HKSAR v. Mohammed Ansar

DCCC 217/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 217 OF 2016

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Reasons for Verdict

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1.The defendant has pleaded not guilty to one charge of trafficking in a dangerous drug.

2.The particulars of the offence are that the defendant unlawfully trafficked 3.43 grammes of a crystalline solid containing 3.34 grammes of “Ice”.

3.The prosecution’s case is that the defendant was caught not long after he had delivered the “Ice” to a customer, PW1, according to a prearranged deal.  The defendant was given $2,500 cash by PW1 in return for the 3.34 grammes of “Ice”.  The defendant was arrested holding $2,500 in his hand, and PW1 had the “Ice” in his bag.

4.The defence case is that the defendant was framed by PW1.  He was at the location to meet a friend, and sat on the same bench as PW1 just before the police appeared.  He did not deliver drugs to PW1 nor take any cash from him.  He had not met PW1 before.

5.The prosecution called PW1, the alleged purchaser of the dangerous drugs, and two police officers who did not see any actual drug transaction, but found the two men suspicious and approached them to investigate.  They subsequently arrested PW1 and then the defendant.

6.The issue in this case is one of the credibility of the prosecution witnesses.  Exhibit P11 is the Admitted Facts.  Those include PW1’s arrest and the result of the search of him and his bag.  It is an agreed fact PW2 seized $2,500 from the defendant.

7.The Government Chemist Certificate for the drugs is submitted.  The value of the “Ice” is agreed at an estimate of HK$1,015.00.

The Prosecution’s Case - PW1

8.PW1 was arrested having just paid $2,500 for “Ice” to the defendant, who he called “the deliverer”.  He gave evidence for the prosecution.  He had, just before midnight on 4 November 2015, arranged by WhatsApp messages with somebody called Jenny Stan to buy 3.5 grammes of “Ice” for $2,500.  His messages can be seen on screenshots in a photo album, Exhibit P10.  The conversation shows that he asked the recipient of the messages how much for 3½ grammes and was told $2,500.  He tried to ask for a cheaper price but was rejected.  He said okay, and asked for the delivery immediately.  It was arranged the drugs would be delivered to him at Exit A, Kennedy Town, meaning the MTR exit there.  From the messages, he clearly arrived long before the drug courier.

9.His evidence was that he arrived there to wait for the drugs that he had ordered.  He arrived at the Exit A of the Kennedy Town MTR Station.  He had arranged it with Jenny Stan, but had never met this person.  He was given this name and number by a friend.

10.He arrived there at about 12.15 am, and the drug courier came on the last MTR train.  He saw the courier appear at the exit, and he had seen him on previous occasions, so recognised him.  When he saw him, PW1 stood up to greet him.  It was the defendant that he identified as the courier.  He said the courier then approached him.  PW1 remarked to him that he was so late, and the defendant apologised.  They spoke to each other in English.

11.PW1 then gave the defendant $2,500; five $500 notes.  The defendant, in turn, put a red laisee envelope in PW1’s cloth bag, Exhibit P1.  After that, both men sat down on the bench there.  They were not there long and about to leave when the police appeared and questioned them.

12.PW1 was searched, as was his bag.  The police found the red laisee envelope containing “Ice” in his bag, as well as an “Ice” bong, or pipe, and a lighter.  PW1’s mobile was also seized and his WhatsApp messages read, showing the arrangement to buy “Ice” at about the same time as he was arrested.  It showed the reason he was at Exit A at that time of night.

13.In cross-examination it was put to PW1 that the defendant was sat on the bench outside or near Exit A when he, PW1, approached him and sat next to him.  They were strangers, but exchanged pleasantries. PW1’s mobile screen was lit up and he could not turn it off, so the defendant offered to help him.  He agreed only that the defendant offered his help, but denied the defendant was a stranger and denied that he sat down next to him, the defendant.  He denied he did not give the defendant money, $2,500, and he denied the defendant did not put any “Ice” in his bag in return for the cash. He denied he possessed the “Ice” before he sat down next to the defendant on the bench.

14.PW1 agreed he had already pleaded guilty in the Magistracy Court to possession of “Ice” and possession of apparatus intended for the inhalation of drugs.  He said he was to be sentenced after he gave evidence in this trial.  The magistrate had told him he would get a discount for giving evidence in this trial, but he did not know what discount.  He had, until now, a clear record.  He had no expectation as to how much of a discount he could or would receive.

15.He explained in cross-examination that he had not spoken to Jenny Stan and only communicated by WhatsApp.  He had no idea if it was a male or female, or the defendant himself. 

16.It was suggested he had paid well over the street value for 3.5 grammes of “Ice”, but he said he did not know what that was, or if he had.  He spent around $2,000 on “Ice” and earned $18,000 a month as a designer.

17.The prosecution also called the two police officers who stopped, searched and arrested PW1 and the defendant.  PW2, PC12388, was on plain-clothed patrol with colleagues near and behind him.  At about 1.15 am he was near Exit A of Kennedy Town MTR Station.  He saw PW1, with the defendant to his left, sat on a bench.  PW2 was behind them when he first saw them at about 6 to 8 metres away.  He saw them sat side by side, saw some movement or gesturing between them, and assumed he was witnessing a drug transaction.  He told his colleagues of his suspicions and intention to go forward and intercept both men.

18.He dealt with and searched PW1, whilst PW3, his colleague, dealt with the defendant.  PW2 found the drug “Ice” and bong, as well as seizing PW1’s mobile.  After PW1 told him something, he had PW3 arrest the defendant.  He knew that PW3 had found cash, $2,500, in the defendant’s hand.  In fact, when he approached both men on the bench, he saw the defendant holding a $500 note in his left hand, but could not see how many notes he held.  He saw this when about 1 metre from both men.

