HKSAR v. MAHMOOD YASAR

CAC C 303/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 303 OF 2012

(ON APPEAL FROM HCCC NO. 339 OF 2011)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1. The applicant was charged upon an indictment containing one count of trafficking in dangerous drugs. The assertion was that on 3 June 2011 at Kowloon Park, he trafficked in a mixture containing 64.32 g of heroin hydrochloride and 17.52 g of monacetylmorphine hydrochloride. To this indictment he pleaded not guilty. After trial before Deputy High Court Judge A Wong and a jury he was convicted on 17 April 2012 and later sentenced to 7 years 6 months’ imprisonment. He now seeks leave to appeal both conviction and sentence although he has at the commencement of the hearing today abandoned his application in relation to sentence.

2. The facts fall within a narrow compass.  Shortly after 7 pm on 3 June he was seen by police exiting Kowloon Park and holding in one hand a white paper bag.  The police stopped him and opened the white paper bag inside which were two notebook computers.  The two computers were prised open and inside one were two transparent plastic bags containing the drugs.  Upon arrest and caution the applicant said that the two computers were not his and that “the stuff is not mine.”  The street value of the seized drugs was just over $102,000.

3. Also seized from the applicant were a car key and a mobile telephone with a prepaid Sim card.

4. The applicant was interviewed and he also testified at his trial.  His testimony was consistent with the gist of the answers he provided in the course of the interviews.  The effect of his evidence was that the bag containing the computers had very shortly before his arrest been given to him at the Kowloon Park by a man called Soofiyan whom he had known for some years.  He was to meet Soofiyan at the Park by reason of an earlier arrangement because Soofiyan had told him over the telephone earlier that day that he, Soofiyan, had managed to locate a person named Bala who owed the applicant money and Soofiyan was going to take the applicant to see Bala.  Soofiyan was very late for the appointment but eventually arrived and upon arrival gave the applicant the bag, saying that there were two laptops inside.  He asked the applicant to put the laptops in his (Soofiyan’s) vehicle which was parked nearby and to wait for him at the car which was parked illegally.  Soofiyan said he would be there in five minutes.  So the applicant took the bag as well as the car key and went towards the exit of the park.  He did not know where Soofiyan was going whilst he was to wait for him.  But on exiting the park, he was arrested.  He had no idea that there were drugs inside the laptop.  The reason he used a prepaid Sim card was because it was cheaper thereby to make telephone calls to Pakistan.

5. The issue in the case was whether the applicant knew that there were drugs in one of the laptops.

6. The grounds of appeal advanced by Mrs Panesar concentrate upon a number of suggestions made by prosecuting counsel in his closing speech which are said by Mrs Panesar to have been logically flawed and that these flaws were not corrected by the judge in his summing-up.

7. So, for example, prosecuting counsel had suggested that it was inherently improbable that the applicant did not know Soofiyan’s full name; that he did not know, since he had been acquainted with Soofiyan for so long, that Soofiyan dealt in drugs; and for a drug trafficker to entrust such a valuable hoard of drugs to an innocent recipient.  The complaint is that there was no direction to disabuse the jury of these submissions.

8. There is nothing in this complaint.  In the first place, counsel for the applicant herself at trial directly addressed all of the inferences which prosecuting counsel had invited the jury to draw, suggesting to the jury why they should not draw them and, in any event, the judge, apart from advising the jury that they were in no way bound to accept suggestions made by counsel, himself, in a model summing-up, indicated to the jury the other side of the argument in each of the instances now put forward as amenable to correction.

9. Then there is a complaint that the judge inadequately dealt with the fact that the applicant’s testimony was generally consistent with the answers given when he was interviewed by the police.  There is no need to deal with this complaint in any detail.  The judge reminded the jury of the fact of this consistency and asked the jury to “consider the defendant’s assertion of innocence in a favourable light because of this.”

10. There seems to be some suggestion in the submissions made (although it is not a ground of appeal) that perhaps there should have been a lies direction.  No one suggested a trial that there should be and in the circumstances of this particular case, we do not agree that the absence of a lies direction constitutes a material omission.

11. At one stage of the summing-up the judge said this: “If you’re sure the defendant knew of the existence of the substances, given that the defendant was holding the computer and the way the substances were concealed, you may have little difficulty in coming to the conclusion that the defendant also intended to exercise custody and control over it.”  The suggestion on behalf of the applicant is that this was an invitation to the jury to infer from the mere fact of holding the computer and the concealment of the substances that the applicant was aware that the laptop contained a substance.  But that is not what the judge said.  It is plain that the judge was addressing, at that stage, not the question of knowledge but the question of custody and control.  All he was saying was that if the applicant knew that there was a substance in the laptop then the fact that he was holding the laptop meant that he was exercising custody and control over the substance.  That was an entirely logical suggestion.

12. Finally, we are invited to say that there is a lurking doubt.  We see no valid basis upon which to come to that conclusion.

13. In the event, the application for leave to appeal against conviction is entirely without merit and it is dismissed. 

14. There was, as we say, an application to appeal against sentence but the applicant having abandoned that, that application too is also dismissed. 

15. We will now hear counsel as to why we should not exercise our powers under section 83W(1) of Criminal Procedure Ordinance, Cap. 221 to order that part of the time during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term of his sentence to which he is for the time being subject.

[Submissions]

16. Having considered the submissions made on the applicant’s behalf we have decided not to make an order under s.83W(1).