HKSAR v. DAR ASIM TAHIR

CACC 197/2021 [2023] HKCA 754

On appeal from [2021] HKCFI 3324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 197 OF 2021

(ON APPEAL FROM HCCC NO 415 OF 2019)

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J U D G M E N T

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1.  The 1^st, 2^nd, and 3^rd applicants were D1, D2 and D3 respectively at trial. They originally faced an indictment that charged D1 of trafficking in a dangerous drug, namely 989 grammes of crystalline solid containing 921 grammes of methamphetamine hydrochloride (commonly known as Ice) (Count 1) and trafficking in a dangerous drug, namely 4,525 grammes crystalline solid containing 3,910 grammes of methamphetamine hydrochloride (Count 2). D1 was further charged together with D2 and D3 of jointly trafficking in dangerous drugs, namely 7,587 grammes of a mixture containing 4,625 grammes of heroin hydrochloride and 884.6 grammes of monoacetylmorphine hydrochloride, 3,363 grammes of a solid containing 2,600 grammes of cocaine and 4,544.3 grammes of a powder containing 3,792.9 grammes of ketamine (Count 3); and manufacturing a dangerous drug, namely cocaine (Count 4).

2.  At the commencement of trial, D1 pleaded guilty to all four counts, whilst D2 and D3 pleaded not guilty to Counts 3 and 4.

3.  The trial against D2 and D3 proceeded on an amended indictment in which they were charged with conspiracy together with D1 between April 2018 and 3 October 2018 to traffic in dangerous drugs, namely methamphetamine hydrochloride, cocaine, ketamine and heroin (Count 1); in the alternative, together with D1, on or about 4 October 2018, of trafficking in dangerous drugs, namely the drugs as particularised in the previous Count 3 (Count 2); and conspiracy together with D1, between April 2018 and 3 October 2008, to manufacture a dangerous drug, namely cocaine as particularised in the previous Count 4 (Count 3); in the alternative, together with D1, on or about 4 October 2018, of manufacturing a dangerous drug, namely cocaine (Count 4).

4.  D1 gave evidence for the prosecution at the trial of D2 and D3, after which D2 was convicted of Counts 1 and 3 (by a majority verdict of 5 to 2), while D3 was acquitted of Counts 1(by a unanimous verdict), 3 and 4 (both by a majority verdict of 6 to 1) and convicted of Count 2 (by a unanimous verdict).

5.  The judge sentenced D1 to a total term of 17 years and 8 months’ imprisonment; D2 to a total term of 32 years’ imprisonment; and D3 to a total term of 28 years’ imprisonment.

6.  D1 originally sought leave to appeal against sentence, but he filed a notice of abandonment on 2 February 2023, and his appeal was marked dismissed. There remains the leave applications of D2 against conviction, and D3 against conviction and sentence.

The brief facts

7.  At about 10:55 pm on 3 October 2018, police officers on duty in the district of Yuen Long stopped D1 whilst he was riding a bicycle towards them. Over the handlebars of the bicycle, there was a plastic bag containing 921 grammes of Ice. D1 was arrested at the scene for trafficking a dangerous drug. Following a body search, police found on D1’s person a set of 3 house keys, a small amount of money, and an iPhone. D1 remained silent on arrest and caution, but later voluntarily told police officers that more drugs were at his home. The police officers took D1 back to his home and gained entry to the ground floor of the two-storey village house through the keys found on D1.

8.  The village house consisted of a ground floor where D1’s bedroom was located, as well as a bathroom and a kitchen shared with upstairs tenants, who were D2 and D3. The police officers found 3,910 grammes of Ice in D1’s bedroom. Inside the kitchen, police officers found electronic scales, electric blenders, two metal pots, and ladles with traces of cocaine on them. There were also baking soda and cocaine in two packets and a number of transparent resealable bags. D1 claimed that the tools found in the kitchen were used by him, D2 and D3 to manufacture cocaine. D2 and D3’s DNA was found near the seal of a plastic bag containing 518 grammes of heroin.

