HKSAR v. JOSEPH NABEEL

CACC 181/2018

[2020] HKCA 44

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 181 OF 2018

(ON APPEAL FROM HCCC 146 OF 2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The appellant faced a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 3 August 2016, at Room 3576, Flat A4, 3/F, Block A of Chungking Mansions, Tsim Sha Tsui, the appellant unlawfully trafficked in 17.6 grammes of methamphetamine hydrochloride (“Ice”), 0.03 grammes of methamphetamine in tablets, 4.15 grammes of cocaine solid, 0.11 grammes of cocaine powder, 0.01 grammes of nimetazepam in tablets, and 293.41 grammes of plant material containing traces of tetrahydrocannabinol.

2.  The appellant pleaded not guilty to the charge and stood trial in the Court of First Instance before D’Almada Remedios J (“the judge”) and a jury.  On 11 June 2018 he was subsequently convicted of this charge and sentenced to 8 years and 3 months’ imprisonment.

3.  On 7 May 2019 leave was granted[1] to the appellant to appeal against his conviction. On 20 September 2019 we referred the parties to matters that were of concern to us and adjourned the appeal so that further consideration could be given to the matters that we had raised. 

4.  At the hearing of the appeal we allowed it, set aside the conviction and refused an application for a retrial.  These are our reasons for doing so.

The prosecution case

5.  On 3 August 2016, at about 2020 hours, three police officers in plain clothes (PW1 – 3) were on anti-crime patrol at 3/F, Block A of Chungking Mansions, Tsim Sha Tsui.  The officers spotted a South Asian male come out of Flat A4.  PW1 intercepted him in order to make further inquiries of him.  It was not in dispute that Flat A4 was a guesthouse with subdivided rooms inside.

6.  At the same time, a woman by the name of Villena, who was the appellant’s girlfriend, also came out of Flat A4 and was intercepted by the officers for inquiries.  When Villena was unable to produce her ID card she was asked from where she had come.  She turned around, walked into Flat A4, and indicated to the officers that she had just come out from Room 3576.

7.  PW1 said he was speaking to Villena for about 10 seconds outside Room 3576 when the appellant opened the door from the inside.  PW1 said that as soon as the appellant saw him he retreated quickly into the room, dived onto the bed and grabbed a grey bag that was beside the pillow.   He then tried to push open the window behind the bed.  PW1 followed him into the room and tried to retrieve the grey bag from him.  At that time the appellant was struggling and shouting.  It was said that the struggle was about “6 out of 10” in terms of fierceness and lasted for up to a minute.   Eventually the appellant was brought under control by the officers and handcuffed.

8.  When the officers entered the room they found no other person in the room other than the appellant.  There was a key card with “3576” written on it that was inserted into a slot next to the main switches on the wall adjacent to the entrance of the room and which activated electrical power for the room.  

9.  PW1 seized the grey bag and examined its contents.  It was not in dispute that an electronic scale, 111 empty resealable plastic bags and 8 packets of five kinds of dangerous drugs were found in it[2].

10.  Villena, whilst standing near the entrance of the room, told the police officers that the appellant was her lover.  She pointed to a purple bag in the room and said that it belonged to her.  PW3 searched the bag and found nothing illicit in it but it did contain a photocopy of Villena’s Hong Kong identity card.  Both the appellant and Villena were arrested.

11.  A search of the room resulted in finding, in the drawer of the bedside cabinet, a packet containing 291g of cannabis in herbal form (P7).   The exhibit officer recalled seeing a cosmetic eyebrow pencil in the room.  Two toothbrushes were also seized from the toilet and subsequent DNA test confirmed that Villena’s DNA was found on one of them.  Significantly, neither toothbrush bore the DNA of the appellant.

