HKSAR v. HASAN MD MEHEDI

DCCC 449/2020

[2021] HKDC 525

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 449 OF 2020

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Reasons for Verdict

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1.  The defendant faces a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of Cap 134.

2.  The basic facts are not disputed.  The case originates from a stop and search on the defendant on 2 March.  The Admitted Facts contain the outline of the prosecution case, they tells us that the defendant is 28 years old and has a clear record, that on 2 March 2020 at around 21.10 hours, two police officers PW1 and 2 intercepted the defendant outside 69 Wyndham Street, Central for a body search. 

3.  On searching the defendant later inside Central Police Service Centre at 10 Hollywood Road, they found inside the defendant’s right front trouser pocket various drugs.  Those drugs are the drugs particularised in the indictment. 

4.  Whilst the defendant was searched, it was noticed by the first prosecution witness that the defendant had injuries to his forehead, limbs and back.  The defendant refused to disclose the reason for the injuries and refused medical attention at that time. 

5.  The defendant was arrested for trafficking in dangerous drugs and on 3 March 2020, participated in a voluntary interview with the first prosecution witness which has been produced in evidence. 

6.  A urine specimen collected from the defendant was tested for three separate drugs with negative results. 

7.  The total street value for all the drugs seized from the defendant was, at the time of the offence, $14,990.44.

8.  The defendant is the holder of a recognisance known as a Form 8.  These basic facts show the case can be described as what is colloquially known as a stop and search case.  In addition to these Admitted Facts, the prosecution called the arresting officers, that is PW1 and 2. Other officers present  PW3 and PW4, a sergeant and an inspector involved in the team conducting the arrest.  All of these officers denied that the arrest of the defendant occurred as a result of information received by the police. 

9.  The prosecution case also involved the production of the defendant’s video-recorded interview. The defendant gave evidence.  In his own defence, his case is outlined in his evidence. 

10.  In summary, the defendant’s case was as follows:  On 1 March the defendant was kidnapped outside Langham Place by a person, I believe he is called Saqib, and his associates.  The defendant was assaulted and drugged and bundled into a van where he was taken to a hillside at Monkey Hill where he was further assaulted by a number of men, including Saqib and one Ali. 

11.  The motive for the kidnapping and assault was that defendant had loaned HK$14,000 from Ali in June 2019.  This had been to pay to the defendant’s family in Bangladesh, the money being received by his family.  The defendant’s father had not repaid the loan and Saqib now said the sum owed was HK$50,000.  The defendant was a Form 8 holder in Hong Kong and was unable to pay the loan. 

12.  During the kidnapping, the defendant had been stripped naked and photographs were taken by the other men’s mobile phones.  They called the defendant’s father for repayment, the defendant’s father did not have any money for the repayment of that loan.  Eventually, they re-clothed the defendant, took him away from Monkey Hill to a room where he was beaten and burned with an iron rod.  Further calls to the defendant’s sister were unable to procure money to repay the debt.  Eventually, Saqib and Ali said they would teach the defendant a lesson. They made him wear a shirt and a cap and his hands had been tied earlier. 

13.  The defendant was taken to a van and driven to Wyndham Street.  His hands were untied and they forced him out of the van in Wyndham Street onto the pavement.  The police soon after came over and arrested the defendant. 

14.  The drugs the subject of the charge were found in his pocket.  The defendant said he had never seen them before and knew nothing about them and he had no idea how these drugs could have got there, he could only speculate about that. 

15.  The kidnappers were in the vicinity when he was arrested.  He pointed them out to the police and told the police he had been kidnapped.  He told the police to arrest them, he said it several times. 

16.  On the way to the Police Service Centre where the search would be conducted, the defendant told the police repeatedly that he had been kidnapped.  The police did not respond. As the police did not respond, the defendant lost faith and hope in them.  The police told the defendant to be quiet and not to keep mentioning the kidnapping.  The defendant then remained silent. 

17.  The defendant did make a number of failed phone calls whilst in police custody.  The defendant said he did not mention the kidnapping in his own video-recorded interview as he was sick and tired and in pain.  He did eventually mention the kidnapping at Kwun Tong Magistrates’ Court when he was remanded.  He was then sent to hospital where his injuries were discovered. 

18.  There is medical evidence to show the defendant had extensive injuries to his forehead, limbs and back.  These were consistent with him being assaulted. 

