HKSAR v. ALI RAZA

CACC 227/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 227 OF 2014

(ON APPEAL FROM DCCC NO. 255 OF 2014)

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J U D G M E N T

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1.  On 11 June 2014, the applicant appeared before HH Judge Alex Lee in the District Court where he pleaded not guilty to one charge of trafficking in a dangerous drug, namely 47.03 grammes of a solid containing 30.33 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was convicted of the charge on 16 June 2014, whereupon the judge sentenced him to a term of 6½ years’ imprisonment. The applicant now seeks leave to appeal against his conviction and sentence.

The trial

2.  The following matters were either not in dispute or not seriously challenged at the trial. First, the applicant had a clear record and was the holder of a Form 8 immigration recognizance issued by the Immigration Department.  Secondly, the applicant was the person whom PC 12104 (PW1) saw outside No 31, Sheung Heung Road, Kowloon, at about 1:14 am[1] on 26 December 2013, and whom PW1 subsequently found, at about 1:18 am[2], on the staircase landing of the 3^rd floor of that building.[3]  Thirdly, at the time of the offence, the applicant lived at Room L, 9^th floor, Yi Wo Building, Shek Yam Road, Tsuen Wan.  Those premises were searched by the police at around 7:25 am on 26 December 2013, but nothing significant or incriminating was found.[4]  Fourthly, the cocaine seized by the police, the subject matter of the charge, had an estimated street value of $66,877.

3.  The issue at trial identified by the judge was whether the applicant was the South Asian male who had initially been intercepted by PW1 and his partner SPC 49110 (PW2) at the rear alley of No 5, San Ma Tau Street, Kowloon at around 1:05 am that morning.[5]

The prosecution case

4.  The prosecution evidence was this.  At about 1:04 am on 26 December 2013, the two uniformed[6] police officers PW1 and PW2 were patrolling along San Ma Tau Street near Mei King Street in the Hung Hom area[7] when PW1 saw a South Asian male, standing at a distance of 4 to 5 metres away.  The street lights in that location provided sufficient lighting for PW1 to make a sufficient identification of the male.[8]  The officer kept him under observation for about one minute and noted that he was wearing a black leather jacket with long sleeves, a pair of light blue jeans, and black shoes.  According to PW1, the male was looking around and holding a plastic bag in his right hand.[9]

5.  The male then suddenly turned around[10] and walked towards a bus terminus.  Finding the man’s behaviour suspicious, the two officers went forward to intercept him.[11]

6.  At around 1:05 am, PW1 and PW2 stopped the male at the rear alley of No 5, San Ma Tau Street and began to make enquiries of him.  They both noticed that he had a scar of about 1 to 2 inches in length on his right forehead, and that he was wearing a yellow garment underneath his black jacket.[12]

7.  PW1 asked the male what he was doing and where he lived, at which time PW1 was focusing on the applicant’s facial expressions.[13]  In reply, the male said: “Nothing.  Living in To Kwa Wan.”  PW1 noticed that the male was trying to hide the plastic bag he was carrying behind his back; accordingly, he demanded to search the bag.  The male, therefore, handed it over to PW1.  As soon as the officer took out a Marlboro’ cigarette packet from the plastic bag to examine[14], the male sprinted away.  PW1 estimated that the time between the original interception of the male and his running away was about 2 to 3 minutes.[15]

8.  The South Asian male was evidently a faster runner than PW1 and managed to put more and more distance between himself and the officer.  When, after some 2 minutes, PW1 reached Cheung Ning Street, he lost sight of the male.  PW2 had also given chase, but he had to stop for a passing vehicle when he reached To Kwa Wan Road; in consequence, he failed to keep up with PW1 in the pursuit of the male.

