HKSAR v. MOHAMMED SALEEM

CACC 323/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 323 OF 2007

(ON APPEAL FROM HCCC NO. 86 of 2007)

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REASONS   FOR   JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

Background

1.  On 17 August 2007, the appellant, Mohammed Saleem, was convicted of trafficking in a powder containing 8.01 kilogrammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, for which he was sentenced on 22 August 2007 by Madam Recorder J Leong SC to 14 years’ imprisonment.  The appellant sought leave to appeal against his conviction.

2.  At the conclusion of the hearing, we indicated that we would grant leave and treat the hearing as the appeal.  We allowed the appeal and ordered a retrial on a fresh indictment.  However, pursuant to section 83E of the Criminal Procedure Ordinance, Cap. 221, for the count of trafficking in dangerous drugs we substituted a count of attempting to traffic in dangerous drugs (i.e. the ketamine presently identified in the indictment).  The appellant will remain in custody in the meantime. 

3.  We indicated that we would provide the reasons for our decision at a later date and we now do so.

The facts

4.  The facts were straightforward.  The appellant is an Indian national.  He took a flight from Chennai to Hong Kong, via Bangkok, on 18 December 2006 arriving at 3.17 pm.  On the same day, a bag despatched from Chennai by FedEx arrived in Hong Kong.  Attached to this bag was a diplomatic mail label and a second label addressed to “Mr V Nelson” at Flat B2, 4^th Floor, Block B, 36-44, Nathan Road (better known as Chungking Mansions), Tsim Sha Tsui.

5.  As suspicions were aroused by this bag, it was inspected at the airport by Customs and Excise officers.  The ketamine they found inside it was wrapped in two large packets.  Delivery of the ketamine was then carried out by customs officers posing as FedEx couriers.  The appellant answered to the name of ‘V. Nelson’ and he produced identification to that effect in the form of an ID card bearing his photograph.  He then signed the delivery form as proof of his receipt of the bag which was placed on the floor beside him.

6.  As the appellant was about to pick up the bag, he was arrested.  The retail value of the ketamine in the bag was estimated to be $1,821,300.

7.  In an interview later, the appellant said that he traded in cell phones and was intending to purchase such items with the US$500 he had brought with him.  He also described how he had encountered a stranger in a bazaar in Chennai who promised him a reward of 5,000 rupees if he collected a parcel for him.  The appellant agreed and he was then provided with false identification documents.  The appellant admitted signing the delivery receipt for the bag at Chungking Mansions but he denied any knowledge of its contents and said that he had not suspected that he had been asked to do anything which was illegal.

8.  The appellant did not give evidence at his trial.

Grounds of appeal

(1) No case submission

9.  Mr Stirling advanced two grounds of appeal.  In the 1^st ground, he submitted that the Recorder had erred in law by failing to uphold a submission of no case to answer at the conclusion of the prosecution’s case.

10.  Mr Stirling argued that the prosecution had fallen short of proving that the appellant was in possession of the ketamine in which he was alleged to have been trafficking because there was “no sufficient evidence to establish that the appellant ever [had the] custody [of] or control [over] the package containing the dangerous drug”. 

11.  This ground of appeal effectively repeated Mr Stirling’s submission at trial of no case to answer, as to which the Recorder stated in a part of her ruling:

“The evidence, which does not appear to have been challenged so far, is that:

(a) The package was addressed to a Mr V Nelson at an address in Chungking Mansions.

(b) When the Customs & Excise officers arrived, in disguise, the defendant was told that there was a parcel for V Nelson and he then identified himself as Nelson.

(c) The defendant was asked for identification and he produced an identity card from the India Chemical Company in the name of V Nelson, bearing what appears to be the defendant’s photograph.

(d) The defendant was asked if the parcel was his and he said it was.

(e) The defendant was asked to sign a delivery form to acknowledge, which he then did in the name of V Nelson.

(f)  The parcel was placed on the floor, in the doorway, and as the defendant reached forward to take it, he was arrested and thus no physical contact was ever made between him and the parcel.

(g) Upon a search of the defendant’s pockets, a letter was found purportedly authorising the defendant to receive the parcel.

The fact that the defendant had completed all the formalities for receipt of the package and was in the act of physically moving forward to receive it is, in my view, sufficient to bring the parcel within his physical possession for the purposes of section 47(l) of the Ordinance.

