HKSAR v. Joseph Nabeel

CACC 181/2018

[2019] HKCA 527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 181 OF 2018

(ON APPEAL FROM HCCC 146 OF 2017)

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BETWEEN

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Before: Hon McWalters JA in Court

Date of Hearing: 7 May 2019

Date of Judgment: 7 May 2019

Date of Reasons for Judgment: 16 May 2019

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REASONS FOR JUDGMENT

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1.The applicant was convicted of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 by the verdict of jury and sentenced to 8 years and 3 months’ imprisonment by Madam Justice D’ Almada Remedios (“the judge”) on 11 June 2018. He thereafter applied for leave to appeal against his conviction. At the hearing of the application I granted him leave to appeal and these are my reasons for so doing.

2.On 3 August 2016, the applicant was found alone in a guesthouse room.  On one of two beds in the room the police found a silver coloured bag which had the appearance of a lady’s small handbag or a toiletries bag.  It contained a number of different dangerous drugs, one of which was a small amount of cannabis.  In a drawer of a cabinet that was between the two beds, they also found a larger quantity of cannabis.  The drugs in the silver bag together with the drugs in the drawer were all particularised in the one charge.

3.The prosecution presented its case on the basis that the applicant was the occupier of the room.  There was no evidence of who was the registered tenant of the room and so the prosecution case depended on the drawing of an inference that the applicant was the occupant.  The applicant maintained that he was a mere visitor to the room, having come there to see his girlfriend who, he claimed, was an occupant of the room.

4.The girlfriend was seen exiting the room and was intercepted by the police shortly before the police entered the room.  The only evidence that the applicant was the occupant of the room, as opposed to being a mere visitor to it, was his presence within it in conjunction with the fact that a keycard to the room had been left in a wall slot inside the room which activated the air conditioning.  Mr Trevor Beel, the applicant’s counsel at trial, did not ask the judge to direct the jury that on this evidence the jury could not infer that the applicant was the occupier of the room.  Consequently, the judge left it open to the jury to draw as the only reasonable inference, the inference that the applicant was the occupant of the room.

5.I am satisfied that it is reasonably arguable that this is not an inference which can be drawn from the primary facts or, at the very least, is not the only reasonable inference and that the judge erred in leaving to the jury the drawing of this inference that was adverse to the applicant.

6.When the police entered the room, it was their evidence that the applicant grabbed hold of the silver bag containing the drugs and tried to throw it out of the window, and that when stopped by the police from doing so he resisted them and had to be subdued. 

7.The judge directed the jury that even if they concluded the applicant was not the occupant of the room then they could nevertheless infer knowledge and possession in respect of the drugs that were in the silver bag on the bed on the evidence of the applicant’s conduct in trying to dispose of the bag and in resisting the police.  The judge also directed the jury that they should still convict the applicant even if they found that he was trafficking in only some of the drugs particularised in the charge.  This direction was, presumably, given in order to allow for the possibility that the jury, if not satisfied that the applicant was the occupant of the room, may not be satisfied that the applicant was in possession of the cannabis in the drawer of the bedside table as its location would suggest that it was possessed by whomever was the occupant of the room. 

8.In his closing address, Mr Beel suggested there was an inference available that the applicant, with knowledge that the silver bag contained drugs, may have tried to throw it out of the window in a heroic endeavour to assist his girlfriend.  Before me, Ms Florrie Chan, for the respondent, argued that this is mere speculation, and that the judge, when putting forward what Ms Chan described as the judge’s alternative theory, was not required to direct the jury that other alternative inferences suggested by Mr Beel, such as this one, could be drawn. 

9.However I am of the view that it is reasonably arguable that if the jury had been directed that they could not infer the applicant was an occupant of the room, then the cumulative effect of the facts that he was a mere visitor to it, that an inference could be drawn that his girlfriend was the occupant of the room, that the girlfriend was a drug addict and it is well known that drug addicts commonly traffic in drugs to fund their addiction, and that there was cannabis in the drawer which it could be inferred was possessed by the occupant of the room, elevated the speculative possibility raised by Mr Beel into a reasonable inference. 

10.Furthermore, although the judge referred to Mr Beel’s closing address[1], her failure to give the jury a direction that it was not open to them to infer that the applicant was the occupant of the room deprived his address of the benefit of an important contextual element which would have added weight to the alternative scenarios he invited the jury to consider. 

Disposition

11.For these reasons I granted leave to the applicant to appeal against his conviction.  I also directed that the prosecution opening be included in the appeal bundle.

Ms Florrie Chan SPP, of the Department of Justice, for the respondent

Mr John Hemmings, instructed by F Zimmern & Co, assigned by DLA, for the applicant