HKSAR v. JAWAD ASAD KHAN

DCCC 866/2021

[2022] HKDC 1067

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 866 OF 2021

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REASONS FOR VERDICT

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Introduction

1.  There are a total of 3 Charges on the Charge Sheet involving 2 defendants as follows:

Charge 1 : Trafficking in Dangerous Drugs, against D1 only

Narcotics involved:

(i)  Cannabis resin 49.1 grammes (P12); and

(ii)  3,4-methylenediosymethamphetamine (MDMA)  18.5 grammes in 100 tablets (P17).

Charge 2 : Trafficking in Dangerous Drugs, against both Ds

Narcotics involved:

(i)  Cannabis in herbal form 914 grammes (P5);

(ii)  Bromodimethoxyphenethylamine (NBOMe)  3.14 grammes in 164 capsules (P21);

(iii)  Bromodimethoxyphenethylamine 3.94 grammes in 4.93 grammes of a solid (P27 and P32);

(iv)  3,4-methylenediosymethamphetamine 32.2 grammes in 74 tablets (P23);

(v)  3,4-methylenediosymethamphetamine 0.07 grammes in 0.20 grammes of a solid (P34);

(vi)  Ketamine 3.87 grammes in 4.92 grammes of a solid (P25);

(vii)  N,N-dimethyltryptamine (NNDMA)  3.24 grammes in 3.37 grammes of a solid (P29);

(viii)  Lysergide (LSD)  0.06 grammes of material containing this drug (P36); and

(ix)  Psilocin 2.18 grammes contained in 725 grammes of plant materials (P54).

Charge 3 : Possession of Part I Poisons, against both Ds

Involving 112 grammes of a solid containing flualprazolam (P39).

All Charges were alleged to have taken place on 26 November 2020 at Flat B14, 1^st Floor, Ming Tak Building, Nos. 4-16 Ping Fu Path, Kwai Chung (“the premises”). Another person WASEEM Hamza was also named as a participant in all the Charges.

2.  D1 pleaded guilty to all 3 Charges against him and admitted to the Summary of Facts presented by the prosecution. He is convicted of all 3 Charges. For D2, he admitted to trafficking in part of the dangerous drugs particularized in Charge 2, viz., P5, but denied involvement in the remaining narcotics and pleaded not guilty to Charge 3. I treated D2 to have pleaded not guilty to Charge 2 also.

3.  I adjourned the Sentence of D1 until the conclusion of the trial of D2. The present proceedings concerned the trial of D2 on Charges 2 and 3 only.

4.  Having heard the evidence and final submissions by the parties, but prior to the delivery of my Verdicts, I ordered that the Charge Sheet be amended by adding Charge 4, which is an alternative to Charge 2 but against D2 only, and referred to only P5, the 914 grammes of cannabis in herbal form. There was no objection by either party and D2 readily pleaded guilty to this Charge 4.

The trial

5.  Prosecution called a total of 6 witnesses, all Customs officers. PW1 CO12145 and PW2 CO16308 were officers attached to the Airport Investigation Group Airport Command Air Cargo Group Postal Clearance Division. Their statements were tendered under section 65B (P77 and P78, P77A and P78A the certified translations)  as evidence. PW3 CO18258, PW4 CO14187, PW5 CO18474 and PW6 Custom Inspector LAM Chung-ping were officers attached to the same team in the Special Investigation Group of the Syndicated Crime Investigation Division. PW6 was the officer-in-charge of the team. PW3 was the Exhibit Officer while PW4 and PW5 were officers arresting D1 and D2 respectively.

6.  At the end of the prosecution’s case, there was no halfway submissions by the defence. I ruled a case to answer by D2 in respect of both Charges he is facing.

7.  D2 elected not to give evidence and called no defence witness.

Undisputed facts

8.  There is no dispute that this case arose from a “Controlled delivery operation” conducted by the Customs & Excise Department. Most of the background facts were not in dispute.

