HKSAR v. ZAHEER MUHAMMAD

CACC 98/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 98 OF 2015

(ON APPEAL FROM HCCC NO. 146 OF 2014)

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JUDGMENT
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Introduction

1. The Applicant was tried before P Li J and a jury on one charge of Possession of a dangerous drug, namely 1.85 grammes of cocaine, which drug was found on his person (Count 1); and a second charge of Trafficking in dangerous drugs, namely 83.58 grammes of a solid containing 38.29 grammes of cocaine and 24.86 grammes of a powder containing 0.6 grammes of methamphetamine and traces of ketamine, which drugs were found inside the flat where he resided (Count 2).  He was convicted of the possession count by a majority (6:1), but acquitted of the trafficking count unanimously.  On 2 March 2015, the Applicant was sentenced to 24 months’ imprisonment for the possession count.  The judge also ordered a previous 2 months’ suspended sentence to be activated in full, thus making 26 months’ imprisonment in all.  The Applicant has applied for leave to appeal against conviction, although he has since served his sentence and been released from custody.  However, the applicant was absent from court today, having been duly served notice of these proceedings at his last known address.

The Prosecution case

2. At about 5:40 pm on 20 August 2013, when the Applicant was entering the flat in question, he was stopped by police officers and subsequently searched by the arresting officer (PW1).  In his right trouser pocket were the drugs the subject of Count 1.  The Applicant was arrested for possession of a dangerous drug but said nothing.  The police then entered the premises and found another male, one Asim Shabbir, inside.  The flat was searched by the exhibits officer (PW2) and inside a rice cooker were found more dangerous drugs, the subject of Count 2.  The Applicant was arrested for trafficking in dangerous drugs and again he made no response.

3. During a later video-recorded interview, the Applicant denied that any packet of drugs was found in his right trouser pocket.  He further denied knowledge of the dangerous drugs in the rice cooker.

Fingerprint evidence

4. The Applicant’s fingerprints were found on various items inside the premises. However, none of his fingerprints were lifted from the rice cooker or the packaging materials of the dangerous drugs seized.

Defence case

5. The Applicant elected to testify and called a defence witness.

6. He denied that drugs were found inside his pocket.  He had never seen the packet before and he did not know from where the arresting officer had obtained the packet.

7. He testified that did not know that there were any dangerous drugs inside the cooker.  He had used the cooker that very morning but had not seen dangerous drugs there.  He believed that he might have been set up by a Nigerian called “Junior”.

8. The defence witness, a prisoner who was then serving his sentence and who claimed he did not know the Applicant personally, testified that he had heard another prisoner had been set up by Junior, yet he did not have personal experience of the matter.

The judge’s summing-up

9. The judge directed the jury to consider the evidence of the two counts separately, save in respect of evidence which was common to both; and that a conviction on one count did not mean there must be a conviction on the other.

10. He also reminded the jury that if they rejected the Applicant’s explanation, it did not necessarily mean that the Applicant was guilty. They still needed to consider whether the prosecution evidence made them sure each count was proven.

11. Regarding the fingerprint evidence, the judge directed that the fact that no fingerprint was found on the rice cooker or on the dangerous drugs packaging material “may mean that the defendant had not contacted any of those items”, and reminded the jury to bear that in mind in considering their verdicts.  However, he further commented that, notwithstanding the Applicant’s admission that he had used the cooker in the morning, his fingerprint was not found on the cooker; hence “even if a person had touched a certain object, his fingerprints may not be found on the object”.[1] The judge directed the jury to decide for themselves what weight should be put on the absence of fingerprint evidence after taking the whole of the evidence into consideration.[2]

Grounds of appeal

12. No specific complaint is made about the judge’s summing-up.  The complaints, as they appear in the Applicant’s Notice of Application for Leave to appeal dated 16 March 2015, are that the verdicts were inconsistent and that his fingerprints were not found.

Respondent’s submission

13. The Respondent submits that there is no merit in the Applicant’s application because, firstly, the verdicts for the possession count and trafficking count were not inconsistent. Secondly, the absence of fingerprints was neutral.

Discussion

14. In order to make out a ground of appeal based on inconsistent verdicts, it has been said in HKSAR v Chan Shek Wai (unrep., CACC 472/2001) at paragraph 39:

“So far as general principle is concerned, the burden of showing that verdicts are inconsistent falls squarely upon an appellant. Furthermore, not only must inconsistency be established but this must be shown to have been such as to call for interference by an appellate court. In R v Durante [1972] 56 Cr App R 708 at 714, the court adopted a passage taken from R v Hunt [1968] 52 Cr App R 580, which cited the words of Devlin J (as he then was) in the unreported case of Stone, namely:

When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.’ ”

15. In HKSAR v Li King Sing Ivan [2001] 2 HKC 539, the Court stated, at page 546F-H, that it would adopt the two-stage test propounded in an earlier case as follows:

“To succeed the appellant must show, first, that the verdicts are logically inconsistent and, secondly, that they are so inconsistent as to demand interference by an appellate court – i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.”

16. The evidence in support of the two counts in the present case was different.  For the possession count, the evidence rested entirely on the evidence of the arresting officer (PW1).  It was a simple matter of credibility.

17. As far as the trafficking count was concerned, PW1’s evidence was not material.  The case turned on the appropriate inferences which could be drawn from the circumstances connecting the Applicant to the premises.

18. The judge correctly directed the jury to consider the evidence of the two counts separately.  The difference in verdicts suggests that that is exactly what they did.  There is nothing logically inconsistent about the verdicts.  There is no substance in the complaint of inconsistent verdicts.

19. So far as the absence of fingerprints are concerned, the Court in HKSAR v Pham Thi Nga (unrep., CACC 224/2011), at paragraph 40, approved the following observation of Power VP in HKSAR v Law Wing Hong (unrep., CACC 169/1998):

“…lack of fingerprint evidence is a neutral factor. Of course if fingerprint evidence is given and either implicates the accused or exonerates him by establishing that the fingerprints are those of some other person, then it can be evidence of very substantial importance. Where, however, there is no fingerprint evidence at all, it proves nothing either way.”

There is nothing in this point.

20. There are no reasonably arguable grounds of appeal in this case and leave to appeal is refused.  The applicant is duly advised of his right to renew his application to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] Appeal Bundle: page 45G-K

[2] Appeal Bundle: page 45O-T