HKSAR v. Alam Waseen

CACC 253/2017

[2018] HKCA 513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 253 OF 2017

(ON APPEAL FROM HCCC NO 168 OF 2016)

___________________

___________________

Before: Hon Macrae VP, McWalters and Zervos JJA in Court

Date of Hearing: 9 August 2018

Date of Judgment: 9 August 2018

Date of Reasons for Judgment: 16 August 2018

________________________

REASONS FOR JUDGMENT

________________________

Hon Zervos JA (giving the Judgment of the Court):

1.On 27 July 2017, the applicant was convicted after trial before D’Almada Remedios J (the judge) and a jury of a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was sentenced to 8 years and 3 months’ imprisonment. He appealed against conviction only.

2.On 9 August 2018, we refused the applicant leave to appeal against conviction and dismissed the appeal, saying we would give the reasons for our decision in due course.  These are our reasons. 

The grounds of appeal

3.The applicant’s initial grounds of appeal complained about the judge’s directions to the jury and references to prejudicial material during the course of the trial, but these have now been reformulated into six grounds of appeal. 

4.The grounds of appeal can be summarised as follows. 

(1) The judge in her summing up was unfair and unbalanced when addressing the nature and contents of two notebooks that were produced at trial (exhibits P25 and P26) and this operated to the prejudice of the applicant (Grounds 1 and 2).

(2) The judge wrongly used the term “facts” when she should have used the term “evidence” when summing up to the jury on the subject of circumstantial evidence and this acted to the prejudice of the applicant (Grounds 3 and 4). 

(3) The judge wrongly invited the jury to speculate that the prosecution case, if concocted as claimed by the defence, could have been concocted with a much more simple and concrete story (Ground 5).

(4) In all the circumstances, the conviction of the applicant was unsafe or unsatisfactory (Ground 6).

The prosecution case

5.At around 5:30 pm on 16 August 2015, two uniformed police officers, who were PW1 and PW3 at trial, were on patrol at Block B in Chungking Mansions, Tsim Sha Tsui.[1] When they reached the 13^th floor, they heard a noise from the premises of Reliance Inn, and as a result went inside to investigate.[2]  They noticed the applicant walking out of Room 6, carrying an orange plastic bag.[3]  He looked startled and sought to retreat back into the room.  One of the officers stopped him and asked him to produce his identity documents.  The officer noticed that he was trying to hide the orange bag behind his back and thought this was suspicious.  He asked to search the bag, which he did, and found inside various quantities of dangerous drugs together with an array of related items and paraphernalia, consisting of an electronic scale and a large quantity of unused plastic bags and capsules.[4]  The drugs consisted of 15.34 grammes of a solid containing 6.16 grammes of cocaine, 12.30 grammes of a crystalline solid containing 12.30 grammes of methamphetamine hydrochloride (commonly known as Ice), 159 grammes of cannabis, in herbal form, 56.10 grammes of cannabis resin and 22 tablets containing a total of 0.10 gramme of methamphetamine and 2.21 grammes of 3, 4-methylenedioxymethamphetamine.[5]

6.The retail value of the drugs at the time of the offence was $40, 961.[6]

7.The applicant was arrested and searched.  The police officer found in his possession a Nokia phone and one key.  It was later established that the key opened the door to Room 6.  The police officer took the applicant into Room 6, sat him on the bed and showed him the items in the orange bag.  A search was conducted of the room but nothing suspicious was found by the two officers.  They then took the applicant to the police station.