9.  On 25 November 2020, at the Customs Examination Hall, Air Mail Centre of Hong Kong International Airport at Chek Lap Kok, PW1 intercepted a postal packet containing P2 sent from Poland to the premises with D1 named as the recipient.

10.  On the next day at the same location, PW2 intercepted another postal packet containing P17 sent from the Netherlands to the premises with “Abdul Sam” named as the recipient.

11.  In the evening of 26 November 2020 a “Controlled delivery operation” with PW6 as the officer-in-charge was mounted. PW3, disguised as a postman, delivered the 2 packets to the premises. D1 opened the door and acknowledged himself to be the recipient of them. He was then arrested.

12.  Upon entry to the premises, Customs officers found D2 to be the only other person inside. This was a small room of about 150 square feet in size, with a sofa-bed, a working table and a deck of drawers next to it as furniture only. Behind the sofa-bed was an open kitchen with windows. D2 was found sitting at the end of the sofa-bed facing the main door. D2’s wallet and his mobile phone were placed on the sofa-bed. Inside the wallet was a key which could open the main door of the premises.

13.  Upon a search of the premises by the Customs officers, the narcotics particularized in Charge 2 and the Part I poison particularized in Charge 3 were found. These narcotics and Part I poison were separated into 4 batches:

(a)  the 914 grammes of cannabis in herbal form (P5), contained in 34 plastic bags (P4), were found in a brown-coloured carton box (P18)  placed against the wall next to where D2 was sitting. The cover of the box was open with the contents exposed, and D2’s right thumb print was found on the outside of one of the plastic bags in P4;

(b)  a black-coloured paper box (P19), containing P21, P23, P25, P27, P29, P32 and P34 with their respective containers, was found on top of the deck of chests;

(c)  a black plastic bag (P35)  containing P36, a bubble wrapping bag (P37)  containing P39 and a bag of empty capsules (P40)  were found in the bottommost chest of the deck of chests; and

(d)  a white carton box (P52)  containing P54 was found underneath the working table. The cover of the box was closed with an airway bill (P51)  on top, with D1 named as the recipient.

14.  Some other exhibits which are relevant for consideration were found on the working table. They include a vacuum sealing machine (P42), an electronic scale (P43), a pair of scissors (P44), a pair of forceps (P45), a can of air freshener (P46)  and some empty transparent plastic bags (P47). Also found on this table was a rental receipt (P48)  which indicated that WASEEM Hamza, the other person named in the Charges, was the tenant of the premises.

15.  Also, according to the Fingerprint examination report (P6), the left and right palm prints of D2 were found on the wall tile near the wooden main door of the premises, 2 right palm prints of his were found on the wall tile and a left palm print of his was found on the wall tile near the air conditioning.  

The facts in dispute and the Issues in the case

16.  In his final submissions, Mr. Polson for the prosecution indicated that the prosecution’s case against D2 is that he was in possession of the narcotics in Charges 2 and 3, and for those in Charge 2, for the purpose of trafficking, which is one of the limbs of “trafficking” as defined in section 2 of Cap.134.

17.  On the issue of “possession”, Mr. Polson conceded that the narcotics concerned were not in D2’s “physically possession”, nor is the prosecution relying on “presumed possession” under section 47(1)  of Cap.134. Citing HKSAR v Poon Kiu Yu[1], the position of the prosecution is that D2 was in “constructive possession” of the narcotics concerned as stated by the CA[2] , that “[i]f any person is aware of the existence and nature of a certain article and at the same time exercise control over it, then even if the article is not in his physical possession, it is still in his “constructive possession””

18.  Relying on the general layout of the premises, the positions and conditions when the various exhibits were found, the prosecution submitted that there was sufficient evidence for the Court to find that D2 was in “constructive possession” of the narcotics concerned. Further, one of the evidence presented by PW5 and PW6 was that after being arrested by PW5, D2 admitted under caution that he was there to assist in packaging the herbal cannabis (P5). He was aware that the various other narcotics found in the premises were “dangerous drugs” but they did not belong to him. These admissions were post-recorded in the notebook of PW5 in Chinese at the premises, translated into English the next day by PW6 in the Headquarters of Customs and Excise Department in North Point before it was shown to D2 for confirmation (P65, certified English translation P65A).