9.  D2 and D3 both lived in the first-floor bedroom. They were on the bed when police officers entered their bedroom. In the first-floor bedroom, there was a total of 4,625 grammes of heroin, 884.6 grammes of Ice, 2,600 grammes of cocaine, 3,792 grammes of ketamine, and 4.6 kilogrammes of a white substance, which later proved to be a mixture for manufacturing cocaine.

10.  D1 testified at the trial that he had known D2 since they were 12 years old, as they lived in the same village in Pakistan. D1 had been purchasing drugs from D2 since they met again in Hong Kong in 2016. In April 2018, D2 offered D1 free accommodation and free cocaine plus a monthly payment of HK$5,000 for D1 to deliver drugs for D2. D2 and D3 were a couple living at the house before D1 moved in. D2 would give D1 the drugs to be delivered to customers, and D3 would do the same when D2 was not present; sometimes she would weigh the drugs. D2 and D3 would manufacture cocaine in the kitchen, and sometimes D1 would assist when they needed help. The drugs found in the plastic bag on the bicycle handlebars and in D1’s bedroom were given to him by D2 for delivery to customers.

11.  It was the prosecution case that D2 imported drugs from Pakistan to Hong Kong, hidden in parcels of clothing or chocolate, which would be posted to Filipino domestic helpers who D3 knew. D1 and D3 would then go to collect the parcels, bring them back to the house, and keep them in the first-floor bedroom where D2 and D3 lived. D1 would then distribute the drugs in accordance with D2’s instructions.

12.  The defence case was that the drugs in the house belonged to D1 only; D2 and D3 had nothing to do with them. D2 claimed he moved into the house after D1 had rented it, and D3 claimed she had no knowledge of drugs in the house or her bedroom. Even if she did, she did not possess the drugs and she had no authority to exercise control over them.

13.  The judge directed the jury that they had to decide, firstly, whether D2 and D3 had custody and control or had the intention or authority to exercise custody and control over the drugs in their bedroom, if so, the jury had to consider whether the prosecution had proved that D2 and D3 had knowledge of the drugs[1]. The judge addressed the issue of possession and gave various examples of what constituted possession[2].

14.  The judge cautioned the jury to consider each count separately and the case against and for each defendant separately on each count, emphasising that the evidence concerning each count and each defendant was different[3].

15.  The judge instructed the jury to consider the DNA found on the bag of drugs in the kitchen to be evidence of D2 and D3’s contact with the bag only and adding that no one suggested that the DNA conclusively proved the guilt of the defendant on any count[4].

16.  The prosecution extracted data in the form of photographs and audio recordings from D2’s telephone. D1 identified the voice of D2 and D2’s partner in the trafficking of drugs in the audio messages. D2 denied it was his voice and claimed it was the voice of D1 as D1 borrowed his telephone.

17.  D3, in her video recorded interview, said the black bag containing unknown substances had been in her room for over a month. She claimed that D2 asked her not to touch it, but when D2 was not present, she would give the bag to D1 after D2’s approval. The prosecution claimed that her video recorded interview showed that D1 was telling the truth.

18.  The judge also highlighted the inconsistencies in D1’s antecedent statement and non-prejudicial statements[5]; his previous convictions, which went to his credibility; his motive in giving evidence; and the strong incentive for a witness to give false evidence to avoid prosecution or a reduction in sentence.

D2’s appeal against conviction

19.  D2 appears in person, having had legal aid refused to him. He advances four grounds of appeal, and a further four grounds of appeal filed in two different written submissions.

20.  In Ground 1, D2 complains that the judge had given excessive directions in regard to two letters, Exhibits D2 and D3, to such an extent that it prejudiced his case. The defence produced both letters as evidence as part of their case. They were addressed to the Narcotics Bureau, purportedly from D1. In the first letter, D1 purportedly represented that he and D2 wished to talk with the police about the case and that D3 was not involved[6]. In the second letter, D1 purportedly followed up from the first letter and requested the police to visit him and D2 and that their boss was trying to pay them off. It was suggested that it was signed by D2[7]. D2 questions how D1 could recognise his signature and complains that he would never sign his full name on a document. He also notes that the person who purportedly wrote the letter, Chris, was never asked to verify whether he had written it on behalf of D1 only. D2 raises for the first time that he never signs his name in full and as he did not testify at his trial, there was simply no evidence to rebut D1’s evidence on this matter. It was open to D2 to call Chris to rebut D1’s evidence, but this was not done on his behalf.