8.A search was later conducted of the room and two notebooks were seized, exhibits P25 and P26.[7]

9.As part of the prosecution case a narcotics expert, in giving evidence about the terminologies used in the drug trade, was referred to the contents of the two notebooks.  Certain entries in the two notebooks were highlighted in the course of his evidence, namely “MDMA, ‘K’ for kilo, one grammes, two grammes, nicknames.”  He was of the opinion that there was a possibility that the entries in the notebooks were drug transaction records, but he could not be sure.[8]

The defence case

10.The applicant gave evidence and called a witness. The applicant is an Indian national and 27 years of age.  He came to Hong Kong in 2013 and sought refugee status here.  He is a Form 8 recognizance holder. He testified that he lived in Star Mansion with two other persons whose names are Javed and Shakil.  On 15 August 2015, Javed requested that he and Shakil leave the room so that he could have some privacy with his girlfriend.  At around 7 pm, the applicant and Shakil went and rented a room at Reliance Inn.  They paid $150 to the person responsible for the rooms, whose name was Haidar.[9] 

11.At around 1 am on 16 August 2015, the applicant and Shakil went to a party at Yau Ma Tei to celebrate India’s Independence Day. Shakil had the only key to Room 6.  During the party, at around 3 am, Shakil told the applicant that his friend, Raja, had a headache and asked him if Raja could stay in the room that they had rented because he lived very far away. The applicant agreed and Shakil gave Raja the key to the room.[10] 

12.After the party was over, the applicant and Shakil went back to Room 6.  Raja who was resting inside the room, let them in and the three of them then slept on the bed.  It seems the applicant had a lot to drink and was not feeling well throughout the night.[11]

13.The applicant said that he was asleep in the room when he was woken up by two uniform police officers and Haidar.  He said that he produced his Form 8 identity document to the police officers who then searched the room.  He said that they found an orange plastic bag with the drugs inside under the bed.  After they found the drugs, he said the police officers took him out of Room 6.  He said that he had never seen the orange plastic bag or the drugs before and they did not belong to him.[12] 

14.Later, additional police officers arrived at the room.  The applicant said he was searched and a bunch of six keys was found in one of his pockets.  He said the police officers tested the keys, but none of them opened the door to the room.  They further searched the room and found a key on the top shelf of the bedside table.  He said he had not seen the two notebooks when the police officers were searching the room.  He added that he had never seen them before and they were not there when he entered the room.[13]

15.The applicant also testified that he was a drug abuser and purchased drugs for his own consumption.  He said that his friends called him “Wasim” and not “Waseem”.[14]  It was part of the defence case that the applicant’s name, “Wasim”, was recorded in the notebooks as a client of the trafficker.  This went to show that the notebooks belonged to the trafficker and had nothing to do with the applicant.[15]

16.The person known as Haidar gave evidence on the applicant’s behalf.  He is an Indian national who was 26 years of age.  He came to Hong Kong in 2014, and sought refugee status here. He was also a Form 8 recognizance holder.  He worked at the Reliance Inn, even though he was not permitted to do so because of his status in Hong Kong. 

17.He said that he remembered that on 15 August 2015, the applicant booked a room at Reliance Inn.  He said that the applicant told him that he had a problem with his friend.  He recalled seeing the applicant at around 2:30 am on 16 August 2015 and appeared to be very drunk.  He saw him again at 10 am going to his room and he still appeared very drunk as well as sleepy.  He next saw him standing with a police officer outside Room 6.  He said that he first saw the police officers in Room 8 when he was in the room as well.  He said he heard a lot of noise and went out of the room and saw two police officers near Room 8. He said the door to Room 6 was closed and the police officers asked him for the keys to the room.  He said he did not have them and they told him that if he did not give them the keys they would charge him for working and detain him. He told them they could get the keys from the reception so they went there and got them.  He said he did not see the police officers open the door as they pushed him back into Room 8.  About 5 to 10 minutes later, he looked out of the room and saw the applicant standing outside Room 6.[16] 

The issues on appeal

18.We turn to address the issues which are engaged in this appeal.

19.Mr Edward McGuinniety, counsel for the applicant at trial and in this application, notes that an issue at trial was whether the applicant had been apprehended by the police officers coming out of the room carrying the orange plastic bag.  According to the applicant’s evidence, he was sleeping in the room when he was woken up by the police officers, who found the orange plastic bag containing the drugs under the bed on which he was sleeping.  His case was that he had no knowledge of the orange plastic bag or of the drugs contained in it. 

