of the case for verdict, Mr Whitehouse submitted by way of letter to court a very recent Court of Appeal authority HKSAR v Chung Sai Wah CACC 367/2017, judgment dated 20 February 2019, which happened to be the same day when closing submissions were done.  By further written submission, Mr Whitehouse submitted that the present case was on almost identical facts when comparing to those in Chung Sai Wah, so that the actus reus of the offence of “attempting” under s. 159G(1) of the Crimes Ordinance, Cap. 200 was clearly made out.  It was submitted that, subject to mens rea to be proved, D2 should be convicted of this offence of “attempt”.

15.  Mr Raffell for the defence submitted that knowledge is not the only issue when the whole case of “dealing” is being challenged by the defence.  The investigation in this case was seriously criticised as no checking was even done by the Customs on what D2 said and that the contents of the parcels were not shown to him until the very late stage.  It was emphasised that D2’s case was all along clear and consistent, namely he went there to take delivery of his food from abroad, which is very common these days.  It was, as submitted, a perfectly possible scenario where D2 was used as an innocent dupe when he just intended to pick up some food from his mother in India.  He is a person of good character, and that assisted his credibility and propensity to commit the crime.  Even if his version is rejected, the prosecution must still prove its case and there must be doubt.

16.  In reply to the said case of Chung Sai Wah submitted by the prosecution, Mr Raffell submitted that it did not extend or refine or alter the law of trafficking and that it was decided on its own facts.  That case was significantly different as the applicant admitted going to the hotel room to deal with “coke”.  On the contrary, D2 here had provided his innocent explanation which was consistent, not inherently improbable and that the prosecution was unable to undermine by any objective or independent evidence.

The relevant law

17.  On certain matters of law, I reminded myself of the following:

(a) This is a criminal trial, just like any other criminal cases, the prosecution bears the burden to prove D2’s guilt and D2 is not required to prove his innocence or anything at all. To succeed in proving D2’s guilt, the prosecution must make me sure of his guilt, which is the same as proving the case beyond all reasonable doubt.

(b) The fact that D1 has pleaded guilty has no bearing on my decision in the case of D2. The prosecution has to prove its case against D2 so that I am sure of his guilt, just as it would have to if D1 had not pleaded guilty.

(c) The prosecution invited me to draw inferences in this case. I may only do so if the inference is the only reasonable inference to draw from the proven facts.

(d) D2 has chosen to give evidence when he was not obliged to. I must take what he has said into account when considering the issues and decide whether I believe his evidence or whether it may be true. If the account given by D2 is or may be true, then he must be acquitted. But even if I entirely reject his account that would not relieve the prosecution of its burden of making me sure by evidence of his guilt.

(e) D2 is a person with a clear record. I have given myself the relevant good character direction, i.e. his good character supports his credibility and that he is less likely than otherwise might be the case to commit the crime.

(f) It is provided under s. 159G(1) of the Crimes Ordinance, Cap. 200 that a person who intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence. It is provided under s. 159G(3) that where a person is charged with an offence, he may be convicted of having attempted to commit that offence even though he was not charged with the attempt.

Analysis of the evidence

18.  I first deal with the actus reus of the offence in this case, which is very similar on the facts to that in Chung Sai Wah.  It is common ground that, here, just like what happened in Chung Sai Wah’s case, D2 had never come into contact with the drugs and he was arrested as soon as he entered the hotel room.  As such, and also as the Court of Appeal decided in Chung Sai Wah, the substantive offence was not made out and D2 should only have been charged with attempted trafficking and he could be so convicted, if the evidence, in particular on the mens rea, permits.  Before I move on, I express the same view, as the Court of Appeal did in Chung Sai Wah at paragraph 49 of the judgment, as it was a controlled delivery, there was no possibility of D2 being able to leave with the drugs, the way in which the officers turned their investigation overt is disappointing and surprising.

19.  Apparently, the only issue in this case is mens rea, or to be more specific, the knowledge of D2 of the drugs in question and his intention to deal with them.

20.  As rightly submitted by the defence, there is a marked and important difference between Chung Sai Wah’s case and this case.  The applicant in that case, when first asked by the officer as to why he had come to the room, replied “to deal with coke”.  This reply, if accepted and given weight, as the jury probably did in that case, could constitute an admission that the applicant came to the room to make or mix cocaine.  The difference between the two cases does not end there.  In Chung Sai Wah’s case, after arrest and caution at the scene, the officer asked 3 questions, “Who asked you to come up?”, “Who are you looking for here?” and “Why do you come up here?”.  To each of these question, the applicant answered “don’t know”.

21.  What happened here is completely different.  Not only that D2 did not make any admission at any stage, but it is also common ground that he gave his innocent explanation as soon as he was intercepted.  He answered every question he was asked and maintained a basically consistent version throughout.  I noted all the discrepancies in D2’s evidence as to from whom he was provided with the details of who to contact, whether he was there to collect food or drink or sweet, etc.  I do not consider those discrepancies significant enough to make me reject his version in its totality.  After all, the gist of his explanation is generally consistent, namely, he went over to collect a parcel, which, he believed, came from his mother in India.

22.  Moreover, it is not uncommon for people to ask for and receive from friends or relatives living abroad goods which are usually cheaper or of better quality in the manufacturing country.  Last but not least, the fact that the same boxes of Jaljira powder which were clean and had no drug traces were found at D2’s residence lends support to D2’s claim that he was a genuine consumer of the powder and that he had asked for it from his family in India.  I certainly remember D2 has come to Hong Kong for almost 5 years and has never been in trouble with the authority.

23.  I did not lose sight of the fact that the street value of the drug in this case is close to half a million Hong Kong dollars and that there was no address or addressee on the parcel, both matters were heavily relied on by the prosecution.

24.  I see the rationale for such arguments. Nevertheless, at the same time, I also see the possibility of an innocent dupe being used by the drug dealer behind, as contended by the defence.  More importantly, the prosecution case is handicapped to the extent that there is no evidence as to what and how D2 would have done with the parcel of drugs if he was allowed to take delivery of it.

25.  Having considered all the evidence and circumstances in this case, I am not satisfied beyond reasonable doubt that D2 knew there were drugs in the parcel which he was about to take delivery and that he intended to deal with those drugs.  As such, D2 is acquitted of the substantive offence of trafficking in a dangerous drug and the inchoate offence of attempt.