HKSAR v. MUHAMMAD, FURQAN

HCMA 525/2019

[2020] HKCFI 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 525 OF 2019

(ON APPEAL FROM KTCC 1563 OF 2019)

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JUDGMENT

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Background

1.  The Appellant Muhammad Furqan faced one charge of “trafficking in a dangerous drug” which concerned 6 plastic bags containing a total of 5.71 grammes of cannabis in herbal form, 1 plastic packet containing 3.30 grammes of cannabis resin and 16 plastic bags containing a total of 50.25 grammes of cannabis in herbal form.  He pleaded not guilty to the charge and was tried before Mr Ho Chun-yiu, a Permanent Magistrate (“the Magistrate”).  The Magistrate convicted the Appellant after trial. 

2.  The Appellant now appeals against his conviction.

The Prosecution Case

3.  The Magistratesummarizes the Prosecution case in paragraphs 3 to 7 of his Statement of Findings:

“3. On 25 October 2018, police officers were conducting an operation in the vicinity of Salisbury Garden, Tsim Sha Tsui. PC 18113 (PW1) and PC 19258 (PW2) were posted inside the Garden lay ambush.

4. At 1725, PW1 spotted the defendant, a South Asian male, going from the Garden towards the bushes near the entrance to the Avenue of Stars and sat down on the curb next to the bushes. Beside the defendant was another South Asian male. The defendant was then seen bending down and stretched out his right hand into the bushes, and “touched” a black plastic bag there. He then stood up and shook hands with the South Asian male. After that, the defendant walked away from the bushes while the South Asian male also left.

5. The defendant was then seen to be shaking hands with another South Asian male, about 3 metres in front of the bushes. He then returned to the bushes, sat down on the curb again, interacted with a third South Asian male, and both of their mouths were seen moving. After this third South Asian male left, the defendant again bent down and opened a black plastic bag under the bushes with both hands.

6. At this juncture, PW1 found that there was no one else at the bushes, and therefore went ahead and intercepted the defendant. PW2 also came to his assistance. After the defendant was under control, PW1 searched the bushes in the presence of the defendant, and found and seized 2 black plastic bags containing dangerous drugs, namely 6 plastic bags containing a total of 5.71 grammes of cannabis in herbal form, 1 plastic packet containing 3.3 grammes of cannabis resin, and 16 plastic bags containing a total of 50.25 grammes of cannabis of herbal form, the subject matter if the charge the defendant is now facing. No other suspicious items were found under the bushes.

7. It is not in dispute that the total street value of the drugs involved was HK$19,228.  At the material time, the defendant was also found to be in possession of $2,312 cash and 3 mobile phones.”

The Defence Case

4.  The Appellant exercised his right and elected not to give evidence and called no witness.

The Magistrate’s Reasons

5.  The Magistrate said in paragraph 2 of the Statement of Findings:

“2.…The only issues in this case are whether the defendant did the acts as observed by police officers, and whether those acts amounted to trafficking.”

6.  The Magistrate reminded himself the Prosecution bore the burden of proof.  He also directed himself that the Appellant was of good character.

7.  A point was taken by the Defence that PW1 and PW2 could have intercepted the Appellant earlier.  The Magistrate found the explanations given by PWs that any premature action would affect the operation reasonable and logical.  In the end, the Magistrate found that PW1 and PW2 honest and reliable.  He accepted their evidence and found that, upon arrival, the Appellant reached out for a black plastic bag inside the bushes, and after interacting with 3 South Asian males, the Appellant again dealt with a black plastic bag by opening it.  The Magistrate further found that those black plastic bags that had been dealt with by the Appellant must be the ones later seized from the bushes containing the dangerous drugs.

8.  The Magistrate went on to consider whether the above acts amounted to trafficking.

9.  The Magistrate considered that given the street values, the multiple packaging and the way the drugs were hidden inside the bushes, the drugs in question were not abandoned.  They would be received or further dealt by someone and as the events unfolded, the Appellant was the one who further dealt with the drugs.

10.  The Magistrate found that the Appellant, who was allowed to touch and open the bags after interacting with the South Asian males, was certainly one of those people who had control and possession of, as well as the knowledge about, the drugs.

