HKSAR v. MOHAMMED ANSAR

CACC 220/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 220 OF 2016

(ON APPEAL FROM DCCC 217 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with trafficking in a dangerous drug, namely, 3.43 grammes of a crystalline solid containing 3.34 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to this charge and was tried in the District Court before District Judge Woodcock (“the judge”). On 7 July 2016 he was convicted as charged and on the same day was sentenced to 4 years and 3 months’ imprisonment.

2.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against both his conviction and his sentence.

3.  At the hearing of the application I refused it and said I would give my reasons for doing so at a later date.  This I now do.  

The prosecution case

4.  It was the prosecution case that on 5 November 2015, at 1:15 am, the applicant was observed by a plain-clothed police officer (PW2 at trial) who was patrolling on foot outside Exit A of Kennedy Town MTR Station.  This police officer had a colleague nearby (PW3 at trial).  PW2 saw the applicant sitting side by side on a bench with another person.  They were about 6 metres away from him.  He saw some movement or gesturing between them and suspected that they were conducting a drug transaction.  He told PW3 of his suspicions and of his intention to go forward and intercept both men and they then approached the applicant and the other person.

5.  PW2 searched the other person and seized a recycle bag that was in his possession.  It was found to contain:

(1)  a red packet containing a transparent plastic bag containing the Ice the subject of the charge; and

(2)  one cotton cosmetic bag containing an Ice inhaling device and one lighter.

PW2 cautioned this person who admitted that he had bought the Ice from the applicant for $2,500.  He said the Ice bottle and the lighter belonged to him for consumption of the Ice. 

6.  PW3 then arrested the applicant.  He found the applicant was holding a sum of $2,500 cash in his left hand and was in possession of a wallet with more cash in it.  His possession of the $2,500 was the subject of an admitted fact.  PW3 searched him and seized three mobile phones from his person.  Apart from the money and the phones, no other suspicious item was seized from him.  Under caution the applicant remained silent.  PW3 said he did not examine the messages on the applicant’s phones.

7.  The person found in possession of the drugs was charged with one charge of possession of a dangerous drug and one count of possession of apparatus fit and intended for inhaling a dangerous drug and pleaded guilty to both these charges.  Upon his conviction he gave a statement to the police in which he explained how he came to purchase the Ice from the applicant and he became PW1 at the trial of the applicant.  

8.  In his evidence he said that he had been in contact via the WhatsApp messaging application with a person known to him as Jenny Stan to purchase 3.5 grammes of Ice for $2,500 but he could not say that the applicant was this person.  However, he maintained that when he arrived at the location where the police saw him it was the applicant who gave him the packet of Ice, and it was the applicant to whom he gave $2,500 for its purchase. 

9.  The WhatsApp messages on PW1’s phone were produced as exhibits in the form of screenshot photos.  They confirmed that PW1 was seeking to purchase 3.5 grammes of a substance for $2,500 from a person on the other end of the WhatsApp communication who went by the name of Jenny Stan.  They also proved that the arrangement for delivery of the goods was for a person to meet PW1 outside Exit A of Kennedy Town MTR station.

The defence case

10.  The defendant did not to give evidence but his case was apparent from the cross-examination by his counsel, Mr Leslie J Parry, of PW1 and the two police officers.  The judge summed up the defence case as follows:

“26. The defence case, as I have said, is that the defendant was an innocent bystander framed by PW1, a stranger who sat next to the defendant on a park bench.  PW1 had a motive to frame him, as he will benefit from a lighter sentence if he gives evidence against the defendant he accuses of selling him drugs.

27. The defence case is that the defendant was waiting for a friend, with only two mobiles on him, not three.  He had $2,500 in his hand, but it was not money from PW1, it belonged to him.  The fact the WhatsApp messages on PW1’s phone indicated a sale of 3½ grammes of ‘Ice’ for $2,500 at that location at about that time was coincidence.  It had nothing to do with the $2,500 cash in the defendant’s left hand.  The defence case is a total denial of the charge and evidence of PW1, hence the issue being one of credibility as opposed to one related to the law.  It is not submitted that PW1’s evidence, at its highest, does not prove the elements of the charge.”

