HKSAR v. Touray Ousainou

HCMA 646/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 646 OF 2015

(ON APPEAL FROM ESCC 941 OF 2015)

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BETWEEN

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JUDGMENT

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1.The resumption of the hearing of this appeal after it was adjourned part heard was unavoidably delayed by the need to find a date that met the availability of all concerned, including that of the only interpreter, as far as the judiciary is aware, who speaks the Appellant’s dialect. Delivery of this judgment was unavoidably delayed for the same reason.

2.The Appellant was tried in the Magistrates’ Court on a charge of trafficking in dangerous drugs, the particulars of which were that on 29 March 2015 outside 43 Lyndhurst Terrace in Central, he unlawfully trafficked in dangerous drugs, namely 1.22 grammes of cocaine and 2.85 grammes of cannabis in herbal form. The prosecution called only one witness, a police constable.  He gave evidence as PW1.  He said that he conducted a search of the Appellant and found those drugs in a small packet in the Appellant’s right front trousers pocket. Giving evidence, the Appellant denied that any dangerous drugs were found on him.

3.The Magistrate said that he accepted PW1’s evidence, rejected the Appellant’s evidence, found that the Appellant was in possession of the dangerous drugs, but did not feel able to draw an irresistible inference that the Appellant was in possession of them for the purpose of trafficking. On that basis, the Magistrate acquitted the Appellant of trafficking in the dangerous drugs, but convicted him of the lesser offence of simple possession of them.

4.After so convicting the Appellant, the Magistrate called for a Drug Addiction Treatment Centre report on him.  The report stated that the Appellant was not a drug addict and that sending him to a Drug Addiction Treatment Centre was not recommended. Initially, the Magistrate dealt with the Appellant by fining him $6,000, but, upon a review sought by the prosecution, the Magistrate replaced that fine by a term of 5 months’ imprisonment.

5.The Appellant appeals against his conviction and sentence.

6.As to conviction, this is stated in the Perfected Grounds of Appeal Against Conviction and Sentence filed on his behalf:

“ 1. The Learned Magistrate erred in finding PW1 was ‘an honest and reliable witness’ and thereby accepting his evidence (40Q).

2. The Learned Magistrate erred in rejecting the evidence of the Appellant and his witnesses (41G-K).

3. The Prosecution failed to meet their ‘Disclosure’ obligation leading to an unfair trial.

4. For the above reasons and/or generally the Appellant’s Conviction is Unsafe and/or Unsatisfactory.”

7.As to sentence, this is what is stated in the Perfected Grounds:

“ In all the circumstances of the case, particularly but not limited to the time already spent in custody, the sentence of 5 months Imprisonment was Wrong in Principle and/or Manifestly Excessive.”

8.In his Statement of Findings, the Magistrate summarised the prosecution’s case as follows:

“ Prosecution case

2. At the trial, the prosecution called only one witness, Police constable 12778 (“PW1”). On the material day, PW1 was on plain clothes duty with other colleagues in the Central district in the small hours. At about 3:15 a.m., when he was patrolling with colleagues on Lyndhurst Terrace, he saw a group of about 5 to 6 foreign males gathering outside No. 43, Lyndhurst Terrace. He went into a rear lane nearby and observed the group. After a while, he saw one of the males, the defendant, took out a packet of thing in white colour from the right front pocket of his trousers and put it back to his pocket.

3. PW1 suspected that the packed took out by the defendant contained dangerous drugs. He went forward to intercept the defendant, revealed his Police identity and requested to conduct a body search on the defendant. During the search, PW1 found the small packet containing suspected dangerous drugs in the right front pocket of the trousers of the defendant. PW1 then arrested the Defendant of trafficking in dangerous drugs. The defendant went emotional and started yelling and waving his arms. In the end, PW1 put the defendant on handcuffs and took him back to the Central Police Station.

4. During cross-examination, PW1 disagreed that there was no dangerous drugs found on the defendant and it was the Police who framed up the defendant.  He agreed that he was responsible to weight the dangerous drugs in front of the duty officer.  He agreed that the weight of cocaine he recorded was 8 grammes.  As to why the Government Chemist later found that there were only 2.9 grammes of mixture containing 1.22 grammes of Cocaine, PW1 said he was unable to explain.  In re-examination, PW1 said when he weighted the dangerous drugs, they were weighted with the packing.”

9.Then, turning to the defence case, the Magistrate summarised it as follows:

“ Defence case

5. After I ruled that there is a case to answer, the defendant elected to give evidence and called three witnesses. The defendant is aged 33 and came from Gambia. He is a person of clear record. He entered Hong Kong legally as a visitor and is now staying in Hong Kong pending his torture claim being processed. While in Hong Kong, he married a U.S. citizen who gave birth to a son recently and he has already applied to the U.S. immigration authority to emigrate as a dependent. The application has made in 2014 and is still being processed. His wife and son are now residing in Hawaii while he lives with his wife’s family in Hong Kong.

