HKSAR v. AHMED MOHAMMED AZAD

DCCC511/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 511 OF 2012

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Reasons for Verdict

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1.  The defendant faces one charge of trafficking in dangerous drugs. The defendant is alleged to have committed the offence on 27 March this year outside the Yau Ma Tei Jockey Club Polyclinic in Battery Street. The defendant admitted possession of the drugs but denied that he was trafficking in them.

2.  The prosecution case is that in the evening of that day, the defendant was seen waiting around in the vicinity of the clinic, making or receiving telephone calls while in possession of a pink plastic bag containing 18.57 grammes of a mixture containing 11.39 grammes of heroin hydrochloride.  It is alleged that the drugs were in the right front pocket of his jeans and that he was eventually apprehended by the police from a special duties squad at Mongkok Police Station after a chase and a struggle.

3.  It is an admitted fact that at the time, the average retail price for heroin was $784 per gramme which meant that the drugs in the defendant’s possession could have had a value of $14,558.  The defendant admits to have been in possession of the drugs but maintains that he was a drug addict and that he had just received the drugs from a dealer.  He believed that he was in possession of a much smaller quantity of drugs, having just received the bag from a trafficker from whom he had agreed to buy 5 grammes of heroin. He intended the drugs for his own consumption.

The Prosecution Evidence

4.  The principal evidence for the prosecution came from two officers of the Special Duties Squad, PC54502 (PW1) and PC5823 (PW3). Their evidence taken together amounts to this.  At around 6.50 pm that day, PC54502 (PW1) had been approached by someone unknown to him and given information that a South Asian male, dark-skinned, about 1.6 metres tall was selling drugs in the vicinity of the Yau Ma Tei Jockey Club Clinic in Yau Ma Tei.  The officer informed his superior and, as a result, members of the Special Duties Squad, including him and PC5823, were briefed to conduct observation outside the clinic.

5.  They arrived outside the clinic at about 7.30 pm.  PC54502 (PW1) was keeping observation on one side of the entrance while PC5823 and another officer were keeping observation from a position facing but on the other side of the doorway.

6.  At around 8.25 pm, they observed the defendant walking around outside the clinic and looking around.  As he did so, he appeared to either make or receive two to three telephone calls.  On one or two occasions, he went in through the doorway of the clinic but emerged again within 10 seconds.  After observing him doing this for about 10 minutes, they and the officer who had been keeping observation with PW3 approached the defendant.  When PC54502 revealed his identity as a police officer, the defendant turned around and rushed into the clinic.  The officers chased him.  After entering the lobby, the defendant turned right into a corridor which led to a doorway into the car park.  The defendant ran into the car park and then out of the car park exit into Battery Street. 

7.  PC54502 was the first to catch the defendant.  There was then a struggle when the defendant tried to escape.  During the struggle, the defendant, PW1 and PW3 fell to the ground.  The defendant was subdued and handcuffed, but PW3 and the defendant had both sustained abrasions, PW3 to his right hand and the defendant to his right forearm.  The defendant was taken into the car park near the guard post where he kept on crying and begging for a chance in English.  The defendant was searched by PW1, and a red plastic bag containing the drugs was found in his right trouser pocket.  The mouth of the bag was knotted to prevent the contents escaping.

8.  At 8.49 pm, the defendant was arrested for trafficking in dangerous drugs, and after a police vehicle had arrived, he was taken into that vehicle.  At 10.05 pm, the vehicle took the defendant to Yau Ma Tei Police Station.  The defendant was not interviewed until two days later on the evening of 29 March in the presence of an Urdu interpreter.  The record of that video interview was produced as Exhibit P4.

The Defendant’s Evidence

9.  The defendant gave evidence.  The account he gave was similar to what he had told the police in the video interview.  His evidence was that he is a torture claimant from India who arrived in Hong Kong in 2007 and was permitted to remain in Hong Kong on recognisance to the Immigration Department.  He has been addicted to heroin for 10 years which he takes twice a day.