9.  Then at about 1:14 am, PW1 spotted from a distance of 5 to 7 metres a male person at the entrance of No 31, Sheung Heung Street.  The man’s appearance as well as his clothing was similar to that of the man he had earlier seen: his upper garment was yellow in colour, while his lower garment was light blue.[16]  However, he was not wearing a black jacket.  PW1 saw the man enter the building.  At about 1:15 am[17], PW2 and another officer SPC 47364 (PW3) arrived and joined PW1; whereupon they together entered the building to look for the male person.  At about 1:18 am[18], they found the man on the 3^rd floor staircase landing.  PW1 and PW2 recognised him as the man they had earlier intercepted at the rear alley of No 5, San Ma Tau Street.

10.  PW1 then showed the applicant the contents of the plastic bag, which included the Marlboro’ cigarette box and a resealable plastic bag wrapped in tissue paper, both containing dangerous drugs (the subject matter of the charge).

11.  Meanwhile, PW3 was informed of the route taken by the applicant in his escape from the rear alley at No 5, San Ma Tau Street to No 31, Sheung Heung Street.[19] He left the building in search of the black jacket[20], which he managed to find at the entrance to an alley in Cheung Ning Street.

12.  At about 1:35 am, PW1 declared arrest on the applicant for possession of dangerous drugs and cautioned him; the applicant thereupon remained silent.

The defence case

13.  The applicant elected not to give evidence and called no witnesses in his defence.  There was as a result no evidence from the defence side concerning how and why the applicant had come to be on the staircase of the 3^rd floor of No 31, Sheung Heung Street at 1:18 am.  The defence case that was put to the prosecution witnesses in cross-examination was that the applicant was not the person intercepted by PW1 and PW2 at the rear alley of No 5, San Ma Tau Street[21]; that he had not been shown the dangerous drugs at the staircase landing of the 3^rd floor, No 31, Sheung Heung Street[22]; that PW1 and PW2 were only able to provide a detailed description of the applicant because they had had ample opportunity to observe him after his arrest; and, also, that before PW2 commenced his evidence, he had spoken with PW1 about matters of evidence[23].  The prosecution witnesses disagreed with these various propositions.

Reasons for verdict

14.  The judge accepted the evidence of PW1, PW2 and PW3: they were in his view unshaken in cross-examination, and there were no material inconsistencies in their evidence, such as would cast doubt on their credibility.  In this regard, the judge said:

“9. Having observed the prosecution witnesses in the witness box, having considered the inherent probabilities of the case and the submission of defence counsel, I find that the prosecution witnesses are honest and credible. My reasons are as follows:-

(a) The prosecution witnesses were unshaken under cross-examination and their accounts match on major and material aspects.

(b) The fact that PW1 did not mention in his witness statement that he had told his colleague about the route of escape and asked the latter to look for the leather jacket does not cause me to doubt that he had actually done so. This is a minor and unimportant omission. Also, I see no reason for PW1 to lie about this. Moreover, PW3 would not have left the building to look for the jacket unless he had been told to do so.

(c) PW1 gave evidence that he told PW3 about the route of escape. On the other hand, PW2 also said that he had done so. This, at first sight, appears to be a discrepancy. However, on closer look this may not be a discrepancy at all, as their evidence does not exclude the possibility of both of them having informed PW3 about the escape route. Even if it amounted to a discrepancy, I would not consider it as a material one which would affect my assessment of the credibility of the prosecution witnesses.

(d)   PW1 said that the dangerous drugs were sealed in the presence of PW2 whilst PW2 said that he (PW2) had not attended to that.  However, I consider this discrepancy between PW1 and PW2 as a matter of no moment.  As I have said, the defendant does not dispute that the dangerous drugs were sealed in his presence at the Police Station before the Duty Officer.  The defendant’s case, as put in cross-examination, was that he was not the male intercepted by PW1 and PW2, that he had not been shown the exhibits on the staircase landing and that he had nothing to do with [P10] and the dangerous drugs found inside.  I should add that in relation to the few matters over which the evidence of PW1 do not agree with that of PW2, I accept the evidence of PW1 and give it full weight.  This is because PW1 was the one who took the active role in questioning, chasing, arresting and cautioning the defendant.  It was PW1 who seized all the exhibits.  It was PW1 who kept the dangerous drugs until they were sealed in a tamper-proof envelope in the presence of the defendant.  As such, PW1 would have a deeper impression of the incident than PW2.  In any event, the discrepancies between PW1 and PW2, whether considered individually or taken as a whole, do not cause me to doubt the honesty or credibility of any of the officers.”