6. The defendant said in or about April 2014, he and his friends (including DW2) were stopped and searched by a team of police officers. DW2 was arrested and later charged with obstructing and assaulting police officer. The defendant came to court and gave evidence for DW2. In the end the prosecution offered no evidence against DW2.

7. In or about August 2014, the defendant and his friends were intercepted by a team of police officers. He recognized one of the officers belonged to the team of officers that arrested DW2 in April. The defendant was taken to the police station on the ground that dangerous drugs were found on him which was not true. He was detained for three days and released without being charged with any offence.

8. Concerning the present case, on the day in question the defendant and his friends were again stopped by some police officers. The officers asked him to go to police station with them. He asked for the reason but no one told him. The defendant agreed to go with them and was put on handcuffs. At the police station, the defendant was taken to a room. One of the officers, a sergeant, took out a packet and put on the table. The sergeant said to him that the packet contained dangerous drugs and whether he agreed or not it belonged to him. When he was asked to sign on the tamper evidence property envelope that contained the dangerous drugs, the defendant refused. The defendant said he did not possess any dangerous drug on the material day nor did he involve in trafficking in dangerous drugs. The defendant said he was being framed up probably because he had given evidence for DW2 that led to the charges against DW2 being withdrawn.

9. DW2 is a friend of the defendant who was involved in the April 2014 incident. He was arrested by the police and was charged with obstructing and assaulting police officer. At his trial, he called the defendant as his witness and further produced a video footage as exhibit. After hearing the evidence, the magistrate suggested to the prosecution to consider whether the case should proceed. In the end the prosecution withdrew the charges and DW2 was bound over by the court. DW2 said the officers involved in his case, in particular a sergeant, were the same that arrested the defendant in this case.

10. DW3 is another friend of the defendant. He was stopped by some police officers on 20 June 2014 with the defendant. He and the defendant were arrested and taken to the police station for no reason. They were detained for three days before they were released. They were never charged with any offence. DW3 recognized that one of the police officers, a sergeant, who arrested them in June 2014 was also involved in the defendant’s present case.

11. DW4 is a relative of the Defendant and they are very close all along.  He was present when the defendant was arrested by the police in the present case.  He said all of a sudden a group of plainclothes police officers appeared and surrounded the defendant.  One officer took out a packet, showed it to the defendant and said it belonged to the defendant.  The defendant replied that the packet did not belong to him.  At that juncture, other police officers told DW4 to go away and so he left.  About a month later, he was stopped by the same group of police officers who arrested the defendant.  The officers framed him up of possession of dangerous drug in similar manner like they framed up the defendant.  One of the officers took out a packet and said it belonged to DW4.  He was then taken to the police station and was charged with the offence of possession of a dangerous drug.  The case is still ongoing.”

10.Next, the Magistrate indicated two things.  The first is that he bore in mind that it was for the prosecution to prove its case beyond reasonable doubt.  The second is that, the Appellant being of good character, he gave himself a good character direction on both propensity and credibility.

11.Then the Magistrate said this about PW1’s evidence, which he accepted:

“ 13. I have carefully considered the evidence of PW1. His evidence is clear and straight-forward. He was unshaken under very thorough cross-examination. There is no inherent improbability in his evidence. I note that there is substantial difference in weight of the dangerous drugs when they were weighted at the police station and at the government laboratory. I do not find it causes any doubt. I am sure it was caused by technical problem or the fact that the dangerous drugs were weighted with numerous plastic bags at the police station. I also note that the defendant did not sign on the temper evidence property envelope. However, it does not prove anything. There could be many reasons why an arrested person refuses to sign on the envelope. After careful consideration, I am sure PW1 has told the truth. I find him to be an honest and reliable witness and I accept his evidence.”

12.Turning to the Appellant’s evidence, which he rejected, the Magistrate said this:

“ 14. The defendant elected to give evidence. After careful consideration, I am sure he was not telling the truth. In gist, the defendant’s case is that he was framed up by a sergeant, with the help of other members of the team. The defendant said he did not possess any dangerous drugs and it was the sergeant who took out the dangerous drugs in question and said they belonged to the defendant. Firstly, I do not believe police officers would carry packets of dangerous drugs around when they were on duty or keep them in police station with a view to frame up someone. Why did the sergeant and the officers take such risk? Assuming the court accepts that the sergeant had grudges with the defendant or his friends, there is no evidence PW1 met the defendant or his friends before. Why would PW1 and the whole team conspire with the sergeant to frame up the defendant? Secondly, even if the sergeant intended to frame up the defendant, how would he know he would bump into the defendant that night? Thirdly, if the sergeant intended to frame up the defendant for trafficking of dangerous drugs, why such a small amount of dangerous drugs were used? Or if the sergeant was framing up the defendant for a possession charge, then why did he use two different types of drugs and put them in so many packets? Lastly, according to the defendant, the sergeant first took out the packet of dangerous drugs in the police station. However, DW4 said one officer took out a packet and showed it to the defendant at the scene. The evidence of the defendant and his witness was inconsistent in this important aspect and I believe the defendant was not telling the truth.

