HKSAR v. MASIH MALKEET

CACC 254/2019

[2020] HKCA 610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 254 OF 2019

(ON APPEAL FROM HCCC 312/2018)

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BETWEEN

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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, Cap134. The count alleged that on 20 March 2018, the applicant unlawfully trafficked in 934 grammes of 3, 4-methylenedioxymethamphetamine (commonly known as “MDMA”) by collecting a parcel containing these drugs from the Kowloon Central Post Office. He pleaded not guilty to the count and stood trial before Li J (“the judge”) together with a jury at the Court of First Instance. On 28 June 2019 he was convicted by the verdict of the jury and was subsequently sentenced to 15 years and 2 months’ imprisonment on 2 August 2019.

2.  The applicant then filed a Notice of Application for Leave to Appeal (Form XI) against both his conviction and sentence on 23 August 2019.  He had been granted legal aid to pursue only his application for leave to appeal against his conviction and on this application he was represented by Mr Peter Pannu.  On his application for leave to appeal against his sentence he represented himself.

3.  At the hearing of the application I granted him leave to appeal against his conviction in respect of his first and second grounds of appeal and refused him leave to appeal against his sentence.  I said I would hand down my reasons for doing so at a later date.  These are my reasons.

The prosecution case

4.  Much of the prosecution case was admitted by the defence and reduced into a piece of signed admitted facts. 

5.  On 15 March 2018, a Customs officer examined a parcel originating from the Netherlands whose manifest declared that it contained “heather”.  The Customs officer unpacked the parcel and found in it an electric stove and a manual kept in a zip-lock bag.  Inside a compartment of the electric stove, the Customs officer found five wrapped packets which contained a total of 5,136 MDMA tablets with the gross narcotic weight that was particularised in the count.  The street value of the drugs was HK$400,608.

6.  The Customs officer then restored the parcel to its original, unopened form and arranged for a controlled delivery to be made. When the Customs officer could not find anyone at the address stated on the manifest he left a notification card advising the person named on the parcel to collect it at the Kowloon Central Post Office in Yau Ma Tei. 

7.  At around 1642 hours on 20 March 2018, the applicant showed up at Counter No 11 of the Kowloon Central Post Office and requested to collect the parcel.  After collecting the parcel the applicant was arrested.  At that time he had in his possession an iPhone, HK$56 and RMB$1. 

8.  It turned out that the applicant came to Hong Kong on 6 March 2016 and subsequently made an immigration refugee claim.  He was a Form 8 recognizance holder.

9.  Under caution, he claimed that the parcel belonged to his friend “Avtar Sing”, who told him to collect the parcel for a reward of HK$500 and sent him the details that would enable him to do so.  He denied knowledge of the drugs in the parcel.  The admissibility of the cautioned responses was not challenged. 

10.  A cautioned video record of interview (“VRI”) was conducted with the applicant at 2108 hours on 21 March 2018, and the admissibility of this VRI was also not challenged. 

11.  In the VRI he said he was a refugee living on the HK$3,000 subsidies by International Social Service (“ISS”) per month which he described was not enough to make ends meet[1]. He admitted that he went to collect the parcel on the instruction of someone called “Kenneth” because he was in urgent need of money.  He did not know what was contained in the parcel nor did he ask.  He confirmed that Kenneth had sent him all the necessary documentation and information via WhatsApp before he went into the Post Office. 

12.  The applicant also mentioned a previous occasion when he had collected a parcel for Kenneth.  This was about a week before his arrest and nothing unusual happened when he collected it.  However, he was unable to provide information about the previous delivery as the relevant information had been deleted from his phone by Kenneth.  He did not know what was in the first parcel and in the end he received HK$500 cash as a reward for collecting it. 

13.  He admitted that Avtar Sing did not exist, and the man who gave him instructions all along was in fact Kenneth who was in Hong Kong but not China.  He had no further information on Kenneth.  He said he was confused at the time of the arrest so his reply under caution might not have been entirely accurate. 

14.  Examination of the applicant’s iPhone revealed the existence of a WhatsApp chat record on the day before his arrest with a person using the name of “Kenneth Bro” who had offered to the applicant the task of collecting the parcel.  It was this person who sent the applicant the parcel tracking number, and other details that enabled him to collect the parcel.

The defence case

15.  The applicant elected to testify and called one defence witness, a pastor from a church in Jordan which he used to go, in order to show that he was a religious person and had on occasion made voluntary donations to the church.   

16.  The applicant in his evidence said that he came from India and in 2016, he entered Hong Kong, with a valid visa, in order to file a torture claim.  He overstayed for one day and was sentenced to 2 weeks’ imprisonment, which was suspended for 3 years.  The result of his torture claim was still pending.  Meanwhile he was living on subsidy provided by ISS as he was not allowed to work. 

17.  I will not describe his evidence in any detail as there are only two aspects of it that are relevant to the grounds of appeal.

18.  The first aspect concerned the first occasion he collected a parcel on behalf of Kenneth.  He explained that because the collection of the first parcel was uneventful he trusted Kenneth.  Also, he trusted him because the collection of the second parcel was similar in procedure to the collection of the first parcel.[2]

19.  The second aspect is the evidence of the applicant that resulted from the extensive cross-examination of him by the prosecuting counsel on his financial position and living standard in Hong Kong.  The clear purpose of the cross-examination was to show the jury that the applicant was living beyond his means and had access to funds that could not be credibly explained other than by him being engaged in drug trafficking.[3]

The prosecutor’s closing speech

20.  In his closing speech to the jury the prosecutor, Mr Fu Chong Sang, made the following remarks on the applicant’s living standard:

“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.”[4] (Emphasis added.)

