HKSAR v. MOHAMMAD FAKHRUL ALFAQIH BIN SAADON

CACC 121/2020

[2021] HKCA 2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2020

(ON APPEAL FROM HCCC NO 349 OF 2019)

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REASONS FOR JUDGMENT

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1.  The applicant faced one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. The count alleged that on 26^th February 2019, he unlawfully trafficked in 1.92 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”)  at the Arrival Hall of Hong Kong International Airport.

2.  The applicant pleaded not guilty to the indictment and was tried before Alex Lee J (“the judge”)  and a jury in the High Court.  Having been convicted on 28 July 2020, he was sentenced, on 10 August 2020, to 25½ years’ imprisonment.  He subsequently applied for leave to appeal against both conviction and sentence. 

The prosecution case

3.  The prosecution case was for the most part agreed by way of three sets of admitted facts[1]. Shortly before 6:30 pm on 26 February 2019, Customs officers at the ‘Nothing to Declare’ channel of the Arrival Hall at Hong Kong International Airport requested the applicant, a Malaysian national, to submit his black suitcase (“the Suitcase”)  and his black backpack (“the Backpack”)  for X-ray examination[2]. Following an X-ray scan, the applicant took out a key from the Backpack and opened the Suitcase with it.  A search of the Suitcase revealed a hidden compartment, in which the “Ice” particularised in the charge was discovered. Upon arrest and caution, the applicant said in English that he did not know what it was; he had obtained the Suitcase from a night market in Laos and did not have any receipt for it[3]. Later, a preliminary interview was conducted with the applicant, during which he volunteered more information about the Suitcase and his trip to Hong Kong[4]. The “Ice” had a street value of HK$1,077,590[5].

4.  At the time of the applicant’s arrest, he was found to be in possession of two mobile telephones, each with a separate SIM[6]. The ‘WhatsApp’ communications from one of the applicant’s mobile telephones to another mobile telephone with number “+852 9669 0574”, commencing at 8:35 am on 15 February 2019 were retrieved and admitted into the evidence[7].  Upon the further request of the defence, the WhatsApp communications between the applicant’s mobile telephone to two other devices with numbers “+852 6538 9957” and “+852 9855 2174” were also retrieved and admitted into evidence as defence exhibits[8].

The defence case

5.  The applicant had a clear record in Hong Kong.  He testified in his own defence and further relied on the statement of DW2, his lecturer at university, who acted as his character witness but did not testify in court.  In short, the applicant’s case was that he genuinely believed he was being recruited as a confidential document courier by someone called “Silas”, whom he had met at work, and “Jacky”, a Nigerian living in Hong Kong.  In relation to the trip to Hong Kong in question, he was instructed to bring a confidential document, which had already been secreted in the Suitcase, from Laos to Hong Kong for a reward of US$3,000.  He denied knowledge of the dangerous drugs and claimed to be an innocent dupe who had been used by Silas and Jacky[9].

6.  He nevertheless admitted that he had lied in his preliminary interview when he said he purchased the Suitcase in Vientiane, Laos, at a cost of 870,000 Kip; that he came to Hong Kong for sightseeing; that he was not going to meet anyone here; and that he intended to go back to Malaysia with the Suitcase.  He had lied because he had panicked and did not know what to say, nor did he understand the situation he was in[10].  Shortly after the preliminary interview, the applicant said he changed his mind and wanted to “confess” the whole story of his employment as a delivery agent. However, the Customs officers were not interested in his story and simply told him to remain silent in the subsequent video recorded interview[11].

7.  In his testimony, the applicant also revealed the details of his prior trips under the instruction of Silas and Jacky.  He accepted that apart from his salary, Silas and Jacky had also paid for his air tickets, accommodation and expenses for the various trips[12].

8.  As supported by undisputed immigration movement records, the applicant was in Hong Kong between 2 and 8 August 2018.  He explained that the purpose of that trip was to meet Jacky and he did not do anything during the five days in Hong Kong[13]. On the further instructions of Jacky, the applicant flew to India on 9 August 2018 to pick up some documents there for a reward of 7,500 ringgits[14]. He stayed in India until 19 August 2018[15]. However, during his two weeks in India, nobody came to give him any documents. He eventually returned to Malaysia[16].