21.  During the trial, it was D1’s evidence that he did not write the first unsigned letter but was present with D2, when a fellow inmate, Chris, wrote the second letter for them. D2’s counsel challenged this evidence, putting to D1 that D2 was not present when the letter was written, to which he disagreed. Although it had been challenged, a police officer also testified that D2 had asked for a reduction in sentence.

22.  It is to be noted that the judge fairly and correctly directed the jury that since the context under which D2 requested a reduction in sentence was unclear, she directed that this proved nothing one way or the other.

23.  In Ground 2, it is complained that the judge’s summing-up was unbalanced and was essentially a second closing speech for the prosecution case. He also complains that the judge repeated D1’s evidence while presenting the defence case in a critical light. There is no merit in this ground as the judge summarised the evidence that had been presented at trial, which mainly consisted of D1’s evidence. The judge had properly addressed the issues raised by D2’s counsel in respect of D1’s evidence and there is no cause for complaint[8]. The judge also addressed the issues and criticisms raised by D3’s counsel in respect of D1[9].

24.  In Ground 3, it is complained that the judge’s directions on the international drugs enterprise were inadequate and based on hearsay evidence. The origin of the drugs was not a material issue that went to the criminality of the offence. D1 had testified that he and D3 would go to various domestic helpers to collect parcels sent from Pakistan on D2’s instruction. It would appear that D1 had personal knowledge that the arrangement with the parcels was such that they were posted from overseas.

25.  In Ground 4, it is complained that it was impossible for D2’s trial counsel, Mr Phil Chau, SC, to formulate a defence case within one day before trial depriving him of a fair trial. On 21 May 2021, D2 indicated he no longer wanted his then counsel to represent him, and Mr Chau was assigned to take his place. He provides no particulars how he was disadvantaged, and a perusal of the record reveals his complaint was not only of his own making but totally inaccurate as he was ably represented at trial.

26.  In Ground 5, it is averred that the judge failed to direct the jury on the fingerprints found on the ziplock bag containing drugs. It was accepted as an admitted fact that D2 and D3’s DNA was found on a ziplock bag containing 518 grammes of heroin. The judge correctly pointed out that this was only evidence of D2 and D3’s contact with the bag and that it did not prove D2 and D3’s guilt on any account “or goes anywhere near doing that”[10]. She correctly directed the jury that the absence of fingerprints was neutral and did not invite them to draw an adverse inference from the lack of D2’s fingerprints on objects, nor did she invite them to speculate.

27.  In Ground 6, it is claimed that there was a material irregularity at trial in the judge’s directions, where she said that D2 had been selling drugs to D1 since 2006, implying that D2 had dealt with drugs since then[11]. The year 2006 seems incorrect because the judge later said that D1 met D2 in Hong Kong in 2016 and would purchase drugs from him from then on[12].

28.  Ms Audrey Parwani, for the respondent, argues that this was a matter of whether the jury accepted D1’s evidence, having assessed his credibility. As pointed out, the judge repeatedly warned the jury to approach D1’s evidence with caution as he hoped for a lesser sentence. However, the issue that arises from this ground is whether the judge was obliged to give a specific direction to the jury about D1’s evidence implicating D2 in previous drug trafficking activities unrelated to the allegations as contained in the counts on the indictment: HKSAR v Kwok Hing Tony[13]. It is arguable that this evidence was relevant as part of the background and the relationship between D1 and D2, and had little, if any, prejudicial effect because of the drug trafficking activities D1 alleged he and D2 committed as set out in the counts on the indictment. Nonetheless, I am satisfied that this aspect of the ground of appeal is reasonably arguable, and I grant D2 leave to appeal on this point only.

