HKSAR v. NASEER UMAIR

DCCC 634/2021

[2023] HKDC 103

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 634 OF 2021

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REASONS FOR VERDICT

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Introduction

1.  The following 3 charges are preferred against the Defendant, Mr NASEER Umair (“the Defendant”), that:

(a)  Trafficking in a dangerous drug (“Charge 1”),

(b)  Driving without a valid driving licence (“Charge 2”), and

(c)  Using a motor vehicle without third party insurance (“Charge3”).[1]

2.  The Defendant pleads guilty to Charge 2 and 3 and not guilty to Charge 1; however, he would plead guilty to possession of dangerous drug instead of trafficking of dangerous drug.

3.  The sole issue here is if the prosecution can prove beyond reasonable doubt that at the material date, time and location, the Defendant possessed the dangerous drug in question was for his own consumption, instead of trafficking?

4.  In this case, substantial part of the evidence is agreed by the Admitted Facts (Exhibit P18), and the prosecution only called one prosecution witness, PC 17767 (the “PW”), who was the intercepting and arresting officer.

5.  After I rule there is a case to answer, the Defendant elects to give evidence but does not call any other witness.

6.  In this case, the prosecution has the burden of proof to prove all the elements of Charge 1 beyond reasonable doubt; the Defendant does not have any burden to prove anything. If the account put forward by the Defendant is true or may be true, it is to his benefit that he should be convicted for possession of dangerous drug instead of trafficking of dangerous drug.

7.  According to Charge 1, no person shall, on his own behalf or on behalf of any other person, traffic in a dangerous drug. The words “traffic” and “dangerous drug” are defined in section 2 of Dangerous Drugs Ordinance, Cap 134.

8.  I am informed that the Defendant has several criminal records, however, he will not be prejudiced by such fact.

The Prosecution’s Case

9.  PW gives evidence, in a gist, as follows:

(a)  On 22 March 2021, at around 0358 hours, he was on anti-crime patrol, in uniform, inside a police vehicle. He noticed a private vehicle with registration number TB7597 (the “Vehicle”)  was parked near the junction of Reclamation Street and Soy Street. At that time, the streetlamps were on, and the lighting condition was good. Then the Defendant got off from the Vehicle and walked along Reclamation Street towards Soy Street. PW found the Vehicle’s window to the driver’s seat was half open, so he intercepted the Defendant and asked why he did not close the window fully. The Defendant then turned around and walked back to the Vehicle, sat in the driver’s seat, and closed the window without saying anything, despite PW asked him questions. Then PW asked the Defendant to get off the Vehicle to prove his identity.

(b)  After the Defendant alighted from the Vehicle, the distance between PW and the Defendant was less than 0.5m and PW saw the Defendant’s right hand was in his front right pocket to his trousers, PW indicated the Defendant to take his right hand out. When the Defendant took out his right hand, PW saw his fist was clenched, then he threw a bunch of keys, two 5-dollar coins and a transparent resealable plastic bag with white crystalline substance inside on the ground. PW picked up the above items then arrested the Defendant for possession of dangerous drugs. The Defendant wanted to flee but was subdued and handcuffed by PW and other police. Then PW searched the Vehicle and inside the compartment between the driver’s seat and front passenger’s seat, he found 2 more transparent resealable plastic bags with white crystalline substance inside. Further, 2 mobile phones and cash in the sum of HK$1,142.20 were found on the Defendant.

10.  After the Prosecution closes its case, I rule there is a case to answer. The Defendant elects to give evidence but calls no other witness.

The Defence’s Case

11.  The Defendant gives evidence, in a gist, as follows:

(a)  He came to Hong Kong in 2009 and became a Form 8 holder. In 2011, he got married with a Hong Kong resident and obtained a Hong Kong ID card and took up various jobs. In 2013, he suffered an industrial accident and was injured, and a total of HK$512,980 was awarded to him as compensation. In 2014, he separated with his wife, but no formal divorce proceedings were conducted. He was upset and his friend introduced him to dangerous drugs, he started taking cannabis and as a result, he was charged and convicted for possession of dangerous drugs. Then he went back to Pakistan at the end of 2014. The Defendant came back to Hong Kong in February 2015, then he started taking ICE. In February 2016, he was charged and convicted for possession of dangerous drugs again.

(b)  In May 2016, the Defendant’s visa expired as his wife applied for divorce on her own, he separated with her and became a Form 8 holder again. In 2017, he resumed taking dangerous drugs. In 2019, the Defendant met with his ex-wife again and they got remarried in 2020; however, the Defendant’s Form 8 status remained as he had not applied the visa yet.