12.  In the small hours of 4 August 2016, PW5, the investigating officer, took Villena to premises in Whitty Street, Shek Tong Tsui for a house search as she claimed to live there.  Her hearsay statement that she lived there, so contrary to the defence case, was, inexplicably, admitted into evidence.  PW5 said a woman who was Villena’s mother answered the door and on that occasion he saw a child, 2 to 3 years old, who was Villena’s son.  

13.  It is difficult to see what relevance this evidence had to the case against the appellant.  If it was to prove that Villena lived there, and not at Room 3576, then its relevance was dependent entirely on hearsay evidence that:

(i)      the Whitty Street address was where Villena lived;

(ii)     the woman at that address was her mother; and

(iii)    the child at that address was her son.

14.  On a later date, whilst taking an antecedent statement from the appellant, PW5 was told by him that he lived in another room in Block E of Chungking Mansions.  Extraordinarily, the police did not investigate the appellant’s claim, notwithstanding that the key to this room was amongst his personal possessions then in the custody of the Correctional Services Department.  Even more extraordinary, the police did not make any enquiry with the guesthouse as to the tenant of Room 3576 until 24 February 2017, by which time the guesthouse records had been destroyed.  Again, this was despite the fact that they knew the appellant was denying being the tenant or occupant of this room.

15.  Despite the failure of the police to investigate where the appellant lived and who was the registered tenant of Room 3576, the prosecution nevertheless presented its case on the basis that the appellant was the occupant of this room.  This is apparent from the following extracts from the closing address of the fiat counsel, Mr Richard Donald.  He commenced his closing address by saying:

“MR DONALD: Now, members of the jury, the defendant, as you well know, has been charged with one count of trafficking in dangerous drugs, and it’s the prosecution’s case that he and he alone had possession of the dangerous drugs found in the grey bag and also in the dresser, the dressing room table, and the bedside drawer table that he and he alone had possession of those dangerous drugs and he had possession of them for the sole purpose of trafficking in them. And that’s the prosecution’s case, pure and simple.

...

... Room 3576, and it’s always been the prosecution’s case that that room belonged to him ...”[3]

16.  Mr Donald concluded his closing address by saying:

“... Now, so it’s the prosecution’s case that Room 3576 belonged to the defendant. He was living there. That’s why when the police entered the room, the key card was still in the lock, the defendant was in there alone and his girlfriend had only been visiting him in the room. That is the prosecution’s case. That’s the way it’s been presented to you and I ask you to give it due consideration.”[4]

17.  In support of his case, Mr Donald invited the jury to accept the version of events given by the police officers as true and that the appellant’s attempt to throw the grey bag out of the window and his struggling were all consistent with “the behaviour of a man with a guilty conscience, a man who knows that what he has done is wrong, knows that he is about to be caught in possession of a large amount of dangerous drugs”[5].  Lastly, he submitted that the fact that when the police entered Room 3576 the appellant was in the room alone and the fact that the key card to the room was in the slot on the wall, showed that the appellant was the occupant of the room and that Villena had only been visiting him in the room.

18.  It was an admitted fact that Villena had two previous convictions: in March 2012, for the offence of possession of dangerous drugs for which she was sentenced to 12 months’ probation; and in July 2013, for breach of this probation order for which she was sentenced to a Drug Addiction Treatment Centre (“DATC”).  On 27 April 2017 she was again convicted of possession of a dangerous drug and again sentenced to DATC.  This latter offence post-dated the appellant’s arrest for the offence he is now appealing.  It was also admitted that Villena is, since 24 January 2018, a wanted person for being in breach of a Correctional Services Department supervision order.

19.  The woman Villena was not charged with the present offence nor was she alleged by the prosecution to have been in any way involved with the dangerous drugs found in Room 3576.

The defence case

20.  The appellant testified but called no other witness.  Essentially it was his case that he was not the occupant or tenant of Room 3576.  He said Villena and her friend Paula were the occupants of the room.  He was there only because he was visiting Villena.  He claimed he had no knowledge of any of the drugs found in the room, he did not do anything to get rid of them and he did not struggle with the police officers.