9.  Silas further sent the applicant to Hong Kong on 1 September 2018 to meet Jacky, who then instructed him to go to Laos on 3 September 2018.  When in Laos, he received a brown suitcase containing two backpacks.  He found a bundle of documents in one of the backpacks[17].  He then returned to Hong Kong on 13 September 2018 and passed everything to Jacky[18].

10.  On 22 September 2018, Jacky sent the applicant to Brazil, where he stayed until 26 October 2018.  He had done some sightseeing and collected a bag of documents, which he was instructed to bring to Ho Chi Minh City, Vietnam[19]. He then returned to Hong Kong on 30 October 2018 and received a reward of HK$8,000[20]. He eventually returned to Malaysia on 4 November 2018[21].

11.  The trip, with which we are concerned, took place when he was again instructed by Jacky to go to Vientiane, Laos, to collect some documents and take them to Hong Kong.  His reward was agreed at US$3,000[22]. On 26 February 2019, he collected the Suitcase in question from a client and returned to the hostel where he was staying.  He found the Suitcase heavy although he could see nothing inside[23]. He called Jacky and was told that the documents were already concealed inside the Suitcase for security reasons, which explanation the applicant accepted[24]. He then packed his own personal belongings and took the Suitcase to Hong Kong[25]. He said he never knew or suspected the Suitcase would contain dangerous drugs[26].

12.  The contemporaneous WhatsApp records of conversation, during the relevant period, between the applicant on the one hand, and Silas and Jacky on the other, were relied upon by the applicant to show that he had always understood himself to be an innocent courier of documents and never suspected that he was carrying drugs hidden in the secret compartment of the Suitcase.

The mitigation

13.  The applicant was 28 years of age at the time of his sentence.  He had completed a degree in ‘Industrial Management’ at the University of Selangor.  Prior to his arrest, he was working at RHB Bank in Malaysia as a teller.  Mr McNamara, counsel then acting for the applicant, submitted a letter written by Father Wotherspoon concerning the applicant’s participation in his anti-drugs ‘campaign’, and invited the judge to give a 3-month discount to the applicant for his contribution.

14.  Concerning the utility of the applicant’s information, the judge made enquiries of Mr Boyton, then acting for the prosecution[27], who explained that the responsible Customs officer was not present in court; however, subject to the officer’s confirmation, his instructions “at the moment” were that the applicant’s information was not useful because it was too old[28]. The judge then stood the matter down pending confirmation from the relevant Customs officer[29].

15.  When the case resumed, the following exchange took place[30]:

“COURT: Yes, Mr Boyton.

MR BOYTON: My Lord, I’m grateful for the indulgence. We have made enquiries. There is no useful information…

COURT: No useful…

MR BOYTON: … from that NPS or the letter from Father John.

COURT: Yes, all right.  Thank you.”

16.  Having received oral confirmation from Mr Boyton, and in the absence of any further submission from Mr McNamara, the judge proceeded to pronounce the applicant’s sentence. 

The judge’s reasons for sentence

17.  Having considered the facts of the case, the applicant’s background and also the statement of DW2, his character witness, the judge directed himself in accordance with the guidelines in HKSAR v Tam Yi Chun[31] and HKSAR v Abdallah[32].  He considered that the appropriate starting point, on an arithmetical basis, for a courier trafficking in 1.92 kilogrammes of “Ice” should be 23 years and 9 months’ imprisonment[33].  In accordance with HKSAR v Chung Ping Kun[34], the judge further enhanced the sentence by 2 years for the international element involved in bringing dangerous drugs across the border in to Hong Kong.

18.  The judge considered that, in serious cases of international drug trafficking, the major sentencing considerations were deterrence and punishment; the relevance of a defendant’s good character was minimal.  Nevertheless, the judge considered a 3-month reduction appropriate for the applicant’s participation in Father Wotherspoon’s campaign, and referred to the judgment of the majority in HKSAR v Kilima Abubakar Abbas[35].

19.  Given that any information the applicant had given was not useful, the judge declined to grant any further discount. Accordingly, the applicant received a final sentence of 25½ years’ imprisonment.

