HKSAR v. HYDARA OUSMAN AND ANOTHER

DCCC 263/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 263 OF 2017

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REASONS FOR VERDICT

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1.  Both defendants plead not guilty to a charge of trafficking dangerous drugs, namely, 358.2 grammes of a powder containing 6.26 grammes of cocaine. 

2.  Prosecution called six witnesses for both general and special issues for D1.  D1 and his wife gave evidence for the special issue.  When I assessed all the evidence before me, I bore in mind that it was the duty of the prosecution to prove this case beyond all reasonable doubt in both special and general issues.

3.  As to the general issue, both defendants did not give evidence.  This is their right.  I do not draw any adverse inference against them.

4.  I first deal with the special issue of D1.

5.  There was an alternative procedure to determine the admissibility of the video record of interview of D1.  The gist of the record of interview mainly explained why D1 went to PW1’s office to collect the parcel.  There was no admission as to the knowledge of the content of the parcel. 

6.  The defendant and his wife gave evidence in respect of the special issue. 

Complaint 1

7.  He was just asked to sign on papers of the Notice to Person in Custody and his request to read it again was challenged at the time of interview.  D1 did not dispute that he signed on the notice, but he disputed as to the time and place of signing it.

8.  PW5 was the guarding officer and he was a member of the teams in this operation.  He had his duty to do and one of his duties was to inform D1 of the notice.  According to PW5, he gave the notice to D1 at 10.30 am for him to read.  PW5 also read it over to D1 in English.  D1 also told PW5 that he understood the content of the notice and he had no request to make.  He signed on it and was given a copy at 10:35 am.

9.  According to the content of the notice, it was recorded at 10:30 am.  At that time, D1 was still inside the Meeco Industrial Building, not in the government van.

10.  At counter 22 to 24 of the interview transcript, D1 told the inspector that he understood the content of the notice.  Therefore, one can understand why he said that he would like to go through it again later (counter 27), because his rights were still fresh in his mind at the time of interview.  More importantly, he had been reminded and understood that he was still under caution.

11.  I accepted that the notice was served to D1 in accordance with PW5’s evidence.  I accepted that D1 was fully aware of his own right and he made no request to PW5.

Complaint 2

12.  D1 said that he made requests to speak to his wife, but was refused.  D1 said he wanted her to get him a legal representation.  His wife’s evidence also said that he was not allowed to speak to her.  When he was taken back to his house for a house search, he shouted to his wife to open the door. 

13.  Inspector Tsang’s evidence was that they whispered to each other inside the house.  His whole purpose of speaking to his wife was to ask her to find him a legal representation.  During the house search, Inspector already told his wife that he was arrested for a drug-related offence.  A simple sentence of asking his wife to get a legal representation would have achieved that purpose. 

14.  On the other hand, when he took part in the video record of interview, he did not say that he needed legal representation. He said “okay” to conduct the interview without the legal representation (counter 18 and 19 refers).  If he really needed one, he could simply tell PW3, but he did not. 

15.  I did not accept that D1 had asked the custom officer inside the house whether he could speak to his wife.

Complaint 3

16.  On the way to the airport, he was accused by Inspector Tsang that he knew that the parcel contained drugs.  He already told PW2 right after the arrest that he did not know the content of the parcel.  He maintained his position when he was asked in the interview. 

17.  This line of accusation against the Inspector had no bearing in respect of the voluntariness of the statement.

Complaint 4

18.  He was not given adequate rest and refreshment; no meals from 1015 to 2000.  D1 was arrested at 10:15 am.  He said that the only time to use the toilet was about 8:30 pm.

19.  Clearly, this could not be true.  I found this allegation was totally incredible that he was allowed to use the toilet some 10 hours later.

20.  PW5’s evidence was very clear at what time, in which place, what sort of foods were provided to D1.  D1 was at the holding cell from 8:35 pm to next morning 2:15 am.  He was taken to the toilet before entering and leaving the holding cell. 

21.  On this note, I do not believe that D1 was kept in one room and handcuffed all the time when he was taken to the airport station.  There were facilities such as the holding cells in the airport station.  There was no such need to keep him in one room without using the holding cell.

Language

22.  D1 is a Gambian national and speaks Igbo.  The interview was conducted in English.  We all sat in the court to watch the video record of interview.  I had the opportunity to read the transcript in chambers. 

23.  I found PW3 and 4 asked simple and straightforward questions in English.  D1 provided simple and clear answers to their questions.  It is clear to me D1 understood PW3 and 4’s English and he could express himself clearly in English.

Bail

24.  D1 accused the officer that he would be allowed bail after the completion of the interview.  PW5 denied making such a promise to D1.  This was a drug case and the quantity was substantial.  PW5’s duty was the guarding officer.  D1 was detained for 3 months before he obtained bail from the High Court. 

25.  I do not accept that PW5 would make such a promise to D1.

Ruling

26.  Having heard all the evidence from the defence and the prosecution, I accepted the prosecution witnesses’ evidence honest and reliable.  I rejected the defendant and his wife’s evidence in the alternative procedure.  I found that prosecution has proved its case beyond all reasonable doubt, that D1 attended the interview voluntarily.  There was no ground for me to exercise my discretion to exclude the video record of interview.

General issue

27.  PW1 was the general manager of his father’s company, which also had a factory in China.  In October 2016 he received an e-mail from a person called “San Jose”, that his company would like to send samples to PW1’s company for a quotation.  One parcel was sent in October, but was informed by San Jose, in both e-mail and WhatsApp messages, that the parcel was sent to PW1’s office by mistake.  D1 came to collect the parcel.  San Jose in the message also said that there would be another parcel sent to PW1’s office.

