HKSAR v. SHAIK ABDUL ARSHAD

CACC 308/2018

[2019] HKCA 729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 308 OF 2018

(ON APPEAL FROM DCCC 1110 OF 2017)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with one count of trafficking in a number of different dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The applicant appeared before Deputy District Judge Bernard Chung (“the judge”) and pleaded not guilty to the charge. He was convicted after trial and sentenced by the judge to 4 years’ imprisonment. 

3.  Subsequently, he applied for leave to appeal against his conviction. He appeared in person on the application.

4.  At the hearing of the application I refused it and said I would hand down my reasons for doing so in due course.  These are my reasons.

The prosecution case

5.  On 9 August 2017, police officers, acting on information, mounted an anti-narcotics operation at a residential flat which consisted of a corridor and two rooms. It was an admitted fact that the applicant was “the tenant and occupier”[1] of one of these two rooms, namely Room 2, being the room in which dangerous drugs were found.

6.  The applicant was seen coming out of Room 2 and was immediately intercepted by the officers. From a search of his person the officers seized two keys which could be used to unlock the door of the flat and Room 2, a mobile phone and HK$4,090.

7.  When they searched Room 2 the officers found a yellow-coloured plastic bag on top of a refrigerator inside the room. Inside this yellow-coloured plastic bag were:

(1)  22 transparent re-sealable plastic bags containing 81.60 grammes of herbal cannabis;

(2)  1 transparent re-sealable plastic bag containing 35 sticks, 167.0 grammes in weight, of cannabis resin wrapped in plastic;

(3)  1 transparent re-sealable plastic bag containing 8 yellow Ecstasy tablets, in the total weight of 1.20 grammes;

(4)  1 black paper box containing 17 transparent re-sealable plastic bags containing 5.24 grammes of cocaine;

(5)  1 electronic scales; and

(6)  263 empty transparent re-sealable plastic bags.

8.  All these dangerous drugs were the subject of the charge.

The defence case

9.  The applicant elected not to give evidence and did not call any witness. Instead, he relied upon exculpatory answers he gave in a cautioned video record of interview that was adduced in the prosecution case. In his interview he took no issue that the dangerous drugs were found in his room but he said that he did not know how they came to be there, or to whom they belonged, and denied any knowledge of the yellow-coloured plastic bag.  He said he had never seen the drugs before they were seized by the police.

10.  His explanation was essentially that others could, unbeknownst to him, gain access to his room. He claimed that a key was not needed to enter his room and other people would come to it. All visitors had to do was ring the bell at the main door and they would be let in by the occupant of the other room. He did not assert that he shared the room with others. His video record of interview explanation can be summarised by the following answer that he gave in the course of it:

“As I live alone, lot of friends come.”

11.  His case at trial was that he was “set up” by someone who had tipped off the police.

The judge’s Reasons for Verdict

12.  The judge observed that the only issue that he had to decide was whether the applicant was in possession of the yellow-coloured plastic bag, and its contents, and if so, whether he knew the nature of those contents.

13.  The judge ruled that the cautioned video record of interview was a “mixed statement” that contained both admissions and exculpatory explanations and directed himself accordingly.

14.  The judge rejected the applicant’s exculpatory answers in the video record of interview in their entirety. The room was rented to the applicant, and he was alone in it with the keys to it in his possession when he was arrested. He did not believe the applicant when he said in his interview that his friends would come and go freely without any restriction.  

The applicant’s ground of appeal

15.  As the applicant is unrepresented there are no Perfected Grounds of Appeal and in his Notice of Application for Leave to Appeal he said only that he did not commit the offence and did not plead guilty to it and that is why he is appealing his conviction. He did not file any written submission.

16.  At the hearing of the application he said that there was no evidence against him that linked him to the dangerous drugs. There was no mobile phone, no fingerprint and no DNA. Furthermore, his residence was in three names; his and the names of two other people who had a key to the room. One of them came and left the packet of drugs inside the room. He also said it was not true that he had been intercepted by the police outside of the room. He was sick and was sleeping in his room. He also said he wished to testify at his trial but acted on the advice of his lawyer not to do so.

Discussion

17.  This was a simple and straightforward case. The only issue in it was whether the judge could draw the inference that the applicant was in possession of the dangerous drugs.

18.  It is not reasonably arguable that there were insufficient primary facts from which to draw the inference that the applicant was in possession of the dangerous drugs. The absence of direct evidence such as fingerprints or DNA linking the applicant to the drugs does not prevent the drawing of an inference that he was in possession of them. Once it is accepted that, on the evidence, it was open to the judge to draw this inference the only question is whether there is anything in his Reasons for Verdict which shows that he erred in doing so.     

19.  Given the compelling nature of the primary facts, the only reason why the judge would not draw this inference is because the contents of the applicant’s video interview might raise in his mind a reasonable doubt that the applicant possessed the dangerous drugs. However, once the judge rejected the exculpatory explanations of the applicant then the drawing by the judge of an adverse inference was inevitable.

20.  Thus, the only question is whether the judge was right to reject the exculpatory answers of the applicant in his video record of interview.

21.  The judge gave sufficient and persuasive reasons for why he rejected the applicant’s exculpatory explanation and I cannot find any error in his reasoning process. I do not regard it as reasonably arguable that the conviction is unsafe or unsatisfactory. 

22.  The applicant cannot now make up for his decision not to testify at his trial. What he is seeking to do in his statements to me is to advance a revised version of the “set-up” defence he relied on at trial. That, of course, he cannot do. The Court of Appeal does not conduct of retrial of his guilt. 

Disposition

23.  For these reasons I refused the applicant leave to appeal his conviction. I reminded the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.