15.  The judge gave himself a Turnbull direction in respect of the identification of the applicant by PW1 and PW2 and found their identification evidence reliable.  The judge attached full weight to their evidence in this regard, noting in particular that their evidence concerning the applicant’s scar on the right forehead was unchallenged.  On the issue of the reliability of the identification evidence, the judge said:

“10. As regards the reliability of PW1’s and PW2’s identification of the defendant as the male they had intercepted in the back alley of No 5 San Ma Tau Street, I find that I can safely accept their evidence in this regard and give full weight to their evidence. My reasons are as follows:-

(a) PW1 and PW2 had kept the South Asian male under observation for about 1 minute in sufficient lighting condition from a distance of 4 to 5 metres before they went forward to intercept him.

(b) Both of them had ample opportunity to observe that male at close quarters after he was intercepted. In particular, PW1 had spoken to him. Both PW1 and PW2 noticed that the male they intercepted had a scar on his right forehead.

(c) PW1 chased the male for about 2 minutes, during which time his attention was focused on the latter and therefore he had ample opportunity to form a firm impression of the built of the male.

(d) Both of the officers testified that they recognised the defendant as the person they had intercepted. The identification, which took place only a short time after the interception, is strengthened by the fact that the defendant is a South Asian and by the presence of a scar on his right forehead. In this regard, I note that there is no evidence as to whether or not the defendant has such a scar now. However, that is not the point. There was no suggestion in cross-examination that the defendant did not have such a scar at the time of the arrest. As such, the evidence of PW1 and PW2 that the defendant had the scar was not challenged.

(e) Both PW1 and PW2 were cross-examined on the basis that they had not in fact noticed any scar on the South Asian male and that they got the detailed descriptions of the defendant’s appearance (including the scar) only after the arrest, possibly at the Police Station. This suggestion was strongly denied by the two officers. In this regard, as aforesaid I have found that the officers were frank when they said they had lost sight of the defendant during the chase. I have also observed PW1 and PW2 giving evidence in the witness box. I find that both PW1 and PW2 are credible witnesses and that they do not have a tendency to exaggerate their evidence. I am satisfied beyond any reasonable doubt that the officers had noticed a scar on the right forehead of the defendant when they intercepted him in the back alley.

(f) The absence of DNA or fingerprint evidence does not lead inevitably to the conclusion that the defendant had not handled or in contact with the exhibits. See HKSAR v Tse Yu Hin (CACC 458/2012)

(g) I note that [P14] does not have distinguishing features. However, judging from the location where it was found, I have no doubt that it was the jacket worn by the defendant when he was previously intercepted by PW1 and PW2. It would be too much of a co-incident that someone else had left a perfectly usable black leather jacket at a location which tallied with the escape route and was in the vicinity of the building where the defendant was subsequently found. Even assuming that PW1 and PW2 had mistakenly identified [P14], this would not cause me to doubt their identification of the defendant which, as discussed above, was based on solid grounds.

In view of all the circumstances, I am satisfied that the risk of the defendant being wrongly identified can be safely disregarded.”