21.  He testified that he had been living in Room 1106, 11/F, Block E of Chungking Mansions for about one and a half to two months before his arrest.  He said he paid about HK$1,000 per month for that room.  He said the key card to Room 1106 was in his wallet at the time of the arrest and had been kept by the police or the Correctional Services Department since.  That key card, with his room number written on it, was produced at trial as defence exhibit D1.

22.  He said he had met Villena three months before his arrest and they became lovers.  At that time she was living in Room 3576 which was rented by Paula.  He had visited Room 3576 twice prior to the date of his arrest and did not keep anything there.  From the police photographs (P28), he identified clothing which he claimed belonged to Villena and her son, a can of powdered milk formula which he said was for her son and some ladies’ cosmetics[6].

23.  At about 1930 hours on 3 August, he and his friend, that is the South Asian male initially intercepted by PW1 at the entrance to Flat A4, had gone up to Room 3576 to visit Villena.  Just minutes before the police raid, his friend left the room to obtain some food.  Within a minute, Villena also left as she had received a call from her mother and she was going down to meet her.  When Villena left the room she did not take the key card with her as the appellant was remaining in the room and it was required for the air-conditioner’s continued operation.

24.  Shortly after Villena left the room he heard someone knock on the door.  He asked who it was in both Urdu and English, yet nobody answered.  He opened the door and found Villena standing between two Chinese males.  He thought the two men were her friends so he just went inside and sat on the bed.

25.  Villena entered the room and explained to the appellant that she had forgotten her ID card.  PW1 also asked him to produce his ID document which he did.  Afterwards, PW1 started searching the room, and from the bedside cabinet he took out a grey bag and the drugs and asked him what they were.  He explained in English that he was just visiting Villena and they should ask her instead.  PW1 then turned to Villena and asked her what they were, but she did not reply and started crying.  PW2 then took her into the toilet and there was a 5-minute conversation between them in Chinese which the appellant did not understand.  PW2 then asked him if Villena was his girlfriend and if he would be willing to plead guilty for her, as she was pregnant and it would be hard for her to stay in prison.  The appellant admitted that she was his girlfriend but refused to take the blame for her.

26.  The appellant said that on 12 August PW5 visited him and he told PW5 that he lived in Room 1106 of Block E of Chungking Mansions and not Room 3576. 

27.  Mr Trevor Beel, counsel for the appellant at trial, reminded the jury at the beginning of his closing speech that it was for the prosecution to prove that the appellant was the occupant of Room 3576.  He then submitted to the jury that, even if they accepted the version of events of the police officers as being the truth, they could not draw as the only reasonable inference that the appellant was guilty of the present offence.  He said there were at least two possible explanations for the appellant’s alleged action of attempting to dispose of the drugs.  The first was that he was acting heroically in that, knowing that the drugs belonged to Villena, he was trying to dispose of them so that she would not get into trouble.  The second was a more selfish explanation of trying to protect himself; that is, knowing that the drugs belonged to Villena he was trying to dispose of them to stay out of trouble.  On either of these explanations, the appellant was not dealing with the drugs for the purpose of trafficking as he only had the intent to dispose of them but not to traffic in them.

28.  In respect of the key card that was inserted into the slot, Mr Beel invited the jury to accept that it was inserted into the slot simply to maintain electrical power to the room.

29.  Mr Beel further submitted to the jury that the fact that Villena’s DNA was found on one of the toothbrushes in the room and the fact that there were personal items present in the room which clearly did not belong to the appellant, showed that he was not living there.  He was living at Block E in Chungking Mansions, an address he had disclosed to the police in his antecedent statement and an address to which he had the key card, stored in his wallet, at the time of his arrest.  This had then been kept as prisoner’s property since his arrest but the police had never investigated his claim. 

