HKSAR v. MASIH MALKEET

CACC 254/2019

[2021] HKCA 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 254 OF 2019

(ON APPEAL FROM HCCC NO 312 OF 2018)

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R E A S O N S  F O R  J U D G M E N T

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The appellant faced one count of trafficking in a dangerous drug before Li J and a jury in the High Court, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The offence arose out of the appellant’s collection of an overseas parcel from Kowloon Central Post Office in Yau Ma Tei, Kowloon, on 20 March 2018, which had earlier been discovered to contain 934 grammes of 3, 4-methylenedioxymethamphetamine (commonly known as “MDMA”). Having pleaded not guilty to the count, he was, on 28 June 2019, unanimously convicted and subsequently sentenced to 15 years and 2 months’ imprisonment.

2.  The appellant applied before a Single Judge for leave to appeal both his conviction and sentence.  At the hearing of the application, he was granted leave to appeal against conviction on two of the grounds put forward, but refused leave to appeal against sentence^[1].

3.  At the conclusion of his appeal, we allowed the appeal on the basis of one of the grounds on which leave had been granted, quashed the conviction and set aside the sentence.  Upon the application of the respondent for a re-trial, which was not opposed by the appellant, we ordered that he be re-tried and remanded the applicant in custody pending such re-trial.  These are the reasons for our decision.

The prosecution case

4.  The relevant facts for present purposes, most of which were reduced into a set of Admitted Facts, were that, at about 4:15 pm on 15 March 2018, a Customs officer examined an incoming parcel from the Netherlands (the “Parcel”).  The manifest accompanying the Parcel declared that the item contained “heather”, and that the intended recipient was one “Christopher D Alfred”, with an address at “52, 3 Floor, Bowring Street, OOP (sic) Kwun Chung Market, Jordan, Hong Kong”. 

5.  The officer removed the packaging of the Parcel and found an electric stove with a manual inside a zip-lock bag.  Inside the compartment of the electric stove were discovered five packets containing a total of 5,136 MDMA tablets, with a narcotic weight as particularised in the indictment.  The street value of the drugs in question, as at the date of their seizure, was HK$400,608.

6.  The Parcel was then restored to its original form for the purpose of conducting a controlled delivery by Customs officers. The first attempt at a controlled delivery, on 17 March 2018, was unsuccessful.  On 19 March 2018, a notification card was left at the stated address, advising the recipient to collect the Parcel from Kowloon Central Post Office. 

7.  At about 4:42 pm on 20 March 2018, the appellant appeared at Counter 11 of Kowloon Central Post Office to collect the Parcel.  When the Customs officer, who was posing as a postal officer, asked the appellant for the consignee’s name, the appellant produced photographs on his mobile telephone of an Australian passport and a tenancy agreement of the said Christopher D Alfred in respect of the address at 3^rd floor, Bowring Street in Jordan.  The appellant also wrote down the consignee’s name on a piece of paper.  Upon request, he then produced his own Immigration Department Form 8 recognizance paper for identification purposes and signed on a copy of the manifest.  The entire course of these events was captured by Closed Circuit Television inside the Post Office.

8.  Having collected the Parcel, the appellant was intercepted and arrested outside the Post Office.  At the time, he had on his person an iPhone 6, and HK$56 and RMB¥1 in cash.  Under caution, the appellant denied knowledge of the dangerous drugs contained in the Parcel.  He said the Parcel belonged to his friend “Avtar Sing”, who had promised him a “HK$500 reward” for collecting the Parcel.  The photograph of the passport, the tracking number of the Parcel and the address had been sent to him by Avtar Sing, but he had deleted these posts before leaving the Post Office.  Other than through Facebook, he had no other way of contacting Avtar Sing, who was at the time in China.  His answers were post‑recorded in a cautioned statement, which was not challenged at trial^[2].

9.  A video recorded interview (“VRI”) was subsequently conducted with the appellant under caution.  In the VRI, which was also not challenged, the appellant said he was a refugee living on HK$3,000 per month by way of subsidies provided by the International Social Services (“ISS”), a sum which he deemed inadequate^[3]. He admitted that Avtar Sing was a fictitious name he had made up^[4]; in fact, a person called Kenneth had instructed him to collect the Parcel^[5]. He did not know what was contained in the Parcel^[6]; nor did he ask.  Kenneth had sent him all the information he needed by WhatsApp before he entered the Post Office^[7]. While he was waiting inside the Post Office, he had been called by Kenneth to say that his reward would only be HK$500, and not HK$8,000 as earlier agreed^[8].

