HKSAR v. Khaled Fakir
Read the full judgment text of DCCC 188/2018 on BabelCite. This District Court judgment was delivered on 3 December 2018.
1. On 14 September 2017, a large parcel from Canada arrived at the Air Mail Centre in Hong Kong International Airport. The Airway Bill stated that the recipient was one “SAI FUL” at “LEE SHING Mansion, Flat A, 2/F, 43, 43A, 43B JORDAN ROAD, KOWLOON HONG KONG 65818220” (hereinafter called “the Jordan address”).
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DCCC 188/2018 [2018] HKDC 1617 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 188 OF 2018 -------------------------------
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--------------------------------------- REASONS FOR VERDICT --------------------------------------- 1.On 14 September 2017, a large parcel from Canada arrived at the Air Mail Centre in Hong Kong International Airport. The Airway Bill stated that the recipient was one “SAI FUL” at “LEE SHING Mansion, Flat A, 2/F, 43, 43A, 43B JORDAN ROAD, KOWLOON HONG KONG 65818220” (hereinafter called “the Jordan address”). 2.There is no evidence linking either defendant to the Jordan address. 3.The parcel was intercepted and examined by the officers of the Customs and Excise Department. It comprised of a metal can, inside which there were three sealed packets of cannabis. Government chemist confirmed that the parcel contained a total of 9,372 grammes of cannabis in herbal form and a bag containing 13.2 grammes of a resinous solid containing 9.09 grammes of tetrahydrocannabinol, being tetrahydro derivative of cannabinol. The street value of the dangerous drugs was about HK$2.09 million. 4.As a result of the discovery, Custom officers carried out a controlled delivery operation. 5.At 1640 hours on 18 September 2017 a Custom officer left a Speedpost Notice in the mailbox at the Jordan address, advising that the parcel was available for collection at the Kowloon Central Post Office (“the Post Office”). 6.At about 0935 hours on 19 September 2017, two Bangladeshi nationals, namely Mr Islam Safikul (D1) and Khaled Fakir (D2), showed up at the Post Office. D1, who appeared not to understand English or Cantonese, produced a piece of paper with handwritten record of the tracing number and the country of origin of the parcel in question, with D2, who appeared to be acting as an interpreter for D1. The parcel was handed over to D1, who, with the assistance of D2, loaded the parcel onto a trolley and left the Post Office together. 7.Both of them were arrested outside the Post Office. 8.On 1 March 2018 the two defendants were jointly charged with trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of the offence read:-
9.D1 pleaded guilty to the charge against him. He was convicted on his own plea and admission of facts. 10.D2 pleaded not guilty. The trial was against him alone. The case against Islam Safikul (D1) 11.The prosecution had prepared a set of facts specifically for D1, the same having been read out in court, translated by a Bengali interpreter, and confirmed by D1 to be true. He was convicted on the basis of the facts admitted (MFI-1). 12.As D2 had indicated that D1 would be called as a defence witness, the sentence had been adjourned until the conclusion of the trial against D2. 13.Counsel for D1 had asked to be excused during the trial. It was so approved. 14.MFI-1 contained a matrix of facts, part of which not entirely essential to the case against him, but I understand why they were included, as they may be relevant at some point in the trial against D2. 15.For the present offence, I will summarise here only the relevant part of the facts. 16.At 0935 hours on 19 September 2017, D1 appeared in the Kowloon Central Post Office to claim the parcel. He produced a paper on which a parcel tracking number and its country of origin were written. He produced also his document of identification (a Form 8 Recognisance) to claim the parcel. The Customs officer, in the disguise of a post office employee, asked D1 if the parcel was for him. D2, who was standing beside D1, appeared to take on the role of an interpreter, verified the name was correct. With the assistance of D2, D1 also verified the information on the Airway Bill and confirmed the parcel was the one sent to him. 17.After the parcel was delivered, D1 and D2 together took delivery of the parcel, loaded it onto a trolley and proceeded to leave. He was arrested outside the Post Office. When first accosted, D1 stated that “D2 was my friend”. First interview (on 20 September 2017) 18.With the assistance of Bengali interpreter, D1 admitted the followings:-
Letters to the Customs and Excise Department (between 22 November 2017 and January 2018) 19.D1 then wrote a total of four letters in which he retracted what he said about D2 and stated that D2 was an innocent participant. They could be summarized thus. For a reward of $30,000 offered by a man called “Ali”, he was to take delivery of a parcel. He did not know D2 before 18 September 2017, but had called D2 about buying a trolley from him, that they had paid D2 $300 for a trolley (which cost $100) at the suggestion of Ali, so that he could implicate D2 if anything went wrong. Cautioned statement (30 January 2018) 20.At D1’s own request, he was interviewed again on 30 January 2018 in Lai Chi Kok Reception Centre. He again asserted D2’s innocence. He was asked by his roommate, one Ali, to collect the parcel and deliver it to the flat in Jordan. In short he asserted that a person he did not know and had only seen once a day before had used him to commit the crime. 