Unfair summing up on the two notebooks

20.Mr McGuinniety submits that at trial there was an issue about the two notebooks that were found in the room as to their contents and to whom they belonged.  He complains that the judge was neither fair, nor balanced when summing up the issue to the jury.

21.On this subject, the judge addressed the evidence in relation to the two notebooks by noting that it was an agreed fact that they had been found and seized in Room 6.  She then went on to explain to the jury:

“…You have heard the defendant’s evidence he had not seen these books before. In fact, nor had the two uniform police officers seen these books before. You have heard from the defendant when he moved into Room 6 at about 7 pm the night before, on 15 August, they were not there. By the time the police arrived at about 5.30 pm the following day, 16 August, they appear to be in the room. How then, you may consider, did these books get into the room? Someone must have placed these books there. They do not just get there on their own. It is not suggested that the police planted these books there. So what do you make of this?

In this case, in fact, Mr McGuinniety – Mr Cahill ask you to accept that these notebooks were books containing drug transaction records. Mr Cahill says that you can infer the defendant was the author of these drug transaction records. This is suggested by Mr Cahill on the basis on the fact that the defendant was the only one coming out the room. He was the one carrying the drugs. He was the one who had the key in his pocket. Thus, he was the occupier of this room. As the occupier of this room, the inference is he knew of everything in that room and he, being the one carrying drugs, the trafficker, he is the one who was keeping the records of his drug transactions.

The defendant’s case is that he had never seen these books before. So why then are these books in this room? The defendant says when he first checked into the room at about 7 pm, on 15 August, they were not there. He had been in that room, on his evidence, until late that evening till he went out to the Independence Day party.

From the photographs, as taken by the police, the photographs that you have before you in the jury bundle, they were in the room. So someone had left these books in the room after the defendant checked in at 7 pm on 15 August. Who was it? It was not the defendant. Who had access to this room? Could it have been Raja or Shakil? Or someone else? Was it the trafficker, who supplied drugs to the defendant? You may ask why would the trafficker leave his drug transaction records in Room 6? You may ask not only had the trafficker left his drug transaction records in Room 6, the trafficker had also left his drugs in Room 6. Would a trafficker leave drugs and notebooks in someone else’s room? Would they leave it in someone else’s room without telling the occupant that they were in the room? The defendant, on his evidence, was the last person in the room. The key was on the bedside. Would the trafficker leave the defendant in the room with the drugs and the notebooks without telling him they were there?

The evidence in this case was that this room was rented for one night, maybe two. A short-term rental. This is not the defendant’s permanent home. Would someone leave drugs in a room which is for short-term rental and not tell the person, the last person in the room what is in there? The risk is if they do that, the defendant may check out, the drugs are left in the room, the books are left in the room because they do not belong to the defendant. Would the person whose drugs these were not tell somebody there is something in the room?

The notebooks, it is suggested by Mr McGuinniety, contain the defendant’s name, Wasim. W-A-S-I-M. So the defendant was a client of this trafficker. So the defendant’s name appears in the notebooks. This trafficker left his notebooks in this room rented by the defendant. Yet, the defendant was not informed there was anything left there by anybody. It may be that this was Shakil’s. There is no evidence as to that. No one knows who these drugs belonged to.”[17]

22.We observe that the position in relation to the two notebooks changed during the course of the trial, mainly as a result of the defence case.  The two notebooks were not found when the two police officers initially searched the room.  They were found later.  However, there was no dispute that the two notebooks were found in the room as it was an admitted fact at trial.[18] A narcotics expert who gave evidence for the prosecution expressed the opinion that the contents of the two notebooks possibly recorded drug transactions, but he could not be sure. 

