HKSAR v. Ali Qasim

CACC 332 /2018

[2020] HKCA 56

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 332 OF 2018

(ON APPEAL FROM HCCC NO 453 OF 2017)

________________________

________________________

_______________________________________

JUDGMENT AND REASONS FOR JUDGMENT

_______________________________________

Hon Macrae VP (giving the Judgment and Reasons for Judgment of the Court):

1.The appellant was convicted after trial, on 30 October 2018, before D’Almada Remedios J and a jury of a single count of trafficking unlawfully in 1.47 kilogrammes of a solid containing 1.09 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 25 years’ imprisonment.

2.Having filed notice of his intention to appeal against both conviction and sentence, the appellant was, on 30 July 2019, granted leave by a Single Judge to appeal against conviction only on the ground that it was reasonably arguable that the judge had erred in her directions to the jury on inferences.

3.On 7 January 2020, we dismissed the appellant’s appeal against conviction, and said we would give reasons for our decision in due course.  Of our own motion, we then invited Mr Whitehouse, who appeared for the appellant before us and in the court below, to re-apply for leave to appeal against sentence, for which we granted a Legal Aid certificate in respect of sentence and granted leave for the appellant to file Notice of his intention to renew his application for leave to appeal against sentence out of time.  Having heard argument from the parties, we reserved our decision on sentence.  These, therefore, are our reasons for dismissing the appeal against conviction and for our decision in respect of sentence.

The prosecution case

4.The evidence established that on 6 March 2017, Customs Officers at Hong Kong International Airport intercepted an incoming parcel from Brazil.  Upon examination, the parcel was found to contain 6 metal screws, a plastic mat and a metal cylinder wrapped in bubble wrap.  A narcotics test was conducted on the metal cylinder, which gave a positive reaction for cocaine.  Accordingly, a hole was drilled in the cylinder, from which white powder seeped out.  The powder from the cylinder was subsequently analysed and found to be cocaine in the quantities particularised in the indictment. 

5.The name and address of the recipient written on the parcel was “Mohanad (sic) Imran, Flat A, 11 Flour (sic), Golden Hall Building, 49-63 Castle Peak Road, Yuen Long, Hong Kong”.  Customs Officers attempted to deliver the parcel to the recipient’s address on 7 and 11 March 2017 but no one answered the door to receive the parcel.  Accordingly, a ‘speed post’ card was left on the entrance grille of the address, stating that the parcel could be collected from Yuen Long Post Office.

6.On 23 March 2017, the appellant purporting to be the recipient of the parcel went to Yuen Long Post Office, where he produced to Post Office staff a mobile telephone screenshot of the delivery status and the tracking number details of the parcel.  At the same time, the appellant tendered a forged Hong Kong Identity Card in the name of the purported recipient, Mohammed Imran.  A Customs Officer (“PW2”), pretending to be another member of the Post Office staff, then took over dealing with the appellant. The appellant was asked by PW2 if he was the person on the airway bill and the appellant indicated that he was.  He then acknowledged receipt of the parcel by writing on the airway bill the name and address of the recipient, which he wrote as “Mohmmad (sic) Imran”, together with a false Identity Card number.  He also left his actual telephone number and signed on the airway bill. 

7.Having retrieved the parcel, the appellant was intercepted and arrested by another Customs Officer as he was leaving the Post Office.  Under caution, the appellant said that a person called “NV” told him to collect the parcel for a reward of $500.  NV had put a copy of his identity card into the appellant’s letterbox in order for the latter to collect the parcel.   The only form of contact he had with NV was by telephone and he did not know where NV lived.  Upon further inquiries, the appellant said that NV had told him to call him so that he could give instructions as to where to hand the parcel over once collected.  The appellant claimed that he did not know the nature of “the stuff” concealed in the parcel. 

8.The appellant participated in a controlled delivery operation by making several telephone calls to the person referred to as NV.  However, no one answered the calls and the operation was terminated.

9.In a subsequent video recorded interview conducted by Customs Officers, the appellant stated, inter alia, that he was a torture claimant and that, about 20 days beforehand, he had received a telephone call from a stranger called NV, who said that he could help the appellant to remain in Hong Kong by arranging a marriage with a local girl so as to obtain Hong Kong residency.  However, NV then asked him to collect a parcel for him in order to gain his trust.  The appellant agreed, although he had never met NV in person.  They communicated with each other through WhatsApp messages, by which NV sent him screen shots of the items and documents concerned, instructing the appellant that he had to use a fake name but his own address in order to collect the parcel.  The appellant said he did not know the nature of the contents of the parcel but thought it was an engine block for an old model boat.