10.  The appellant volunteered that he had also collected another parcel for Kenneth on a previous occasion^[9], during which nothing unusual had taken place.  He did not know what the parcel had contained on that occasion either^[10], and had received HK$500 as a reward^[11]. He maintained that Kenneth had asked him to help because they had “good communication” with each other and a “good understanding had developed” between them^[12]. When asked whether he considered the sum of HK$500 to be rather strange for such an easy task, he responded, “If I had known I would have argued over 500 but I didn’t know what was inside”^[13].

11.  It was not in dispute that the appellant had arrived in Hong Kong on 6 March 2016, and thereafter filed a refugee claim with the Immigration Department.  It had further been confirmed by the Australian Consulate, and was also not in dispute, that the passport copy used in the collection of the Parcel was a false document.

12.  The appellant’s iPhone was subsequently examined, which revealed that on the day before his arrest, someone with the name “Kenneth Bro” had contacted him on WhatsApp^[14] and said there was “work” to do on the next day.  The appellant agreed to meet at 3:00 pm near Kowloon Central Post Office, adding that “Bcz that time police is sleep”.  The tracking number, the address and the photographs of the Australian passport and the tenancy agreement of Christopher D Alfred could also be found in the messages from Kenneth Bro.

13.  The exchange of messages also suggested a bargaining of price between the two.  The appellant had first mentioned charging “US$1,500” for what he was to do.  Kenneth Bro then counter-offered the sum of “8000”, which the appellant appeared to accept.  There were further exchanges between the two concerning the time the police would be in the area. There was a concluding message from Kenneth Bro, “Hope you have deleted everything”. 

The defence case

14.  The issue at trial was the appellant’s knowledge of the presence of dangerous drugs inside the Parcel when he collected it.  He elected to testify and called one defence witness, a pastor from a church in Jordan, in order to support the fact that he was a religious person.

15.  The appellant testified that he was a Christian who had come from India^[15]. Having arrived in Hong Kong in 2016, he filed a torture claim with the authorities^[16]. He admitted that he had one conviction for ‘breach of condition of stay’, for which he was sentenced to 2 weeks’ imprisonment suspended for 3 years^[17]. At the time of the offence he was living on ISS subsidies^[18], and was not a drug addict. 

16.  At his trial, the appellant produced a photograph of the man he claimed was Kenneth.  He testified that Kenneth was also known as “Avtar”^[19]. At that time, he had wanted to obtain a loan from Kenneth for his cousin’s wedding, which was to take place in April 2018.  Kenneth agreed^[20].  However, he accepted that this loan had not been mentioned in his VRI^[21]. 

17.  In his evidence, the appellant sought to explain the meaning of some of his WhatsApp messages with Kenneth.  He said he was concerned about the police because he did not want to be caught working illegally^[22]. He specifically denied bargaining for a higher payment from Kenneth and said that those messages were concerned with the loan.  He trusted that Kenneth would not ask him to commit any crime, and he therefore saw nothing wrong in collecting the Parcel^[23]. He did not know Christopher D Alfred, nor was he concerned about the genuineness of the passport^[24].

18.  The appellant disclosed that he had collected the first parcel on 12 or 13 March, which was about a week prior to the present offence.  He did not know what was inside the parcel, but there had been no trouble arising from that collection^[25]. He claimed that he had not received anything for collecting the first parcel^[26].

The cross-examination of the appellant as to his financial position

19.  The appellant’s financial means were subjected to a fairly detailed cross-examination by prosecuting counsel, none of which was objected to by defence counsel[27]:

“Q. In Hong Kong, you came here three years ago, right?