19.  On this issue, Ms. Crebbin for the defence, while accepting the voluntariness of the admissions, disputed the accuracy of P65 as to what D2 had in fact said. It was the defence case that D2 only admitted to trafficking in P5 but denied knowledge of the presence of the other narcotics in the premises, or the nature thereof. His admissions were all pointed to the dealing with P5 only. There was no or no sufficient evidence to support a finding that D2 was in “constructive possession” of the narcotics concerned, apart from P5.

20.  On the issue of possession “for the purpose of trafficking”, the prosecution’s stance is that by the presence of the multiplicity of the narcotics and the paraphernalia in the small flat, and the way they were stored, the only irresistible inference is that the person(s)  in possession of them were not for self-consumption, but for trafficking. Ms. Crebbin did not seek to dispute this contention. I also agree with the prosecution’s submission on this issue.

21.  With the above observations in mind, the only issue falls to be decided in this case is whether D2, apart from P5 which he already admitted to be trafficking in, was in “constructive possession” of the narcotics involved in Charges 2 and 3.

Analysis of the evidence on the disputed issue

22.  I direct myself that the burden of proof is on the prosecution. It is for the prosecution to prove each element of the offence against D2 beyond reasonable doubt. D2 bears no burden of proof. He is not required to prove his innocence.

23.  D2 elects not to give evidence or to call any defence witness. It is his right and no adverse inference would be drawn against him. However, this means that there is no evidence to undermine, contradict or explain the evidence presented by the prosecution[3].

24.  I shall first deal with the alleged admissions by D2 as contained in P65. The prosecution chose not to elicit evidence from PW5 as to what had actually transpired when D2 was questioned under caution. Instead, PW5 only stated in-chief that his dialogue with D2 after caution were post-recorded in P65. Ms. Crebbin did not challenge the voluntariness of the alleged admissions. In her cross-examination of PW5, she confirmed some part of the admissions by D2, in particular, that D2 admitted to have assisted in the packaging of P5 for a reward of 5-600 dollars per day, and that the air-freshener (P46)  was for “covering the smell of the cannabis”, but sought to challenge the accuracy of other parts of the record relating to D2’s knowledge on the presence and nature of the remaining narcotics.

25.  There are several aspects of this Post-record which cause me much concern. The evidence indicated that the questioning of D2 on the various exhibits found in the premises took place at the same time when PW4 questioned D1 on the same exhibits and in close proximity. The post-record was made about 2 hours afterwards. The evidence is not clear as to what happened to D2, and for that matter PW5, during that 2 hours or so.

26.  PW5 said he had confirmed with D2 that the latter could understand and speak Chinese but can only read and write a little. At the end of the post-recording he had read out the contents of P65 to D2, but he had forgotten to record this in his notebook. Further, he had invited D2 to sign at various places on the left margin where he had made amendments but again, he had forgotten to record this. Given the circumstances, I consider this to be unacceptable.

27.  On the question of translation into English, PW5 said that he received direct instructions from PW6 in the premises, face to face, that translation of the post-record into English would be done later by PW6. He did not know why it was to be translated into English. This was in direct contradiction with the evidence of PW6, who said that he did not attend the premises that evening, only to stay somewhere in the vicinity during the operation. He received information from PW5 over the phone that D2 could not read and write Chinese well but could do so in English. On the basis on such information from PW5, he decided to have the Post-record translated in English, not any other foreign language.

28.  The translation was done by PW6 at about 8.30 am the next morning after D2 had been taken back to the Headquarters of C&E in the small hours. He was aware that D2 did not have much rest so he decided to put the English translation to D2 late in the evening at around 7.30 pm. He made no attempt to ascertain the nationality of D2 prior to that.