The applicant’s grounds of appeal (conviction)

20.  By his homemade perfected grounds of appeal, dated 5 March 2021, the applicant has raised four grounds of appeal.  Ground 1 complains that the judge, in his summing-up, misdirected the jury that the applicant’s lies were capable of constituting circumstantial evidence from which they could infer guilt[36]. In any event, the judge had failed to give a lies direction in accordance with Specimen Direction 42.2 of the Specimen Directions in Jury trials promulgated by the Hong Kong Judicial Institute.

21.  Ground 2 complains that the judge erred in restating the prosecution’s view to the jury that since the applicant also admitted in his testimony that the Suitcase was heavy even when it was empty, he must have known that he was carrying dangerous drugs at that time.  In his summing-up, the judge said[37]:

“(4)  Mr Boyton reminds you of PW2’s evidence of the briefcase (sic)  after its contents were emptied was abnormally heavy. As to this, you will remember the defendant’s evidence saying that when he, the defendant, returned to the hostel, he checked the suitcase, found that it was heavy but there was nothing inside.”

The applicant argues that the evidence of the weight of the Suitcase was incapable of supporting an irresistible inference that the applicant must have known that it contained dangerous drugs, as distinct from confidential documents. 

22.  Ground 3 argues that the judge’s direction that the WhatsApp messages were not evidence of the truth of their contents was confusing.  Further, the judge erred in directing the jury that the assessment of the truthfulness of what was said in those messages would depend on their assessment of the applicant’s credibility.  In his summing-up, the judge said[38]:

“The rider that I mention(ed)  just now is about WhatsApp messages retrieved from the defendant’s mobile. You will note that what is agreed between the prosecution and the defence in this regard is just that those messages were in fact found in and retrieved from the defendant’s mobile and that the relevant data was not corrupted during the retrieving process. However, there has been no agreement between the parties as to the truthfulness of what was said in those messages. For example, there are messages which on their face suggest that the defendant was collecting document. Obviously, the prosecution is not accepting what was said in those messages at face value. As to this, you will no doubt appreciate that the mere fact that certain things are said by somebody does not necessarily mean that those things are true. Therefore, the WhatsApp messages are evidence of what was said by the parties to those messages. However, WhatsApp messages cannot be the evidence of the truth of their contents.

On the other hand, the defendant, in his oral evidence in this court has explained to you the meaning of a number of WhatsApp messages.  Therefore, your assessment of the truthfulness of what was said in those WhatsApp messages actually depends on your assessment of the credibility of the defendant.”

In a later part of his summing-up, the judge directed[39]:

“You may think that a more reliable yardstick to determine the credibility or reliability of a witness is whether or not his or her evidence is supported by or in harmony with some other evidence. For example, contemporaneous records, if any. In this regard, subject to what I have already told you that WhatsApp messages cannot be evidence of their contents, you may wish to consider whether or not the defendant’s evidence in court is consistent with his WhatsApp messages with others.”

The applicant argues that the WhatsApp messages were evidence of his state of mind and were corroborative of his oral evidence; moreover, they served as stand-alone, exculpatory evidence which was capable of casting doubt on the prosecution case.

23.  Finally, by Ground 4, the applicant argues that the cumulative effect of Grounds 1 to 3 is that the applicant’s conviction was unsafe and unsatisfactory, and/or that he was deprived of a fair trial.

The respondent’s submissions (conviction)

24.  Ms Ng, for the respondent, contended that none of the grounds of appeal has merit.  In response to Ground 1, it was submitted that no lies direction was required in the circumstances of this case: the prosecution had never invited the jury to convict the applicant based on his lies. The remarks made by prosecuting counsel in his closing speech, to the effect that the jury should not believe anything the applicant said, and that he had “no credibility”[40], were entirely proper and supported by the fact that the applicant’s evidence was changeable and lacking in credibility.  The judge had rightly summarised the prosecution’s position to the jury[41], and had fairly and appropriately explained to the jury that lies by themselves did not prove guilt: they could only go to an assessment of the applicant’s credibility[42].