16.  In the light of the evidence which he accepted, the judge found the applicant guilty of the charge.

Grounds of appeal against conviction

17.  In his home-made Grounds of Appeal filed on 15 June 2015, the applicant complains that there was a significant inconsistency or discrepancy between the evidence of PW1 and PW2 which undermined the accuracy of their identification evidence (Ground 1).  In support of this ground, the applicant cited the discrepancies between PW1 and PW2’s evidence, which were dealt with by the judge in para 9(b) to (d) in his Reasons for Verdict (see para 14 supra).  Next, the applicant referred to a number of authorities concerning identification evidence and stressed that PW1 had said that he saw the male person outside No 31, Sheung Heung Street with appearance and clothing which was merely similar to the person whom he had earlier intercepted.  The applicant complains that the Turnbull direction the judge gave himself was “somewhat brief and superficial”.  He argued that there were material inconsistencies between the evidence of PW1 and PW2, to which the judge had failed to attach any weight; and that these inconsistencies should have impacted on the judge’s acceptance of the accuracy of the identification by the two officers.

18.  By Ground 2, the applicant averred that there was insufficient evidence to prove the charge against him beyond all reasonable doubt.  In respect of this ground, the applicant argues in his written submissions that a great number of South Asians resided in the area in which he was arrested in the early morning of 26 December 2013, and the majority of them worked either as construction workers or security guards.  The applicant says that all South Asians had a similar look and were of similar build.  Without DNA or fingerprint evidence, and in view of the discrepancies in the prosecution evidence and the fact that they lost sight of the person they originally intercepted, there was insufficient evidence to establish the charge against him to the required standard.  The applicant refers to the presumption of innocence and the burden of proof in a criminal case and submits that the judge’s verdict was “pedantic and capricious”.

19.  Finally, by Ground 3, the applicant submits that the judge was biased in making an observation which had the effect of portraying police officers as persons who were less likely to lie than other types of witnesses.  In his written submissions, the applicant relies on the cases of HKSAR v Henao Torres Oscar Oswaldo[24] and The Queen v Chiu Hung Wong[25] and complains that when the judge had used the expression: “In any event, I see no reason for him [the police officer] to lie about that”[26], he had evidently made up his mind that police officers were unlikely to lie, thus rendering the conviction unsafe and unsatisfactory.

Consideration of grounds of appeal against conviction

20.  I shall deal with grounds 1 and 2 together.  It is clear that the judge warned himself in clear terms of the dangers associated with identification evidence.  I can see no error in the way he analysed the evidence of the two identifying officers.  Indeed, it must be remembered that they were observing the applicant from different angles and it would have been remarkable perhaps if their evidence had been identical.  The judge considered such discrepancies as there were and determined that they did not undermine the accuracy of the identification.  The judge heard and saw the witnesses and it was for him to determine these matters and to explain why he came to the decision he did.

21.  By contrast, the applicant did not give or call any evidence.  It is not open for him now to assert that there are many men of South Asian origin in the locality who look similar to each other.  Even if that were true, it did not mean that the judge could not be satisfied of the accuracy of the officers’ identification.  The judge gave reasons for accepting their evidence and discounted the possibility of a mistaken identification.  I see no reasonably arguably grounds of appeal under these two heads of appeal.

22.  As for Ground 3, I cannot derive from the judge’s remark that he was treating the officers as witnesses who were less likely to lie than civilian witnesses.  All the judge was saying was that there was no reason for PW3 to have said that he found the black jacket where he said he did, if in fact he found it somewhere else.  The fact is he went in search of (and subsequently found) a black jacket when it appeared the applicant must have discarded it because he was no longer wearing it when arrested.  It would have been strange for the officers to have made up a potentially damaging inconsistency between what the man they had originally seen was wearing and what the applicant was subsequently found to be wearing.  Furthermore, the finding of the jacket at that location was not challenged.

23.  I do not accept the extrapolation of this remark as the judge somehow according more credence to police evidence because police officers were less likely to lie.  Accordingly, I do not consider that this matter raises a reasonably arguable ground of appeal.

24.  In the result, I do not at this stage see any grounds of appeal which would warrant leave to appeal against conviction being granted on what were entirely factual issues for the judge to determine.  Leave to appeal against conviction is accordingly refused.