29.  It could be seen from the translation that when it was put to D2, while D2 had signed at various places to acknowledge the contents to be accurate, PW6 did not sign. These were no reasonable explanation provided for this by PW6. A closer scrutiny of the contents of the English translation showed that it was not an exact translation of the Chinese version. For example, at page 42 of the notebook, the phrase “lysergic acid diethylamide” did not feature in the Chinese version at page 15, the same applies to the phrase “psilocybin mushroom” at page 50 which did not feature in the Chinese version at page 19.

30.  Further, PW6 was not aware, so he claimed, that in fact at about 3.30 pm that day PW5 had met D2 for some documentation, thus D2 did not have the rest time as expected by PW6 before the translation was shown to him.

31.  There are other aspects relating to this Post-record which affect my view as to the accuracy of the contents thereof. Suffice for me to say that I am not satisfied that P65 contained an accurate record of what D2 had said under caution after his arrest at the premises. As such, I will place no weight to the contents of this document. The evidence of admissions by D2 post-arrest is confined to the oral testimony of PW5 under cross-examination.

32.  As mentioned above, the prosecution also relies on the circumstantial evidence to ask the court to find that D2 was in “constructive possession” of all the narcotics as particularized in Charges 2 & 3, including P5.

33.  D2 was in possession of a key which opened the door of the premises. His palm prints were found on the wall tile near the wooden main door and other wall tiles, including one near the air-conditioning. Such evidence tends to support that D2 had access to the premises, and had been there prior to the arrival of the Customs officers on the day of the offences.

34.  However, there is no evidence to establish how long D2 had been there that evening or whether he had been there before that day. Also, there is no evidence as to the exact locations on the wall tiles where these palm prints of D2 were found, nor was there evidence to show where the air conditioning was in the premises.

35.  It is important in this case to know the exact locations and conditions in which the various batches of narcotics and relevant exhibits were found. Unfortunately, the prosecution did not see fit to produce any sketch to assist the Court. An album (P3)  containing 30 photographs taken at the premises on the day of the operation was submitted. In the course of the trial, another album (P3A)  containing the same photographs but with annotations indicating the various exhibits found in the premises was also submitted. The PWs confirmed that photo 3 depicted what they saw when they entered the premises that evening.

36.  Photo 3 is the only photograph showing the inside of the premises, but then only partially. Apart from the oral testimonies of the various Customs officers involved in the operation, this is the best assistance provided by the prosecution to allow me to have some idea of how the various exhibits were found.

37.  From this photo 3, it can be seen that P5, which was also shown in photo 20 when it was found, had the contents exposed. Further, a thumb print of D2 was found on the outside of one of the 34 plastic bags containing the cannabis.

38.  The black box (P19)  was placed on top of the deck of chests. The contents could readily be seen, as shown in photos 5 and 6. Seeing the contents is one thing, knowing what they were is quite another matter. There is no evidence to show that D2 had been in contact with the box, or its contents. He might have known the existence or even the nature of the contents in this box, provided he had been there long enough. Even so, there is no evidence to suggest that he exercised control over them.

39.  The narcotics found at the bottom chest, as shown in photo 7, were contained in a black bag (P35)  or a bubble wrapping bag (P37), which were put inside the chest. By mere looking at them, the narcotics could not be seen. The same could be said about the white-coloured box (P52)  which contained P54 as shown in photos 14 and 15. There is no evidence to show that D2 had been in contact with these containers, or its contents, and there is no evidence to suggest that he exercised control over them.

40.  Having taken all relevant evidence into consideration, I am not satisfied that D2 was in “constructive possession” of the other narcotics apart from P5.

Conclusion

41.  For the reasons set out above, I am not satisfied that the prosecution has proved to the necessary standard that D2 was in “constructive possession” of the narcotics as particularized in Charges 2 & 3, except the 914 grammes of cannabis in herbal form (P5). I found D2 not guilty of both Charges he is facing. However, I convict him on his own plea of Charge 4, which is alternative to Charge 2 added on my Order prior to the delivery of the Verdicts.