The defence case

10.The appellant elected not to give evidence and the defence case was based on what he had stated under caution.  The issue at trial was thus narrowly focused on whether the appellant knew that the parcel he collected from the Post Office contained a dangerous drug at the time he collected it.  The defence case was that the appellant did not know it contained a dangerous drug and the jury could not draw the inference, as the only reasonable inference available, that he did know.  Particular stress was laid on the fact that the appellant’s actual address was written on the parcel, while he also tendered his real telephone number to PW2.

The judge’s directions on inferences

11.Given the ground which has been advanced at this appeal, we should first set out the judge’s directions on inferences, which she prefaced by telling the jury that:

“… as there is no direct evidence in this case, the prosecution asks you … to draw an inference that the defendant knew there were drugs in the parcel by indirect evidence or circumstantial evidence that the prosecution has put before you. I will direct you on this in more detail later”.

12.When, in due course, she returned to the matter of inferences, the judge explained:

“Drawing of inferences simply means the prosecution is relying upon evidence of various circumstances which the prosecution say when taken together and looked at as a whole will lead to the conclusion that the defendant knew they were drugs in the parcel. So you are entitled to infer the existence of another fact from the facts you find proved. Before you 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 reasonable inference that can reasonably be drawn on the basis of those facts. So 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 draw the inference in the defendant’s favour.” (Emphasis supplied)

13.The judge then summarised the facts on which the prosecution relied in order to draw the inference that the appellant must have known there were drugs in the parcel when he went to collect it; and the facts upon which the defence relied to say that it was not possible to draw an irresistible inference of knowledge.  No complaint is made about this aspect of the judge’s summing-up.

14.Having summarised the respective cases on the matter of inferences, the judge concluded:

“So, members of the jury, I just remind you, again, in a criminal case if on a set of facts you find proved there is a reasonable inference to draw against the defendant, at the same time there is a reasonable inference to draw in the defendant’s favour, then you must draw the inference in the defendant’s favour. You must use your common sense and experience as men and women of the world to draw the reasonable and only inference in the circumstances.” (Emphasis supplied)

The appeal against conviction

15.It was argued by Mr Whitehouse, on behalf of the appellant, that in the two passages cited above[1], the italicised parts seemed to be suggesting that the jury should conduct a balancing exercise between competing inferences.  He submitted that such directions would have confused the jury and distracted them from their real task of being satisfied on the proved facts that the only reasonable inference to be drawn was that the appellant knew the parcel contained a dangerous drug.  Moreover, the directions appeared to place a burden on the appellant to establish by inference that he lacked knowledge of the dangerous drugs in the parcel.

16.Reliance was placed on Tang Kwok Wah Dixon v HKSAR^[2], where the Court of Final Appeal recognised that in certain cases, it was appropriate to give a “special direction” in the form adopted and approved in McGreevy v DPP^[3], namely^[4]:

“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

It was said that the judge had not by her directions made this injunction sufficiently clear to the jury.

The respondent’s reply

17.Ms Lau, on behalf of the respondent, submitted that the judge’s directions on inferences essentially conformed with the Specimen Directions in Jury Trials, promulgated by the Hong Kong Judicial Institute.  In particular, the judge had said^[5]:

“This indirect evidence or circumstantial evidence simply means the prosecution is relying on evidence of various circumstances relating 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 parcel. So the prosecution asks you to rely on this circumstantial evidence to draw an irresistible inference that the defendant had knowledge of the drugs. Now, circumstantial evidence can be powerful evidence and can be more powerful than direct evidence. So it is important you examine the circumstantial evidence with care, as with all evidence, and consider whether the evidence which the prosecution relies upon to prove its case is reliable and whether it does prove guilt or whether, on the other hand, if there was any other circumstances which are or may be of sufficient reliability and strength to cast doubt on the prosecution case or even destroy the prosecution case.

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 them.  You must not speculate.”

18.Ms Lau argued that the judge’s directions, insofar as her wording may have departed from the Specimen Direction, were in fact favourable to the appellant because, instead of telling the jury “not to draw the adverse inference” where there were competing reasonable inferences, she told them that they “must draw the inference in the defendant’s favour”. 