23.The defence case was that the contents of the two notebooks did in fact record drug transactions and that the applicant’s name was recorded as a purchaser of drugs from the trafficker.  The defence invited the jury to conclude that the two notebooks belonged to the trafficker who was not the applicant. 

24.Mr Peter Cahill, counsel for the prosecution, in his closing address to the jury also invited the jury to conclude that the contents of the two notebooks recorded drug transactions, and that, as the applicant was stopped coming out of the room carrying the orange bag containing the drugs, they should draw the inference that the two notebooks belonged to the applicant.[19]

25.Mr McGuinniety in his closing address to the jury said that “there is no doubt about the fact that these two little books are drug trafficking booklets”.[20] Of the contents of the two notebooks, he said “…see how many times the word C, as a letter, or coke, or ITC, or MD, or MDMA, or bullet, or flower is used?  I mean, it’s on every page.  So are measurements, like a gram, half a gram, a packet, half a packet.”[21] 

26.The applicant testified that he could not write, and that he was neither the author, nor the owner of the notebooks.  He said he did not know where they had come from.[22]He also testified that he was a drug user and that he would buy and consume drugs.[23]  He said that even though his name was spelt “Waseem”, his friends called him “Wasim”.[24]  In the notebooks, the name Wasim appears repeatedly. 

27.Mr McGuinniety suggested to the jury in his closing address that Alam Waseem or Wasim may very well have been a customer of the trafficker.  He posed the question to them: “Is he a drug trafficker or is he a customer?”[25] and added that this was “…probably the high watermark for the defence.  An expert from the narcotics bureau not being able to rule out that D [the defendant] was a customer, not a trafficker”.[26]

28.Accordingly, the jury were invited by the defence to conclude that the references to Wasim in the two notebooks were references to the applicant in relation to drug transactions that he had with the trafficker.  In other words, the applicant was a client of the trafficker and therefore the notebooks as well as the drugs did not belong to him.  This, it was submitted, supported the defence case that the applicant had no knowledge of the drugs and that they did not belong to him.

29.The applicant was not disputing that the two notebooks contained drug transaction records, that they were in the room that he had rented at the time, and that they were connected to the drugs recovered by the police officers.  It was the defence case that the drugs were found in the room under the bed where the two notebooks were also found, but they had nothing to do with the applicant.[27] On the other hand, the prosecution case was that the drugs were found in an orange bag that the applicant was carrying when leaving the room, and that the two notebooks were later found in the room that the applicant had rented.[28] 

30.In these circumstances, it was quite proper for the judge to pose the questions that she did to the jury because they naturally arose from the competing cases before them.  Questions about the provenance and ownership of the notebooks in the factual context of the case as seen from this part of the judge’s summing up were simply addressing the issues before the jury.

31.Mr McGuinniety has limited his written submission in relation to this ground of appeal to complain that the judge in some of her comments in this passage was inviting the jury to speculate.  This was not in the original grounds of appeal and appears to be a new point.  One that is devoid of merit.  The comments he refers to concern the judge’s summary of the prosecution case and what the prosecution were inviting the jury to infer from the evidence, and the questions the judge posed to the jury in relation to who could have left the notebooks in the room.  There was nothing inappropriate or improper by the judge’s comments about these matters.

32.We find that there is no substance to this ground of appeal.

Incorrectly describing circumstantial evidence as facts

33.Mr McGuinniety complains that the judge used the terms “circumstantial evidence” and “facts” interchangeably and that this would have confused the jury when addressing them on the issue of circumstantial evidence.  More specifically, he complains that this took place in the following sentence “The circumstantial evidence or facts are these”, having acknowledged that the judge’s summing up on the issue of circumstantial evidence was “beyond criticism”.

34.This single sentence needs to be put in context.  The judge was addressing the matter of how circumstantial evidence could assist the jury in deciding the applicant’s state of knowledge.  She said this:

“…The prosecution is relying on other evidence of various circumstances relating to the crime and the defendant, which they say, when taken together, will lead to the sure conclusion that the defendant knew or had knowledge of the drugs in the bag. So the prosecution ask you to rely on circumstantial evidence to draw an irresistible inference the defendant had knowledge of the drugs. So they are asking you to infer the existence of another fact from the facts you find proved.

