HKSAR v. ISYAKA MATO MAMMAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.124
(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. This applicant faced one count of trafficking in dangerous drugs which read that he, on or before 15th May, 1997, unlawfully trafficked in dangerous drugs, namely 597.85 grammes of a mixture containing 466.30 grammes of cocaine hydrochloride and 24.86 grammes of cocaine. He pleaded not guilty to that charge but was found guilty after trial before Saied J. and a jury and was sentenced to imprisonment for 17 years. He now seeks leave to appeal against that conviction.

2. It was the prosecution case that he had told his girlfriend Jesusa Recheta, also known as Jazzie O'Brien, to accept delivery of a parcel, which contained drugs, which would be posted to her, she having given him her address.

3. The evidence was as follows:

4. Jesusa Recheta said that, on 19th April 1997, when she was staying at Ming Ying Boarding House, the applicant spoke to her in the 7-Eleven convenience shop asking her to get him a personal telephone line for calling abroad. He was then staying at Pun Tak Boarding House which was run by her friend Virginia Mayamog. She said that she agreed to assist and that they went to her boarding house, where they stayed until 3:30 a.m. on 20th April. At his request, she then accompanied him back to the Pun Tak Boarding House where they made an appointment to meet again at noon the same day. The applicant asked her if she could move over to Pun Tak Building as her room in Ming Ying was small, and also told her that he was waiting for a letter, but that, as the mailboxes at Pun Tak were very messy, he was afraid that the letter, which he said was important, might get lost. She said that she suggested that if it was very important, he could use her employer's address, but she did not at that time tell him what that address was.

5. At noon, she went to meet him at Pun Tak Building and they went to the indoor game centre in Harbour Road to book a badminton game for the following week. Then they returned to Ming Ying Building, and after lunch she accompanied him to his room where he told her of his import/export business and of his family's tyre and balloon business in Nigeria. He also talked about a business partner in America. She said that he told her that his business partner was to send him a parcel. He again mentioned his request for a telephone and she told him that she would help him applying to the Hongkong Telecom for one. She spent the night with him in his room and left him the following morning, 21st April, at about 7 a.m. to return to her employer's home. She said that he telephoned her on her personal telephone at about 2 p.m. from the 7-Eleven Store. About a week after the first meeting when she was with him in his room at Pun Tak Building she told him that her name was Jazzie O'Brien and also told him of her employer's address at 17B Ka Fu Building, Bonham Road. She said she did so because he was always saying that the box or parcel might get lost if addressed to Pun Tak Building and that it was important, as it would decide if his business in Hong Kong was to continue. On 7th or 8th May he told her that he had already given her name and address to his friend abroad and that there would be drugs inside the box or parcel.

6. A parcel addressed to her arrived in Hong Kong and was opened by customs officers who found 4 slim slabs of cocaine. A trap was then set by dropping a speed post collection card into the letterbox at Bonham Road. She found the card, took it to the General Post Office, picked up the parcel and was, shortly after, arrested. She then assisted customs officers to set a trap to snare the applicant. This was not as effective as it was intended to be as, despite the repeated telephone calls to and from her and the applicant, he did not come to meet her but was eventually arrested by the customs officers at the Wanchai MTR station.

7. The judge warned the jury when summing up of the dangers that lay in her evidence both because she was an accomplice and because of her dubious character. He rightly told the jury:

"... the prosecution relies almost wholly on the testimony of Jesusa Mateyo Recheta, alias Jazzie O'Brien".

He said finally to the jury:

"If, after considering the evidence as a whole, you are satisfied beyond reasonable doubt that the defendant instructed and authorized PW1 - Jesusa - to collect the parcel on his behalf, thus evincing his control over it - over the parcel and that he was, therefore, in constructive possession of the parcel, knowing that it contained dangerous drugs, then you'll find him guilty. On the other hand, if you find that the defendant's version is true or it may be true or you are left in any doubt about the integrity and veracity of PW1 - Jesusa - then you will find the defendant not guilty."

8. It was clear from what the judge said to the jury and, indeed, clear from the way in which the prosecution presented their case, that what the jury had to decide was whether they believed Miss Recheta when she said that the applicant asked her for her address and that he told her that the packet, which was to be sent to that address, contain drugs, and that he then asked her to pick up that packet.

9. Mr. Loughran, who appears for the applicant today, has argued three grounds.

10. The first ground is divided into four parts. The first two parts read as follows:

"The judge misdirected the jury by:

(a) defining possession in terms of 'being knowingly in control of a thing (i.e. a container) in circumstances ... which involved an opportunity ... to discover at least in a general way, what that thing (i.e. the container) was; (whereas such being knowingly in control must, of itself, have involved actually knowing what the thing was, thus rendering the question of opportunity or otherwise misleading.

