HKSAR v. ALI QASIM

CACC 332/2018

[2019] HKCA 847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 332 OF 2018

(ON APPEAL FROM HCCC NO 453 OF 2017)

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J U D G M E N T

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1.  This is an application by the applicant for leave to appeal against his conviction and sentence.  On 30 October 2018, the applicant was convicted after trial before D’Almada Remedios J and a jury of trafficking in a dangerous drug and sentenced to 25 years’ imprisonment.

The brief facts

2.  On 6 March 2017, the applicant attended the Yuen Long Post Office and collected a parcel from Brazil which contained 1.09 kilogrammes of cocaine.  The value of the drugs at the time of the offence was $1,392,090. The name of the recipient of the parcel was “Mohanad Imran” whose address was the same as the address of the applicant.  When he collected the parcel he purported to be the recipient and showed a photograph of the delivery status, the tracking number of the parcel and a Hong Kong identity document that had the name of the recipient.

3.  The applicant acknowledged receipt of the parcel by writing the name of the recipient, the identity document card number and the address on the airway bill.  He left his telephone number and signed on the airway bill in the name of the recipient.  After collecting the parcel, he was arrested and cautioned by a customs officer.  When questioned he said that his friend called NV told him to collect the parcel and he would get a reward of $500 for doing so.  NV had put a copy of his identity card into his letterbox in order for him to collect the parcel.  The only form of contact he had with NV was by telephone and he did not know where he lived.  Upon further inquiries, the applicant revealed that NV told him to call him after he collected the parcel and that he would tell him where to go to hand it over.  He said that he did not know the nature of “the stuff” concealed in the parcel.

4.  The applicant agreed to participate in a controlled delivery by telephoning NV, but NV did not answer any of his calls.

5.  In subsequent interviews, the applicant stated, amongst other things, that was a torture claimant and that about 20 days prior to the offence he received a telephone call from a stranger called NV who said that he could help him remain in Hong Kong.  It appears that it was suggested that he could arrange for him to marry a local girl in order to obtain Hong Kong residency.  He further stated that NV asked him to collect a parcel for him in order to gain his trust.  He agreed, although he had never met NV in person. They communicated with each other through WhatsApp and NV sent him screen shots of items and documents and told him that he had to use a fake name and his address in order to collect the parcel.  He stated that he did not know the nature of the contents of the parcel but thought it was an engine block for an old model boat.

The issue at trial

6.  The applicant did not give evidence, nor call evidence on his behalf at trial.  His case was based on what he had stated under caution.

7.  The issue at trial was narrowly focused on whether the applicant knew that the parcel he collected from the post office contained a dangerous drug.  This was a circumstantial case where the jury were being invited to draw the only reasonable inference from the proven facts that the applicant knew that the parcel contained a dangerous drug.  The defence case was that the applicant did not know that the parcel contained a dangerous drug and that from the proven facts the jury could not draw the only reasonable inference that he did know. 

The grounds of appeal

8.  In the perfected grounds of appeal, Mr Frederic Whitehouse, for the applicant, advances the following grounds of appeal. 

The appeal against conviction

9.  In respect of the appeal against conviction, two grounds of appeal are advanced. 

10.  In the first ground it is complained that it was not open to the jury to draw the only reasonable inference that the applicant knew that the parcel he was collecting contained a dangerous drug.  It is contended that there was no direct evidence the applicant knew there was a dangerous drug contained in the engine block, and therefore the jury could only draw inferences from proven facts to infer such knowledge.  It is argued that there were at least two facts that show the inference of knowledge was not the only compelling one: (1) the applicant gave his correct address and telephone number, and (2) the applicant only received a screenshot of the engine 8 minutes before he made his first visit (of three) to the post office.