Circumstantial evidence can be powerful evidence. Now you must be careful to distinguish between reaching a conclusion based on reliable circumstantial evidence and mere speculation. Speculation amounts to no more than guessing or making up theories without good evidence to support that. So you must not speculate.

So, in law, you are entitled to make relevant findings of fact on circumstantial evidence. This is called the drawing of inferences. Let me give you an example of an inference you may wish to draw from a set of facts that is established. Let us say you see your friend at the airport in Manila and six hours later you see your friend in Central in Hong Kong. This is circumstantial evidence and these primary facts which you find proved. What inference can you draw from those facts? You can draw the inference that your friend took a plane to Hong Kong because no one can get here so quickly if one did not fly. But can you draw the inference that your friend took the same flight as you did? No, you cannot draw that inference as there are a few flights which come to Hong Kong and he may have caught another flight. So that is the drawing of inferences.

So before you can actually draw an inference against the defendant you must satisfy yourself that the inference must be based on a clear finding of primary facts based on the evidence. And the inference must be the only inference – reasonable inference that can reasonably be drawn on the basis of those facts, If, on a set of facts you find proved, there is a reasonable inference to draw against the defendant, but at the same time there is a reasonable inference to draw in the defendant’s favour, then you must not draw the inference against the defendant. You are only entitled to do so if the inference is the only reasonable inference.

So what is the circumstantial evidence then that the prosecution rely on to show or prove the defendant knew there were drugs? The circumstantial evidence or facts are these. The defendant is seen coming out or leaving Room 6, carrying the orange bag containing the drugs. When the defendant was outside Room 6, he looked to the direction of Officer Lam, who was in uniform. And when he did so, the defendant looked – appeared quite shocked, and stopped briefly. The defendant then immediately turned his body to the right, facing the door of Room 6. He then made a movement of reaching out his hand as if opening the door, as if wanting to go back into Room 6. When the defendant turned towards the door, the orange bag he was holding with his right hand was by his side. However, when Officer Lam intercepted the defendant and asked him for his identification document, the defendant moved his right hand slowly behind his back, an action described as hiding the bag with his body.

The prosecution say you can infer that these actions of the defendant was because he knew what was in that bag he was carrying were drugs. …” (Italicised and underlined emphasis added)[29]

35.The judge in her summing up to the jury explained their task and that they alone were the judges of fact.  She also directed them that they should base their findings of fact on an objective appraisal of the evidence before them, determining what evidence they accept and what evidence they did not accept.  The judge gave the standard direction on circumstantial evidence as contained in the Specimen Directions issued by the Judicial Institute.  She made it abundantly clear that the prosecution was asking the jury to rely on circumstantial evidence to draw the only reasonable inference that the applicant had knowledge of the drugs.  We see from her remarks that have been italicised in the above passage that she reminds the jury that they infer the existence of another fact from “the facts you find proved”, and that the inference must be based on “a clear finding of primary facts based on the evidence”.  

36.The judge, in assisting the jury, went on to deal with the circumstantial evidence that the prosecution relied on to show or prove that the applicant had knowledge of the drugs.  It was then that she sets out “the circumstantial evidence or facts” that the prosecution were relying on.  As we see from the above passage, the judge lists a number of factual matters that the prosecution presented as part of its case and if accepted by the jury were primary facts that they could draw the only reasonable inference that the applicant had knowledge of the drugs.

37.In our judgment, there is no merit in this complaint, and it is quite clear from the passage of the judge’s summing up that the jury would have been in no doubt as to the task that they were required to perform.  More particularly, it was made clear to them as to how they should deal with circumstantial evidence and how the prosecution were relying on such evidence to prove the case against the applicant. 