(c)  On the material day, he went to an illegal game centre to purchase the dangerous drugs in question, then he drove the Vehicle to the location in question and wanted to go to a convenient store to buy some water, then he was arrested. He confirmed the dangerous drugs found on him was for his own consumption, instead for the purpose of trafficking.

The Analysis

12.  Only for the sake of convenience, I will deal with the Defendant’s case first. However, I fully aware that the prosecution bears the burden of prove to proof Charge 1 beyond reasonable doubt; the Defendant is not required to prove anything and enjoys the benefit of doubt.

13.  Meeting a Friend in a McDonald’s Restaurant by Chance:

(a)  According to the Defendant, at the material time, he was living in Sham Shui Po. At the early morning in question, at about 0300 hours, by chance, the Defendant saw a friend that he could not recall his name, was inside a McDonald’s restaurant; the Defendant then asked this friend to lend him the Vehicle, so that he could drive the Vehicle to Mongkok to purchase the dangerous drugs in question, instead of walking to there.

(b)  I find the Defendant’s version is totally a lie.

(c)  According GN (E)  166 of 2021, Prevention and Control of Disease (Requirements and Directions)  (Business and Premises)  Regulations under Cap. 599F (“the Regulation”), during the period of 14 days beginning on 18 March to 31 March 2021, all premises of any catering business for selling or supplying of food or drink for consumption must be ceased to sell or supply of food or drink for consumption and closed at least between 2200 hours to 0459 hours of the subsequent day. In other words, at the material time, the McDonald’s restaurant was closed by operation of law and it would be impossible for the Defendant to see his friend inside.

(d)  The Defendant was a Form 8 holder without any formal employment, I do not believe anyone would lend him a vehicle casually.

14.  The Defendant’s Compensation:

(a)  According to the Defendant, in January 2017, he received a total of HK$512,980 as compensation from his work injury happened in 2013 (see Exhibit D2), as he was a Form 8 holder, he could not deposit the compensation in the bank, he then asked his friend, Mr Sukhwinder Singh, for safe keeping. However, the Defendant did not keep any record for such deposit, did not know how much he still had or how much that Mr Singh still owned him.

(b)  The amount of compensation is quite a large sum, particularly, the Defendant is a Form 8 holder; however, he takes a very casual attitude to it. I rule the Defendant is telling lies.

15.  The Defendant’s Financial Situation:

(a)  The Defendant gives evidence on his financial situation. In a gist, he was living rather humbly in Hong Kong. According to him, he spent $70 for a bag of flour which could last for a month, and $30 - 50 on curry that would last for 3 - 4 days. On the other hand, the Defendant said his family was very well off in Pakistan that covered his air-tickets back and forth Pakistan in early 2015. If the Defendant got a wealthy family that supported him, there would be no reason for the Defendant to stay in Hong Kong humbly.

(b)  He tried to explain he loved his wife very much, so he decided to stay in Hong Kong. He told us that he married a local lady around 2011 - 2012, the marriage broke down in 2014. In 2020, he got back to his wife but knew that she had applied for a divorce single-handedly. Even accepting the Defendant is telling the truth (which I do not), I still find there would be no reason for the Defendant to stay in Hong Kong after knowing his wife divorced him.

(c)  I find the Defendant’s version is unreasonable and full of contradictions, he is not telling the truth at all.

16.  As a result, I do not believe the Defendant and find he was not telling the truth.

17.  However, I do not believe the Defendant does not mean I have to accept the prosecution’s case automatically. The prosecution bears an independent burden to prove Charge 1 beyond reasonable doubt.

18.  Ms Mohamed, Counsel for the Defence, submits the court should not place full reliance on PW’s evidence, for the following reasons:

(a)  Certain parts of PW’s evidence were not mentioned in his witness statement;

(b)  Certain parts of PW’s evidence were not consistent with his witness statement; and

(c)  The court should not draw any adverse influence against the Defendant even if he was acting nervous by the material time.

19.  The first two points can be dealt with in one go. Ms Mohamed submits:

(a)  PW originally said in evidence that by the time he got off the police vehicle, the Defendant had already walked to the rear part of it; however, in cross-examination, PW agreed that the Defendant was already on the road about to step onto the pavement near the cross lights.

(b)  PW never mentioned in any of his statements that the Defendant “upon seeing our vehicle ...” then alighted from the Vehicle.

(c)  PW never mentioned in his statements that the Defendant was nervous at the material time.

(d)  PW claims he used English to speak to the Defendant; however, it was not mentioned in any of his statements.

(e)  PW never mentioned in his statements he indicated to the Defendant to take his right hand out.