Reasons for sentence

25.  In sentencing the applicant, the judge referred to the sentencing guidelines in AG v Pedro Nel Rojas[27] and R v Lau Tak Ming & ors[28], in which the Court of Appeal held that trafficking in 10 to 50 grammes of cocaine would attract a starting point after trial of 5 to 8 years’ imprisonment.  For the quantity of cocaine concerned, the judge adopted a started point in the middle of the range of 6½ years’ imprisonment.

26.  Defence counsel realistically accepted at trial that there was little by way of mitigation that could be advanced on the applicant’s behalf.  In the event, the judge sentenced him to 6½ years’ imprisonment.

Grounds of appeal against sentence

27.  The applicant has put forward only one ground of appeal against sentence, namely that the sentence was manifestly excessive and wrong in principle.  In his written submissions, however, he stresses that he had hitherto had a clear record and he was now married to a local resident.  The applicant has also suggested that a heavy cocaine abuser could take a dosage of up to 30 grammes in 24 hours.  The cocaine seized in the applicant’s case was contained in two small packets of 15 grammes each.  Accordingly, the applicant complains that the judge erred in placing the applicant’s case in the “high band” of the sentencing bracket and in failing to assess the case on the basis of self-consumption, for which the judge could have adopted a sentence in the “low band”.

Consideration of grounds of appeal against sentence

28.  The applicant was represented throughout his trial by experienced counsel.  At no stage, even after conviction, did counsel see fit to suggest that the applicant was in possession of the drugs, or some of them, for his own consumption.  Although, of course, I appreciate that the case had been fought on the basis that he was never in possession of the dangerous drugs, there was nothing in the applicant’s personal history which might reasonably have alerted the judge to this possibility, nor was such a suggestion made on his behalf.  The applicant had a clear record and nothing associated with the consumption of dangerous drugs was found at his home. Furthermore, the applicant was a torture claimant who was entitled to remain at large by virtue of a recognizance issued by the Immigration Department.  Yet, notwithstanding that he was not permitted to work in Hong Kong, he had possession of no less than three mobile telephones, HK$1,742 in cash and, of course, a substantial quantity of cocaine worth more than HK$66,000.

29.  Judges are not required to abandon their common sense and indulge in speculative possibilities which are never suggested in argument by a defendant’s lawyer, which do not properly derive from the evidence, and which would, in any event, be inconsistent with evidence which clearly points to trafficking in a substantial quantity of dangerous drugs.

30.  There is no realistic basis for arguing that the sentence was either manifestly excessive or wrong in principle.  The application for leave to appeal against sentence is similarly refused.

Conclusion

31.  These applications for leave to appeal against conviction and sentence having been refused, the applicant is duly advised of his right to renew either or both applications to the Court of Appeal but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] Appeal Bundle (AB); page 36K-P, and see the questions the defence put to PC 12104 at page 67G-Q, S-U, and page 68P

[2] AB; page 38G-H

[3] Para 2 of the Reasons for Verdict (RV) at AB, page 9E-G

[4] Para 5 of the Admitted Facts (AF) at AB; page 7

[5] Para 2 of RV at AB, page 9G-I

[6] AB; page 65S-T

[7] AB; page 26K-P

[8] AB; pages 26U-27A

[9] AB; page 27G-H

[10] AB; page 65R

[11] AB; page 86R-T

[12] AB, page 78J-N for PC 12104; and page 88C-H for SPC 49110

[13] AB; page 66L-M

[14] AB; page 33D-F

[15] AB; page 35T-U

[16] AB; page 78N-R

[17] AB; page 38B-C

[18] AB; page 38G-H

[19] AB; page 41B-H; page 96I-K

[20] AB; pages 116T-117B

[21] AB; page 73P-Q, and 112E-G

[22] Para 9(d) at AB, page 16P-U

[23] AB; page 106P-Q, and 110H-R

[24] CACC153/2011

[25] CACC161/1994

[26] AB; page 18M-N

[27] [1994] 1 HKC 342

[28] [1990] 2 HKLR 370