11.  In the second ground it is complained that the direction given by the judge to the jury on the drawing of inferences was confusing and that she erred in telling the jury to perform a balancing act between inferences against and in favour of the applicant.  It is contended that the judge should have been clearer by reminding the jury that an inference could only be made from direct evidence and that an inference of guilt must be the only compelling one in light of all the other evidence, which is not constituted by carrying out a balancing exercise.

Discussion

12.  It is apparent that the prosecution case turned on whether from the proven facts the only reasonable inference could be drawn that the applicant knew that the parcel he collected from the post office contained a dangerous drug.  This was how the case was presented by the judge in her summing-up to the jury.  She noted that this was a circumstantial case which required the jury to draw the only reasonable inference from the proven facts that the applicant knew that the parcel contained a dangerous drug.  She told the jury:

“ Drawing of inferences simply means the prosecution is relying upon evidence of various circumstances which the prosecution say when taken together and looked at as a whole will lead to the conclusion that the defendant knew they were drugs in the parcel. So you are entitled to infer the existence of another fact from the facts you find proved. Before you actually draw an inference against the defendant, you must satisfy yourself that the inference must be based on a clear finding of primary facts based on the evidence and the inference must be the only reasonable inference that can reasonably be drawn on the basis of those facts. So if on a set of facts you find proved there is a reasonable inference to draw against the defendant, but at the same time, there is a reasonable inference to draw in the defendant’s favour, then you must draw the inference in the defendant’s favour.” (Appeal Bundle 29E – M)

13.  In the last sentence, the judge seems to be suggesting to the jury that if there was a reasonable inference to draw in the applicant’s favour then they must draw that inference.  Mr Whitehouse complains that the judge was inviting the jury to perform a balancing exercise between competing inferences, those in favour of the prosecution and those in favour of the applicant.  It may be viewed that this was to the advantage of the applicant because the jury were told that they could draw an inference in his favour on the basis that it was “a reasonable inference”, and not “the only reasonable inference”.  Mr Whitehouse argues that nevertheless this would have confused the jury and distracted them from their task of being satisfied on the proven facts that the only reasonable inference to be drawn was that the applicant knew the parcel contained a dangerous drug.

14.  The judge then set out a summary of the facts that the prosecution invited the jury to accept in order to draw the only reasonable inference that the applicant knew the parcel contained a dangerous drug.  She then turned to address the defence case which was that they could not draw as “the only reasonable inference” that the applicant knew the parcel contained drugs.  At the end of the summary of the defence case, the judge said:

“ … The defence is saying in all the circumstances of this case from those facts, you cannot draw the only reasonable inference that the defendant knew there were drugs in the parcel. The only inference you can draw from those facts is that the defendant did not know there were drugs in the parcel.

So, members of the jury, I just remind you, again, in a criminal case if on a set of facts you find proved there is a reasonable inference to draw against the defendant, at the same time there is a reasonable inference to draw in the defendant’s favour, then you must draw the inference in the defendant’s favour. You must use your common sense and experience as men and women of the world to draw the reasonable and only inference in the circumstances. …” (Appeal Bundle 33G – N)

15.  Again, Mr Whitehouse argues that this would have confused the jury as to the task that they had to perform in the drawing of inferences.  Whilst the judge correctly spelt out the task that the jury had to undertake in her initial comments, he submits that she confused the jury by adding that the defence case was that the only inference that could be drawn from the facts was that the applicant did not know there were drugs in the parcel, suggesting that they had to be satisfied that such an innocent inference had to be drawn.  He also argues that the judge’s further comments exacerbated the confusion by suggesting that the jury had to engage in a balancing exercise between competing inferences and whether they could draw an inference in the applicant’s favour.