11.  The Magistrate took into consideration other circumstances, including the financial means of the Appellant as a Form 8 holder, the 3 mobile phones and HK$2,312 found on him, further suggested that the Appellant did not own the drugs, but that he was dealing with them under instructions.

12.  Based on the above, the Magistrate drew the only irresistible inference that the Appellant was trafficking in the drugs seized.  The Magistrate therefore found the Appellant guilty as charged and convicted him accordingly.

Grounds of Appeal

13.  Mr William Allan, counsel for the Appellant, put forward 3 grounds of appeal, which can be summarized as follows:

Ground 1

14.  The Magistrate took a simplistic approach in his Statement of Findings.  The mere fact that the Appellant picked and looked into the bag was not sufficient to prove (a) knowledge of the drugs and (b) possession and dealing.  The Magistrate failed to consider properly the Appellant’s case/issues in particular:

(1)  There was no evidence that after the shaking of hands with the other South Asian males (which could have been for a completely innocent reason), there was no actual hand-over of any packet or dealing of anything by the Appellant;

(2)  There was no evidence of any transaction by the Appellant;

(3)  There was no evidence of any admissions from the Appellant that he knew the bag contained drugs.

Ground 2

15.  The Magistrate failed and/or omitted to deal with the crucial issue of whether the Appellant had actually “dealt with” the drugs when the evidence of the Appellant looking into the bag supported the Defence case that he did not know what was in the bag.

Ground 3

16.  The Magistrate’s Statement of Findings are unsafe, unsatisfactory, unbalanced and unfair.

The Respondent’s Submissions

Reply to Ground 1

17.  Mr Wong submits that for the Appellant’s complaint that the Magistrate erred and/or omitted to consider properly or at all whether “the Appellant had in fact in law (a) “dealt with” the drugs for the purpose of trafficking…” [emphasis added] (Paragraph 2 of the Perfected Grounds of Appeal), the Appellant might have mixed up the two different limbs of trafficking, namely (i) dealing in or with the dangerous drugs, which was all along the prosecution case at trial; and (ii) possessing the dangerous drug for the purpose of trafficking, which had never been the prosecution case at trial.

18.  Mr Wong submits that the Magistrate, on the evidence before him, convicted the Appellant on the basis that the Appellant was found to have “dealt with” the dangerous drugs. The Magistrate also found that at the material time, the Appellant was given or allowed to control and thus had possession of the drugs.  Mr Wong submits that the Magistrate did not err or fail to consider properly the Appellant’s case/issues in dispute.

Reply to Ground 2

19.  Mr Wong submits that the Magistrate found as proved the Appellant touched the plastic bag and subsequently he bent down and opened the black plastic bag, which was found to contain the subject dangerous drugs.  Mr Wong submits that, looking at the photograph of the black plastic bags and the contents inside (Appeal bundle p 35), the act of the Appellant clearly provided sufficient factual basis for the Magistrate to find that the Appellant knew that the black plastic bag contained dangerous drugs.

20.  Mr Wong submits that the Magistrate’s finding of the Appellant’s knowledge about the dangerous drugs was proper.

Reply to Ground 3

21.  Mr Wong submits that there was nothing prejudicial in the expression “lay ambush” used by the Magistrate.  The Magistrate was doing no more than stating the evidence of the prosecution witness.

22.  Mr Wong submits that magistracy appeals are by way of rehearing.  An appellate court will not depart from a magistrate’s findings as to the credibility of a witness unless it is satisfied that the finding is plainly wrong (HKSAR v Ip Chin Kei [2012] 4 HKLRD 383).  An appellate court should objectively determine whether the magistrate’s finding cannot be reasonably explained or justified, ie whether such finding was not that no reasonable magistrate could have reached (HKSAR v Fok James Alistair [2015] 4 HKC 247).

23.  Mr Wong submits there were two main issues arising in the present case:

(1)  Whether the Appellant dealt with the plastic bag and the drugs inside and interacted with the three South Asian males, as observed by PW1; and

(2)  If yes, whether those acts amounted to “trafficking” and whether the Appellant had the requisite knowledge.