A. Yes.

Q. And your friend that you think of can lend you some money is Kenneth.

A. Yes.

Q. You ask him for loan in the range of $100 or $200 only.

A. Yes.

Q. Yes. And you returned the money within 20 days.

A. Yes.

Q. You borrowed the money for paying the race -- horse racing in the off course centre.

A. Not for horse racing.

Q. Okay. But you have no rich friend that can lend you more than, for example, $1,000.

A. No, no one.

Q. No one. Yes. Do you remember after you were detained you come to court and you told the court your first case that you can raise $4,000 for bail?

A. Yes.

Q. And rejected. Then on the second occasion you come back and said that you can raise $10,000.

A. Yes.

Q. Rejected. On the third occasion you told the court that you can raise is it 12,000 or 15,000? Let me check. No, $15,000.

A. Yes.

Q. Yes. You have all other resources to raise money, are you saying?

A. A friend of mine contacted my family in India and he was willing to give money for my bail.

Q. I see.

A. When the family was unable to arrange that amount of money which he ask for, then he stepped in and came to help me.

Q. I see.

A. He also came to the court for the bail.

Q. I see. Any other thing that you want to say in respect of the bail money or to the race?

A. The person who came to help me get the bail -- came to the court for helping me get the bail, I don’t know him personally. He was sent by my church people to help me.

Q. I see. So now changing that none of your family members can bail you out.

A. Because my friend -- that person -- I ask -- told my family members that this would be the amount for my bail, but they said they can’t arrange that amount of money.

Q. I see. Early on, do you remember, you said your family members back in India desperately in need of money?

A. Yes.

Q. I see. In Hong Kong you told us that you subsidised or gives you some assistance by International Social Service.

A. Yes.

Q. Yes. They subsidise you in the respect of rent. They -- the ISS pay the rent for you, not give you money so that you could pay. They directly pay the landlord, in other words.

A. Yes, it is paid directly to the landlord.

Q. Yes. Insofar as food is concerned, they give you vouchers instead of give you cash, right?

A. Yes, vouchers.

Q. Yes. So in other words, you do not have cash, right?

A. They give 230 in cash.

Q. 230, 2-3-0, right?

A. Yes, 230, 2-3-0.

Q. Yes. For month?

A. Yes.

Q. For the transportation, right?

A. Yes.

Q. Yes. You always tell the senior officers that the subsidy is not enough for you.

A. Yes.

Q. Okay. And therefore you sought to traffic in DD, is it the position?

A. No.

Q. You bought an iPhone for your daily use.

A. When I entered Hong Kong at that time I had money.

Q. I see it. Then when did you buy iPhone then?

A. Earlier I bought iPhone, then I sold that and bought this one.

Q. I see. But you prefer iPhone because it functions well. It suits your living standard.

A. Sorry, could you repeat?

Q. The iPhone, that suits your living standard in Hong Kong.

A. I can’t say that.

Q. I see. But there are also other brand names in Hong Kong that we sold for example, Nokia, that only costs you 250.

A. When I came I had Nokia.

Q. I see. But after that, after you came to Hong Kong, you prefer an iPhone 6.

A. I didn’t wanted to buy, I bought it.

Q. Okay.

COURT: I don’t understand...

A. I didn’t wanted to buy, I bought it. So the -- sorry, the prosecutor said, “You wanted to buy iPhone”, and he said, “I didn’t wanted to buy, I bought it.”

Q. I don’t understand. What do you mean?

A. Mean I didn’t want -- it was not a desire to buy iPhone. I actually bought it. I bought the iPhone.

COURT: It’s a new one or a second-hand one?

A. Second-hand.

Q. Second-hand one or a new one, it cost dearer, costly the -- to other brand name. For example, Samsung, for example, 小米(Xiaomi).

A. I don’t think it’s expensive. It’s around 1,400.

Q. 1,400?

A. It’s around 1,400.

Q. Yes, thank you. You said that you didn’t gamble in the Jockey Club on horses, you remember?

A. No, I didn’t bet on the horses, but Kenneth used to do that.  I used to tell him, “Bet on this horse.  Bet on that horse.”

Q. I see. You’ll give him tips about which horse that you support.

A. I would just give him an example that, “Bet on this horse, this might be good for you.”

Q. Yes. You do your exercise, do your homework, in order to place bet on which horse and advise Kenneth to place bet on which horse, are you saying?

