CACC 64/2019
[2019] HKCA 1276
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 64 OF 2019
(ON APPEAL FROM HCCC 338 OF 2018)
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BETWEEN
HKSAR
Respondent
and
MANAN ABDUL
Applicant
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Before: Hon McWalters JA in Court
Date of Hearing: 8 November 2019
Date of Judgment: 8 November 2019
Date of Reasons for Judgment: 13 November 2019
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REASONS FOR JUDGMENT
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1. The applicant was charged with two counts of trafficking in a dangerous drug, namely cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the two counts and was tried in the Court of First Instance before D’Almada Remedios J (“the judge”) together with a jury. On 1 February 2019 he was convicted of both counts and sentenced to 2 years’ imprisonment on the first count and 13 years and 6 months’ imprisonment on the second count, with both sentences ordered to be served concurrently with each other.
2. On 27 February 2019, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his convictions. At the hearing of the application I granted the applicant leave to appeal in respect of two grounds of appeal and granted him an Appeal Aid Certificate.
The prosecution case
3. The prosecution case was that in the evening of 13 October 2017 the applicant, a Pakistani Form 8 holder, was intercepted by PW1 (PC19218) and PW2 (PC15741) as he was seen leaving a residential building situated at 315 Nathan Road, Yau Ma Tei. He was searched and the police found one resealable plastic bag (Exhibit P1a) containing 0.68 gramme cocaine (Exhibit P1) in his left trousers pocket and cash of HK$16,140 in his right trousers pocket. This packet of cocaine was the subject of the first count.
4. The applicant was thereupon arrested and taken to Room 2 on the 5th floor of that building where he lived so that his residence could be searched.
5. As they entered Room 2, PW1 noticed there was a living room, with a mattress in it, and one bedroom. He asked the applicant in English “Where you sleep?” whilst pointing his finger at the bedroom, to which the applicant replied, “It’s me” .
6. At that time two other Pakistani males, named Muhammad and Touqeer were found sitting and talking on the mattress inside the bedroom. PW1 then said to the applicant “The things is you?” to which the applicant replied “It’s me.” The officers conducted a search of the bedroom and noticed there was a wardrobe which was closed at that time. PW1 pointed at the wardrobe and asked the applicant in English, “The clothes is you?”, to which the applicant again responded, “It’s me” .
7. Inside the wardrobe the police found one resealable plastic bag (P2), containing 4 smaller plastic bags (P3a) which contained a total of 228 grammes of cocaine (P3); an electronic scale (P4); a plastic bag containing 21 small resealable plastic bags (P5); cash of HK$42,250 (P6) and a tenancy agreement of Room 2 dated 23 July 2016 entered into by the applicant and Touqueer as co-tenants (P7). The applicant, together with Muhammad and Touqeer, were arrested for drug trafficking but only the applicant was prosecuted. The cocaine that was exhibited as P3 was the subject of the second count.
8. The purity of the cocaine in both counts was nearly identical and all packets seized shared the same appearance and size. It was the prosecution case that the small bag from the applicant’s trousers pocket in count 1 came from the 21 small bags that were seized from the wardrobe and were the subject of count 2.
The defence case
9. The applicant elected to give evidence but called no witness. The defence was that the police fabricated the evidence against him and the applicant was never in possession of either the smaller packet of cocaine or the HK$16,140. It was accepted at trial by the defence that drug trafficking activity had been going on in Room 2, but it was claimed that Tourqueer was the drug trafficker, the 21 packets of cocaine that were found in the wardrobe belonged to him and there was insufficient evidence to link the applicant to the cocaine in the bedroom.
10. The applicant claimed he did not speak or understand any English and denied having had any conversation with PW1 to the effect that he lived in the bedroom and that the clothes in the bedroom wardrobe belonged to him. He said he lived in the living room whilst Touqueer and Muhammad were sharing the bedroom. He had no knowledge of, and nothing to do with, the cocaine in the wardrobe.
11. The defence in its closing raised four matters for the jury to consider in favour of the applicant. Firstly, there was no fingerprint found on P1 that was allegedly found in the applicant’s trousers pocket; secondly, there was no photo of P1 taken by the police photographer; thirdly, there was no photo by the police photographer of the HK$16,140 that was allegedly found on the applicant; and lastly, P2 and P4 were not dusted for fingerprints.
The applicant’s grounds of appeal
12. The applicant was unrepresented and in his Form XI he complained that the judge erred in directing the jury that the absence of a fingerprint on the packets of drugs “means nothing at all”.
13. Mr Andrew Li, for the respondent, submitted that the judge, directed the jury properly that “the absence of the fingerprints proves nothing one way or the other” which cannot be criticised. In this regard, he relied on HKSAR v Chau Ping [1] .
Discussion
14. Two matters concern me in respect of this trial. They are the judge’s direction on the fingerprint evidence and the judge’s decision not to give a good character direction.