I do not accept that, because the Customs & Excise officers prevented him from physically touching the parcel, that this was capable of breaking the chain. The evidence of Customs Officer 9527 was that the Customs & Excise Department considered that custody and control passed to the defendant upon completion of the delivery form. Indeed, in reliance on that belief, they were not prepared to risk the defendant taking physical custody of the parcel and so the arrest was declared to prevent that.

I am satisfied that, on the evidence so far, the defendant was in control of the parcel from the time he had satisfied all the requirements for delivery. Any issue about whether he had actually touched or held the parcel is not capable of severing that control.

I am also satisfied that there is sufficient evidence on which a reasonable jury could convict of this offence. I therefore find that the defendant has a case to answer on the indictment.”

12.  Mr Zervos SC, for the respondent, submitted that the Recorder was entitled to have concluded that possession had been established on the undisputed evidence adduced by the prosecution.

13.  We disagree, albeit this has been, in the outcome, of no comfort to the appellant. 

14.  The prosecution had to establish that the appellant had possession of the ketamine for the purpose of trafficking.  For this purpose, it was necessary for the prosecution to prove that the appellant knowingly had either physical custody of the ketamine or, alternatively, that it was otherwise within his physical control and that he intended, as and when the occasion arose, to exercise control over the drugs whether or not by physically handling them.

15.  In this case, the customs officers had physical possession of the drugs at all times and, furthermore, they were under instructions not to allow the appellant to lay so much as a finger on them.  Indeed, this was borne out by the fact that when the appellant made a move towards the drugs, no doubt to pick up the bag in which they were contained, he was immediately arrested.  The offence which, in these circumstances, should have been charged from the outset was attempting to traffic in dangerous drugs as the prosecution had produced no evidence of physical custody of the ketamine or control over the ketamine at the stage when the appellant was arrested. 

16.  We should add that this was most certainly not a case, as Mr Stirling sought to argue, where the appellant had committed no offence at all.  Plainly, there was a formidable case against the appellant of attempting to traffic in this quantity of ketamine provided, of course, that it was proved from all the circumstances that the appellant knew the nature of what was contained in the bag delivered to him.

17.  This being said, although the full offence was not made out, the present circumstances give rise to no difference whatever in the appellant’s criminality.  The only significance in these proceedings of the prosecution’s failure to make out the completed offence is that as we have determined that a retrial would be ordered, it was important that the correct alleged offence should be identified.

(2)   The ‘jury’ point

18.  Some days after the jury had returned its verdict, the Recorder received a letter, dated 29 August 2007, from one of the jurors who was anxious to air a number of “concerns” relating to this case.  In due course, the Recorder passed the letter to the Chief Judge of the High Court.  The letter was then edited to remove any reference to the juror’s name or address and copies were sent, on 28 September 2007, to the Legal Aid Department, the Department of Justice, Mr Stirling and his instructing solicitors, as well as to the appellant himself.

19.  One of the concerns to which the juror referred in his letter to the Recorder was that he had been unable to speak to her.  He stated as follows:

“When I asked to speak to you about my concerns was it by law that you did not speak to me i.e. by Hong Kong law the judge cannot have a private audience with a member of the jury?  Or was not speaking to me purely your subjective call?”

20.  Mr Stirling formulated his second ground of appeal based upon this paragraph in the juror’s letter, submitting that there had been a “material irregularity in the proceedings in that it would appear that, during the deliberation[s] of the jury, one of the jurors wished to speak to the [Recorder] concerning certain concerns he/she had in relation to the proceedings” [Emphasis added].  This ground continued by making a complaint that the refusal to see the juror in question was never brought to the attention of trial counsel.

21.  Shortly before the hearing date, after the lapse of about eight months from the date when the perfected grounds of appeal were filed, some correspondence, including the edited letter from the juror to the Recorder, was appended to an affirmation from the appellant’s solicitor.  However, there appeared to be no evidence as to precisely what had occurred or, more importantly, when the juror had tried to speak to the Recorder.  Accordingly, in the week before the hearing was due to take place, a ‘mention’ hearing was hastily convened to find out from Mr Stirling if he had obtained any evidence as to the timing of the juror’s attempt to communicate with the Recorder.  Mr Stirling had, as it turned out, made no effort to discover what had occurred.  Understandably, he had taken the view that it would be more appropriate for such enquiries to be made by the court but instead of making known his belief well in advance, he had kept this to himself.  In the result, therefore, nothing was done until the Friday of the ‘mention’ hearing, just two working days before this appeal.

