HKSAR v. DRAMANE MOUHAMED SAITI

CACC 191/2016

[2018] HKCA 338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 191 OF 2016

(ON APPEAL FROM HCCC NO 24 OF 2016)

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REASONS FOR JUDGMENT

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The Court :

1.  The applicant was convicted on 3 June 2016 before Campbell-Moffat J and a jury of one count of trafficking in 1,388 grammes of a powder containing 442 grammes of cocaine.  He was sentenced on the same day to 16 years’ imprisonment.  On 27 June 2016, he applied for leave to appeal against conviction.  Almost two years later on 1 June 2018, he applied for leave to appeal against sentence out of time.  On 5 June 2018, we refused both applications and dismissed the appeals.  We indicated that we would hand down our reasons for judgment, which we now do.

THE PROSECUTION CASE

2.  The prosecution case was simple and straight-forward. 

3.  On 25 September 2015 at about 7:30 pm, the applicant boarded a taxi driven by PW1 in Sham Shui Po.  PW1 saw the applicant carrying a black plastic bag.  PW1 drove the applicant to a Sinopec petrol station in Sheung Shui, the address of which the applicant had shown to him on a WhatsApp message on his Apple iPhone.  At about 8:21 pm, a team of police officers including PW2 intercepted the taxi at that petrol station.  The applicant was sitting in the rear passenger compartment.  A black plastic bag was in the footwell between his legs.  The bag was found to contain cocaine the subject of the indictment.  PW2 arrested and cautioned the applicant.  He remained silent.  He was later brought back to Sheung Shui Police Station and then to Wan Chai Police Headquarters.

THE DEFENCE CASE

4.  The applicant elected to give evidence. 

5.  The applicant was born in Benin and came to Hong Kong on 23 December 2013, seeking a refugee status. He lived with his wife in Sham Shui Po.  He was fluent in Gorgal and French and spoke and understood some English. 

6.  The applicant had known a Nigerian friend called “Network” for 18 months.  On 25 September 2015, at 6:30 pm, while at home, he received a call from Network asking him to collect some food and medicine which Network had brought from Africa for him.  Network gave him an address by way of a message on his iPhone, which he could not read as it was in Chinese.  The applicant then left home without taking anything except two mobile telephones.  He boarded the taxi driven by PW1 and sat at the back, where he did not see anything like a plastic bag.  Upon arrival at the petrol station and before getting out, he was arrested by the police.  It was not until he attended a subsequent video-recorded interview at the police station that the police showed him a black plastic bag, which they said contained dangerous drugs.

APPLICATION TO ADDUCE FRESH EVIDENCE

7.  We digress to deal with the applicant’s application to adduce by way of fresh evidence two photographs of the spot where he said he boarded PW1’s taxi in Sham Shui Po, which his wife took in June 2017.  The applicant said that it could be seen from the two photographs that there were CCTVs at that position which should have captured the moment when he boarded PW1’s taxi, showing that he was not carrying any plastic bag as alleged by the prosecution.

8.  However, there is no evidence to indicate when the CCTVs were installed.  Even assuming that CCTVs had already been installed on 25 September 2015, there is no evidence to show (a) they were in fact operating when the applicant boarded PW1’s taxi; (b) which directions they were pointing at; and (c) what images they had captured. In any event, any CCTV footage, if existed, could have been obtained at the trial.  In the premises, there is no basis for us to invoke section 83V of the Criminal Procedure Ordinance, Cap 221, to admit the two photographs on appeal.

9.  That said, as we had indicated at the hearing, we did take the two photographs into account on a de bene esse basis when considering the applicant’s applications.  Having done so, we did not think the applicant could derive any meaningful assistance from them.

APPEAL AGAINST CONVICTION

10.  The applicant raised a number of grounds of appeal.  They fell into two broad categories.  The first alleged incompetence on the part of his counsel at trial.  The second complained that the Judge’s summing-up was unfair.

11.  In respect of the complaint of counsel’s incompetence, none of the applicant’s specific complaints against counsel had any substance.  Indeed, despite articulating his grounds of appeal in his Form XI Notice on 27 June 2016, his complaints against his counsel did not emerge until May 2017.

12.  The applicant complained that counsel had failed to act on his instruction to call the supposed informant who gave information on his wrongdoing to give evidence. However, there was no basis for counsel to have made any application to call the supposed informant in this case and counsel would have known full well that no judge would have granted any such application, which could have led to identifying the informant.  For the identity of informers is specifically protected under section 57 of the Dangerous Drugs Ordinance, Cap 134.  See HKSAR v Agara [2014] 2 HKLRD 648, applied in HKSAR v Mushtaq Zeeshan, CACC 223/2014, unreported, 15 June 2015 at [32]-[34] and HKSAR v Mushtaq Zeeshan (No 2), CACC 394/2015, unreported, 15 November 2016 at [58]-[64].  In any event, if the drugs were found in the applicant’s possession, which was the central issue before the jury, the identification of any informer was of no relevance.  His identification could hardly be said to be necessary to demonstrate the applicant’s innocence.

