HKSAR v. Musah Hakeem Tahiru

HCCC 464/2015

[2018] HKCFI 1360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 464 OF 2015

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D E C I S I O N

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Introduction

1.The defendant is to stand trial on an indictment consisting of six counts which concern allegations of drug trafficking (Counts 1 to 5) and an allegation of dealing in the proceeds of drug trafficking (Count 6).  He makes application for a separate trial on Counts 1 to 4 and for the trial on the indictment to proceed on Counts 5 and 6 only. 

2.The court has power to grant what is commonly referred to as a severance application by ordering the separate trials of multiple offences that a defendant faces if the court is of the opinion that he may be prejudiced or embarrassed in his defence, or for any other reason it is desirable that the defendant should be tried separately for any one or more offences charged.

The Counts

3.The prosecution case against the defendant in relation to the six counts is that, on 21 and 29 January 2015, he together with Jaiteh Musa, Barrow Samba and David Jordan trafficked in drugs in the vicinity of Lockhart Road, Wan Chai, and that he was the supplier of the drugs.  There was a police operation observing the four men which went overt on 29 January 2015.  The defendant was arrested and later a search of his residence was carried out by the police were a large quantity of drugs and a large sum of cash was found. 

4.Counts 1, 2 and 3 allege that on two occasions on 21 and one occasion on 29 January 2015 respectively the defendant together with Jaiteh Musa, Barrow Samba and David Jordan trafficked in specified quantities of cocaine. 

5.Count 4 alleges that on 29 January 2015 the defendant alone trafficked in specified quantities of various drugs. 

6.Count 5 alleges that on 29 January 2015 the defendant trafficked in various specified quantities of drugs, including a large quantity of cocaine, being drugs found at his residence. 

7.Counts 6 alleges that on 29 January 2015 the defendant dealt with property known or believed to represent the proceeds of drug trafficking, being a large sum of cash also found at his residence.

The District Court trial

8.The basis of the application is that the defendant’s three co-accused have been separately tried for offences as reflected by Counts 1 to 4 where the court was not satisfied on the evidence that the four men, including the defendant, were jointly trafficking in the drugs as alleged. 

9.The trial of the co-accused took place in the District Court in DCCC 505/2015 before Judge J Lam in relation to five charges. Charges 2 to 4 alleged the same offences as reflected by Counts 1 to 3 and Charge 5 alleged the same offence as reflected by Count 4. 

The charges

10.Charge 1 concerned Jaiteh Musa only for the offence of offering to traffic in a dangerous drug.  He pleaded not guilty. 

11.Charges 2 to 4 concerned Jaiteh Musa, Barrow Samba and David Jordan for the joint offence of trafficking in a dangerous drug together with the defendant.  As I have mentioned, these three offences are reflected in Counts 1 to 3 on the indictment.  Jaiteh Musa pleaded guilty to Charges 2 to 4 on the basis that he was trafficking in the drugs on his own and not with the others.  Barrow Samba and David Jordan pleaded not guilty to the charges.

12.Charge 5 concerned David Jordan only for the offence of trafficking in a dangerous drug together with the defendant.  He pleaded not guilty.  As I have mentioned, this offence is reflected in Count 5 on the indictment.

The prosecution case on the charges

13.The Judge in his reasons briefly explained the prosecution case against the co-accused in relation to Charges 2 to 4.  He said that the prosecution case was that the four men were part of a joint enterprise selling drugs in the Wan Chai area.  The drugs were stored at the rear lane and the defendant was responsible for fetching them while David Jordan acted as a lookout.  It was Jaiteh Musa who would sell the drugs in the streets with Barrow Samba assisting him.  Jaiteh Musa admitted that he trafficked in the drugs as alleged in Charges 2 to 4 but stated that he did this on his own.  He denied the offence alleged in Charge 1.  Barrow Samba and David Jordan both denied the alleged trafficking of drugs in Charges 2 to 4.  David Jordan also denied dealing in the drugs together with the defendant as alleged in Charge 5. 

14.As to Charge 2, the Judge said the prosecution case was that on 21 January 2015, a decoy buyer was on a street corner in Wan Chai when Jaiteh Musa approached him and sold him a packet of cocaine.  Barrow Samba was nearby and David Jordan and the defendant went to a rear lane when the transaction took place.  The defendant fiddled with an air-conditioner while David Jordan acted as a lookout at the entrance of the rear lane.  The two later went back to join Jaiteh Musa and Barrow Samba.  The defendant passed something onto Jaiteh Musa, who put the item into his trouser pocket.  The prosecution alleged that a packet of cocaine had been passed on to Jaiteh Musa to sell which had been stored at the air-conditioner in the rear lane. 