19.  The prosecution case is, of course, the defendant carried the drugs or possessed them for the purpose of trafficking in them.  Possession is having custody and control over an item and legal possession requires both physical possession and knowledge. The defendant’s defence is that he did not know he had the drugs in his pocket.  They were placed there by another and that by inference, the drugs had been planted on him to incriminate him as an act of revenge for his failure to repay the debt to Ali. 

20.  The burden lies on the prosecution to prove, beyond reasonable doubt, that the defendant subjectively knew the presence of the drugs in his pocket and that the defendant possessed those drugs for the purposes of trafficking in them. 

21.  The defendant is a person of clear record.  This is relevant to whether the defendant has the propensity to commit the offence of this nature and to the credibility of the evidence given by him.  The prosecution say the defendant’s evidence should be rejected as being unbelievable, that the only irresistible inference that can be drawn to a criminal standard is that the defendant was in possession of the drugs in his pocket and that the defendant is presumed by that possession to know the nature of those drugs.  For that, we can refer to section 47 of Cap 134.  And that by his possession in these circumstances, it must be the only irresistible inference that these drugs were possessed for the purpose of trafficking in them as defined by Cap 134. 

22.  The defence say the defendant’s story is credible and realistic.  He was badly beaten.  That fact is undisputable from the medical reports and that supports his evidence of both kidnapping and assault.  He is a man of clear record with no record of drug consumption, no drug trafficking paraphernalia was ever found upon him or as a result of any search of his premises.  It is said the defendant’s evidence is capable of raising a reasonable doubt as to whether he was knowingly in possession of the drugs. 

23.  My resolution of the issue is as follows:  I found the defendant’s account of being kidnapped and having drugs on him was not credible and reliable.  The one fact that supported defendant’s account was his injuries.  There was evidence from those injuries that the defendant was subject to wide-ranging assault, which included being burnt.  It can be said that often, such assaults result from failure to pay debts, but that is again somewhat speculative. 

24.  However, there were would be very little reason for the person who was owed the money to plant drugs on the defendant. The drugs themselves are valued at about HK$14,000 which is the amount originally loaned to the defendant, and the question is posed that why would people who loaned this money and obviously took the loan seriously, then throw away another $14,000 simply to teach the defendant a lesson. 

25.  The defendant was also evasive about his actions after arrest.  The first prosecution witness said the defendant made no complaints about kidnapping.  It is entirely believable.  The evidence showed that the defendant was searched at the Central Police Service Centre and the defendant’s injuries were noticed but he refused to disclose the reason for them and refused medical attention.  He signed PW1’s notebook to confirm this. 

26.  There was no evidence of any complaint being made to the Duty Officer when the defendant was taken to the police station.  The defendant signed a POL153 at the station without asking for medical or other assistance.  On 3 March, the defendant took part in a voluntary video-recorded interview.  The defendant had refused in that interview to say why he was in Lan Kwai Fong and where he had been before.  He elected not to answer why he was in Wyndham Street. 

27.  Defendant also claimed not to have known that the drugs were in his pocket.  Given that the defendant’s trousers were clearly tight-fitting as seen from the photographs, this is an unlikely proposition. 

28.  All the prosecution witnesses confirm that the police were not acting on a tip-off.  So the theory that this was a revenge act leading to the arrest is not sustainable. 

29.  I found the evidence given by the police officers to be both consistent and believable and I relied upon their evidence.  I found them truthful and reliable.  I accept PW1 as being a truthful witness being truthful when he said the defendant never complained to him about being kidnapped. 

30.  I am confident that the defendant’s account of being  or what was described as being fitted-up by Ali and others is unbelievable and is a story he created to account for the presence of the drugs in his pocket.  The defendant may have been in debt and subject to assault, but that not in itself mean he was not in possession of these drugs.  I rejected the evidence given by the defendant.  I find it both unbelievable and untruthful and I reject it in its entirety. 

31.  I find from the evidence produced by the prosecution that I can draw the irresistible inference, the defendant was in knowing possession of the drugs that are the subject of the charge and were found in his pocket. 

32.  The defendant, of course, is a Form 8 holder who had no legal employment and had very low income.  The defendant is in possession of drugs of considerable value, $14,000.  The inference can been drawn that defendant could only have access to that value of drugs if he was either a courier of them or a dealer in the drugs himself. 

33.  I find that the only other irresistible inference that can be drawn in this case is that the defendant was in possession of those drugs found on him for the purposes of trafficking in them, and the defendant is convicted of the charge.