A. I was not preparing for myself.

Q. But answer my question. You did study the horses’ performance and then advise Kenneth which horse that he should place on in order to win.

A. No, I don’t have much knowledge about that.  I would just give an example like, “Just bet on this.”

Q. But do you remember you told the C&E officers in one occasion you advise him to place horse on which number that he win and give you some money, you remember?

A. I didn’t ask for money, he gave me the money.

Q. That is the second part. The first part is you did advise him on which horse that he should place bets on.

A. Yes.

Q. I see. But you yourself didn’t put money on which horse to bet on, right?

A. I didn’t have the money.”

The closing speech for the prosecution

20.  Arising from this cross-examination, prosecuting counsel made significant play of the appellant’s finances in his closing address to the jury^[28]:

“Another point I want to say to you is that his financial position. I’m not discriminate against him because of his financial difficulties. But he have no money. This is a matter of fact for you to decide. He also confirm that he got no money. At the time of his arrest he only got HK$56 or 1 Renminbi. All the subsidies by ISS it is in the forms of voucher, rental, not go to his pocket. He only got a few hundred dollars for travelling expenses. You remember every Sunday he went to the church. That takes money, I think, unless he said he walk there. I don’t know. But there’s no money. But he bought an iPhone. He told you this is a second-hand iPhone but it worth $1,400. With a man as destitute as the defendant, would you spend $1,400 for a phone? Were there any other alternatives available in the market which is much cheaper? It is a matter for you, but he spend that sum of money on luxuries.

You also remember suppose he’s very poor. Again, I’m not discriminate against him because of his financial difficulties. He raise bail money originally in the form of $4,000 when he was arrested. Not granted. He raised it to 10,000 and later to 15,000, you remember. He agreed. Where’s the money from if he’s not a member of the trafficking DD gang? I don’t know. It is a matter for you. But his financial difficulties prohibit, if I may use the word, from buying luxuries like iPhone 6.” (Emphasis supplied)

It was the final italicised part of the above passage, on which Ground 1 of this appeal has focussed and to which we shall later return.

The closing speech of defence counsel

21.  In response to prosecuting counsel’s submissions on this matter, defence counsel at trial contended that the matters raised by prosecuting counsel were irrelevant to the appellant’s guilt or innocence[29]:

“And one of the points [Mr Fu] made seriously worries me because if you are a poor person in Hong Kong and you have an interest in horse racing and you have an iPhone, I think a huge number of Hong Kong people are going to be in prison if that’s what makes you a drug trafficker, because loads and loads and loads of people in Hong Kong, even if they do have much money, have old iPhones. And loads and loads and loads of people in Hong Kong are interested in horse racing and the Jockey Club and gambling and the Mark Six. And it really doesn’t take us any further as to the guilt or innocence of Mr Malkeet here with regard to this case.”

22.  Defence counsel returned to this matter in the latter part of his address[30]:

“Also, Mr Fu says about the defendant buying an iPhone. Would he buy this luxury phone? Well, I don’t know anything about mobile phones, I’ll be honest. I’m a dinosaur. I’ve got a Samsung. The humiliation is too much, but I’m willing to prepare -- I’m prepared to admit to you I do not have an iPhone, I do not have a luxurious phone. I have a techie old Samsung because, like Mr Fu, we’re not interested in electronics and messaging and so on. But remember this, the defendant did say in evidence in cross-examination, which seems to have been forgotten, that when he first came to Hong Kong in 2016 he had money. He specifically said that. So what does it mean that he’s got an old iPhone? He specifically said in evidence when he first came to Hong Kong he did have money. And you can only really draw inferences on evidence if it is accurate and the only evidence.

So Mr Fu says, why would he have an iPhone, where did he get the money from? Well, he gave evidence, “When I first came to Hong Kong I had money.” We’ll ignore that because we don’t want to believe it. That you cannot do. Being members of a jury is a privilege in Hong Kong in many ways. It is the one -- well, one of the purest examples of democracy in Hong Kong. All of your opinions are equal. All of your votes are equal. If you have doubt, you have the right to voice those doubts. If you don’t have any doubts, if you’re sitting there thinking, “He must be guilty”, so on and so on, you as in a democratic society that this now is, a small one, listen to the people who do have doubt, think and consider what they are saying if that is the situation. Because if you have any doubts at all, you should acquit. You have to be sure that the defendant knew what was in the package. And certain things like the fact that he’s got an iPhone, the fact that he went to the Jockey Club you may well think are completely irrelevant to that. Lots of people have iPhones. Lots of people go to the Jockey Club.”