22.  At this stage, the court staff made their own enquiries.  It was quickly established that the juror’s attempt to speak to the Recorder came after the conclusion of the trial.  In short, the juror had asked the court usher if he could speak to the Recorder and this was communicated to the court clerk who then passed on the request to the Recorder.  Rightly, in the circumstances, the Recorder indicated that, while she could not speak to the juror in question, she would be willing to receive in writing anything he might wish to say.

23.  In the light of the affirmations of the two members of the court staff, made on the day before this appeal was heard, setting out their recollections of what had happened, Mr Stirling indicated that he no longer wished to pursue this ground of appeal.  Plainly, he was correct in taking this course.  The juror’s desire to speak to the Recorder had followed the delivery of the verdict and Mr Stirling’s decision was in full accordance with legal precedent.  However, as it might be thought that because the court’s enquiry should have extended to an examination of the juror himself as to his reason for wanting to speak to the Recorder after the trial had ended, we propose to deal with the legal position having regard to the circumstances which are known. 

24.  In short, in so far as the juror’s letter touched upon the jury’s deliberations, which it did to a large extent, the approach at common law to such material is clear enough.  With few exceptions, the jury’s deliberations are covered by complete confidentiality.

25.  The well-established general principle is that a court will not investigate or receive evidence about anything said in the course of the jury’s deliberations in their retiring room.  A useful summary of the principles involved was provided by Lord Carswell in R v Smith and Anor [2005] 2 All ER 29 at 38-39 (HL), as follows:

  “[16]    The principles of the common law relating to inquiry into the verdicts of juries and matters which may affect the propriety of the manner in which they reach their verdicts have been rehearsed in R v Connor [2004] 1 All ER 925, particularly in paras [94]-[107] of the opinion of Lord Hope of Craighead, and it is unnecessary for me to repeat what their Lordships have said there. It may nevertheless be helpful if I set out in a series of brief propositions how the law stands, prior to considering how a judge should approach a situation such as that encountered in the present case:

  (1)   The general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury's deliberations while they are considering their verdict in their retiring room: see Ellis v Deheer [1922] 2 KB 113, at 117-118, [1992] All ER Rep 451 at 451-452 per Bankes LJ; R v Miah, R v Akhbar [1997] 2 Cr App R 12 at 18 per Kennedy LJ; R v Connor [2004] 1 All ER 925 at [95] per Lord Hope.

  (2)   An exception to the above rule may exist if an allegation is made which tends to show that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or tossing a coin. Such conduct would be a negation of the function of a jury and a trial whose result was determined in such a manner would not be a trial at all: see R v Connor at [123] per Lord Hope.

  (3)   There is a firm rule that after the verdict has been delivered evidence directed to matters intrinsic to the deliberations of jurors is inadmissible. The House so held in R v Connor, affirming a line of cases going back to Ellis v Deheer and R v Thompson [1962] 1 All ER 65. [Emphasis added]

  (4)   The common law has recognised exceptions to the rule, confined to situations where the jury is alleged to have been affected by what are termed extraneous influences, e g contact with other persons who may have passed on information which should not have been before the jury: see such cases as R v Blackwell [1995] 2 Cr App R 625 and R v Oke [1997] Crim LR 898.

  (5)   When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors, judges have on occasion given further instructions to the jury and/or asked them if they feel able to continue with the case and give verdicts in the proper manner. This course should only be taken with the whole jury present and it is an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict according to the evidence: R v Orgles [1993] 4 All ER 533, [1994] 1 WLR 108.

  (6)   Section 8(1) of the 1981 Act is not a bar to the court itself carrying out necessary investigations of such matters as bias or irregularity in the jury's consideration of the case. The members of the House who were in the majority in R v Connor all expressed the view that if matters of that nature were raised by credible evidence the judge can investigate them and deal with the allegations as the situation may require: see the opinions of Lord Slynn of Hadley at [50], [51], Lord Hope at [92], [112], [126], Lord Hobhouse at [141], [148], and Lord Rodger at [156].”