16.  Ms Virginia Lau, for the respondent, submits that the judge’s  directions to the jury were not confusing and that she gave a correct direction on the drawing of inferences.  She points to various passages in the judge’s summing up where she has given the standard direction, and that in any event the judge in her concluding comments to the jury made it abundantly clear as to the task that they had to undertake in drawing an adverse inference of guilt against the applicant.  She refers to the judge’s following comments to the jury:

“So, members of the jury, to conclude, the defence case is simply he believed that the parcel contained an engine block. He did not know what was inside was drugs. …

Even, members of the jury, if you reject his account, the prosecution must still prove to you on the evidence, which is the circumstantial evidence, that the defendant knew there were drugs in the parcel. The prosecution say that they have proved that. That there is an irresistible inference from the circumstantial evidence, the defendant knew of the drugs in the parcel.

The prosecution is saying you can, therefore, draw that irresistible inference that the defendant knew he was carrying drugs. So, if you find the prosecution have proved to you so you are sure the defendant knew there were drugs in the parcel, then you can conclude the defendant is guilty of trafficking in dangerous drugs.” (Appeal Bundle 42L – 43A)

17.  In the course of oral submissions, Mr Whitehouse acknowledged that the factual matters that are mentioned in the first ground were before the jury, and it was therefore open to them as to whether or not they accepted them as proven facts and if they did what weight, if any, they put on them when deciding whether the only reasonable inference to be drawn from the proven facts was that the applicant knew that the parcel contained a dangerous drug.  In my view, there is no merit in this ground of appeal as the judge fully and properly set out the factual matters that were contended by the prosecution and the defence that the jury should or should not accept in drawing an inference of guilt against the applicant.

18.  I am satisfied however that there is a reasonably arguable ground of appeal in relation to the directions that the judge gave to the jury on drawing of inferences as crystallised in the course of oral submissions before me, which I have already set out.  I refer to the Judicial Studies Board Specimen Direction 21 on circumstantial or inferential evidence.  On this basis only, I grant the applicant leave to appeal against his conviction.

The appeal against sentence

19.  In respect of the appeal against sentence, it is complained that the judge increased the sentence by 3 years because of two enhancements: (1) the international element and (2) the fact that the applicant was a torture claimant at the time of the offence.  

20.  It is submitted that there was no international element in this case as the applicant had no knowledge of where the parcel had come from.  It is also submitted that it was unfair for the judge to enhance the sentence simply because the applicant was a torture claimant while disregarding his personal circumstances.  It is contended that this is a mechanistic approach that should be avoided.

Discussion

21.  No issue is taken with the starting point adopted by the judge of 22 years’ imprisonment which was in accordance with the sentencing guidelines laid down in HKSAR v Abdallah [2009] 2 HKLRD 437. Nor can it be complained that the enhancements were inappropriate in the circumstances of this case and contrary to authority.

22.  Mr Whitehouse argues that there was no international element because the applicant collected the parcel from Yuen Long Post Office and did not know that the parcel came from overseas.  The parcel was sent from Brazil and that was apparent from the documentation that had to be presented and acknowledged when the applicant collected the parcel.  There clearly was an international element in the offence for which the applicant was convicted of collecting the dangerous drugs in a parcel that had been sent from overseas.  The enhancement that the judge made to the sentence for the international element was in accordance with the sentencing guidelines as set out in Abdallah.  The enhancement for the fact that the applicant was a Form 8 recognizance holder at the time of the offence was also in accordance with the sentencing guidelines that this Court has laid out in numerous authorities.    

23.  There is no merit in the complaint about sentence and leave to appeal is refused.

Conclusion

24.  For the reasons I have given, in respect of the appeal against conviction I am satisfied that the applicant has a reasonably arguable ground that the judge erred in the direction to the jury on drawing of inferences and leave is therefore granted to the applicant on this basis.  I am not satisfied that the applicant has a reasonably arguable ground in the first ground against conviction and leave is refused on this ground.  In respect of the appeal against sentence, I am not satisfied that the applicant has a reasonably arguable ground and leave is therefore refused.

25.  As I have already explained, it is on the limited basis that I have granted leave to the applicant to appeal against conviction, and in relation to the other grounds of appeal against conviction and sentence which have been refused, I remind the applicant of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application