15.As to Charge 3, the Judge said the prosecution case was that on the same day as Charge 2, about 20 minutes later, the decoy buyer returned to the scene.  Jaiteh Musa approached him again and sold him another packet of cocaine.  Barrow Samba, David Jordan and the defendant were nearby. 

16.As to Charge 4, the Judge said that the prosecution case was that around midnight on 29 January 2015, the decoy buyer was at the same street corner in Wan Chai when Jaiteh Musa approached him and sold him two packets of cocaine.  Barrow Samba stayed nearby while David Jordan and the defendant went to the rear lane as before.  The defendant fiddled with the same air-conditioner while David Jordan acted as a lookout outside the rear lane. 

17.As to Charge 5, the Judge said that the prosecution case was that on 29 January 2015, the police found drugs in the rear lane, namely two small packets on the floor and more drugs on the supporting frame of an air-conditioner.  The Judge noted that the air-conditioner was about 10 feet away from the one the defendant had been seen fiddling with.  He said that the prosecution case was that the defendant stocked drugs there and that David Jordan went with him to fetch the drugs but who stayed at the entrance of the rear lane to act as a lookout. 

The Judge’s verdict

18.The outcome of the case was that the Judge acquitted the three co-accused of the offences to which they had pleaded not guilty but convicted Jaiteh Musa on his own plea in relation to Charges 2 to 4.  It appears from the Judge’s reasons that he was not satisfied that the evidence supported a finding that Jaiteh Musa had jointly trafficked with the others in the drugs as specified in Charges 2 to 4.  In relation to Charge 5, he found that David Jordan had no case to answer. 

19.The Judge in his reasons rejected the prosecution evidence which mainly came from police officers and further rejected the allegation that Jaiteh Musa was part of a joint enterprise with the others. 

20.It is essentially because of the Judge’s decision and his criticisms or critical analysis of the prosecution evidence that the defendant makes this application for severance.

Power to order a separate trial

21.The court has the power to order the separate trial of the accused or of offences that are properly joined in one indictment, pursuant to section 23(3) of the Criminal Procedure Ordinance, Cap 227.

22.Section 23(3) reads: 

“Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

23.The discretion of the court under section 23(3) is wide but like all discretions it must be exercised judicially.  Guidance has been given as to how to exercise the discretion by Lord Pearson in Ludlow v Metropolitan Police Commissioner [1971] AC 29 who was then addressing the English equivalent of our section, section 5(3) of the Indictments Act 1915.  He said at 41:

“…the manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the judge has a discretionary power to direct separate trials under section 5(3). … The judge has no duty to direct separate trials under section 5(3) unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. In some cases the offences charged may be too numerous and complicated…or too difficult to disentangle…so that a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced. In other cases objection may be taken to the inclusion of a count on the ground that it is of a scandalous nature and likely to arouse in the minds of the jury hostile feelings against the accused…”

24.Where an accused faces multiple offences, the court has power as provided under section 23(3) to order that the person be tried separately for any one or more offences charged.  It is only where there is a special feature in the case which would make a single trial prejudicial or embarrassing to the accused or for any other reason that the court would exercise its discretion to order separate trials. 

25.Ultimately the question as to whether to exercise the power will depend on how the interests of justice are best served, taking all the circumstances and interests into account but bearing in mind the accused’s right to a fair trial.  So when we talk about whether there is a special feature in the case that would make a single trial prejudicial or embarrassing to the accused or for any other reason we are in fact saying is there a good reason to order a separate trial because of the real risk that the trial will result in unfairness to the accused or offend the interests of justice.

The defendant’s submission for the application

26.Mr McGowan accepts that in “normal circumstances” the joinder of the counts in the indictment is permissible but submits that the circumstances of the defendant’s case are not normal.  I take it what he is referring to is the fact that the defendant’s co-accused have been separately tried for the offences as particularised in Counts 1 to 4 were the Judge did not find on the evidence there was the alleged joint enterprise of the four men, which included the defendant. 

27.It is unusual but not uncommon that persons alleged to have been part of a criminal joint enterprise are not tried together.  There may be a variety of good reasons for the prosecution taking such a course of action, such as the persons have been apprehended and brought before the courts at different times or because of the level of seriousness of the person’s involvement may warrant lesser offences to be tried in another court jurisdiction. 