21.D1 was convicted on his own plea on the basis of admissions. I found, from the circumstances of the facts admitted by him, the inevitable conclusion could only be that he knew of the content of the parcel when he undertook to take delivery of the same from the Post Office. The trial of Khaled Fakir (D2) 22.The prosecution’s case is that D2 had acted as part of a joint plan or agreement to commit the offence. From the admitted facts and the evidence of the witnesses (which had not been challenged under cross-examination) that there had been unlawful trafficking of a dangerous drug had not been in dispute. The only issue is whether D2 had been a knowing party to the agreement to traffic the dangerous drug in question and had played a part to carry out the same. 23.D2 is a person with a clear record. The court accepts that such a person is less likely to commit a crime and, if he chooses to give evidence in court (which he did), his evidence should be given more weight than those who would or could not put their character in issue. 24.There has been no direct evidence of the existence of the agreement. The prosecution’s task is to persuade this court that, from the factual basis, the only reasonable conclusion was that D2 had knowingly carried out the joint plan to traffic the dangerous drug. 25.Apart from the facts admitted by D2 under section 65C of the Criminal Procedure Ordinance (signed by the defence lawyer, read and confirmed in open court; see P52), the prosecution had called a total of six witnesses. Most of them were concerned with the demeanour of both defendants at the time when the parcel was handed over to them. Evidence 26.After leaving the Speedpost Notice (P17) on the Jordan address in the afternoon of 18 September 2017, Customs officer 14198 Lau Wai Keung (劉偉強) (PW3) was instructed to be on duty in the Post Office. 27.At 0935 hours on the same day, upon the advice of a post office employee, PW3 went to Counter 11, where he first saw D1. D2 stood next to D1 and acted as his interpreter. PW3 took the Airway Bill and compared it against the handwritten note and, upon request, D1 had produced document of identification. PW3 found the names were similar but not exactly identical, but D2 checked the two documents and assured PW3 that the names were the same. PW3 then proceeded to retrieve the parcel. 28.Before handing over the parcel, PW3 again asked the two of them to check the Airway Bill to confirm it was the parcel in question. PW3 then asked D1 to sign to acknowledge receipt. The latter did so after being spoken to by D2. The parcel was handed to both defendants, but it was D2 who first came into contact of the same. 29.PW3’s evidence was not challenged for its veracity. Instead, the questions in cross-examination were framed to solicit further details. PW3 agreed that D1 appeared not to understand what he spoke to him and D2 appeared to be a translator. The parcel was handed over to D1, who had pushed it out of the Post Office on a trolley. During the encounter, PW3 directed his question to both defendants. It was the view of PW3 that D1 did not seem to understand anything said. D2 did the talking in English. 30.PW4 was CO 0768, Lee Chi Mun (李志文). He was next to PW3 when the parcel was handed over. He carried out observation from a slightly different angle. He saw D2 put the parcel on the floor while D1 was setting up the trolley. Together, they affixed the parcel onto the trolley, after which D1 pulled the trolley to leave. He was followed by D2. 31.PW5 was CO 07182, Lam Chi Keung (林自強). He saw D1 walk out of the Post Office, pulling the trolley with the assistance of D2. He stopped and arrested D2. Under caution, D2 stated that he was there to post a letter and had acted as an interpreter at someone else’s request. He had no idea what was inside the parcel. 32.PW6, Inspector Chow Wing Cheong (鄒永昌), was in charge of the operation. In the course of the investigation, he interviewed D2 under caution and as the CCTV footages were played, commented in order to help the court to have a better understanding of the goings-on before the defendant took delivery of the parcel. The CCTV footages were taken from the 7-Eleven store where the defendant met before going to the Post Office. Other evidence 33.The records furnished by the telecommunication company reviewed that on 18 September 2017 D2 had on six occasions contacted D1 by cell phone, whereas on 19 September 2017 there were three. The duration of calls ranged from 4 seconds to 93 seconds (See the Admitted Facts P52 at paragraph 27 and the Computer Certificate P48). One of the calls, at 1653 on 18 September 2017, lasted 4 seconds. It was made 30 minutes after the Speedpost notification was delivered to the Jordan address. 34.CCTV footage (P28 and P50) showed that at 0910 hours on 19 September 2017, D2 appeared in a Shanghai Street 7-Eleven store with trolley. At 0915 he handed the trolley to D1 outside the store and together they left. The defence case 35.After ruling that there was a case to answer, D2 elected to give evidence. He was 43 years of age, a Bangladeshi national living in Hong Kong as an asylum-seeker in 2005. He was married with two daughters, living on ISS subsidies and monthly remittances from his brother from South Africa. He had no criminal record in Hong Kong. 36.He first came to know of D1 through the introduction of his friend Ali, D1’s roommate. On 18 September 2017 he first spoke to D1 and agreed to lend the latter his trolley. They met on 19 September 2017 at the 7-Eleven store in Shanghai Street. After handing over the trolley, he went to the Post Office to post a letter. He was supposed to go to Kowloon Bay later that morning for an appointment with the Social Welfare Department. He saw D1 again in the Post Office and, at the request of the latter, he acted as his interpreter and physically assisted in taking delivery of the parcel. He had no idea what was inside the parcel. 