25.  In response to Ground 2, the respondent submitted that the weight of the Suitcase containing the dangerous drugs was a relevant matter for the jury to assess whether the applicant had the requisite knowledge.  The judge’s directions on the drawing of inferences[43] were otherwise accurate and sufficient, and could not be faulted.

26.  Concerning Ground 3, the respondent argued that the judge’s directions in relation to the use of the WhatsApp messages were accurate and adequate.  By the admitted facts, the parties had only agreed to the finding of the WhatsApp messages in the applicant’s mobile telephone and the chain of the exhibits, but not the truth of the contents of the messages. Therefore, as to the applicant’s explanation of certain messages, it was correct for the judge to direct the jury that the assessment of the truthfulness of those messages would depend on their assessment of the applicant’s credibility[44]. In elaborating on how the jury should assess the applicant’s oral evidence, the judge also properly invited the jury to consider whether his evidence was consistent with the WhatsApp messages[45].

27.  In fairness to the applicant, the judge, when giving a summary of the defence case, comprehensively referred to all of the significant WhatsApp messages relied upon by the defence[46]. Later, he reiterated again the reliance placed by the defence upon those messages and reminded them of the fact that it was the applicant who voluntarily gave the passwords to his mobile telephones to Customs officers for investigation[47]. The respondent argues that the judge’s summing-up in relation to the WhatsApp messages was nothing less than accurate and complete.

The applicant’s grounds of appeal (sentence)

28.  In his perfected grounds of appeal, dated 27 January 2021, Mr Percy, who acts on behalf of the respondent in respect of sentence only, primarily relies on a single ground of appeal, that by the failure of prosecuting counsel to follow the procedure set out in HKSAR v Yeung Hoi Ting[48], the judge was not properly informed of the contents of the applicant’s non-prejudicial statement (“NPS”), dated 6 July 2020; hence he was unable to determine the true value of his assistance for sentencing purposes.

29.  Mr Percy argues that, whilst the judge was interested to know about the nature of the information provided by the applicant to the Customs authority concerning Jacky, his alleged recruiter, regrettably prosecuting counsel simply provided the judge with an oral confirmation that the information was not useful, without adhering to the procedure in Yeung Hoi Ting[49]. The importance of following the proper procedure had been stressed in HKSAR v Mohammed Saif[50].

30.  Mr Percy referred to the applicant’s NPS and submitted that the applicant had identified and described various people involving in drug trafficking activities.  He also supported his statement with several photographs.  The information given by the applicant should, therefore, fall to be assessed by the judge in accordance with the range of considerations set out in HKSAR v Lo Sze Tung Stephanie[51].

31.  In any event, Mr Percy argued that the notional starting point of 23 years and 9 months’ imprisonment, though correct arithmetically, could be regarded as on the high side, given the applicant’s background and all the circumstances.  The applicant was a young man with a clear record, who was merely acting as a courier.  

The respondent’s submissions (sentence)

32.  Ms Ng acknowledged the importance of adhering to the procedure set out in Yeung Hoi Ting.  However, given that the applicant had only provided a NPS on 6 July 2020, a mere 9 days before the commencement of his trial (in which he was contesting his guilt), the prosecution could hardly be blamed for informing the judge at that stage that the information provided by the applicant was not useful.

33.  Thereafter, Customs officers had carried out a series of follow-up investigations with relevant overseas law enforcement agencies.  Ms Ng submitted that the Customs authority only came to know more personal particulars of Jacky in January 2021, which enabled them to formally identify Jacky.  On the limited basis that the applicant’s information had corroborated some particulars of the suspect, the Customs Inspector considered that such information had contributed, to a small extent, to the direction of their enquiries and was of “potential practical use for investigation and intelligence purposes”. 

34.  Ms Ng argued that the applicant’s purported assistance rested entirely on its corroborative quality; on its own, it could not be considered of any practical use.  It was suggested that, even if the Court of Appeal was of the view that the applicant’s assistance deserved some recognition, it would only be in the range of 0% to 6.7%, a very small adjustment that would amount to tinkering with the applicant’s sentence: see Lo Sze Tung Stephanie; HKSAR v Omogo Stephen Okuta[52].