28.It seems the basis of the prosecution’s decision in the present case was that the defendant faced additional offences of trafficking in various dangerous drugs which involved a large quantity of cocaine (Count 5), and dealing in the proceeds of drug trafficking, consisting of a large quantity of cash, mainly in US dollars (Count 6), that were found at his residence.

29.Mr McGowan’s argument in support of the application is principally based on the fact that the defendant’s co-accused have been acquitted after trial in the District Court in relation to the same offences as reflected in Counts 1 to 4 on the indictment.  The exception to this is Jaiteh Musa, who pleaded guilty to Charges 2 to 4 in the District Court, which are reflected in Counts 1 to 3 on the indictment, but he did so, on the basis that he trafficked in the drugs alone and not with the others. 

30.The case against the defendant’s co-accused principally relied on the evidence of the police officers who carried out surveillance and decoy operations with regards to the four men.  There was also telephone communications between the men which the Judge did not place too much reliance on.  The case, however, seemed to turn on identification evidence which the Judge doubted.  Mr McGowan made particular reference to what the Judge said at §125 in his reasons:

“Actually, my doubt is not confined to PW4’s or the other surveillance officers’ identification claims. The inexplicable obscurity in the officers’ records plus the unreasonable withholding of identification parades suggest there might be some kind of evidence streamlining or rigging rather than mere inadvertent omission. Was it done for a bolstering purpose to make the observation and identification evidence unchallengeable? Did the surveillance officers really and individually see what they claim in court? Or some just vaguely saw someone/something but formed a conviction only with what they heard from colleagues on communication? I am not sure.”

31.From what the Judge said, it seems that he has posed a number of rhetorical questions as to the evidence of the surveillance officers, after which he states that he is not sure of these matters and this has led him together with other matters to doubt the identification evidence.

32.Mr McGowan relies on the authority of Jeffrey Wells (1991) 92 Cr App R 24 and the quoted comments of Scarman LJ (as he then was) in Scarrott [1978] 1 QB 1016 at 1027-8 which concerned guidance to judges as to how they should approach questions on issues of severance and the admissibility of evidence under the similar facts rule.  The Court of Appeal in Jeffrey Wells also goes on to quote the commentary of an old edition of Archbold on this issue which Mr McGowan also relies on. 

33.The comments of Scarman LJ that Mr McGowan referred to are where he discusses the approach to be taken in a severance application in relation to a case where a person faces multiple separate offences, and where he emphasises that a court at this stage should consider whether the evidence appears to be “independent or untainted evidence, and whether there is real chance that there is falsity or conspiracy to give false evidence” as well as “the possible prejudicial effects of the evidence and its probative value”. 

34.Mr McGowan also relies on the quoted comments of the 42^nd Edition of Archbold and the remarks that followed by the Court in Jeffrey Wells about whether it would be scandalous to blend allegations of minor drug trafficking together with more serious allegations of someone being a drug baron.  The Court on commenting whether such a joinder was appropriate merely said it was debatable and not as suggested by Mr McGowan that it would invoke the exercise of a court’s discretion to order separate trials. 

35.The nature of the prejudice that the defendant is likely to suffer as a result of the six counts being tried together was articulated by Mr McGowan as blending two sets of allegations, namely, on the one hand the alleged street trafficking offences of the four men, including the defendant, and on the other the alleged possession of a large quantity of drugs and cash by the defendant at his residence.  It is submitted that the street trafficking offences would bolster the more serious allegations and their prejudicial effect would outweigh their probative value.  It is further submitted that it would be unfair to try the street trafficking offences with the more serious allegations given that the defendant’s co-accused have been acquitted on the allegation of the joint enterprise. 

36.It is suggested by Mr McGowan that the prosecution seek to put forward the scandalous behaviour of “black asylum seekers” engaging in street trafficking, coupled with the allegation that from the money and the drugs found at the defendant’s home, he is not only their controller but also a drug lord. 

The prosecution’s objection to the application

37.The prosecution oppose the application on the basis that the counts have been properly joined and in all the circumstances there is no basis to make an order for separate trials as submitted by the defendant. 

38.Mr Phil Chau, who appears together with Ms Shiranne Richards, counsel on fiat for the prosecution, argues that the defendant, who bears the burden on a balance of probabilities, has not shown that he would be prejudiced or embarrassed by the counts being tried together or that he would not receive a fair trial.  He submits in particular that the separate trial of the defendant’s co-accused was neither wrong in principle nor unfair and that the case against the defendant is clearly different from his co-accused in light of the evidence that the prosecution will present against him at trial. 