29.  In Ground 7, it is averred that the judge’s failure to direct the jury that D2’s status as a torture claimant had no relevance to guilt, which was prejudicial to him. As rightly submitted by the respondent, D2’s immigration status as an asylum seeker was not evidence of bad character and required no special direction. The judge directed the jury that while D2 and D3 would have been in prohibited employment because of their status, this did not go to their propensity to commit the offence. There is no cause for complaint on this ground.

30.  In Ground 8, it is complained that the judge should have properly directed the jury as to the recognition of the voice recording by D1. Furthermore, D1 was not an expert witness, and his evidence on voice recognition was inadmissible. A non-expert can give evidence on voice recognition so long as the quality and quantity of the material is sufficient to enable a useful comparison to be made[14]. The judge followed the specimen directions and reminded the jury to exercise caution in considering D1’s evidence on this matter, as well as mentioning the specific issues about his evidence as submitted by the defence.

31.  I refuse D2 leave to appeal his grounds of appeal against conviction except for Ground 6 regarding the need for the judge to give a direction concerning the allegations of previous drug trafficking activities by D2, which were not the subject of the counts on the indictment.

D3’s appeal against conviction

32.  D3 is represented by Mr Richard Donald, Ms Nisha Mohamed and Ms Jacqueline Chan under the Bar Free Legal Service Scheme in her appeal against conviction. D3 relies on four grounds to seek leave to appeal.

33.  In Ground 1, it is averred that the judge erred in failing to direct the jury in accordance with HKSAR v Li Jin [15], that “something more than knowledge and acquiescence” was required to establish the exercise of control when alleging joint possession by a couple of drugs for the purpose of trafficking in them, and that the “ability to control” should be distinguished from the “actual exercise of control”.

34.  Ground 2 partly overlaps with Ground 1. It is complained that the judge’s directions on custody, exercise and control might have misdirected the jury to establish D3’s custody and control and knowledge of the drugs, simply on the basis that D3 was sharing a room with D2.

35.  Li Jin provides that in a case where joint possession of drugs is alleged against a couple residing together, knowledge of and acquiescence in the presence of drugs in the home is not enough to prove possession unless it can be shown that the acquiescing party had done something to advance or promote or encourage the other party’s possession. The jury were directed regarding Count 2 that the prosecution had to prove that D2 and D3 possessed the dangerous drugs, that they knew that what they possessed were dangerous drugs and that they possess them for the purpose of trafficking[16].

36.  Ms Parwani submits that the judge did not err as submitted by applicant. She argues that the judge gave detailed directions, in line with the relevant specimen directions, and further detailed guidance to the jury on how to approach the issue of possession. She contends that the present case was not like that in Li Jin where the spouse or partner knows of the drugs and the storage of them in the home, and therefore in such circumstances, proof of control in a case of joint possession requires more than knowledge and acquiescence. She argues that D3’s case was that she had no knowledge of the drugs, and even if she did, she had no authority to deal with them, and thus was not in possession of the drugs[17].

37.  Ms Parwani further argues that in the circumstances of this case, where the prosecution alleged that D2 and D3 were in joint control of the drugs and part of a joint enterprise to traffic them, it would have been inappropriate and confusing to the jury to give a Li Jin direction. I am not persuaded by this argument. Where the question arises as to whether D2 was acting independently from D3 in possessing and trafficking in the drugs, then such a direction would not be inappropriate or confusing to a jury. Admittedly, D1 implicated D3 in the drug trafficking activities at the house, but D1’s evidence of D3’s involvement was challenged, and it was D3’s case that she was not involved in the drug activities of D1 and D2.

38.  It is argued on behalf of D3 that a Li Jin direction should have been given because the jury may well have rejected parts of D1’s evidence implicating D3 in the conspiratorial enterprise between D1 and D2 and left with the layer of evidence of her knowledge of their activities but not involved in them. It is submitted that this is supported by the jury’s verdicts, by which they only found D3 guilty of jointly trafficking the drugs in Count 1 with D1 and D2 on 4 October 2018 (Count 2), and acquitted D3 of Counts 1, 3 and 4. In other words, the jury did not find D3 guilty of a conspiracy with D1 and D2 between a day in April 2018 and 3 October 2018 to traffic the drugs in question (Count 1); a conspiracy with D1 and D2 between a day in April 2018 and 3 October 2018 to manufacture cocaine (Count 3); and a joint enterprise with D1 and D2 on 4 October 2018 to manufacture cocaine (Count 4). It is arguable that the jury, by their verdicts, did not accept that D3 was part of a conspiratorial criminal enterprise with D1 and D2 as alleged in Count 1, nor in the manufacturing of cocaine either as part of a conspiracy or jointly with D1 and D2, and the question arises whether in the circumstances a Li Jin should have been given to the jury.