(1) The fingerprint evidence
15. The admitted fact in respect of the fingerprint evidence was as follows:
“One small plastic bag, Exhibit P(1a) and the 4 plastic bags Exhibit P(3a) were all submitted to police for fingerprint examination. There were no fingerprints found on Exhibit P(1a) and P(3a).”[2]
16. In respect of this evidence the judge gave the jury the following direction:
“Fingerprint evidence or lack of. At paragraph 16 of the first Admitted Facts and paragraph 2 of the second Admitted Facts, you will see the five plastic bags, that is P1A and P3A, the bags that contained the drugs, were examined but no fingerprints were found. It is correct what Mr Whitehouse is saying to you. There is no fingerprint evidence connecting the defendant to the plastic bags. Members of the jury, the absence of the fingerprints proves nothing one way or the other.”[3]
17. This direction was the subject of complaint by Mr Frederick Whitehouse, counsel for the applicant at trial, and the following exchange took place between he and the judge in the absence of the jury:
“MR WHITEHOUSE: Yes, just two matters, my Lady. I appreciate we are in your Ladyship’s hands on this. But, first, the first thing is your direction on the lack of fingerprints, in my submission, it was really rather too strong. You used just three words and not -- well, ‘It does not prove anything,’ and I’d say was added with some emphasis by you. In my submission, that was almost a judicial direction and it was really a little too strong. The absence of fingerprints, in my submission, should also be considered by the jury in all fairness. The other thing...
COURT: I don’t understand what you’re saying.
MR WHITEHOUSE: Yes, it’s -- well, the...
COURT: But that is the usual direction.
MR WHITEHOUSE: Well, the lack of fingerprints might raise an inference that the defendant didn’t handle any of the exhibits.
COURT: No, but...
MR WHITEHOUSE: As I said...
COURT: Perhaps, you could -- you could -- the law is not -- does not state it that way.
MR WHITEHOUSE: Well, I mean, I have set it out in your Ladyship’s hands. ...
...
COURT: But as to the fingerprint, I will not be adding anything further.”[4]
18. As Mr Whitehouse emphasised to the judge, the lack of a fingerprint on the plastic bag in which the drugs were contained was an important primary fact for the defence. It would have been particularly relevant, if the jury were entitled to have regard to it, to the credibility of the applicant’s testimony that the prosecution case in respect of the packet allegedly found in his trousers’ pocket was a fabrication. Similarly, it would have had relevance to the drugs in count 2 as the prosecution case was that the drugs in count 1 came from the drugs in count 2 so it could be expected that the applicant would also have handled the drugs in count 2.
19. It can be assumed that jurors will be aware that a person’s fingerprints can be deposited on a surface when that person’s fingers come into contact with that surface. Knowledge of that fact would have made the absence of fingerprints on the plastic bags containing the cocaine of probative value to the jury for the reasons I have outlined. However, what cannot be assumed is that jurors will know that different types of surfaces will be more or less receptive to the deposit of fingerprints and that there may be a number of reasons why a person’s fingerprints are not deposited on a particular surface notwithstanding that his fingers have come into contact with that surface. If the prosecution wish the jury to be aware of this information then the prosecution must adduce it from the relevant expert.
20. In the absence of such evidence it seems to me that it is reasonably arguable that the absence of a fingerprint on a surface is a primary fact to which the jury can have regard and it should be left to them to make such weight of it as they wish. The judge’s direction, effectively, prevented the jury from having any regard to it.
(2) The absence of a good character direction
21. The parties agreed that no good character direction would be given as the applicant was an unconvicted illegal immigrant awaiting the processing of his asylum claim. It was an admitted fact that he was of clear record[5] and nothing appears to have emerged at trial to impugn his character other than his illegal immigrant status. Notwithstanding that the judge has a wide discretion on this issue it is a discretion which has to be exercised judicially. The question that prompts my concern is whether a defendant’s illegal immigrant status is, without more, sufficient to deprive him of the benefit of a good character direction.
Disposition
22. For these reasons I granted the applicant leave to appeal to argue that there was a misdirection in respect of the fingerprint evidence and an erroneous non-direction in respect of the applicant’s good character. To assist him in arguing these grounds I granted the applicant an Appeal Aid Certificate.
(Ian McWalters)
Justice of Appeal
Mr Andrew Li SPP, of the Department of Justice, for the respondent
The applicant appeared in person
[1] CACC 2/2013, unreported, 8 January 2014.
[2] Paragraph 16 of the Admitted Facts at page 12 of the Appeal Bundle, as amended by paragraph 2 of the 2nd Admitted Facts at page 14 of the Appeal Bundle.
[3] Summing-up at page 24Q-U of the Appeal Bundle.
[4] Summing-up at pages 47D-48P of the Appeal Bundle.
[5] Paragraph 26 of the Admitted Facts at page 13 of the Appeal Bundle.