39.On the issue of the evidence, Mr Chau notes that whilst the quantity of drugs allegedly involved in Counts 1 to 4 may be considered small, this has to be considered together with the allegedly sizable quantity of drugs and substantial sum of cash found at the defendant’s residence.  He explains that the prosecution case is that in view of the defendant’s involvement in drug trafficking, as observed in the police operation, and the finding of the same kind of drugs and over 200 empty plastic bags at his home as well as the substantial sum of cash, there is a strong evidential basis for a case of drug trafficking and dealing in the proceeds of drug trafficking against him.

40.On the issue of the presentation of evidence that had been led in the District Court trial, Mr Chau submits that the defendant, as is normally the case, is entitled to examine the evidence presented by the prosecution, including any prior statements by a witness that may be challenged on the basis of being inconsistent with the witness’s evidence and that any issue that may arise in relation to the evidence can be appropriately dealt with or addressed by the trial judge through or by the court’s processes. 

Discussion

41.I am not satisfied that I should exercise the power to order a separate trial of the defendant in relation to Counts 1 to 4. I do not find that there is prejudice or embarrassment to the accused, or any other reason, to warrant having Counts 1 to 4 tried separately from Counts 5 and 6.

42.At the trial of the defendant’s co-accused the Judge did not find to the requisite standard that there was a joint enterprise as alleged, but this was on the basis of the evidence presented to him and his assessment of it. 

43.Even though the defendant was named as a co-accused in the charges the co-accused faced, it was based on the case and evidence against them.  The case and evidence against the defendant is different to the one against the co-accused even though there appears there will be some overlap.  The point is that the case against the defendant was not presented to the Judge as he was not on trial in those proceedings.  For instance, the allegations against the defendant include not only the evidence alleging his involvement in street trafficking in Wan Chai but also that a large quantity of drugs and cash were found at his residence.  The street trafficking and the finding of the drugs and cash at his residence took place at around the same time.  The search of his residence followed soon after his arrest for the street trafficking offences.  There is an evidential and forensic connection between the street trafficking and the drugs found at his residence involving the same type of drugs, namely cocaine, and the large sum of cash. 

44.The case presented before the Judge will be different to the case that will be presented against the defendant at trial on the six counts of the indictment both in terms of allegations and evidence.  Although as I have pointed out, there will be some common evidence.  The assessment of the evidence will be a matter for the jury when the case goes on for trial. 

45.Mr McGowan does not complain that the counts are not properly joined or that the defendant will not receive a fair trial.  Although on this latter issue, he intimated that there may be a basis for a stay application but did not take it any further.

46.Mr McGowan places emphasis on the Judge’s decision and criticism of the prosecution evidence and that Jaiteh Musa pleaded guilty to trafficking in the drugs as contained in Charges 2 to 4, which are reflected in Counts 2 to 4 on the indictment, on the basis that he acted alone and the others were not involved.  It still remains that it is a matter for the jury on all the evidence presented to it at trial to decide whether or not the defendant was jointly involved in the street trafficking as alleged in Counts 1 to 4.  Any issue or matter that may arise in relation to the previous proceedings should not in my view cause any prejudice or embarrassment to the defendant to warrant a separate trial for Counts 1 to 4.  This includes any issue concerning the surveillance or identification evidence which can be challenged or tested in the normal course of a trial. 

47.Mr McGowan submitted that the prosecution are seeking to exploit the scandalous behaviour of “black asylum seekers” being involved in drug trafficking and minor street trafficking being coupled with serious allegations against the defendant that he is a drug lord by the quantity of drugs and cash found at his residence.  I do not see any substance in this submission.  It is not part of our criminal justice system, and nor would it be tolerated, that a person should be tried for the colour of their skin or their status or position in life.  The prosecution do point to the finding of a large sum of cash at the defendant’s residence and his personal and financial circumstances.  The allegations of street trafficking and the more serious allegations of the large quantity of drugs and cash found at his residence are part and partial of the prosecution case against him which they are entitled to present to the jury. 

48.I agree with the submissions of Mr Chau in response to the severance application.

Conclusion

49.For the foregoing reasons, I refuse the application and the defendant will face trial on the six counts as contained in the indictment. 

Mr Phil Chau and Ms Shiranne Richards, counsel on fiat, for HKSAR

Mr James McGowan, instructed by Krishnan & Tsang, assigned by the Director of Legal Aid, for the defendant