10.  At around noon on the day in question, he consumed the last of the drugs in his possession.  But at sometime after 6.30 pm, he had found and managed to smoke the residue remaining in one of the straws he had previously used.  As a result, at about 7 pm but he could not be sure of the time, he telephoned the dealer he had used on three or four previous occasions and informed him that he needed 5 grammes of heroin.  These were to be drugs for his own consumption.  The dealer did not sell quantities less than 4 or 5 grammes, and the price the defendant normally paid was $400 per gramme.  The defendant said that in order to supply the drugs to the defendant, he would have to obtain the drugs from somewhere else.

11.  Eventually, at about 7.30 pm or shortly thereafter, the dealer had called him to arrange delivery of the drugs. Although the defendant asked to take delivery in Tsim Sha Tsui, the dealer had told him that he was making another delivery in Yau Ma Tei and that the defendant should come to near the police station in Yau Ma Tei. The defendant had to wait for a friend to arrive so as to raise at least $2,000 for the transaction.  He obtained $1,200 of that sum by selling the friend a jacket he had stolen from G2000. 

12.  After arriving near the Yau Ma Tei Police Station, the dealer instructed him to go to a sitting-out area next to the basketball court near the Yau Ma Tei Jockey Club Clinic.  He had previously always bought drugs from the dealer near Chungking Mansions where he lived.  When he met the dealer, the dealer had given him the drugs in a red plastic bag.  He demonstrated how the bag had been wound around the drugs.  The dealer had told him that he was giving him a little bit extra because the previous time the defendant had bought drugs from him, the drugs had been substandard.  He had not looked into the bag.

13.  The defendant told the dealer that he would first give him $1,200 and then check the quality of the drugs in the toilet of the clinic and then return, pay him the balance of $800.  The dealer agreed to wait.  The defendant then put the rolled-up packet in the left bag waistband of his trousers and walked into the lobby of the clinic.  He intended to take the lift to the 2nd floor and use the toilet on that floor which was a place he had previously used to consume drugs. 

14.  As he was standing near the lift, a man had come up from behind him and entered the lift.  This man looked like a policeman.  The defendant had a feeling that he was being followed, so he walked down the corridor towards the car park, whereupon three police officers started to chase him.  He ran through the car park and as he did so, he had taken the plastic bag, in which the drugs were rolled, from his bag  waistband and used his teeth to tear open the plastic bag and throw the contents on the ground.  He ran through the car park gate, and the red plastic bag fell to the ground.

15.  He said that he was pushed on the shoulder by PW3 who was chasing him and he fell to the ground.  His hands were forced behind him, and two more police officers came and helped press him down.  He was handcuffed.  He was then taken into a corner of the car park and searched. An officer had asked him, “Where are your goods?” and he had replied that he had thrown them away.  The police had picked up the red plastic bag and put it into a transparent plastic bag.  The police had then taken cards resembling phone cards and used them to scoop up drugs from the ground which they put in the same plastic bag, in the same bag as the red plastic bag.  He was then told to sit in a corner of the car park where he said an officer had slapped him.

16.  After about 15 to 20 minutes, he was put inside a police vehicle which was then driven to a position nearby where he was kept for between 45 minutes and an hour before being driven to Yau Ma Tei Police Station.  He claimed that he had been assaulted in the vehicle.  At one stage, the bag which contained the red plastic bag and drugs was taken out of the car.  He maintained that Exhibit P1B, the red plastic bag produced to the court, was not the bag in which the drugs had been rolled when they were in his possession.  He denied that he had ever been waiting outside the clinic or making or receiving phone calls.

17.  Essentially, the defendant’s account is that although he believed he was buying 5 grammes of drugs for his own consumption, he believed that the dealer had framed him by giving him a bag containing a very much greater quantity and then tipped off the police.

18.  I turn now to my assessment of the evidence.  There is no dispute that the drugs that are the subject of the charge were in the defendant’s possession.  The issue for the court to decide is whether they were in his possession for the purpose of trafficking.