26.  Plainly, the rule set out in (3) in this citation is applicable in the present situation, the trial having ended and the juror’s concerns about the jury’s deliberations having been raised afterwards.  This aspect was also touched upon by Lord Rodger of Earlsferry who, with reference to R v Connor and Anor, R v Mirza [2004] 1 All ER 925, said in Attorney General v Scotcher [2005] 2 Cr App R 35 (at 580) (HL):

“17.   In reaching its decision in Mirza the House … held, by virtue of a long-standing common law rule, after the jury have returned their verdict, evidence directed to matters intrinsic to the jurors' deliberations is inadmissible. Such evidence is excluded in order to protect the confidentiality of the jurors' deliberations and the finality of their verdict. So neither the trial court nor an appeal court would use their powers of investigation to obtain evidence of those deliberations which would be inadmissible. Where, however, the jury is alleged to have been affected by extraneous influences, e g contact with other persons who may have passed on information which should not have been before the jury, evidence of those extraneous influences is admissible.” [Emphasis added]

27.  In regard to a juror revealing any impropriety after the verdict of the jury has been given, Lord Hobhouse in R v Mirza (at para. 135) said:

“Since majority verdicts were permitted … there will be one or more jurors whose views and arguments have not been accepted by the majority. This is inevitably a fertile scenario for a dissident juror, maybe honestly, maybe not, to claim that the majority disregarded or misunderstood the judge's direction, did not understand the facts, were not prepared to listen to argument or were prejudiced in some way.

28.  Later, Lord Hobhouse (at para. 142) stated:

“The confidentiality of jury deliberations is a well-established principle of both English law and Scottish law. … The confidentiality is not temporary: it is permanent and not capable of waiver. Thus, the duty of the juror to respect that confidentiality continues, indeed it especially applies, after the case is over and the jury has been discharged and [has] dispersed.” [Emphasis added]

29.  Dealing with the admissibility of a note or letter from a juror on appeal, Lord Hobhouse said (at para. 146):

“… The question of admissibility relates not to what the judge or judges see or read but what they take into account in making a substantive decision and what they treat as legitimate evidence for the parties to use in argument. Thus a jury note or letter will, save in exceptional circumstances, always be looked at by the trial judge and, if there is an appeal, by the Court of Appeal (the legal expression is de bene esse - ie for what it is worth); its existence and character will normally be disclosed to the parties' counsel and submissions as to its significance, and/or responded to, be invited. But once its status as a breach of jury confidentiality has been established, the only appropriate response is to treat it as inadmissible in the sense I have described.” [Emphasis added]

30.  It is perhaps worth adding that the European Court of Human Rights held that there was no violation of the European Convention on Human Rights in regard to the principle of confidentiality when acknowledging in Gregory v United Kingdom [1998] 25 EHRR 577 (para. 44), as summarised in the headnote, that “the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which reinforces the jury’s role as arbiter of fact and guarantees open and frank deliberations among the jurors”.

31.  There was, in this case, no question, as Mr Stirling correctly recognised, of treating the juror’s letter to the Recorder as admissible evidence of any impropriety on the part of the jury and he was perfectly correct, therefore, not to have suggested anything to the contrary.

32.  Having regard to what has occurred in this case, we consider it would be appropriate to indicate that, in the newly formulated specimen directions which will shortly be issued, it is proposed that a judge should say to the jury soon after it has been empanelled:

“Very rarely something may happen (either outside your jury room, for example, someone who is not on the jury may try to speak to you about the case, or something may happen in the jury room itself) in circumstances which cause you to think that something improper has occurred. If any of you has such a concern, please inform me about it at once by writing me a note and handing it to the court clerk or usher. Do not leave it until after the case is over, because it might then be impossible to put matters right.”

33.  It is to be hoped that a direction of this sort will in future avoid circumstances of the kind which have arisen in the present proceedings.

The jury’s questions

34.  We observed in the course of reading the papers relating to this appeal that the Recorder was asked two questions by the jury after they had been sent out at 11.26 am to consider their verdict.  The questions were:

“1) Must we be satisfied that the defendant knew the contents were dangerous drugs in the package? (before the customs officer told him)

2)  If the defendant knew it is an illegal package but didn’t know the contents is he still guilty of trafficking dangerous drugs.”