37.D2’s evidence was not entirely unsupported. As accepted by the prosecution, he did buy a stamp in the Post Office. He did have an appointment with the Immigration Department at 1030 hours in Kowloon Bay on the same day. 38.D2 acknowledged that he told a different story when interviewed by Custom officers on 20 September 2017. He explained he lied during the interview because he was scared and he wanted to be disassociated from D1. 39.Under cross-examination, D2 agreed that before the cautioned interview he had sought legal advice. He also agreed that the subsidies he received were not enough to support his family of four. 40.In answer to questions by the prosecution, D2 stated that he did not even know D1’s name. He had received from D1 a deposit of $300 for the trolley. Defence witness (D1) 41.D1 was called and gave an account similar to that of D2 in court. He acknowledged that during the cautioned interview on 20 September 2017 he had blamed D2 as the one directing him to take delivery of the parcel. In September 2017, he recanted the allegations by writing to the Custom and Excise Department. At his request, he was interviewed under caution, during which he asserted the innocence of D2. 42.Both defendants sought to shift the blame on the other when first confronted by the Custom officers. In court, both acknowledged they lied and each gave an account consistent with D2’s innocence. Miraculously before trial, both came up with consistent accounts, contending D2 was innocent of any involvement. On this basis alone, it would have been sufficient to reject the evidence. 43.In addition, I found both were poor liars in that their accounts were lacking in details which might indicate that they were true. 44.If D1 were to be given $30,000 by Ali, why would he bother to go to such trouble to borrow a cheap trolley? It was inherently incredible for both defendants to see fit to engage in prolonged discussions about the lending of a trolley, and D2 saw fit to give D1 a deposit which exceeded the actual value of the trolley. 45.If D1 was willing to implicate a stranger (ie D2) when first accosted by the Customs officer, why would the fact that Ali did not pay him cause a change of heart? 46.Why was D2’s immediate reaction was to lie when he had a perfectly innocent explanation, which happened to be true, at hand? 47.The list can go on and on. The incongruities set out above are sufficient for me to reject the evidence of both D2 and his witness. Discussions The effect of lies 48.In his closing submission, the learned counsel for the prosecution contended that the fact that D2 lied lends support to the prosecution case. 49.As a general principle, that an accused lied cannot by itself be proof of guilt. It could be at best indicative of guilt, but never probative. See HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155, and the discussions of the topic in Hong Kong Archbold (2018), paragraph 4-241, 242. It is only in circumstances where one is satisfied that the accused had lied because he was unable to account innocently for the evidence against him. 50.Inadequate and laughably simplistic as it was, D2’s evidence in court could well be accounted for by a number of reasons; some of them could well be innocent. His evidence in court was not inconsistent with CCTV footages. His behaviour again was accounted for, however incongruous in daily life by his contention of events. He could well have lied to bolster an innocent defence. 51.I found therefore it is still incumbent on the prosecution to prove the case beyond all reasonable doubt, and the fact that I found D2 lied did not help the prosecution’s case. I need therefore to go back to the prosecution’s case to see if such a burden had been discharged. 52.It is noted that the question posed by the defence counsel to prosecution witnesses were designed to elicit details and alternative interpretations of behaviour of defendants, rather than to challenge the veracity of their testimonies. In fact, having compared to what they said and to what CCTV images had captured, I had no doubt at all that the prosecution witnesses were telling the truth. 53.From the evidence available and as enlisted by the learned prosecution counsel, the followings were proof that D2 had knowledge that he was there to assist D1 to handle a parcel containing dangerous drug:-
54.Reduced to its essence, the prosecution’s evidence was to the effect that D2 had known D1 at least a day before they met shortly before going to the Post Office, where D2 had assisted in taking delivery of a parcel containing large quantity of dangerous drugs. Both had lied to shift the blame on the other when first accosted by the Customs officer. 55.I agree that the above are justification of the suspicions that the law enforcement officers had and the prosecution of D2. I have no doubt at all that the defendant had at least known of the existence of each other on 18 September 2017. Both had taken a part in taking delivery of the parcel containing the dangerous drug. 56.The question remaining is to determine the state of D2’s knowledge. In my view, the state of the evidence could only prove beyond reasonable doubt that D2 had participated in the handling of the parcel and therefore trafficking of the same. They are not sufficient to prove that D2 knew of the content of the parcel. 57.Although I did find the circumstances extremely suspicious, rather reluctantly I found the prosecution had not discharged the hefty burden of proving its case beyond all reasonable doubt. 58.I therefore am compelled to dismiss the charge against D2. D2 is now hereby released.
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