24.  Mr Wong submits that the first issue is a question of fact.  The Magistrate conducted a full and careful evaluation of the evidence in the case, he had the advantage of having seen and heard the witnesses giving evidence.  He found that PWs’ evidence was unshaken under cross-examination.  The Magistrate had also carefully analysed the defence’s challenges and had given full reasons for rejecting the same.  Mr Wong submits the Magistrate was entitled to find PWs as honest and reliable witnesses and there was no basis to interfere with the Magistrate’s fact findings.

A Consideration of the Submissions

Ground 1

25.  Mr Allan complains that the Magistrate failed to consider the Appellant’s case/issues properly in particular:

“(i) There was no evidence that after the shaking of hands of the other South Asian males hands (which could have been for a completely innocent reason), there was an actual hand-over of any packet or dealing of anything by the appellant.

(ii) There was no evidence of any transaction by the appellant. [see AB56, lines M-O].

(iii) No evidence of any admissions from the Appellant that he knew the bag contained drugs. [see: AB 57, lines T-U].”

(Paragraph 4 of the Appellant’s Written Submissions)

26.  In my judgment, the Magistrate was plainly aware of the absence of direct evidence of the kind pointed by Mr Allan, otherwise the Magistrate would not have to draw inferences from the facts he found.  It cannot be said that the Appellant’s case/issues were not properly considered by the Magistrate.  Given there was no direct evidence of transaction or handing over of dangerous drug, and given there was no admissions from the Appellant, the Magistrate rightly focused on the evidence placed before him. 

27.  In the present case, I see no reason why the Magistrate should have dealt in his Statement of Findings why there was no handing over or drugs or why there was no evidence of actual transaction, when the Prosecution case against the Appellant all along was that he trafficked in the drugs in question by dealing with them (emphasis added).  I see no reason why the Magistrate should have dealt with something that was plainly obvious, eg there was no evidence of any admissions from the Appellant on the issue of knowledge.

28.  Given the facts found by the Magistrate in paragraphs 16 and 17 of the Statement of Findings, namely:

(1)  The Appellant “had bent down and stretched out his hand into the bushes and touched a black plastic bag, he had interacted with three different South Asian males, and later had bent down again to open a plastic bag in the bushes with his hands”;

(2)  The police later found two plastic bags containing the dangerous drugs in question in the bushes.  There were the only plastic bags found in the bushes and the Appellant was the only person who had dealt with these plastic bags as observed by PW1, the Magistrate was entitled to find that the Appellant had dealt with these plastic bags containing the dangerous drugs in question. 

29.  Ground 1 fails.

Ground 2

30.  Mr Allan complains that the Prosecution case that the alleged dealing with dangerous drugs by the Appellant in a very public park in Tsim Sha Tsui in full public view was inherently improbable.  Added to the inherent improbability was the fact that there was a CCTV camera nearby which almost covered the area.  It simply defies logic that, if the Appellant was actually involved in trafficking of these drugs he would do so in full view of everyone in board daylight and almost under the view of a CCTV camera. (Paragraphs 6 and 7 of the Appellant’s Written Submissions)

31.  My short answer to Mr Allan’s complaint is that there was nothing inherently improbable that trafficking of dangerous drugs of the kind alleged by the Prosecution took place in broad daylight in a public park.  Not all trafficking activities took place in back alleys at night, away from CCTV cameras, a norm that Mr Allan tried to stereotype.

32.  For the complaint made by Mr Allan about the CCTV, there was simply no evidence before the Magistrate that the Appellant was aware of the presence of a CCTV camera.

33.  Mr Allan submits that the fact that the Appellant looked into the bag showed that he did not know what was inside the bag. Mr Allan submits that one would look into a bag if one does not know what is in it.  Common sense dictates the Appellant would only look into the bag if he did not know what was inside and the contents therein (Paragraph 7 of the Appellant’s Written Submissions).  In my judgment, the fact that a person opens and looks into a bag is inconclusive as to whether that person has knowledge of the contents inside, the whole circumstances should be taken into consideration.  I do not agree with Mr Allan that the Appellant would only look into the bag if he did not know what was inside the bag.  Given the fact that the bag was inside the bushes, the Appellant had no reason to bend down, reached out into the bushes and touched a black plastic bag there after he had sat with the first unknown South Asian male.  The Appellant was seen bending down and opened a black plastic bag under the bushes with both hands after he shook hands with another South Asian male.  In my judgment, the Magistrate was entitled to draw the irresistible inference from the way the two black bags were hidden under the bushes and the above touching and opening of the black plastic bag by the Appellant that the Appellant “must have had knowledge about the dangerous drugs inside the bags” (Paragraph 18 of the Statement of Findings).  The Magistrate was also satisfied that the drugs were not abandoned under the bushes in the Garden.  It should be noted that, before the Magistrate found that the Appellant must have had knowledge about the dangerous drugs, he said at paragraph 18:

“18. It is not in dispute that the value of the drugs involved amounted to $19,228. Given the value and packaging of the drugs, as well as they were hidden under the bushes in the Garden, I am certain that they would not have been abandoned there; someone would certainly be receiving and further dealing with them sooner or later. Given the fact that the defendant was allowed to touch and to open the bags, I am certain he had been given or allowed control, and thus possession, of the drugs…”

34.  In my judgment, the Magistrate was entitled to find, as he did, that the dangerous drugs were not abandoned there and the Appellant must have had knowledge about the drugs inside the bags.

35.  I agree with Mr Wong that the condition of the dangerous drugs inside the black plastic bags as shown by one of the photographs of P11 (page 35 of the Appeal Bundle) supports the Magistrate’s findings on the issue of knowledge.

36.  Ground 2 fails.

Ground 3

37.  Mr Allan complains that the Magistrate should never have used the words “lay ambush” when he referred to the acts of PW1 and PW2.  Mr Allan complains “The term laying ambush presumes the Appellant was guilty and infers he may have been targeted.”  With respect to Mr Allan, I do not agree with his submissions that the term “laying ambush”, by the meaning of the term, presumed or suggested that the Appellant was guilty.  The Magistrate said in paragraph 3 of the Statement of Findings:

“3. On 25 October 2018, police officers were conducting an operation in the vicinity of Salisbury Garden, Tsim Sha Tsui. PC 18113 (PW1) and PC 19258 (PW2) were posted inside the Garden to lay ambush.”

38.  In my judgment, the Magistrate used the term to state the evidence of PW1 and PW2 as to what they were doing inside the Garden.  When the Magistrate assessed and analysed the evidence in paragraphs 9 to 19, at no time did he use the laying in ambush by PW1 and PW2 as evidence to infer guilt.  The Magistrate tried the case as the judge and jury, there was no danger that the Magistrate would harbor an erroneous belief that as the Appellant was ambushed by the police, he might have been targeted.

39.  Mr Allan complains that the Magistrate made highly erroneous and prejudicial comments against the Appellant and speculated that the Appellant was the only person to have dealt with the two plastic bags when there was no evidence that the Appellant was the only person to have dealt with these dangerous drugs and there was no evidence of any transaction or that it was the Appellant who had placed the bags there. Reading what the Magistrate said in paragraph 17 in its proper context, the Magistrate was only pointing out the fact that the Appellant was the only person who had dealt with the bags containing dangerous drugs during the whole course of police observation.  The Magistrate was entitled to make that observation on the evidence before him.

40.  Mr Allan complains that the Magistrate erred to find in paragraph 18 that “…Given the fact that the Defendant was allowed to touch and open the bags.  I am certain he had been given or allowed control, and thus possession of the drugs…” when there was no evidence adduced at trial that the Appellant was allowed control or be given control of the drugs.  Mr Allan further submits “it is doubtful whether he even had possession of the bag as he was never seen carrying it anywhere…” (Paragraph 9(ii) of Mr Allan’s Written Submission For Appeal).

41.  It should be noted that immediately preceding the impugned finding, the Magistrate said:

“18. It is not in dispute that the value of the drugs involved amounted to $19,228. Given the value and packaging of the drugs, as well as the way they were hidden under the bushes in the Garden, I am certain that they would not have been abandoned there; someone would certainly be receiving and further dealing with them sooner or later.”