35.  In many ways, it is extraordinary that the questions were felt necessary at this late stage in the trial when they went to the only issue that this 5-day trial had focused upon and when, earlier in her directions on this topic, the Recorder had correctly directed the jury in these terms:

  “Remember, members of the jury, the prosecution must prove that he did know [that the bag contained drugs] and the defendant does not need to prove that he did not know.  If you consider that what the defendant says [in his interview] is, or may be, true then he is entitled to be acquitted.” (Appeal bundle pp. 13-14)

It is somewhat unfortunate, when the jury returned to the courtroom at 12.48 pm to receive replies to their questions, that the Recorder did not immediately state that the answer to Question 1 was ‘Yes’ and the answer to Question 2 was ‘No’ before amplifying on those answers with a direction similar to the one she had given earlier.  Instead, having spoken to counsel in the jury’s absence, the Recorder began by directing the jury as follows:

“Court:    The position is that you must be satisfied that the defendant knew the contents were dangerous drugs or that he could and should have reasonably inferred that.  That is to say, you can draw that inference provided the other requirements as to inference that I directed you on are present.  So he either knew or it could properly be inferred that he ought to have known – properly be inferred that he did know.  And if he did not know and thought that there was something illegal but certainly didn’t know that it was dangerous drugs, then he would be entitled to be acquitted.” (Appeal bundle p. 26) [Emphasis added]

36.  Pausing here, this part of the answer given to the jury contained a number of fundamental errors and it is right to deal with these straightaway.  In the first sentence of her reply, the Recorder qualified the correct statement of law that it had to be proved that the appellant knew that the parcel he received contained dangerous drugs by adding “… or that he could and should have reasonably inferred that”.  This imposed an objective test in circumstances where it was the appellant’s subjective knowledge of the existence of dangerous drugs inside the bag which had to be established. 

37.  The error was then compounded by what followed: “That is to say, you can draw that inference … So he either knew or it could properly be inferred that he ought to have known – properly be inferred that he did know”.  Whilst, of course, the jury might well be able to infer that the appellant had the requisite knowledge of the contents of the package he had received, this appears to reinforce the earlier statement that, from an objective standpoint, the jury could convict him if “he could and should have reasonably inferred that”.

38.  The misdirection was further compounded by the last passage in this part of the answer where the Recorder said: “And if he did not know and thought that there was something illegal but certainly didn’t know that it was dangerous drugs, then he would be entitled to be acquitted”.  The proper test, which needed to be spelt out in simple and clear terms, was that if the appellant had no knowledge, or may have had no knowledge, of the presence of the ketamine inside this package, he was entitled to be acquitted.

39.  The last misdirection, to the effect that if the appellant “certainly had no knowledge” he would be entitled to an acquittal, was repeated in the next part of the answer given by the Recorder which was in these terms:

“So in so far as the first question is concerned – must you be satisfied that he knew the contents were dangerous drugs? – the answer is, yes.  And how would you reach that level of satisfaction?  Well, clearly, it’s for the prosecution to prove that he did know.  It’s not for the accused to prove that he did not know and you would have to be satisfied so that you’re sure that he knew either on direct evidence that you have before you or that you could properly infer that he actually had that knowledge. But if he did not have that knowledge and simply thought that it may have been something illegal but certainly had no knowledge and you could not infer that he had knowledge that it was drugs, then you would be duty bound to acquit. …” (Appeal bundle pp. 26-27) [Emphasis added]

40.  Had this part of the reply stood alone, the use of the word “certainly”, though unwise, might well not have given rise to major concern as its meaning, in the context of this paragraph, was plain enough.  However, in our opinion, there was a strong chance that the directions given in the first part of the answer may have confused the jury as to what had to be proved by the prosecution in regard to possession.  This was the crucial issue in the case. 

41.  We are surprised and somewhat dismayed that these misdirections were not the subject of submissions by prosecuting and defence counsel immediately after they were uttered.  We are equally troubled by the fact that in these proceedings they have had to be identified by the court and not by counsel.

42.  In these circumstances, although there was no ground of appeal relating to these misdirections, we could not allow the conviction to stand and we ordered a retrial on a substituted count of attempting to traffic in dangerous drugs.