(b) wrongly elevating such question of opportunity, whether availed or not, from a mere evidential inference as to the mens rea of possession into an actual ingredient of the definition of possession, and thereby wrongly equating the two."

11. The direction which the judge gave in full reads as follows:

"I must stress that there could not be possession of a dangerous drug unless the defendant knew that the thing which was alleged to contain the dangerous drugs was in his possession. So knowledge of the presence of the thing is an essential pre-requisite of possession. How can you possess something the existence of which you do not know? So possession, properly defined, is being knowingly in control of a thing in circumstances which involved an opportunity, whether availed or not, to learn or discover, at least in a general way, what that thing is."

12. In this matter, there was no question of knowledge being proved inferentially because of an opportunity to discover what the drugs were. The applicant, clearly, had never had possession of the packet. Indeed he had never seen it. As the judge correctly pointed out to the jury, they had to be satisfied that he had told Miss Recheta that the packet was being sent to him, that it contained drugs and that she was to collect it for him. If this was proved then he was in constructive possession of it. The above direction was completely unnecessary. It did not go to any issue that was before the jury and would not, we are satisfied, have distracted the jury from the issue which they had to consider, i.e. the veracity of Miss Recheta. Whether such a direction might have been apposite in other circumstances, for example wilful blindness, is not a matter with which we need concern ourselves.

13. That deals with the first two parts of Ground 1.

14. We turn to the third part of Ground 1 which reads as follows:

"that the judge failed to direct the jury that an essential ingredient of the mens rea of possession was knowledge as to the substance inside the container, and not merely knowledge as to the container, and/or wrongly equating the two types of knowledge."

15. Again, the issue was not whether the applicant had means of knowledge as to what was in the container. The only issue was whether the jury believed Miss Recheta's evidence that he had told her that the parcel contained drugs which, in fact, it did. If she was believed, he was clearly in constructive possession of the parcel and had, by his own words, admitted that it contained drugs. There is nothing in that ground.

16. We turn then to the fourth part of Ground 1, which submits that the judge

"wrongly defined 'constructive possession' by the example of a landlord who had let to a tenant as having constructive possession (whereas the landlord would have, during the tenancy, a mere reversionary interest, and no possession until the reversion had fallen in upon the termination of such tenancy)."

The example is certainly open to the criticism that is levelled at it by Mr. Loughran. Such criticism would however more likely come from a lawyer than from a layman. We are satisfied that in the circumstances which obtained, this legally inapposite direction would have done no more than have conveyed to the jury that a person can, in law, be in possession of something even though he does not have any actual physical possession of it. There is, therefore, nothing in this ground.

17. We turn to Ground 2, in which it is argued that the judge erred in admitting into evidence hearsay statements

"(a) from PW1 and/PW2 and PW3 as to what PW1 (Madam Recheta) said to them as to the fact the drugs belonged to the applicant, and to the applicant over the telephone as to her arrangements with him

(b) failing to direct the jury as to the limited nature and use of pre-trial, self-serving prior consistent statements, and conduct of PW1 given in evidence by PW1, 2 and 3 as to:

(i) post-arrest statements that the drugs belonged to the applicant;

(ii) post-arrest conduct based thereon i.e. agreeing to participate in a plan to ensnare and arrest the applicant;

(iii) post-arrest allegations by PW1 (Madam Recheta) as to the contents of telephone calls between herself and the applicant."

18. When Miss Recheta gave her evidence in-chief, she said that on arrest she had told the customs officer that she was going to deliver the box to her friend and that it bore her alias. No objection was taken to this evidence. She said that she acted thereafter on the instructions of the customs officer. Almost all of her evidence was of conversations between herself and the applicant. It is true that she told of the directions given to her by the customs officers but all of her evidence was admitted without objection. This is important as it was clearly for Mr. Tolliday-Wright, who appeared below, to determine the way in which he wanted to run his defence. The defence was proceeding upon the basis that Miss Recheta had concocted her story and had, using that concoction, tricked the customs officers into setting a trap. The defence did not object to evidence about the trap but rather sought to demonstrate that the officers had been tricked into setting it as the parcel belonged to her or one of her business associates.