42.  The Magistrate said in paragraph 19:

“19. The value of the drugs was far beyond the means of the defendant, who was a Form 8 recognizance holder in Hong Kong. I am certain that they did not belong to the defendant. Given the circumstances of the case, including the way the defendant dealt with the drugs and his interactions with other South Asian males at the material times, and that he was in possession of 3 mobile phones and $2,312 cash on him, I am certain that he was not acting on his own accord but was under instructions to deal with the plastic bags and the drugs inside…”

43.  In my judgment, there was proper evidential basis for the Magistrate to find, as he did, that:

(1)  The drugs were hidden in the bushes and not abandoned; someone would certainly be receiving and further dealing with the drugs soon or later;

(2)  The drugs were beyond the financial means of the Appellant hence they did not belong to him;

(3)  Yet the Appellant dealt with the drugs in the manner as described by PW1;

(4)  The Appellant was not acting on his own accord but was under instructions to deal with the plastic bags and the drugs inside;

(5)  Hence the Appellant “was allowed to touch and to open the bags” and he “had been given or allowed control, and thus possession, of the drugs.”  (Paragraph 18 of the Statement of Findings)

44.  In my judgment, the aforesaid findings made by the Magistrate were properly based on evidence accepted by him.  He made no speculation in his analysis and assessment process.

45.  Mr Allan complains that the Magistrate only made “a very brief one line crucial finding with absolutely no assessment of the evidence when he stated at the end of paragraph 18 that the Appellant “must have had knowledge about the dangerous drugs inside the bags.”  With respect to Mr Allan, on the issue of knowledge, the Magistrate had considered the entire circumstances before he concluded that the Appellant must have had knowledge about the dangerous drugs in the bags.  The Magistrate had taken into consideration the value of the drugs, their packaging and the well they were hidden under the bushes in the Garden.  The Magistrate finally came to the conclusion that the drugs were not abandoned but hidden there and sooner or later someone would certainly be receiving and further dealing with the drugs.  Following an analysis and assessment of the evidence, the Magistrate then concluded that the Appellant had been given or allowed control, and thus possession of the drugs, the Magistrate then came to the conclusion that the Appellant must have had knowledge about the dangerous drugs inside the bags. It was after a full assessment and analysis of the evidence that the Magistrate made his findings on the crucial issue of knowledge.

46.  Mr Allan complains that the Magistrate made highly prejudicial and unfair comments against the Appellant in paragraph 19 of his Statement of Findings in that he took into consideration:

(1)  The value of the drugs was far beyond the means of the Appellant;

(2)  The Appellant’s interactions with other South Asian males; and

(3)  The Appellant had three mobile phones and $2,312 cash on him.

47.  Mr Allan submits that these matters at most made the Appellant suspicious, they were neither here nor there.

48.  In my judgment, the Magistrate had properly considered whether the drugs were within the financial means of the Appellant before he found that the drugs did not belong to him for self-consumption.  As for the Appellant’s interactions with other South Asian males and the three mobile phones and cash found on him, I agree with Mr Wong that whilst each of these matters, when looked at individually, did not prove guilt against the Appellant, when considered collectively and taken together with the other evidence, could assist the court in determining whether the Appellant was under instructions to deal with the plastic bags and the drugs inside at the time.  In my judgment, the Magistrate was entitled to take into account the financial means of the Appellant, what he did at the scene and that he had 3 phones and $2,312 found on him at the time.

49.  Ground 3 fails.

50.  I agree with the Respondent that the Magistrate’s evaluation of the evidence was full and careful.  He had directed himself the Appellant had a good character.  The Magistrate had the advantage of receiving the live evidence of witnesses in court.  He found that the evidence of PW1 and PW2 was unshaken under cross-examination.  The Magistrate had considered the defence counsel’s criticisms of the Prosecution’s case.  He gave full reasons for rejecting the same.  In my judgment, the Magistrate was entitled to accept the evidence of PW1 and PW2 and I see no reason to interfere with the Magistrate’s findings on the witnesses’ credibility and reliability.

51.  On the evidence accepted by the Magistrate, he was entitled to find firstly the Appellant had dealt with the dangerous drugs and secondly the Appellant had knowledge about the existence and nature of the cannabis inside the plastic bags.

52.  All the grounds raised by Mr Allan fail for the reasons given.  

53.  On a rehearing, I am satisfied that all the elements had been proved against the Appellant beyond reasonable doubt. 

54.  The Appellant’s appeal against conviction is dismissed.