39.  I am satisfied that this is a reasonably arguable ground of appeal and leave is granted to D3.

40.  In Ground 3, it is averred that the judge should have given a direction, as in HKSAR v Tang Kwok Wah Dixon [18], that if the jury disbelieved a prosecution witness on anything material, they should be slow to accept that witness’ evidence on anything else. I am not persuaded by this ground of appeal. The judge directed the jury to carefully consider the evidence of the witnesses, especially that of D1, who had pleaded guilty and was giving evidence under immunity. She also gave the usual directions regarding their evaluation and assessment of the evidence generally[19].

41.  In Ground 4, it is directed that the judge failed to direct the jury that the telephone data, consisting of photographs and audio messages, extracted from D2’s telephone could not be used against D3 in considering the issue of joint enterprise. The judge made it abundantly clear to the jury that evidence by one defendant could not be used against another defendant, who was not present when the statement was made[20]. The judge specifically addressed the issue of the photographs and the audio messages extracted from D2’s telephone and gave appropriate directions to the jury[21]. As pointed out by the respondent, it was clear that the purpose of the prosecution relying on the telephone data was to support generally D1’s credibility, and specifically, D2’s alleged drug trafficking activities.

42.  The judge very properly cautioned the jury to consider each count separately and the case against and for each defendant separately on each count. Accordingly, there was no apparent risk of any injustice that the jury might have used the telephone data against D3 as implicating her.

D3’s appeal against sentence

43.  D3, in her home-made grounds of appeal against sentence, merely complained that the sentence was manifestly excessive.

44.  As I have already noted, the jury by its verdict acquitted D3 of Counts 1, 3 and 4 but convicted her of Count 2. Count 2 concerned a joint enterprise between D2 and D3 with D1 to traffic the drugs found in the bedroom on the first floor of the house. It is reasonably arguable that D3’s role in this offence was limited and should have been taken into account when determining an appropriate starting point according to the sentencing guidelines: HKSAR v Herry Jane Yusuph [22].

45.  I am satisfied that this is a reasonably arguable ground, and leave is granted to D3 to appeal against her sentence.

Conclusion

46.  It follows from what I have said that I refuse D2 leave to appeal against his conviction on the grounds that he has advanced except Ground 6 as to whether the judge was obliged to give a specific direction to the jury about D1’s evidence implicating D2 in previous drug trafficking activities. I grant D3 leave to appeal against her conviction on Grounds 1 and 2 and refuse her leave on Grounds 3 and 4. I grant D3 leave to appeal against sentence on the ground of whether the role that she played in the offence for which she was convicted was appropriately taken into account in assessing her culpability and applying the sentencing guidelines.

47.  On the basis that I have granted leave to D2 and D3 in respect of the specific grounds I have mentioned, I consider it desirable in the interests of justice that they should have legal representation in the preparation and conduct of D2’s appeal against conviction and D3’s appeal against conviction and sentence. I therefore grant an appeal aid certificate to D2 and D3, although in the case of D3, the certificate is for two counsel, given the involvement of the counsel in this case.

48.  On the grounds for which I have refused leave to D2 and D3 against conviction, I remind them of their right to renew their application for leave to appeal against conviction to the Court of Appeal on those grounds, but they are also informed of the consequences of doing so, which may include a further direction for any loss of time spent in custody pending their appeal, if the Court were to come to the view that there was no justification for renewal of their applications.

49.  In deciding these applications, I did not have the benefit of the transcript of D1’s evidence, and accordingly, I direct that it be included in the Appeal Bundle.