HKSAR v. Rasul Golam

DCCC 952/2017

[2018] HKDC 787

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 952 OF 2017

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Reasons for Verdict

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1.The defendant faces a single charge of trafficking in a dangerous drug, which allegedly occurred on 28 July 2017 at Room No 1 in Star Mansion in Tsim Sha Tsui. The quantity of drugs alleged are cocaine, 6.72 grammes, and heroin hydrochloride of 9.02 grammes.

2.The prosecution say the defendant was found inside a room to which he had the keys and of which he was the sole occupant. On a bunk bed inside the room, drugs, together with some packing equipment and consumption equipment, was found.

3.The defendant admits his presence in the room. He denies he possessed the keys or the drugs.

4.The issues raised in the case appear to be determined by questions of credibility.  The prosecution case initially consisted of two police officers, PWs 3 and 4.  These officers were involved in the apprehension of the defendant and the seizure of the drugs, and later, a video-recorded interview.

5.The police arrived at the room, which is No 1, Flat 6, 9th Floor, Star Mansion, at around 9.10 pm on 28 July 2017.  The main door was ajar, and PW3 pushed it open.  He heard footsteps from the door to room No 1.  The door to the room was locked, but it had an unlocked padlock upon I think what was described as the clasp of the lock.  PW3 called the police and asked for the occupant to open the door. After waiting for a few seconds, he kicked down the door.  He said the defendant was standing beside the bunk bed.  On the lower bunk bed there were several transparent resealable plastic bags, some containing white powder. There was an electronic scale, scissors, and a spoon, and the drugs particularised in the charge were found on that lower bunk bed.  The keys were said to have been searched from the defendant.  One was the key to Room 1, one was the key to the unlocked padlock found on the door, one was unidentified.

6.PW4 accompanied PW3.  He agreed with PW3’s account of the events.  In addition to this evidence and the seizure of the drugs, the prosecution produced a video-recorded interview which despite being broadly exculpatory was challenged by the defendant.  In relation to that challenge the duty officer of the station to which the defendant was taken gave evidence of the defendant’s condition when he saw the defendant on the defendant first entering the police station.

7.PW6 was a Hindi interpreter.  She was present during the interview.  She gave evidence of what she did in relation to the defendant before and during the interview.

8.The defendant, as I said, had challenged the admission of the video‑recorded interview on the basis that it was not voluntarily given and also unfairly taken.  He gave evidence on both the special issue and the general issue.  In relation to the special issue, he said the police subjected him to violence and threats.  In particular, he had been hit immediately PW3 entered the room.  His left hand had been handcuffed to the bed and he had been beaten by two officers.  He had been shown photographs of a Pakistani Indian person on a mobile phone.  His clothes had been removed.  He had been taken to another room of the flat - this was Room 2 - had been covered with a blanket and laid on the floor and then beaten.  He had been shown the drugs.  He had been taken to a police station.  He had told the police officer he needed to go to the hospital, and had been taken to Queen Elizabeth Hospital.  Prior to the interview he had been told by PW3 to say certain things during the interview.  During the interview he had not understood the accent of the Hindi interpreter - she apparently had a Nepali accent - and he could not recall if she explained the POL152 to him.

9.On the general issue, the defendant said he did not live in Room 1, he lived elsewhere.  One of the keys found on him was a key to that flat.  He said he had gone to Room 1 as his friend, Asar, had called him over to have a meal.  When the defendant arrived, Asar had gone out to get the food, but he apparently never returned.  He had never possessed any key to Room 1 or its padlock.  There were no drugs on the bed when he had arrived in the room, and the drugs were not his, nor were the packaging equipment or the scales.

10.In this case, all issues that burden to prove the case lies on the prosecution at all times.  The standard of proof is proof beyond reasonable doubt.

11.The defendant is charged with trafficking in a dangerous drug.  The definition of that includes procuring, supplying, or otherwise dealing with a dangerous drug or possessing the dangerous drug for the purpose of trafficking in it.  It would appear in this case the prosecution are alleging the possession of the dangerous drug by the defendant for the purpose of trafficking in it.  The prosecution in this case must of course rely on inferences in order to prove that matter.  Where the prosecution relies on an inference, it must prove that beyond all reasonable doubt.  It must be the only available reasonable inference that can be drawn from the proved facts.

12.I have said this case largely relies on credibility of the witnesses.  The defendant is a man of clear record.  This is clearly relevant to any consideration of the credibility of the evidence he gives.  It must also be considered when determining whether this is a person who has a propensity to commit a crime of this nature.

13.Now I turn to the resolution of the issue. Within the trial the court had to resolve the questions raised under the special issue investigation.  The prosecution must prove that any statement given is given voluntarily.  They must also establish that it is given fairly. They must establish this beyond reasonable doubt.

14.In this case, the defendant said the giving of the video‑recorded interview was involuntary.  He had been subjected both to violence and threats of violence.  He also said that the giving of the statement was unfair generally, especially as he had a limited understanding of the issues raised because of the failure of interpretation.

15.The resolution of the special issue question was clearly one of credibility of the witnesses.  The third and fourth witnesses denied with firmness all of the defendant’s allegations as to the mistreatment of the defendant, as to anything that might have been said to the defendant to induce him in order to make the statement.  The duty officer who was called said the defendant had made no complaint when he had been brought to him when he was first taken into custody.  The Hindi interpreter had said the translation by her was clearly given and apparently understood by the defendant.  We are of course fortunate that the interview was given by way of a video recording.  The defendant’s attitude and level of understanding can clearly be seen by watching that video.  Despite what the defendant says, he obviously and clearly apprehended the questions in the interview.