19.  Although it is not disputed that the drugs were in the defendant’s possession, the defendant does not admit that they were in his right trouser pocket as the prosecution allege.  The disputed evidence that the drugs were in the defendant’s trouser pocket is a matter that has caused me considerable concern.  When the defendant was interviewed on 29 March, the allegation was put to him that the drugs were found in his pocket and he was cautioned.  His immediate response was to admit that the packet had been in his possession but to ask why it was that the police were alleging that they had taken the drug from his pocket and when what he had actually done when he realised the police was there was to tear the packet and throw it and its contents away on the roadway as he was running away.  He went on to say that there was a CCTV camera where the officers had caught him.

20.  I find it difficult to understand why, bearing in mind that he was admitting that he had the dangerous drugs in his possession, he should deny that the drugs were found in his pocket if that was indeed where they were found.  I have received no evidence as to whether there was a CCTV camera which covered the area where he was apprehended but even if he was mistaken, his reference to the CCTV camera suggests that he believed that what was recorded by such a camera would confirm his version of events.

21.  If I found myself doubting that the police have given an accurate account of where the drugs were found, then that would affect my assessment of their reliability as to what the defendant was doing before they approached him.  The defendant is on his own admission a thief and a drug addict.  The red plastic bag, Exhibit P1B, produced by the police which is of the sort commonly used in markets in Hong Kong bears no evidence of having been torn by teeth.  It follows that if the defendant’s account is correct, then the police must have substituted a similar bag for the torn bag.

22.  I found the defendant’s account of agreeing to pay the balance of $800 of the purchase price after he had tried out the drugs in the lavatory of the clinic when he only had $708 on him and the reasons given by him as to why the dealer might have sufficient grudge against him to set him up with the police unlikely.  He is a far from reliable witness.   

23.  On the other hand, the evidence of PW1, PC54502, was evidence that if it stood alone appeared credible.  I did not have the same confidence in the evidence of PW3, PC5823, particularly when it came to explaining the similarities between his statement to that of PC54502.

24.  However, ultimately, the prosecution evidence did not paint a full enough picture to remove all doubts from my mind.  In his video interview, the defendant made it clear that he had come to the clinic to consume drugs.  Surprisingly, in an interview lasting over an hour and a half, neither PW1 nor PW3, who were the interviewing officers, asked him to explain why in that case he had been walking around outside the hospital, making or receiving telephone calls as they alleged in evidence.  Despite the fact that during the interview the defendant informed the officers which of his mobile phones they had seized from him that he had used to contact his dealer and the final digits of the number of his telephone, no attempt appears to have been made to verify his account by checking the phone itself.

25.  I did not feel I was given a full explanation of what was happening insofar as the investigation was concerned during the period between 8.45 pm when the defendant was arrested and 10.05 pm when the vehicle containing the defendant departed for the police station.

26.  PW1 and PW3, who were in the police vehicle with the defendant, gave evidence of why there was this delay but I did not consider that their evidence explained why there should be a delay of more than an hour.  If, as they testified, they had chased close behind the defendant into the lobby of the clinic and down a very short corridor before emerging into the car park, it seems likely that they had been able to see if he discarded anything else but even if they had not, a search could have been done very quickly.

27.  No serious attempt appears to have been made to see if CCTV cameras in the clinic itself showed anything that might assist the investigation.  If PW3 is to be believed, the officer doing the investigation appears to have been satisfied by the staff of the clinic simply saying that they did not know if there had been any recording.

28.  It is also not clear, bearing in mind what the officers say they saw, for what purpose the police were allegedly seeking other witnesses.  PW3’s evidence that it was out of fairness to the defendant was not convincing.  The officer who conducted the investigation was not called to explain to the court what had been going on during this period.

29.  By reason of these matters, I have ultimately concluded that I may not have been given the whole picture either by the prosecution or the defence.  Bearing in mind the sort of person the defendant is and the fact that the police received anonymous information leading to his arrest shortly beforehand, I cannot completely exclude the possibility that the informer in pursuance of a grudge against the defendant gave the defendant more drugs than he had asked for in order that the police would find that quantity of drugs on him.  I cannot therefore completely exclude the possibility that the defendant was unaware of the quantity of drugs he had been given but believe that what he had been given was for his own consumption.  

30.  I therefore acquit the defendant of the charge of trafficking and convict him on the alternative offence of simple possession.