19.In cross-examination, his evidence was not materially challenged.  He did not see if the defendant held an iPhone in the same hand as the $2,500 cash.  He also agreed the defendant did not attempt to run away from the police at any stage.

20.PW3, the other police officer, his evidence was supportive of PW2’s evidence.  He recounted after midnight PW2 told him that he thought two men up ahead were suspicious and he had seen some gesturing between them.  PW3 said the two men had their backs to the police.  He and others followed PW2 around the bench and stood in front of PW1 and the defendant.

21.PW3 was responsible for investigating the defendant.  He found him holding $2,500 in cash in his left hand.  He searched the defendant and found a wallet in his trouser pocket with more cash in it. He also found three mobile phones on him.  He marked the three serial numbers of the three devices in his notebook.  He recognised one was an iPhone4, another an iPhone6, and the third was a phone he did not recognise, but had “IMEI” printed on the back.

22.He disagreed the defendant only possessed two mobile phones and that he held the iPhone4 in his left hand together with all the cash.  PW3 recalled the iPhone4 was in the defendant’s right hand.

23.He was asked in cross-examination if the defendant ever attempted to put the cash in his pocket.  He said after PW2 gave him some information, the defendant went to put the cash in his pocket, but PW3 stopped him and seized the cash.  He was accused of fabricating this fact, as he made no note or record of what the defendant tried to do with the cash.  He denied this, and said he recalled this from his memory. 

24.He agreed that the defendant had told him the $2,500 cash was his own money and that he had gone there to meet a friend.  He did not examine the messages on the defendant’s phones.  He only checked the defendant had the correct passwords, indicating they were not stolen phones.

25.The defendant elected not to give evidence, as is his right.  The failure of a defendant to give evidence or call evidence is no evidence of his guilt.  It proves nothing one way or the other.  The defendant has no obligation to prove his innocence.  The prosecution has the duty and the burden of proof.  The prosecution must prove beyond reasonable doubt the defendant committed the offence and prove all elements of the charge.  However, in the absence of any evidence from the defendant, it is easier to draw an inference of guilt on the prosecution case, and such inference could be strengthened by his failure to explain.  I refer myself to the judgment of Lord Hoffman NPJ in Lee De Fan and Another v HKSAR [2002] HKLRD 527 540.

26.The defence case, as I have said, is that the defendant was an innocent bystander framed by PW1, a stranger who sat next to the defendant on a park bench.  PW1 had a motive to frame him, as he will benefit from a lighter sentence if he gives evidence against the defendant he accuses of selling him drugs.

27.The defence case is that the defendant was waiting for a friend, with only two mobiles on him, not three.  He had $2,500 in his hand, but it was not money from PW1, it belonged to him.  The fact the WhatsApp messages on PW1’s phone indicated a sale of 3½ grammes of “Ice” for $2,500 at that location at about that time was coincidence.  It had nothing to do with the $2,500 cash in the defendant’s left hand.  The defence case is a total denial of the charge and evidence of PW1, hence the issue being one of credibility as opposed to one related to the law.

It is not submitted that PW1’s evidence, at its highest, does not prove the elements of the charge.

My Findings

28.Having considered the evidence of all three prosecution witnesses as well as the final submission made by defence counsel, I am sure PW1, 2 and 3 were telling the truth.

29.I am very aware that PW1 giving evidence against the defendant was in return for a possible lighter sentence than the norm.  He does not deny he may benefit.  There is an inherent danger he may not be reliable or credible in such a situation.  I do not have to find evidence that corroborates his evidence, but supporting evidence will lend credibility to him.  It will make his evidence more believable.  At the same time, I must make myself aware of evidence which is inconsistent with or undermines his evidence, making him less reliable, if any.

30.After careful consideration of the evidence and submissions, despite the inherent danger of relying on PW1’s evidence, I am sure he was credible and reliable.  I do not believe he was caught with “Ice” and an “Ice” bong in his possession and proceeded to frame a stranger by accusing him of selling him that “Ice”.  It is too much of a coincidence.  His evidence is supported by a WhatsApp conversation with a drug supplier who told PW1 the courier was on his way with the drugs that would cost him $2,500, and then the defendant was arrested holding $2,500 in his hand.  It was not a coincidence.  It was the truth as told by PW1; of that I am sure.

31.I believed PW1 when he said he waited, as instructed or arranged, for the drugs to be delivered.  He recognised the defendant, so he stood up when he saw the defendant leave the MTR exit.  He spoke to him in English, commenting on his lateness.  I am sure he passed the defendant the cash, as predetermined, for the drugs, and the defendant put the “Ice” into his bag.

32.The messages on the WhatsApp support his evidence and prove he has not framed the defendant or fabricated the drugs transaction.  I am sure the defendant did deliver “Ice” to PW1 and collect payment.  He was caught holding the payment.

33.I find the evidence strong, overwhelming and damning.  There is nothing in PW1’s evidence that makes me doubt the veracity of it or him.

34.The same applies to the two police officers.  I am sure they told the truth, and there were no material discrepancies in their evidence that create any doubt.  The most damning evidence from them is the fact that they saw the defendant holding cash and subsequently seized $2,500 from his hand.  This was evidence that was not challenged.  I am sure the cash was drug money from PW1.

35.I am satisfied the prosecution can prove the defendant did knowingly deliver to PW1 a drug in an envelope in return for $2,500.  I have no doubt from the facts that the defendant had, according to a prearranged deal, trafficked drugs.  I am sure the prosecution can prove beyond reasonable doubt the mens rea and actus reus of this charge.

36.Accordingly, the defendant is convicted as charged.