16.My finding in relation to the prosecution witnesses is that they were clear and consistent in their denials of the defendant’s case.  Their evidence had the clear hallmarks of veracity.

17.In contrast to this, I found the defendant’s evidence to be both exaggerated and lacking in basic credibility.  His accounts of the way and the circumstances in which he was beaten were clearly not supported by any other evidence.  His account was of being beaten on more than one occasion.  He said he had identifiable injuries.  These were not seen by the duty officer.  The defendant was in fact taken to Queen Elizabeth Hospital in relation to a complaint of pain to a wrist.  There was no other evidence of the extensive beating he alleged.

18.I found I rejected the defendant’s evidence on the special issue in its entirety.  It all appeared to me to be an obvious fabrication.  He describes matters that were communicated to him by the officers clearly showing him pictures of men.  It is difficult to understand how that could be.  The officers could not speak the defendant’s language and could communicate in nothing but broken English.  It defies understanding that they would consider it necessary to beat the defendant up or be able to suggest to the defendant that he gave his video‑recorded interview in a certain way or be able to communicate any inducement for him to give his video‑recorded interview in any particular way.

19.In the video-recorded interview the defendant appears settled and able to answer all the questions put to him in a free and confident manner.  His allegations against the interpreter are completely unfounded.  I found her to be a reliable witness who interpreted clearly to the best of her ability.  She did so in a clear manner which the defendant clearly understood.

20.As I said, I rejected the defendant’s evidence on the special issue.  I found the video‑recorded interview to have been given both voluntarily and fairly.  There were no grounds for its exclusion.  It is also clear that the video‑recorded interview did not in any way further the prosecution’s case against the defendant.

21.As far as the issue on the general issue is concerned - was the defendant in possession of the drugs and equipment found for the purposes of trafficking in those drugs - again, this relied entirely on the credibility of the witnesses called to resolve the disputed facts.  The issues between the parties were whether the drugs were present on the bed and when the police entered the room and whether the defendant had the key to the room and the padlock.

22.Again, I saw no basis on which to question the factual picture put before me by the two police officers concerned.  They were credible and consistent.  I accepted their evidence in its totality.  The defendant was in Room 1.  He was in possession of the key to the room and the padlock.  The drugs were on the bed together with some packaging equipment and consumption equipment. 

23.I found the defendant’s evidence to be, again, not credible and unreliable.  He says a friend invited him to dinner, and he went over there for dinner.  The friend went out to get food.  But there is no evidence that the friend ever returned with the food, and both the defendant and police were present in the premises for many hours, not leaving until the small hours of the morning.

24.That is somewhat at variance with the defendant’s video-recorded account of sleeping rough at the location.  However, in fact, I found that all the defendant’s explanations were fabrications.  I rejected all his evidence in its totality.  He was simply not credible.

25.I did find when the police arrived the door was locked and the defendant had the key to the door and the key to the padlock on his person.  The key to the padlock is there to ensure no other visitors to the flat could access that room.  The key to the padlock and the door gives the defendant exclusive access and excludes any other residents in that premises from access to that room.  The only reason I could determine for that in the circumstances of this case was because the drugs were stored in that room, and others had to be excluded from it.

26.I found in this case the combination of the defendant’s presence in the locked room, together with the key to that door and the padlock, and the presence of the drugs, raised the irresistible inference that the defendant was in possession of the drugs and the other equipment inside the room.  I must necessarily ask was the possession I find of those drugs in that room for the purpose of trafficking in them?

27.There are some total of over 15 grammes in combination of the drugs cocaine and heroin, valued at some $25,000.  I find that that quantity of drug, together with the defendant’s obvious lack of funds, would lead to the irresistible conclusion if the defendant was to possess those drugs he must do so for the purpose of trafficking in them.

28.As I said, my reasons for reaching this conclusion are, firstly, the general value of the drugs - over $25,000; secondly, the defendant is an admitted Form 8 holder; he is prohibited from taking up work in Hong Kong.  He has no legitimate source of money to purchase such an expensive quantity of drugs.  There is no evidence of the defendant’s consumption of the drug.  The defendant said that he was a consumer of cannabis, and in fact that was the result of an immunoassay test defendant on his admission into custody showed positive results for the consumption of cannabis.

29.Also, when looking at the quantity of drug, the case can be excluded that the defendant might have possessed them for the purpose of consuming them himself.  There is no evidence the defendant is a consumer of either heroin or cocaine, but basing determination on the accepted quantity of drugs consumed as a result of Court of Appeal authority, the amount of drugs possessed clearly went far beyond the needs of an individual consumer.  The average consumption of a heroin user is between 0.25 and 0.70 grammes per day.  At minimum, the 9 grammes would be more than 10 times the maximum daily dose.  Similarly, a consumer of cocaine is capable of consuming at a maximum 1 gramme per day, so that at maximum consumption there were six days’ quantity of drug in the defendant’s possession.

30.Although it is not raised by the defendant or raised in the evidence, I can also exclude the possibility the drugs were for the defendant’s self consumption.

31.My conclusion therefore is that the only conclusion that can be drawn from the evidence - that is, the irresistible inference - and the only conclusion that is consistent with the evidence, that the only reasonable inference is that the defendant possessed the drugs in question for the purposes of trafficking in them, and accordingly, he is convicted of the charge he faces.