The defence counsel’s closing speech

21.  In his closing speech, the applicant’s counsel, Mr Andrew Raffell, tried to counter the lifestyle argument of Mr Fu but did not seek any special directions on it from the judge.  In legal terms he left the issue to the jury as circumstantial evidence and suggested to the jury that no reasonable inference could be drawn from it.[5]

22.  Mr Raffell also emphasized that the applicant did not show any signs of nervousness when he collected the parcel and made no attempt to disguise himself.  This lack of nervousness and his making no effort to conceal his identity was because the applicant saw no risk to himself in what he was doing and because he did not know what was in the parcel.  His demeanour and openness and his willingness to perform this job for Kenneth was because he trusted Kenneth.[6]

The judge’s summing-up

23.  In respect of the lifestyle evidence, the judge referred to the applicant’s answers under cross-examination but gave no direction to the jury on what use they could make of it and made no comment on the prosecutor’s rhetorical question “Where’s the money from if he’s not a member of the trafficking DD gang.”

24.  In respect of the first collection of a parcel by the applicant for Kenneth 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.”[7]

The mitigation

25.  The applicant was 26 years old at the time of the sentencing and had one conviction for overstaying for which he had been sentenced to 2 weeks’ imprisonment suspended for 3 years.  Mr Raffell submitted that for the amount of MDMA involved, a starting point of 13 years would be appropriate.  It was also accepted that his sentence was to be enhanced for his Form 8 status.  However, his counsel invited the court to give little or no enhancement for the international element as there was no evidence to show that the applicant was in fact aware of the parcel coming from overseas before he went to the Post Office.  

The sentence

26.  Having referred to the fact of the case and the applicant’s personal circumstances, the judge directed himself in accordance with Secretary for Justice v Hii Siew Cheng[8], and arrived at a starting point of 13 years and 8 months’ imprisonment for trafficking in 934 grammes of MDMA.  Then he enhanced it firstly by 6 months for his Form 8 status, and then by 1 year to reflect the international element, which resulted in a total of 15 years and 2 months’ imprisonment.      

The grounds of appeal against conviction

27.  By his Amended Perfected Grounds of Appeal, the applicant raised three grounds but at the hearing of the application pursued only his first two grounds of appeal.

28.  In support of the first ground of appeal Mr Pannu complained that the judge erred in failing to rule on the admissibility or to establish the relevance of the applicant’s lifestyle, or in the alternative, having allowed the lifestyle evidence to go before the jury, had failed to give the jury a proper “lifestyle direction” so as to guide them on how this evidence could and could not be used against the applicant.

29.  Mr Pannu submitted that it was incumbent on the judge to direct the jury either to disregard lifestyle evidence or to direct them on how they could utilise it in accordance with the Court of Appeal’s judgment in HKSAR v Chu Pak Cheong[9]. Mr Pannu submitted that the judge’s failure to give a lifestyle direction amounted to a material non-direction.

30.  In support of the second ground of appeal, Mr Pannu complained that the judge erred in coming to the view that the previous, uneventful parcel collection by the applicant for Kenneth was of “very little value”, and consequently erred in failing to direct the jury on its true relevance and its evidential value in assessing the applicant’s state of mind and the trust he placed in Kenneth when collecting the parcel on the day of his arrest.

The ground of appeal against sentence

31.  The applicant was unrepresented in his application for leave to appeal against sentence.  In his Form XI, he stated that his sentence is too long because he did not commit the offence.  At the hearing of his application he said he had nothing to say in support of it.

Discussion

32.  In respect of the first ground of appeal it is clear that the prosecutor was relying on evidence relating to the applicant’s lifestyle with a view to inviting the jury to find that he was maintaining a standard of living inconsistent with his income which could only be explained by him being a drug trafficker.  Without assistance from the judge on how they should deal with this evidence there was a risk that the jury might engage in an impermissible line of reasoning.  I am satisfied that the applicant’s first ground of appeal is reasonably arguable. 

33.  In respect of the applicant’s second ground of appeal I am of the view that it is reasonably arguable that the judge’s comment to the jury that the first parcel collection carried very little evidential value because there was no evidence as to what was contained inside it, failed to properly place before jury the true relevance of the first parcel collection and its significance to the applicant’s state of mind.  The earlier, and uneventful, experience he had with collecting a parcel for Kenneth bolstered the credibility of his claim that he trusted Kenneth and did not know that the parcel he was collecting contained a dangerous drug.

34.  Though the applicant’s counsel did not specifically emphasise this earlier collection he did emphasise the fact that the applicant showed no signs of nervousness in collecting the parcel and made no attempt to disguise his identity because he did not think there was any risk to him in collecting the parcel.  He thought there was no risk because he trusted Kenneth.  The first parcel collection, because it was uneventful, was relevant to explain why he trusted Kenneth.  In my view the fact that he did not know what was in the parcel did not diminish the relevance of this evidence.  Nor, in my view did ignorance of its contents diminish the weight of this piece of evidence, given the way in which it was relevant.

35.  Notwithstanding that in the second paragraph of the passage quoted from the summing-up the judge directed the jury to consider this evidence I am satisfied that the ground is reasonably arguable.  

36.  On his sole ground of appeal against sentence, the starting point adopted by the judge was appropriate and was in line with the applicable guideline.  The enhancements made to his sentence were within the judge’s sentencing discretion.  There was evidence that when picking up the parcel the applicant must have become aware that the parcel had been sent from overseas.  At that time, he would have known he was assisting in the importation of a dangerous drug into Hong Kong.  I could not discern any reasonably arguable ground of appeal in respect of the applicant’s sentence. 

Disposition

37.  For these reasons, I granted the applicant leave to appeal against his conviction in respect of his first and second grounds of appeal and refused the applicant leave to appeal against his sentence.