However, defence counsel did not raise his concern directly with the judge, nor did he ask for any direction to remedy the imputation about the appellant’s financial means in prosecuting counsel’s closing address.

The summing-up

23.  In his summing-up, the judge recited the appellant’s testimony as to his financial means in some detail^[31].  He did not, however, give the jury a direction under section 36 of the Specimen Directions in Jury Trials, as promulgated by the Hong Kong Judicial Institute, nor did he address prosecuting counsel’s suggestion that the appellant had come by his money because he was part of a gang of drug traffickers.

24.  In respect of the appellant’s testimony concerning the circumstances of the collection of the first parcel for Kenneth, which goes to Ground 2 of the appeal, the judge said:

“Now, the first parcel. The defendant mentioned he had collected the first parcel for Kenneth. There was nothing wrong, there was nothing happened. There is no evidence what is in that first parcel. Please do not speculate, right? In my view, the fact that the defendant had collected this first parcel has very little evidential value because we do not know what is inside the parcel.

But certainly, you should consider that when you consider whether the defendant was innocent and he has no knowledge of DD or that he never thought Kenneth would lead him to commit any crime. Right? That particular first parcel is relevant in that aspect, but we have no knowledge as to the content there.”^[32]

The grounds of appeal against conviction

25.  The appellant, who was represented by Mr Ross on appeal (but not at trial), has advanced two grounds of appeal.  By Ground 1, Mr Ross complained that the judge erred in failing to rule on the admissibility, or establish the relevance, of the appellant’s lifestyle evidence; or alternatively, having allowed the lifestyle evidence to go before the jury, the judge failed to direct the jury as to what use they could make of it.  In the absence of proper directions in respect of this evidence, the jury might have engaged in impermissible reasoning as to propensity; that as a member of a drug syndicate, the appellant must have known what was inside the Parcel. 

26.  By Ground 2, complaint is made that the judge effectively told the jury that the evidence of collecting the first parcel “has very little evidential value”[33], when it was in fact important evidence which fortified the appellant’s belief that Kenneth would not get him into trouble with the second parcel. 

The respondent’s submissions in reply

27.  Ms Jennifer Fok, on behalf of the respondent at this appeal but not at trial, submitted in relation to Ground 1 that the evidence relating to the appellant’s lifestyle was relevant to the circumstances of how the appellant came to commit the present offence.  The evidence tended to show that the appellant was in dire need of money, and indeed had said as much[34], and hence would have agreed to perform this task for Kenneth.  Accordingly, there was nothing improper in admitting the evidence before the jury. 

28.  Ms Fok accepted that prosecuting counsel had tried to imply from the lifestyle evidence that the appellant was a drug trafficker.  However, such an imputation remained a bare assertion without any evidential support.  Besides, the fact that the appellant was using an iPhone 6, valued at about HK$1,400, was not a matter of any significance in the overall scheme of the case.  The jury would have applied simple common sense and would not have accepted prosecuting counsel’s suggestion.

29.  In response to Ground 2, Ms Fok points out that the judge was concerned by his directions as to the value of this evidence to ensure that the jury did not speculate that there were drugs inside the first parcel.  However, he went on immediately to say how they should regard the evidence[35]:

“But certainly, you should consider that (ie the collection of the first parcel) when you consider whether the defendant was innocent and he has no knowledge of DD or that he never thought Kenneth would lead him to commit any crime. Right? That particular first parcel is relevant in that aspect, but we have no knowledge as to the content there.”

The judge had directed the jury sufficiently that they could take into account the collection of the first parcel on the issue of the appellant’s state of mind at the time of the second collection and subject-matter of the indictment.