30.  That the trial proceeded on an allegation by the prosecution that the appellant occupied Room 3576 is also apparent from Mr Beel’s closing address.  He said:

“If that’s the case, and which it seems to be that the prosecution are saying he was living there, well they have to produce evidence to prove that. It’s not just a matter of them saying he was living there, they have to prove it with evidence. It’s their burden, what we call, what is termed, ‘burden of proof’”.[7]

The Amended Perfected Grounds of Appeal Against Conviction

31.  By his Amended Perfected Grounds of Appeal Mr John Hemmings, counsel for the appellant, advanced essentially three grounds of appeal.  In his first ground, he complained that this was a trial based on an assertion by the prosecution that the jury could infer the appellant was the occupier of Room 3576 and, once having drawn this inference, the jury could then further infer both the elements of the offence that were in dispute, namely possession and knowledge of the dangerous drugs.  However, as the police had failed to investigate who was the occupant or tenant of this room the prosecution could only rely on circumstantial evidence to prove that the appellant was the occupant.

32.  In this first ground of appeal Mr Hemmings complained that the judge erred in failing to direct the jury that there was no evidence from which they could infer, as the only reasonable inference, that the appellant was the occupier of this room and accordingly there was no evidence from which they could infer that the appellant was in possession of the dangerous drugs for the purpose of trafficking in them.  Alternatively, if there was such evidence, then the judge failed to indicate to the jury what evidence could be used against the appellant in drawing the inference that he was the occupant of the room, apart from his mere presence in it.

33.  Mr Hemmings took the court to directions by the judge at different points in her summing-up to establish his contention that the case had been presented by the prosecution and tried by the defence on the allegation that the appellant was the occupant of Room 3576.

34.  Allied with this ground is his third ground of appeal which complained that the judge erred in directing the jury not to concern themselves with whether Villena was trafficking in the drugs because, the judge said:

“It is not for you to choose who is the trafficker; Villena or the defendant.”[8]

35.  Mr Hemmings argued that when the evidence pointed to the occupier of the room being the trafficker and the appellant was denying occupancy and asserting Villena was the occupier, it followed that the jury’s deliberation on the guilt or innocence of the appellant would necessarily require them to consider the position of Villena.

36.  Mr Hemmings’ second ground of appeal concerned the introduction of inadmissible hearsay that was adduced from PW5 of the statement made to him by Villena as to her place of residence as set out in [12] ante.

37.  Finally, Mr Hemmings argued that if we found merit in his grounds of appeal we could not substitute for the trafficking offence a conviction for simple possession contrary to section 8 of the Dangerous Drugs Ordinance.  Such a substituted conviction would be based on an assumption that by their verdict the jury had accepted the evidence of the police officers and on that evidence the appellant must have been in temporary possession of the drugs in the grey bag when he held this bag whilst trying to throw it out of the window of the room.  Mr Hemmings submitted it was not possible to conclude from the jury’s verdict that the jury had necessarily accepted the evidence of the police officers.

The respondent’s submission

38.  Ms Florrie Chan, for the respondent, submitted that the verdict of the jury did not necessarily depend on whether the appellant was proven to be the tenant or the occupant of the premises.  The judge, correctly directed the jury that they should decide whether he had the intention and/ or authority to exercise control over the drugs in the room.  She did not give any direction to the jury that they could only convict if they were sure he was the tenant or the occupant.  Ms Chan submitted that the prosecution relied on various pieces of circumstantial evidence from which an inference of control could be drawn.  This was:

(i)      the appellant was present alone in the room;

(ii)     he reacted instantly to the presence of the police and his reaction was to attempt to dispose of the drugs; and

(iii)    the two batches of drugs had one type of drug in common.

39.  Ms Chan argued that the guilty verdict returned by the jury showed that they were sure the appellant had control over the drugs prior to the entry by the police, irrespective of whether he was proved to be a tenant or occupant of that room.

40.  Ms Chan further submitted that the judge directed the jury to find the appellant not guilty if they were not sure if he was holding the grey bag and attempting to throw it out of the window as alleged by the prosecution.  It would follow that in finding the appellant guilty, the jury must have accepted the prosecution case in relation to the appellant’s attempted disposal of the grey bag and consequently it was open for them to draw the only irresistible inference that the drugs in the grey bag were under his control.