13.  The applicant next complained that counsel had failed to act on his instruction to ask the court to summon all police officers present to prove that the whole case was an entrapment, coordinated by the police and the informant.  However, it was well within counsel’s discretion whether to ask for other officers to be called or tendered for cross-examination : see Chong Ching Yuen v HKSAR [2004] 2 HKLRD 681, citing R v Birks (1990) 48 A Crim R 385, in particular at p.696H-I.  It was therefore defence counsel’s decision whether he wanted the other police officers (other than PW2) called.  He did not do so because, as counsel explained, he did not want to make things even worse in a prosecution case that was already strong.  The complaint is wholly unmeritorious. 

14.  The applicant went on to submit that counsel had failed to (a) complain about the lack of an interpreter at the police station; (b) complain why finger-prints and DNA were not taken from PW1; and (c) question PW1 about the applicant’s clothing. However, these were all non-issues in the case.  Counsel was entirely correct not to pursue these points, which could not advance the defence case.  The absence of fingerprints and DNA from a defendant is neutral evidence : see, eg, HKSAR v Pham Thi Nga, unreported, CACC 224/2011, 16 July 2012; and HKSAR v Tsuchiya Koji [2015] 6 HKC 463.  In any event, counsel did establish that the police had obtained no fingerprint or DNA evidence to assist their investigation.  He also did ask PW1 what the applicant was wearing when he boarded the taxi, but PW1 said he had no recollection.  He further established that PW1 did not return to the police station to make a statement until some 10 days after the event.  There is no substance in these complaints either.

15.  All in all, the applicant has failed to show any incompetence, let alone flagrant incompetence, on the part of his trial counsel.

16.  Likewise, the applicant’s complaints against the Judge’s summing-up were simply not made out.  Contrary to his complaints, the Judge did not direct the jury to choose between the prosecution and defence cases.  Rather, she directed the jury that it was for the prosecution to prove its case and that, although the applicant had given evidence, he did not have to prove his innocence.  Further, the Judge directed them that if his denial of possession of the black plastic bag and its contents of cocaine “is or may be” correct then the applicant was entitled to be acquitted.  She said that, even if they rejected the applicant’s evidence, nevertheless the jury had to be satisfied that the prosecution had proved its case.  The Judge directed the jury “the real issue… perhaps is whether there was that bag in the car or not, because the police say he had the bag between his legs when he was arrested and you know the defendant… said ‘the bag was not in the car; it was not there; it was not mine; I first saw it in the video-interview room’.”  These are all adequate and fair directions.

17.  For these reasons, we refused to give the applicant leave to appeal against conviction and dismissed his appeal against conviction.

APPEAL AGAINST SENTENCE

18.  As we have said, the applicant filed a very late Notice of application for leave to appeal against sentence: indeed, we received it the day before the hearing set down for the appeal.  We are grateful to Mr Sean for responding so promptly to this matter.

19.  In his response, Mr Sean pointed out that the starting point in respect of 440 grammes of cocaine narcotic under the relevant guidelines, when viewed arithmetically, should have been 16 ½ years’ imprisonment, and not 15 ½ years’ imprisonment.  The judge had then enhanced the starting point by 6 months’ imprisonment, given that the applicant committed a very serious offence as a non-refoulement claimant and Form 8 Recognizance holder.  In HKSAR v Mahabul Alam Khan, unreported, CACC 116/2016, 8 September 2017, this Court had approved an enhancement of 15 months’ imprisonment for this factor in respect of the trafficking in 238.57 grammes of cocaine narcotic.  Given that the applicant could have had his sentence in respect of 440 grammes of cocaine narcotic enhanced by as much as 18 months’ imprisonment, rather than 6 months, and that his overall sentence after trial could well, therefore, have been 18 years’ imprisonment rather than 16 years’ imprisonment, we warned him that, if he chose to persist with his appeal against sentence, in circumstances where it was found to be totally devoid of merit, we had the power under section 83I(3) of the Criminal Procedure Ordinance, Cap 221 to increase his sentence.

20.  In the event, the applicant did not pursue his appeal against his term of imprisonment but confined his complaint to the confiscation order of his Apple iPhone, made on the day of sentence.  He said it was a gift from his wife.

21.  Clearly, however the applicant came by it and whoever it belonged to, the telephone had been used “in the commission of or in connection with” an offence of drug trafficking, within the meaning of section 56(1)(a) of the Dangerous Drugs Ordinance, since it was used to show PW1 the address in Sheung Shui, to which the applicant was to take the dangerous drugs.  Accordingly, it was plainly liable to forfeiture.

22.  For these reasons, the application for leave to appeal against sentence was likewise refused and the appeal dismissed.