19.As for the supposed confusion created by the judge’s directions, the respondent submitted that the impugned passages had been read out of context.  The judge was summarising the evidence from which the defence contended that he could have had no knowledge of the presence of dangerous drugs in the parcel.  Contextually, the term “the only inference” was simply used to reinforce the argument put forward by defence counsel to the jury.

20.The judge in a later passage further explained^[6]:

“… If you find what the defendant says is true or may be true, you should find him not guilty.

Even, members of the jury, if you rejected his account, the prosecution must still prove to you on the evidence, which is the circumstantial evidence, that the defendant knew there were drugs in the parcel and that was an irresistible inference from the circumstantial evidence. The prosecution say that they have proved that. That there is an irresistible inference from that circumstantial evidence, the defendant knew of the drugs in the parcel. …

The prosecution is saying you can, therefore, draw the irresistible inference that the defendant knew he was carrying drugs.  So, if you find the prosecution have proved to you so you are sure the defendant knew there were drugs in the parcel, then you can conclude the defendant is guilty of trafficking in dangerous drugs.”

21.Ms Lau submitted that, when the summing-up was read as a whole, there could have been no misunderstanding by the jury as to how they should apply inferential reasoning to the issues they had to decide. The judge had repeatedly warned the jury that they could only find the appellant guilty if they could draw the only reasonable inference from the circumstantial evidence that the appellant knew there were drugs in the parcel.  The jury could not have been misled into thinking that the burden was on the appellant to prove his lack of knowledge.

Discussion (on conviction)

22.If the judge, when addressing the issue of competing inferences, had told the jury (as she should have done) that “they must not draw the adverse inference”, instead of telling them (as she did) that they “must draw the inference in the defendant’s favour”, we do not think Mr Whitehouse could have had any complaint.  She would have been using terms that were indistinguishable from the Specimen Direction.  That she inverted the language from a prohibition on drawing an adverse inference against the defendant to an obligation to draw a favourable inference for the defendant where there were competing reasonable inferences does not seem to us in any way prejudicial to the defence.  Indeed, as Mr Whitehouse was minded to accept, directing the jury that they were obliged to accept an inference in favour of the defendant as long as it was reasonable was on the face of it more generous to the defence than directing the jury that they could not draw an adverse inference against the defendant unless it was the only reasonable inference.

23.The suggestion that the jury would have been confused by these directions is not, with respect, a tenable one.  The judge made clear to the jury, in the passage at paragraph 12 supra, that they could only draw an inference against the appellant if satisfied that it was based on primary facts derived from the evidence and that the inference was the only reasonable inference to draw from those facts.  That, in conjunction with other instructions to the jury making it clear that the appellant had nothing to prove[7], that it was for the prosecution to prove knowledge, even if they rejected his account in interview[8], and that they could not conclude or decide anything against the appellant unless they were sure of the correctness of their conclusion[9], satisfy us that the jury would have understood that the onus of proving the appellant’s knowledge of dangerous drugs in the parcel was firmly on the prosecution and that there was no scope for confusion.

24.In our judgment, there was nothing in this point and the appeal against conviction was accordingly dismissed.

Discussion (on sentence)

25.As we have indicated, we invited Mr Whitehouse to renew his application for leave to appeal against sentence, albeit on a different basis than that put before the Single Judge.  For that purpose, we granted him the necessary extension of time.  The appellant had received an ultimate sentence of 25 years’ imprisonment.  For the quantity of dangerous drug concerned, namely 1.09 kilogrammes of cocaine narcotic, the judge adopted a starting point of 22 years’ imprisonment.  No complaint is, or could be, made about the adoption of this starting point, which was entirely in accordance with the guidelines in HKSAR v Abdullah[10]. 

26.However, the judge then enhanced the sentence by 2 years’ imprisonment for the “international element” of assisting in the importation of the cocaine into Hong Kong; and made a further enhancement of 1 year for the fact that the appellant was a Form 8 non-refoulement claimant involved in the very serious offence of drug trafficking.  It was the enhancement of 3 years’ imprisonment on top of an already very lengthy sentence of 22 years’ imprisonment, resulting in an ultimate sentence of 25 years’ imprisonment, which caused us concern for two reasons.