Discussion

41.  The issues in this case were whether the prosecution could prove beyond a reasonable doubt that the appellant, as the occupant of the premises in which the drugs were found, was in possession of the drugs seized in the premises and if so was in possession of the drugs for the purpose of unlawfully trafficking in them.

42.  It was clear to us that the trial proceeded on a prosecution allegation that the appellant was the occupant of Room 3576 in order to prove he was in possession of the drugs found in that room.  This much is clear from how the prosecutor presented his case in his closing address to the jury as set out in the passages quoted at [15] and [16] of this judgment.  Likewise the defence closing is peppered with references to the prosecution allegation that the appellant occupied Room 3576.  In addition to the passage quoted at [30] of this judgment there are the following comments by Mr Beel in his closing address:

“And how does the prosecution say, they keep on maintaining that he lives there. Of course they have no proof. There’s no proof that he’s living there. There’s no record of registration, no fingerprints, no DNA, nothing. Now unfortunately the officer, PW5, DPC10354, well unfortunately not the best example of a detective. He waits six months to go to check the registration.”[9]

43.  In support of his assertion that the appellant did not live in Room 3576 Mr Beel relied on his claim that he was living elsewhere in Chungking Mansions.  He said:

“Now we know, although we don’t have the proof, that the defendant wasn’t living there, we actually do have proof that he was living somewhere else, independently again.”[10]

44.  He also attacked the claim that Villena lived elsewhere other than Room 3576.  He referred to all the personal items and the DNA test that linked her to this room and then said of the Whitty Street premises:

“You also have where the defendant – sorry, where Villena lives. The officer went there and what did he say about it? He said, ‘It wasn’t a proper room. It was like a partitioned room’. It’s what the defendant said, it’s very small. Understandable that she wouldn’t be wanting to live in a cramped area.”[11]

45.  Unsurprisingly, the judge was well aware of the importance of occupancy within the trial.  On drawing an inference as to the appellant’s occupancy, she said:

“As to the drugs in the room, the prosecution is saying the defendant knew there were drugs in the room because he was the occupier of the room. He kept the drugs in the room. He knew what objects were in the room. Therefore, he knew there were drugs in the room.

On those facts, the prosecution is asking you, members of the jury, to draw the inference that the defendant had the intention and authority to exercise control of the drugs. He kept them in the room. Mr Donald used the words that I mentioned, ‘belonged’ to defendant, not Villena. I remind you that the drug do not need to belong to the defendant for the purposes of proving possession. The prosecution need to make you sure that he was in control of the drugs or had the authority to exercise control over them and knew there were drugs there.

On the other hand, Mr Beel for the defendant says, ‘Look at these facts. The defendant was a visitor in the room. This room was not occupied by the defendant. Look at paragraph 8 of the Admitted Facts. The police seized two toothbrushes from the room. Villena’s DNA was found on one of the two toothbrushes. The defendant’s DNA was not found on either toothbrush.’ The defence say if this room was occupied by the defendant, his DNA would have been found on one of the toothbrushes. It was not. Look at the photos. It showed items or the objects in the room. There were women cosmetics. The exhibit officer remembered seeing an eyebrow pencil. There was a child’s t-shirt hanging up. The police officers and the defendant said Villena had a small child. The defence say Villena’s DNA on the toothbrush and the items kept in the room is therefore evidence or an inference that you can draw that the room is not occupied by the defendant, but by Villena. The defence say look at paragraph 9 of the Admitted Facts. Villena had criminal records involving possession of dangerous drugs. She had been sent to the drug addiction treatment centre on two previous occasions. Mr Beel has suggested to you she was a drug addict. She may have had these drugs for sale to support her drug dependency. Mr Beel therefore says these drugs were not in the possession of the defendant. He had no control of them nor had he the authority to exercise control of them. The person or persons who occupy the room were Villena or Paula, they had control of the room. They knew what was in the room. The defendant did not know. From these facts, Mr Beel says you can only draw one inference and that is the defendant did not know there were drugs in the room and did not have the authority to exercise control of the drugs in the room.”[12]

46.  Despite Ms Chan’s best efforts to persuade us otherwise, and they were considerable, we were not convinced that the focus of the prosecution case and the core issue being disputed at trial was not the allegation that the appellant was the occupant of Room 3576.