The judge’s Reasons for Verdict

11.  The judge directed herself that in this case the issue was one of the credibility of the prosecution witnesses.  In this respect she noted that PW1 had agreed that he had yet to be sentenced for the offences to which he had pleaded guilty and that he understood that the magistrate would give him a discount for giving evidence against the applicant. But he did not know how much of a discount he would receive.  Consequently, the judge warned herself that as PW1 was giving evidence with a view to earning a lighter sentence “there is an inherent danger he may not be reliable or credible …”. 

12.  The judge went on to analyse and assess the evidence of PW1.  She noted that PW1’s evidence was supported by a WhatsApp conversation with a drug supplier who told him that a courier was on his way with the drugs which would cost him $2,500 and that the applicant, when arrested, was holding this amount of money in his hand.  She said she found the evidence “strong, overwhelming and damning” and that there was nothing in PW1’s evidence that made her doubt the truth of it.

13.  The judge said the WhatsApp messages proved that PW1 had not framed the applicant or fabricated the drugs transaction.  She rejected the applicant’s claim that PW1 was framing a stranger by accusing him of selling him the Ice that was found in his possession as being “too much of a coincidence.” 

14.  In respect of the evidence of the two police officers, she said she was sure they had told the truth and that there were no material discrepancies in their evidence that created any doubt in her mind.  She said the most damning piece of evidence from them was the fact that they saw the applicant holding a quantity of currency which when subsequently seized from him was found to be $2,500.  This evidence, she noted, was not challenged.  She said she was sure that this money was the money that was handed over by PW1 to purchase the Ice. 

The mitigation

15.  Mr Parry informed the court that the applicant was born in India and was 28 years of age.  He is a torture claimant and the holder of a Form 8 recognisanze.  He came to Hong Kong in 2007 and married a lady of Indonesian nationality on 1 November 2015.  His wife was pregnant at the time of trial.  The other members of the applicant’s family live in India.  Mr Parry informed the judge the applicant did suffer from a back problem but was not seeking to rely on that as a part of his mitigation as the applicant can receive treatment for it from the prison authority.

16.  Mr Parry referred the judge to the sentencing tariff guideline laid down by the Court of Appeal in HKSAR v Tam Yi Chun[1]which provided a range of 3 to 7 years for 0 to 10 grammes of Ice.  Mr Parry suggested that as the court was concerned with only 3.34 grammes of Ice the sentence should be closer to the lower end of tariff.

The judge’s Reasons for Sentence

17.  After referring to the matters advanced to her in mitigation the judge noted that the applicant had two convictions in Hong Kong but that neither of them related to drugs.  He had been sentenced in 2013 to 10 months’ imprisonment for working in Hong Kong when he was not entitled to do so and in 2015 he was sentenced to 3 months’ imprisonment for the offence of conspiracy to defraud. 

18.  She referred herself to the decision of the court in HKSAR v Sandagdorj Altankhuyag & Anor[2] as authority for the proposition that when a torture claimant commits an offence in Hong Kong then, in certain situations, his status as a torture claimant can be regarded as an aggravating factor.  The judge said that this being a serious offence and the applicant’s third conviction she found his status to be aggravating factor. 

19.  The judge then said she would take a starting point of 4 years’ imprisonment which she would then enhance by 3 months to allow for the presence of the aggravating factor.  As the applicant was convicted after trial that was the sentence she imposed on him.

The applicant’s grounds of appeal 

20.  In a letter dated 17 July 2016 which was attached to the applicant’s Form XI the applicant complained about the competence of Mr Parry.  The applicant had fired his original counsel at the beginning of the trial and Mr Parry was his replacement counsel.  The applicant complained that Mr Parry had not had sufficient time to read all the case papers.  Furthermore, he said Mr Parry had advised him not to bring up any witnesses for if he did so “my case would take more time and wait again for months”. 

21.  In a further letter attached to his Form XI dated 19 July 2016 the applicant said the only evidence against him was from the person who had been found in possession of the drugs.  He complained that there was no evidence found on him that directly implicated him in the offence and he had no kind of connection with PW1.  He claimed he was totally innocent. 