35.  As to the appropriate notional starting point, Ms Ng relied on Kilima Abubakar Abbas and submitted that the starting points set out in the guidelines were for couriers, hence there could be no complaint that the starting point adopted by the judge was on the high side. Further, the applicant had failed to show any exceptional personal circumstances to cause the judge to adopt a lower starting point.

Consideration (conviction)

36.  In respect of Ground 1, it is true that in evidence-in-chief, the applicant admitted that he had lied to Customs officers, for example, about the purpose of his trip and the provenance of the Suitcase[53].  However, the prosecution never sought to advance their case by making use of his lies and only contended that the applicant’s explanations, whether made in or out of court, were wholly incredible and should not be believed[54].  It is not reasonably arguable that the passages on which the applicant relies had the prejudicial effect of inviting the jury to speculate as to why the applicant lied, or of using the fact that he lied to strengthen the prosecution case.  All the prosecution did was to invite the jury to reject the applicant’s explanations in both his out-of-court statements and his evidence in court.

37.  In Yuen Kwai Choi v HKSAR[55], the Court of Final Appeal said of a lies direction that[56]:

“… where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient”.

I do not consider it reasonably arguable that this was other than such a case.

38.  In respect of Ground 2, it is true that prosecuting counsel in his closing address did invite the jury to find that the applicant must have known he was carrying dangerous drugs, since he also admitted that the Suitcase was heavy when it was empty; although counsel also said he was not relying on this point as other than an indication of his general credibility[57].  However, it could not have been lost on the jury that the point only has validity if the jury rejected his account of the Suitcase containing documents.  Once the jury did not believe his evidence that he was on a mission to carry concealed documents, then the applicant must have realised he was receiving a Suitcase that weighed 2 kilogrammes more than he might have expected; a Suitcase which, when empty, PW2 described as “extraordinarily heavy”[58].

39.  One must credit juries with common sense: they would obviously not have had any regard to the weight issue if they accepted that the applicant believed, or may have believed, that the Suitcase contained documents instead.  Of course, one obvious question they would have had to ask themselves was why someone would secrete documents in the hidden compartment of a suitcase in the first place.  I do not think this point is reasonably arguable.

40.  In relation to Ground 3, the WhatsApp messages did not stand alone as a piece of exculpatory evidence.  The prosecution plainly did not accept the truth of the content of the messages.  Accordingly, it fell to the applicant to explain each of them in order to make sense of them.  As such, it is correct to say that whether they could be supportive of the applicant’s case of lack of knowledge would ultimately depend on the jury’s assessment of his credibility.  The judge gave very full and fair directions in respect of the WhatsApp messages.  I do not think this ground is reasonably arguable.

41.  By itself, Ground 4 is also not reasonably arguable.  I should say that I can find no other grounds of appeal which might be regarded as reasonably arguable.  In his oral submissions at the leave hearing, the applicant also indicated that there are witnesses who are apparently willing to come forward to say that he was duped, because they were also duped.  I pointed out to him that the time to call such evidence is at the trial, not the appeal.  The application for leave to appeal against conviction is accordingly refused.

Consideration (sentence)

42.  It may be noted that whilst the Yeung Hoi Ting approach was not strictly adopted, the applicant’s counsel at trial made it clear that he did not require the proceedings to be adjourned and pressed prosecuting counsel for an answer there and then[59]. Furthermore, he raised no objection when the judge indicated that he proposed to pass sentence upon receiving confirmation from prosecuting counsel[60].

43.  Although I take Ms Ng’s point that the information provided by the applicant was corroborative and minimal, I am faced with the acceptance by a Customs Inspector that “the information provided by (the applicant)  in the NPS was of potential practical use for investigation and intelligence purposes”.  On that limited basis, and that basis only, I am prepared to grant leave to appeal against sentence.

44.  It follows that the applicant’s application for leave to appeal against conviction is refused but his application for leave to appeal against sentence is granted.

45.  I should add this.  The applicant has the right to renew his application for leave to appeal against conviction to the Court of Appeal.  However, he is also warned that the Court has the power to order the loss of any time the applicant has spent in custody pending his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.