28.  The second parcel was the parcel in question, which was a violin.  Inside the case of the violin contained the dangerous drugs in question.

29.  Up to the time of the trial, the prosecution still have no idea who was that person called “San Jose”; it was just a name.

30.  In this evil business dealing, those who play a part in the process of drug-trafficking used prepaid SIM cards to avoid any police tracking and investigation.  They knew that this was illegal activities.  Once they were convicted, they knew that they would face a long term of imprisonment.

31.  On the day of the arrest, from CCTV and the supplementary admitted facts, D1 and D2 were travelling together in the same lift of PW1’s office building.  D2 got off on the 10th floor while D1 went to 11th floor, where PW1’s office was located.  When PW2, a Custom officer, handed the parcel to D1, he declared arrest on him.  D1 dropped the parcel and ran away.  From the CCTV, I could see that he was quickly intercepted by PW2. 

32.  Under caution, D1 admitted that San Jose asked him to come to collect the parcel.  He came previously to collect the first parcel from PW1 as well.  He also said that D2 came with him. 

33.  D2 was arrested downstairs of the same building.  D2 was brought in front of D1, who told the Custom officer that D2 was the one came with him. 

34.  D2’s record of interview was not challenged and was admitted as evidence.  In a gist, he said that he went to the building alone.  He knew nothing about the parcel.  He was a Form 8 holder.  He had no money.  A person called “Mane” told him to come to Fo Tan to collect some money.  He did not know D1.

35.  The content of the video record of interview of D1 mainly said that it was San Jose asked him to collect the parcel from PW1. This was the second time he collected the parcel from PW1.  He considered that it was a business dealing between San Jose and PW1.  He did not know the content of the parcel.  He knew San Jose did not live in Hong Kong and he just helped San Jose without any reward.  He came with D2 to collect the parcel.

36.  As such, both defendants deny knowledge of the content of the parcel. D2 further denied accompanying D1 to come to collect the parcel.  PW2 passed the parcel to D1 only; D2 was not present. 

37.  The prosecution has to prove that either or both knew that the parcel contained dangerous drugs.  To rely on the doctrine of joint enterprise for a criminal offence, the prosecution has to prove that each defendant share a common intention to commit the offence and play his part in it, so as to achieve that aim.

38.  In D1’s record of interview, he said that he was helping San Jose to go to PW1’s office to collect the parcel.  San Jose was not in Hong Kong.  He believed that parcel would be posted to China.  D1 worked as a security with The China Bar in Central.  On the day in question, he went to PW1’s office at 10 am to collect the parcel without reward.  He was not the employee of San Jose.  He might need to send the parcel to China.

39.  One would question why D1 would do all this for San Jose, especially without reward.  He worked overnight, finished work at 6 to 7 am, hung around for two to three hours before going to collect the parcel at 10 am.  Why spend his own time to do this favour for San Jose?  Did D1 ask what was inside the parcel? 

40.  In both occasions, when he was asked whether he knew about the content of the parcel, D1 said that he did not know: the first time was right after his arrest; the second time was during the record of interview.  This was the second time that D1 went to collect the parcel.  The first parcel contained some papers. 

41.  What was in D1’s mind when he went to collect the second parcel?  There was no evidence before this court what did San Jose say to him.  Why he ran away when PW2 declared arrest on him?  He claimed himself to be the innocent agent to collect the second parcel.  Why he need to run away? 

42.  That can open to different interpretations.  One could be that he was shocked by the arrest, as he did not expect this to happen since his first collection of papers was very smooth.  The other one was that he might know that there was cocaine inside the parcel.  He did not want to be arrested.

43.  On the other hand, there was D2.  Clearly, he went with D1.  They travelled together on the same lift.  He said that someone would give him money.  Because he was a Form 8, he was not allowed to work; he had no money.  He came all the way from Star Ferry to Fo Tan to collect money.

44.  That sounds a bit absurd.  Before he travelled with D1 in this same lift at about 10:15 am, he received four calls from D1 at 0758, 0947 and 0956 and 1005.  Clearly, they both communicated with each other before entering the same lift and travelling upstairs, but D2 exited on the 10th floor while D1 went up to the 11th floor.  D2 then went downstairs.

45.  There is great suspicion that D2 went there just to collect money.  However, I still need to satisfy beyond all reasonable doubt that he played a part in this scheme with the knowledge that the parcel contained the drugs.  That question was: what part did he play?  He distanced himself from D1 when he was arrested.  He simply said that he did not know anything, including D1. 

46.  Assuming that D1 was not arrested on the 11^th floor, D1 went downstairs to meet D2, what outcome could there be?  There could be several possibilities.  D1 might pass the parcel to D2 and they left together, or D2 took the parcel and went away on his own, or D1 might just leave D2 without giving him the parcel.  Had the custom officers waited a little bit longer, they might be able to find out why D2 was there for.

47.  The prosecution needs to prove that both D1 and 2 acted in concert to commit the present crime.  Since there was no direct evidence, I need to draw the necessary inference.

48.  However, I could not draw the only irresistible inference that D2 and D1 were acting in concert with the actual knowledge that there was cocaine inside the parcel.  I could not safely conclude that both defendants knew there was dangerous drugs inside the parcel.

49.  To this end, benefit of the doubt to both defendants.

50.  They are both acquitted of the charge.