22.  In an affirmation dated 15 November 2016 the applicant set out all his complaints, both in respect of Mr Parry and of his trial.  He said that on 27 June 2016, the first day of his trial, he fired his original lawyer.  On the next day, 28 June 2016, the Legal Aid Department gave him another lawyer.  On 29 June 2016 this lawyer, Mr Parry, allowed the trial to proceed instead of asking for an adjournment.  The complaint of the applicant is that Mr Parry did not take sufficient time to prepare his case for trial. 

23.  His second complaint is that Mr Parry did not allow him to testify in his defence. 

24.  The applicant then made a number of complaints in respect of his trial and conviction.  He:

(i) asserted PW1’s evidence was not believable;

(ii) argued that even though the judge noted that PW1’s evidence was supported by the record of the WhatsApp conversations with the drug supplier, there was, in fact, no contact number in the applicant’s phone in respect of PW1 or any drug supplier and this means that he, the applicant, did not have any link between either PW1 or PW1’s drug supplier;

(iii) argued that the police officers’ evidence did not go so far as saying that they observed any drug transaction between PW1 and the applicant;

(iv) claimed there were aspects of PW1’s evidence which affected his credibility;

(v) questioned whether the police officers in fact seized PW1’s mobile phone and read the WhatsApp messages on it at the location where PW1 was arrested;

(vi) attacked the credibility of PW1’s evidence;

(vii) claimed he had only two mobile phones on him and not three phones as claimed by the police officer, PW3, in his testimony; and

(viii) argued there was no supporting evidence to convict him other than his possession of $2,500 cash which could equally suggest he was the buyer of the drug and PW1 could have been the seller of it.

25.  In a further statement dated 21 November 2016, in response to a letter from court, the applicant formally waived legal professional privilege in respect of his trial. 

26.  Finally, in a letter dated 8 June 2017 the applicant wrote to the court in respect of his appeal against sentence.  The only complaint he made in this letter was that in another District Court case, namely, DCCC 117/2015 HKSAR v Chin Kwun Kong, the defendant received a lesser sentence for a greater amount of Ice, namely 10 grammes of Ice.

27.  At the hearing of the applications the applicant relied on the materials he had previously submitted to the court in respect of his application for leave to appeal his conviction.  In respect of his application for leave to appeal his sentence the applicant tendered a letter which he had written which described the hardship suffered by his family as a result of his incarceration.  He is particularly anxious as he has a young son who was born whilst he was in prison.

The affidavit of Mr Parry

28.  In response to a direction by Master Tam, Mr Parry filed an affidavit with the court. 

29.  In his affidavit Mr Parry recounted how, upon the applicant firing his then counsel, he, Mr Parry, had been instructed by Legal Aid to represent the applicant at his trial.  He received the case bundle on 28 June 2016 and as it was a relatively small bundle he was able to read it and digest it prior to his conference with the applicant which took place later that day.  During the course of this conference Mr Parry said he received full instructions from the applicant which, in summary, were:

“(i) the Defendant was framed or set up by PW1 (Mr LAW Man-Wai, Spencer);

(ii) the Defendant was at the location, waiting on a bench to meet a friend, and PW1 came along and sat next to him;

(iii) they were strangers to each other but had some general conversation on the bench;

(iv) PW1’s mobile phone lit up and Defendant offered to assist to switch it off as PW1 couldn’t do so;

(v) The Defendant claimed he only had 2 mobile phones on him at the time (not 3 as claimed by the Police);

(vi) The Defendant confirmed possession of the $2,500 but this was his own money and not received from any drugs transaction with PW1;

(vii) The Defendant denied trafficking in the drugs as charged;

(viii) The Defendant did not give any instruction to Counsel that he ‘… could be a buyer and PW1 could be a seller’.  I refer to his comments at para. viii of his affirmation.”

30.  Mr Parry then went on to say that having finally read the case papers he was fully prepared to proceed with the trial on the following day. He was aware there would only be three witnesses for the prosecution and he saw no need to delay the start the trial by an unnecessary adjournment.  Mr Parry said he had a conference with the applicant prior to the commencement of the trial on 29 June 2016 as in fact the applicant was late for court.  Mr Parry said that at no time did the applicant object to the trial commencing that day.