19. Objection to the evidence of Customs Officer 8807, the first customs officer to give evidence, when he was about to give evidence as to what was said by Madam Recheta and other customs officer, and that evidence was not given. Mr. Tolliday-Wright was well-aware of his right to object to such evidence but he did not do so as the defence which he wished to run would not have been served by so doing. Customs Inspector Lau, who played a crucial part in the setting of the trap, gave evidence without any objection. He said that he was told that the parcel belonged to the Nigerian boyfriend and that Madam Recheta said that she was willing to cooperate and that thereafter she followed his instructions. We need add no more to what we have already said. The defence were, it seems to us clear, seeking to ascertain whether there was anything that would help their allegation that the trap was set by Miss Recheta with the unknowing assistance of the customs officers. Mr. Tolliday-Wright in cross-examination suggested to Miss Recheta that she had told lies about the applicant to save herself. In the circumstances, nothing can properly be made of the admission of this evidence. It certainly occasioned no unfairness to the defence nor was it, we are satisfied, necessary for the trial judge to give any direction that it was not evidence of the truth of its contents.

20. We turn then to Ground 3, which is that:

"the judge erred in directing the jury that "We are not concerned in this court, about what she (Madam Recheta) said about being innocent". In doing so he withdrew from their consideration a central issue as to PW1's lack of credibility. She, in fact, having pleaded guilty to the offence."

21. The whole passage in which that sentence occurred reads as follows:

"You will have appreciated from the very beginning, and more so as the trial proceeded, that the prosecution relies almost wholly on the testimony of Jesusa Mateyo Recheta, alias Jazzie O'Brien (PW1), and she told you that she had pleaded guilty to an indictment of trafficking in dangerous drugs, the particulars of which being exactly the same as this defendant now faces. And she said that she is now awaiting sentence. She also said, while giving evidence, that she was innocent. Mr. Tolliday-Wright spent some time with her on that point, pointing out that she had pleaded guilty; that she was represented by a lawyer from the Legal Aid. You may find - you may think that this was contradictory in terms, having pleaded guilty on the one hand, and saying that she was innocent on the other. As far as you are concerned, her evidence is that she has pleaded guilty; she is awaiting sentence.

The question of whether she is innocent or not is not for you. It's not a matter for you to think about. She has pleaded guilty to a court of law when she was represented by a lawyer. She has stated to you that she has pleaded guilty and is awaiting trial, full stop. We are not concerned, in this court, about what she said about being innocent. She is not on trial, here, before us. The man on trial is that one sitting in the dock. Her evidence is that she has pleaded guilty and is awaiting sentence, and I'm directing you, at the outset, that you should not think, when dealing with the evidence, that because the indictment against this defendant is in exactly similar terms to that to which she has pleaded guilty, therefore, this defendant must also be guilty of the same offence. Do not think along those lines."

22. What the judge meant by that passage and what the jury, we are satisfied, would have taken him to mean, was that they had Madam Recheta's admission of guilt and were not really concerned to revisit that admission but should proceed upon the basis that she was guilty. That could, we are satisfied, in no way worked to the detriment of the defence. The words to which particular objection is taken are "we are not concerned in this court about what she said about being innocent". It is suggested these took away from the jury an assessment of her credibility. Again, we can only say that the trial judge in our view was doing no more than telling the jury not to confuse any assessment of her guilt with the assessment which they really had before them, which was whether or not the applicant was guilty.

23. There is, we are satisfied, also nothing in this ground.

24. The application for leave to appeal against conviction is, therefore, dismissed.

25. The trial judge, having heard mitigation, sentenced the applicant to imprisonment for 17 years. The applicant, who appears in person on sentence, suggests that that was an excessive sentence setting out his family circumstances and the fact that this is his first offence. He submits that he has heavy family responsibilities, in particular that he has an aged father and mother who depend upon him for support.

26. The trial judge having been addressed at length before sentencing said:

"The dangerous drugs involved in this case comprise a mixture weighing 597.85 grammes, containing 466.30 grammes of cocaine hydrochloride and 24.86 grammes of cocaine. It is now well established, when Mr. Tolliday-Wright cited a case of Pedro del Rohous, [1994] II HKLR 69, that the guidelines set out in Lau Tak-ming apply also to cocaine. The total of 491.16 grammes of the narcotic falls in the band of 400 and 600 grammes for which the suggested sentence is 15 to 20 years."

27. The judge went on then to indicate that he considered that the appropriate starting point was 17 years. He stated that nothing was put before him to indicate that the defendant was deserving of any leniency. Clearly the defendant was not entitled to the credit given when a person pleads guilty. The judge rightly in our view imposed a sentence of 17 years' imprisonment.

28. The application for leave to appeal against that sentence is therefore also dismissed.