Discussion

30.  We can dispose of Ground 2 very simply.  We agree with Ms Fok that the judge did not withdraw the evidence of the collection of the first parcel from the jury’s consideration.  Rather, he was concerned to put it in its proper perspective and ensure that they did not speculate as to the presence of dangerous drugs in the first parcel.  It might have been better expressed but the point the judge was making is clear in our view, on a full reading of this section of the summing-up.  The jury were instructed they were not to assume that there were dangerous drugs in the first parcel, because that would be speculatory.  However, the judge went on to say that they could use the evidence of the first collection on the issue of the appellant’s state of mind as to the presence of drugs in the second collection.  That was correct and the point the defence were making.  Upon analysis, we do not think there is any merit in this point.  Accordingly, we turn to Ground 1.

31.  That prosecuting counsel at trial should have addressed the jury that the appellant’s possession of an iPhone 6 worth apparently HK$1,400 and his offer of bail in the sum of HK$15,000 in respect of the present proceedings suggested that he was a member of a gang of drug traffickers was extraordinary enough.  That the imputation should have had such a flimsy basis, indeed no basis at all so far as the bail sum which was to be borrowed from his family members in India or a friend of the family in Hong Kong, it was preposterous.  No competent prosecutor should have made such a submission on this basis.

32.  Whether the judge thought it was such a preposterous submission that he did not need to say anything to the jury about it, we cannot know because, equally extraordinarily, defence counsel at trial never saw fit to raise the matter with him at any stage either before or during the summing-up.  Ms Fok has valiantly attempted to explain the judge’s silence on the issue by saying that prosecuting counsel’s point was such a bad one that the standard directions on the standard of proof, inferences and the duty not to speculate would have effectively prevented any real damage resulting from the submission.  Although it is unfortunate that she found herself in the position of having to distance herself from fiat counsel’s submission in the trial below, there is some merit in the proposition that the point was so bad and lacking in substance that any sensible jury could be expected to put it out of their mind.  However, the much safer course was for the judge to say something and dispel any possibility that they might consider it.  Indeed, it would have been very easy for him to do so.

33.  Moreover, we agree in general terms with Ms Fok that what may appear significant from perusing the papers on appeal may not have been a significant issue at all at trial, and we should not be too ready to substitute our view of what may appear significant on paper for the reality and dynamics of the trial.  This may in fact explain why defence counsel did not take the matter up with the judge.  Having said that, regardless of whether defence counsel raised the matter with the court, it was the simplest thing for the judge to deal with a thoroughly bad point by telling the jury to ignore it.

34.  We do not think this evidence, such as it was, called for a so‑called ‘life-style’ direction under Specimen Direction 36.  The most effective way of dealing with a bad point was for the judge to tell the jury to ignore it, not to complicate their task by an unnecessary legal direction.

35.  At the end of the day, we must ask ourselves whether the judge’s failure to deal with this matter renders the verdict unsafe and unsatisfactory.  Whilst acknowledging the force of Ms Fok’s submission that this matter was very unlikely to have featured in the jury’s thinking at all, we are unable to say it could not have had some impact, given the emphasis that prosecuting counsel unwisely gave to the whole issue, both during cross-examination and in his closing address.  Ironically, the prosecution did not need to go down this avenue at all: the evidence seems to us, particularly from the WhatsApp text messages to have been very strong indeed.  With respect, prosecuting counsel are required to exercise their skill and professional judgement as to what questions they ask or do not ask, and what submissions they advance or do not advance, particularly in trials before juries.  This matter was a thoroughly bad point, which should never have been made in the circumstances of this case, and which could easily have been corrected.  Unfortunately, it was not.

Conclusion

36.  The appeal will accordingly be allowed on the basis of Ground 1, the conviction quashed and the sentence set aside.

37.  Ms Fok has applied for a re-trial of this matter on the basis of the seriousness of the offence and the strength of the evidence.  Mr Ross sensibly recognised the correctness of her position and did not resist the application.  Given the seriousness of the offence and the appellant’s role in the offence, which merited a sentence of more than 15 years’ imprisonment after trial, and the strength of the evidence against him, we agree that this matter should be re-tried before another judge on a fresh indictment; and we so order.  

38.  Although an application was made that the appellant should be admitted to bail pending his re-trial, we considered that his status as a Form 8 recognizance holder facing a very serious criminal offence, with significant consequences in the event of conviction, made it necessary that he be remanded in custody pending his re-trial.