31.  In respect of the complaint that Mr Parry prevented him from giving evidence Mr Parry said:

“This issue was discussed during the conference and again after the Prosecution closed their case. His rights were fully explained to him, and that the ultimate choice was his. However, I did explain to him that his ‘Defence’ had already clearly been put during the course of my cross-examination.”

The respondent’s submissions

32.  Mr David Chan, Assistant Director of Public Prosecutions, for the respondent, submitted that the facts of the case were straightforward and that the judge correctly recognized the issue in the case as being the credibility of the prosecution witnesses, especially PW1.  With the trial involving simple issues and only three witnesses Mr Parry had sufficient time to prepare his case.  Mr Parry did not see the need for an adjournment and did not receive instructions to apply for one.  

Discussion

33.  The applicant’s complaint that Mr Parry should have sought an adjournment is without substance.  It was for Mr Parry to decide if he needed more time to prepare for the applicant’s trial.  He decided he did not.  Given the few number of prosecution witnesses, the factual nature of the case and the lack of any complex legal issue in the presentation of the defence his decision is readily understandable.  Indeed if his decision was otherwise then some explanation would be called for.

34.  The applicant’s claim that Mr Parry prevented him from testifying is simply not credible.  I have no hesitation in accepting Mr Parry’s statement that the applicant’s rights were fully explained to him and that the applicant made the considered choice not to give evidence. 

35.  I have considered each of the complaints that the applicant has raised in respect of his trial and conviction and am of the view that none of them are reasonably arguable.  They either concern the credibility of PW1 and the sufficiency of the evidence or seek to advance matters that were not before the judge because the applicant chose not to give evidence.  

36.  As to the credibility of the prosecution witnesses this is very much a decision to be made by the trial judge.  It is clear the judge was well aware of the importance of her task and it is equally clear that she exercised care and thoroughness in performing it.  She was correct to find that the WhatsApp messages supported PW1’s testimony.  He was clearly the purchaser of the drugs not just because that was obvious from the WhatsApp messages but also because he was the one in possession of the apparatus for consuming them.  In the absence of any evidence from the applicant to contradict PW1’s testimony and given the evidence which supported that testimony, it is hardly surprising that the judge chose to accept it.  Once the judge accepted PW1’s evidence, as she was entitled to do, there was more than sufficient evidence to justify a conviction.

37.  In respect of the appeal against sentence I can see no reasonably arguable complaint that can be made in respect of it.

38.  The judge’s starting point cannot be criticised.  Indeed a purely arithmetic calculation would lead to a starting point of 4 years 4 months’ imprisonment, so, if anything, the judge’s starting point is lenient.  Nor can any criticism he made of her enhancement of the starting point to allow for the presence of the aggravating element of the applicant’s torture claimant status.  The enhancement is in line with established Court of Appeal authority.

39.  The applicant’s reliance on the sentence imposed in DCCC 117/2015 is of no assistance to him. Firstly, that case is not factually comparable to his as in DCCC 117/2015 the trial judge found that the defendant was guilty of trafficking in only 0.28 of a gramme of Ice and possessed the rest of the drugs in his possession for his own consumption.  Secondly, the Court of Appeal has said on many occasions that it is of no relevance what other trial judges have imposed on other defendants in totally unrelated cases.  What is required is for the applicant to demonstrate error in respect of the sentence imposed on him.  This he cannot do.

40.  The contents of the applicant’s letter rely on the hardship caused to his wife and child by his incarceration. I have no doubt of their suffering and that they have become victims as a result of the applicant’s actions.  But that was a risk the applicant consciously took when he engaged in drug trafficking.  It is not the sentence of the court which has caused them suffering; rather it is the applicant’s own conduct.  As sympathetic as their plight may be, the Court of Appeal has repeatedly said that for an offence as serious as drug trafficking the harmful consequences that a lengthy prison term may cause to an offender’s family cannot sway the court from imposing the appropriate deterrent sentence.

Conclusion

41.  For these reasons I refused the applicant leave to appeal both his conviction and his sentence.  I informed the applicant of his right to renew his application to the Court of Appeal but also informed him of the power of the Court of Appeal to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 should the Court of Appeal find no merit in his renewed application. 

[1] [2014] 3 HKLRD 691

[2] [2014] 1 HKC 206