HKSAR v. SAIFUDEEN ABDUL WAHID

IN THE COURT OF APPEAL

1996, No.508

(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced one count of conspiracy to traffic in a dangerous drug contrary to Common Law and to the Dangerous Drugs Ordinance. It was particularized that he "on the 7^th day of November, 1995 in Hong Kong, conspired with Mohamed Saleem Abul Hassan and other persons unknown to unlawfully traffic in a dangerous drug, namely heroin." He was convicted after trial before Deputy Judge Wilson and a jury and sentenced to imprisonment for ten years. He now appeals against both conviction and sentence.

2. The facts were relatively straightforward. Mohamed Saleem Abul Hassan ("Mohamed") arrived at Kai Tak Airport on a flight from India on 6^th November. A customs officer became suspicious of his briefcase. It was searched and found to have a false bottom underneath of which were two large packets of dangerous drugs. These had an estimated street value of ¼ million dollars. The investigating officers then re-assembled the false bottom putting back one of the two packets that had been found. They took Mohamed to a hotel under custody where he made a telephone call to Bombay to a number which had been written on his underpants.

3. On the afternoon of 7^th November, the applicant rang Mohamed at 2:53 p.m. It was the prosecution case, and, indeed, the applicant admitted this to be so when he gave evidence, that the applicant had obtained the telephone number of Mohamed's hotel from someone in India. During this conversation Mohamed spoke of the "miserable thing" he had in his hand and the applicant referred to "the goods". In a later call which commenced at 3:45 p.m. the applicant said, "Coming and going nobody should know. If this work is done correctly, you have the chance of coming very often. Don't breathe about it in your home town. Then everyone will come and ask, give me a chance, give me a chance, and they will start asking. Right, now you watch TV and go to sleep. I will phone you later".

4. The applicant arrived at the hotel at 7 p.m. He had a conversation with Mohamed which was recorded in which both spoke of "the goods". Mohamed urged him to take the briefcase but he said "Must not take the bag. That what I am wondering. I only want to take the goods from the bag and go." He later said, "I have to take this bag and deliver it to someone". There was then a long discussion about whether the applicant would take the bag. During this discussion the applicant said "I have to give it to him with the bag" and later repeated "I have to deliver with the bag." He then took the bag and, as he was about to leave, was arrested. It would certainly have been open to the jury, whatever they might have considered was the state of his knowledge as to the contents of the bag, that he was clearly saying that he was there for the purpose of picking up and delivering the bag and its contents. Under caution he said:

"I received a phone call from my friend in India, saying he has someone in the Pearl Seaview Hotel room number 1304. He asked me to give him some money if he needs and arrange a cheap hotel for him. And if he needs any help, please do. And his name is Abul Hassan. Upon his request, I called the hotel and I spoke to the person staying in the hotel. Then I asked him to meet me somewhere in Tsimshatsui. Then he said he's tired and he didn't have enough sleep and he requested me to come to the hotel room with some food. That's why I went there."

He went on to say that he had asked Niyaz (the person who had called him)

"who is Abdul Hassan. Then he replied me that he's sending some diamonds to be given to somebody in Hong Kong. Abul Hassan cannot contact this somebody in Hong Kong, so he has to stay in Hong Kong for a couple of days more. That's why he may run out of money, so he told me to give him some money if he needs and arrange to find cheap hotel."

He said that when he got to the hotel Mohamed told him:

"that he had the valuable things and he didn't want to keep it with him. Since 'Niyaz' told me on the phone that Abul Hassan was carrying diamonds, I presumed it was diamonds. I intended to carry with me the valuables."

He maintained that this was the reason he was carrying the suitcase at the time when he was arrested. He denied that he had ever said that he was to deliver the goods to someone.

5. The thrust of the appeal argued by Mr. Grounds, with him Mr. Tolliday-Wright, who appears for the applicant, is that the prosecution below did not present a case to prove a conspiracy in accord with that alleged in the charge and that the judge did not, perhaps understandably, sum up in a way which would have directed the minds of the jury to the evidence which was relevant to prove that conspiracy.

6. In the course of Mr. Grounds' argument we thought it appropriate, given the nature of the attack on the presentation of the prosecution case and on the summing up, to ask Mr. Saw, who appears for the respondent, to indicate the nature of the conspiracy on which the prosecution was relying both here and below. Mr. Saw submitted that the conspiracy into which the applicant entered on 7^th November was a conspiracy to traffic in the dangerous drugs that Mohamed had brought into Hong Kong and that it was open to the jury to infer that he had entered into this conspiracy when he spoke on the telephone on 7^th November to the man in India. Mr. Saw submitted that whether Mohamed was still a member of the conspiracy at that stage and whether or not the dangerous drugs were already in the custody of the authorities were not matters of any real moment given that there was evidence upon which the jury would be entitled to convict that the applicant had entered into agreement with a person in India to traffic in the dangerous drugs in the briefcase. Mr. Saw had to concede that the prosecution below did not present its case on this basis and that the judge did not ever direct the jury in a way which would have allowed them properly to apprehend the pertinent facts and to apply his directions on the law to them. We are satisfied that in such circumstances the conviction cannot be regarded as being either safe or satisfactory. We are satisfied also that this would not be an appropriate case in which to apply the proviso.

7. The application for leave to appeal against conviction is allowed. The hearing of the application is treated as the hearing of the appeal and the conviction is quashed.