38.We find that there is no merit in this ground of appeal. 

Unfairly inviting the jury to speculate

39.It is complained that the judge invited the jury to unfairly speculate about the defence suggestion that the prosecution case was a concoction.  The impugned comments of the judge were in the following passage of her summing up:

“Mr Cahill says the defence case with the police officers framing or setting up the defendant is simply not true. You may think if this was a set-up or a frame-up, members of the jury, the police officers have concocted an account that, on the face of it, again is so fortuitous or so lucky that they came across the defendant leaving Room 6, holding the bag. Would a concocted story not be one more simple than that? More concrete? Members of the jury, you are the sole judges of fact, you decide what to believe, what you do not believe, what you reject, what you do not (sic) accept.”[30]

40.Judges are entitled to express a view about the evidence when summing up to a jury but it is the usual practice that the jury are reminded that it is a matter for them as to whether they accept or reject such a view as they are the sole judges of fact.  The judge did exactly that in the present case.  She explained at the outset of the summing up that the jury were the judges of fact and that it was for them alone to decide what evidence they accepted or rejected.  She went on to emphasise that if she appeared to express a view concerning the facts, or placed emphasis on certain evidence, they did not have to adopt what she said unless they agreed with it.  In any event, after she had made her comments about the matter concerning the police officers concocting a story against the applicant, she reminded the jury that the matter was for them to decide.

41.We find no justification in the criticism that has been levelled against the judge in this matter.

Unsafe or unsatisfactory

42.In this ground, Mr McGuinniety submits that due to the judge’s errors and misdirections, the applicant had been prejudiced in his trial and it was likely that he was unfairly convicted.  By this general assertion, and without more, he submits that the applicant’s conviction is unsafe or unsatisfactory. 

43.This ground clearly fails as there is no substance to the previous grounds either individually or collectively that would render the conviction unsafe or unsatisfactory.

Conclusion

44.We found that there was no substance to the complaints by the applicant and there was therefore no basis for us to interfere with the applicant’s conviction.  For these reasons, leave to appeal against conviction was refused and the appeal was dismissed.

Mr David Chan, SADPP of Department of Justice, for HKSAR

Mr Edward McGuinniety, instructed by Morley Chow Seto, assigned by Director of Legal Aid, for the applicant

[1] Appeal Bundle, 27B-D.

[2] Appeal Bundle, 27D-F.

[3] Appeal Bundle, 15I-N, 27K-M.

[4] Appeal Bundle, 8-10, Admitted Facts, paras 3-8.

[5] Appeal Bundle, 1.

[6] Appeal Bundle, 10, Admitted Facts, para 9.

[7] Appeal Bundle, 12 and 13, Admitted Facts (2), para 3.

[8] Appeal Bundle, 28P-29B.

[9] Appeal Bundle, 33F-L.

[10] Appeal Bundle, 33M-R.

[11] Appeal Bundle, 33S-34A.

[12] Appeal Bundle, 34B-D and M-R.

[13] Appeal Bundle, 29D-E and 34S-35C.

[14] Appeal Bundle, 35C-E.

[15] Appeal Bundle, 30N-31J.

[16] Appeal Bundle, 36A-I. 

[17] Appeal Bundle, 29D-30R.

[18] Appeal Bundle, 12 and 13, Admitted Facts (2), para 3.

[19] Appeal Bundle, 162D-L.

[20] Appeal Bundle, 164I-J.

[21] Appeal Bundle, 164F-G. 

[22] Appeal Bundle, 123L-124F, 146T and 150K-L.

[23] Appeal Bundle, 124O-Q.

[24] Appeal Bundle, 124G-N and 150A-I. 

[25] Appeal Bundle, 168N-Q. 

[26] Appeal Bundle, 172L-N.

[27] Appeal Bundle, 31E-J.

[28] Appeal Bundle, 29J-P.

[29] Appeal Bundle, 23B-24P.

[30] Appeal Bundle, 37B-G.