(f)  PW originally mentioned the Defendant dropped the dangerous drugs on the floor, then he said the Defendant threw them on the ground with force.

(g)  PW originally said the Defendant was co-operative, then he changed and said the Defendant was not co-operative, despite the Defendant followed instructions to close the window of the Vehicle and to produce his ID document when asked.

20.  First, when a police officer records his statements, he has very limited time to do so, and normally, he can only record the outline of the incident. During cross-examination, when the defence counsel thinks certain information should have been written down, does not mean the police officer had the same idea when he wrote his witness statement. A police officer fails to record certain information that the defence counsel thinks he should have done so, does not necessarily mean the police officer intends to lie.

21.  Second, a witness is always asked to clarify his/her evidence in court; so even a witness makes clarification under cross-examination, it does not mean he lies in his statement or in court.

22.  Finally, a witness’s memory is activated under questioning, and he/she recalls more details of the incident or after he/she reconsiders the situation then gives a different opinion, does not mean he/she is lying.

23.  I agree with Ms Mohamed that even if the Defendant was acting nervously, that would not automatically mean that the Defendant was guilty of the offence of trafficking, as he was in possession of dangerous drugs and driving without a valid driving licence at that time.

24.  I am not persuaded by Ms Mohamed’s submission that PW is not a reliable witness.

25.  I consider PW’s evidence carefully and find he is an honours and reliable witness. When he was questioned, he gave spontaneous, direct and reasonable answers. His evidence is consistent with other evidence and there are no conflicts. His evidence remains intact after cross-examination.

Possession or Trafficking

26.  The prosecution askes the court to draw inference that all the dangerous drugs found are for the purpose of trafficking; on the other hand, the Defendant asks the court to rule that the drugs are for the purpose of possession.

27.  For the reasons mentioned, I rule out the Defendant’s evidence. The evidence remain are summarized as follows:

(a)  After the Defendant was arrested, on 24 March 2021, in Lai Chi Kok Reception Centre, a urine test was carried out on the Defendant. The results are as follows:

(i)  Amphetamine 1740/1000 (positive)

(ii)  Cannabinoids 1162/1000 (positive)

(iii)  Cocaine 1099/1000 (positive).

(b)  The Defendant has two previous convictions for possession of dangerous drugs:

(i)  On 18 September 2014, he was fined $1,200; and

(ii)  On 14 February 2016, he was sentenced to 8 months’ imprisonment.

(c)  He is a Form 8 holder.

(d)  On 22 March 2021, at around 0300 hours, the Defendant drove the Vehicle which did not belong to him on Reclamation Street, and he parked it on Reclamation Street near the junction of Soy Street.

(e)  Exhibit P1 and P2 were in his possession. Further, two mobile phones (Exhibits P8 and P9)  and HK$1,142.20 were seized from the Defendant.

(f)  At that time, it was on the peak of Covid-19 pandemic period that shops for catering business had to be closed to control the disease.

(g)  According to the Defendant, no rightful owner claims the ownership of the Vehicle yet. Photos (Exhibit P13 1 - 5)  show the Vehicle is a valuable one.

(h)  The estimated retail value of the dangerous drugs seized, 6.12 grammes of methamphetamine hydrochloride, in March 2021 was HK$3,464.

The Inference

28.  In HKSAR v Au Hau Ching CACC 146/2008 ([2009] HKCU 1197), the Court of Appeal rules that

“18. We adopt what was said by McHugh J in the decision of the High Court of Australia in Shepherd v R [1990] 170 C.L.R. 573 at 592:

‘If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular act has been proved beyond reasonable doubt.’

and, at 593:

‘The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.

In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.’”

29.  Further, in R v Exall 176 ER850 Pollock, CB rules that:

“It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can required or admit of.” (per p 853)

30.  I understand the Defendant has two convictions for possession of dangerous drugs and after he was arrested, his urine test was positive for dangerous drugs. However, the Defendant is a Form 8 holder and is not under the assistance of ISSI, and I do not believe he had any money that was kept by his friend, Mr Singh; which mean he does not have any financial resources. At the material time, he was driving a valuable car with two mobile phones, appeared in the material location at small hours without proper reason. He has no financial means that I do not believe anyone would lend him such a valuable car under normal circumstances and there is no proper reason for him to use two mobile phones. I draw the only, reasonable, and irresistible inference that at the material date, time and location he was trafficking the dangerous drugs as a carrier and none of the dangerous drugs was for his own consumption.

Conclusion

31.  For the reason above I rule that the Prosecution has proved beyond reasonable doubt that the Defendant was trafficking all the dangerous drugs at the material date, time, and location. The Defendant is convicted for Charge 1.