47.  So, what then, was the evidence on this issue?  The only facts available to the jury from which they could draw an inference of occupancy were the presence of the appellant in the room on his own in conjunction with the finding of the key card in the slot.  There was nothing within the room that linked him to occupancy of it and no admission by him of such occupancy.  These primary facts have limited probative value on their own and, given the other surrounding circumstances, were not matters from which an inference of possession could be drawn as the only reasonable inference.  The inference was, of course, strengthened by the police officers’ evidence that the appellant had attempted to throw the drugs out of the window and that Villena lived at the Whitty Street address.

48.  The latter evidence concerning the Whitty Street address was clearly inadmissible and we cannot understand how evidence which was so contrary to, and so destructive of, the defence case was allowed by defence counsel to be adduced without objection.

49.  Without this hearsay evidence there was nothing to contradict the appellant’s assertion that Villena was an occupant of Room 3576.  Indeed, there was significant evidence supporting that assertion.  There was the presence of:

(i) Villena’s DNA on one of the two toothbrushes;

(ii) female cosmetics in the room;

(iii) a child’s T-shirt in the room; and

(iv) the purple handbag which contained a copy of Villena’s identity card.

50.  When this evidence is taken together with,

(i) the fact Villena was seen coming from this room; and

(ii) Villena’s drug addiction history

then the possibility that Villena was the actual occupant of the premises is elevated to a reasonably available inference.

51.  The position would then become:

(i) there is insufficient evidence to prove beyond reasonable doubt that the appellant was an occupant of the room;

(ii) Villena can be inferred to be an occupant of the room; and

(iii) Villena is a drug abuser.

52.  This would place the evidence, if accepted, of the appellant’s attempted disposal of the drugs in a whole new light.  Even if it was not sufficient to warrant the jury drawing the inferences which they were invited by Mr Beel to draw, and which Ms Chan describes as speculative, it certainly weakened the drawing of an inference that the appellant was an occupant of the room.

53.  Whilst the judge reminded the jury of the matters relied on by Mr Beel as refuting the inference of occupancy, she did not identify for the benefit of the jury the evidence the prosecution was relying on in proving the alleged occupancy by the appellant.  Had she focussed her attention on this aspect of the evidence, we have no doubt it would have been readily apparent to her that without the evidence of the police officers of the appellant attempting to dispose of the drugs, the primary facts were otherwise insufficient to enable them to draw an inference of occupancy as the only reasonable inference. 

54.  For these reasons we allowed the appeal.  We agreed with Mr Hemmings that, in the particular circumstances of this case we could not be sure that the jury accepted the evidence of the police officers on the appellant’s attempted disposal of the drugs.  Consequently, this was not an appropriate case to substitute a conviction for possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance.

Retrial

55.  We noted that the appellant has been remanded for this offence since August 2016, a period of 3 years and 3 months.  On a case based on his occupancy of Room 3576 the evidence against him was not strong and, indeed, it pointed to Villena as being the occupant of the room.  Furthermore, the poor standard of investigation not only impacted on the ability of the prosecution to prove occupancy of Room 3576 it also impacted upon the ability of the appellant to prove his occupancy of other premises.

56.  For these reasons we were not satisfied that it was in the interests of justice to order a retrial. 

Disposition

57.  For these reasons we allowed the appeal, set aside the appellant’s conviction and refused the application for a retrial.