15. Base on the above reasons, I do not believe what the defendant said and I reject his evidence.”

13.As to the evidence of the Appellant’s witnesses, the Magistrate said this:

“ 16. Concerning the evidence of the defence witnesses, DW2 and DW3 were not present at the scene when the defendant was arrested. They both gave evidence about some incidents that were not directly related to the present case. After careful consideration, I do not find what they said give rise to any doubt.

17.   Concerning DW4 who was present at the scene when the defendant was arrested, for the reasons I gave at paragraph 14 when I rejected the evidence of the defendant, I do not believe he has told the truth and I also reject his evidence.”

14.The Magistrate then said this as to why he acquitted the Appellant of trafficking in dangerous drugs and convicted him of simple possession of them:

“ 18. Base on the evidence I accepted, I find as a matter of fact that the defendant did possess the dangerous drugs in question at the material times. However, base on all circumstances of the case, I am unable to draw an irresistible inference that the defendant possessed the dangerous drugs for the purpose of trafficking. The amount of dangerous drugs and the number of packets were not small but were not so large that the court can draw the inference that they were being used for trafficking.

Conclusion

19. Base on the above analysis, I find the defendant not guilty of trafficking in dangerous drugs.  Base on the evidence I accepted, I find the defendant did possess the dangerous drugs in question and the irresistible inference is that he knew they were dangerous drugs.  I therefore find the defendant guilty of statutory alternative charge of possession of dangerous drugs.”

15.As to why he had initially seen fit to deal with the Appellant by way of a fine, the Magistrate said this in his Reasons for Sentence:

“ 3. In sentencing the Defendant, the court took into account of his personal background, his clear record, that his chance of emigrating to the U.S. might be affected by this case and the fact that he had been remanded for about 6 weeks in these proceedings. After considering all of the above matters, the court took an exceptional view to impose a fine. As a result, the Defendant was fined $6,000.”

16.The Magistrate then summarised the rival arguments at the review, saying this:

“ 4. After the court passed the sentence, the Prosecution applied to review the sentence on the ground that it was wrong in principle to impose a fine and the court should consider the latent risk factor in sentencing the Defendant. On the other hand, the defence opposed the application and submitted that the heavy fine, together with the fact that the Defendant had been remanded for about 6 weeks, should be sufficient to reflect the seriousness of the offence.”

17.Then the Magistrate turned to why he had changed his mind and decided that he ought to impose a sentence of imprisonment on the Appellant, saying this:

“ 5. After considering the submissions of both sides and reviewing the authorities provided by the prosecution, I agree that generally speaking, for possession of dangerous drugs like cocaine, even for a first offender, a term of imprisonment is the most appropriate sentence. The amount of cocaine involved in this case was not exceptionally small. On second thought, I am of the view that fine is not appropriate in these circumstances. I also find the fact that the Defendant’s application of U.S. citizenship might be affected by the conviction is not really a humanitarian reason not to impose imprisonment.”

18.Finally, as to why he decided on five months as the duration of the prison term to be imposed on the Appellant, the Magistrate said this:

“ 6. On the other hand, I do not find that I should enhance the sentence on the ground that there was latent risk that the Defendant might distribute the dangerous drugs to others. The amount of dangerous drugs involved in this case was not so large and I do not find such risk to be a great one.

7. After considering all the circumstances of the case, I adopt 6 months imprisonment as the starting point.  The Defendant was convicted after trial so there is no room for the guilty plea discount.  I give the Defendant an extra 1 month discount because he now has to face imprisonment after initially being imposed a non-custodial sentence.  As a result, the Defendant is sentenced to 5 months imprisonment.”

19.The Perfected Grounds of Appeal filed on the Appellant’s behalf consist of four against conviction and one against sentence. Those against conviction read:

“ 1. The Learned Magistrate erred in finding PW1 was ‘an honest and reliable witness’ and thereby accepting his evidence (40Q).

2. The Learned Magistrate erred in rejecting the evidence of the Appellant and his witnesses (41G-K).

3. The Prosecution failed to meet their ‘Disclosure’ obligation leading to an unfair trial.

4. For the above reasons and/or generally the Appellant’s Conviction is Unsafe and/or Unsatisfactory.”

20.The Perfected Ground of Appeal against Sentence reads:

“ In all the circumstances of the case, particularly but not limited to the time already spent in custody, the sentence of 5 months Imprisonment was Wrong in Principle and/or Manifestly Excessive.”

21.Counsel for the Appellant have supplied me with a detailed Written Argument.  I have fully considered it as well as the oral arguments advanced on the Appellant’s behalf. Ultimately, my views on the written and oral arguments put forward for the Appellant can be stated quite succinctly.

22.As to conviction, Perfected Ground of Appeal No 1 (attacking the Magistrate’s finding that PW1 was an honest and reliable witness and attacking the Magistrate’s acceptance of his evidence) and Perfected Ground of Appeal No 2 (attacking the Magistrate’s rejection of the evidence of the Appellant and his witnesses) are appropriately to be considered together. 

23.This appeal is by way of rehearing and by way of rehearing on the papers.  It is not a retrial on oral evidence.  I do not have the advantage which the Magistrate had of seeing and hearing the witnesses. 

24.Some of the Magistrate’s observations have made it necessary for me to consider with particularly anxious care whether or not he might have in some way made a mistake of approaching the evidence of police officers as inherently more reliable than that of defendants and their witnesses, or might have made the mistake of treating it as inherently more unlikely that police officers would fabricate a case against a person than that the person would commit a criminal offence. Having so considered the matter, I am satisfied that the Magistrate, who made express and correct reference to burden and standard of proof in criminal cases, and who made express and correct reference to credit due to the Appellant with regard both to credibility and to non-propensity by reason of his good character, did not actually make either of those two mistakes. It is, however, worth reminding Magistrates how easily they might, in the course of coping with a heavy workload, fail to choose their words with sufficient care to avoid creating some anxiety as to whether they might have made mistakes of that nature.

25.After careful consideration of the record and the arguments, I find no basis on which to overturn the impression which the Magistrate formed of the witnesses and their reliability.  Perfected Grounds of Appeal against Conviction Nos 1 and 2 fail.

26.This brings me to Perfected Ground of Sppeal against Conviction No 3, under which it is complained that the prosecution had failed to meet its obligation to make disclosure to the defence and that such failure led to an unfair trial. In the heat generated by this complaint, each side has said some less than pleasant things about the other.  It is unnecessary to set out any of those things. 

27.I do not propose to make any general pronouncement on the rationale, status, nature or scope of the prosecution’s duty of disclosure in Hong Kong.  All of those things, as Bokhary PJ said in Hall v HKSAR (2009) 12 HKCFAR 562 at paragraph 2, are as set out in Sir Anthony Mason NPJ’s judgment in HKSAR v Lee Ming Tee (No 1) (2003) 6 HKCFAR 336.  Those two cases in the Court of Final Appeal were cited by the Court of Appeal in their judgment in the very recent case of HKSAR v Wun Shu Fai [2017] HKEC 533.  That judgment contains some practical suggestions as to improving the system for ensuring that proper disclosure is made by the prosecution. On the prosecution’s duty of disclosure generally, no useful purpose would be served by my adding anything in the present case to what was said in those three cases.

28.Ultimately, the position in the present case is this.  In the Magistrates’ Court, defence counsel chose to proceed with the trial on the materials disclosed by the prosecution.  Nothing shown to me or said to me made me think that the choice was wrong.  I am unable to say that the prosecution had failed to meet its obligation to make disclosure to the defence.  In my view, there is no basis for saying that the trial was unfair.  Perfected Ground of Appeal Against Conviction No 3 fails.

29.Finally, on conviction, I come to Perfected Ground of Appeal Against Conviction No 4, which says that, for the reasons set out in the preceding grounds “and/or generally”, the Appellant’s conviction is unsafe and unsatisfactory.  I have already rejected the preceding grounds and I see no other basis for saying that this conviction is unsafe or unsatisfactory.  Perfected Ground of Appeal Against Conviction No 4 fails.

30.As to sentence, I have already set out what the Magistrate said on the matter of sentence and I have already set out the terms of the Perfected Ground of Appeal Against Sentence. It is unfortunate that the Appellant suffered the anguish of receiving on review an immediate custodial sentence after initially having been dealt with by way of a fine.  The Magistrate gave the Appellant a one‑month discount for that reason.  All things considered, I find no basis on which to interfere with the sentence of 5 months’ imprisonment imposed on review.

31.For the foregoing reasons, both the appeal against conviction and the appeal against sentence are dismissed.

Mr Ivan Cheung, SPP (Ag) of the Department of Justice, for the Respondent

Mr James McGowan and Ms Steffie Wong, instructed by the Bar Free Legal Service Scheme, for the Appellant