27.Firstly, the danger of a label such as “international element” is that it can sometimes obscure the factual differences that exist between cases involving the importation (or, for that matter, exportation) of dangerous drugs.  It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaborate arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong International Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instruction to collect a parcel posted from abroad which he knows contains dangerous drugs.  The first defendant can be said to be actually importing dangerous drugs into Hong Kong, while the second defendant is generally aiding and abetting someone else’s act of importation; although, of course, the evidence may sometimes establish that he himself is the importer. Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ.

28.The case of Abdullah was itself concerned with inter-continental cross‑border trafficking by a defendant who entered Hong Kong, having swallowed 142 packets containing 1,218.65 grammes of heroin narcotic.  The Court found it “necessary to address the extent to which aggravating circumstances should lead to enhanced sentences in order to reflect the general policy of the courts to impose greater sentences on those who import or export heroin or cocaine…”[11]. In the course of its judgment, the Court noted[12]:

“It has long been accepted that the international element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes, whereas “local” offences, confined to trafficking in Hong Kong, will usually result in lower starting points for about the same quantity of heroin or cocaine.”

In the result, the Court said that, where the “international element” was engaged, it did not envisage that for trafficking in amounts above 1 kilogramme of heroin or cocaine narcotic, the enhancement would be less than 2 years’ imprisonment.

29.Although the present case can properly be said to involve an “international element”, the evidence and the jury’s verdict established no more than that he had gone to the Post Office in question for a reward to collect a parcel from abroad, which he knew contained dangerous drugs.  The screenshot on his mobile telephone, which he produced to the Post Office staff, contained the tracking details of the parcel in its journey from São Paulo in Brazil to Hong Kong.  Such evidence, together with the fact that he was collecting a parcel which he must have known had arrived at the Post Office from abroad, was sufficient to establish the “international element” by way of aiding and abetting the importation of cocaine into Hong Kong.  This Court has, on facts very similar to the present case, more aptly characterised such conduct as “facilitating the importation into Hong Kong” of dangerous drugs: see HKSAR v Fitri[13]. However, the “international element” involved, in that case and in this, was in a rather different league from the international courier who himself trafficks dangerous drugs across the border into Hong Kong, whether the drugs are secreted in his person or otherwise in his possession.

30.In distinguishing between these two types of trafficking, we are not to be taken as suggesting that the conduct of a defendant who collects a parcel containing dangerous drugs from a Post Office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong.  We can envisage circumstances where someone who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels, may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession.  Much will depend on the facts of the case and the extent of the involvement of the defendant.   However, we would caution sentencers that simply because the label of “international element” can be applied to a defendant’s trafficking of a kilogramme of heroin or cocaine narcotic because it has come across the border, and he is connected with the offence, does not automatically mean that he must receive an enhancement of sentence of 2 years’ imprisonment.

31.Secondly, a court must be careful when enhancing sentences for various aggravating features that it does not turn an already lengthy and severe sentence into an overbearing and crushing one.  In the judgment of HKSAR v Islam Azharul[14], which was coincidentally handed down on the same day as the hearing of this appeal, and which concerned facts where there were three aggravating features demanding enhancement, we reminded judges that[15]:

“… it is important for the sentencing court to ensure that the aggregation of the enhancements does not result in an oppressive and overloaded sentence, and by the application of the totality principle this will require determining an appropriate effective total of the enhancements”.

32.In fairness to the judge, she was aware of, and specifically adverted to, the principle of totality where an enhancement of sentence was contemplated; and, indeed, endeavoured to trim the overall enhancement of sentence, deeming it “appropriate as your sentence is already very heavy”[16]. However, with respect, we feel that she did not trim it enough and that the resultant enhancement of an already severe sentence by the addition of 3 years’ imprisonment (which represented a 13.6% increase of sentence) was both manifestly excessive and wrong in principle.

33.In the circumstances, we consider that the starting point of 22 years’ imprisonment should have been enhanced for the “international element” and the fact that the appellant was a Form 8 recognizance holder by two years’ imprisonment, resulting in an overall sentence of 24 years’ imprisonment.

34.The appellant’s sentence of 25 years’ imprisonment will therefore be reduced to 24 years’ imprisonment.  The application for leave to appeal against sentence is accordingly granted, the appeal against sentence allowed and the sentence reduced to the extent indicated.

Ms Virginia Lau SADPP, of the Department of Justice, for the Respondent

Mr Frederic Whitehouse, instructed by John M Pickavant & Co, assigned by the Director of Legal Aid, for the Appellant

[1] Paras 12 and 14.

[2] Tang Kwok Wah Dixon v HKSAR [2002] 1 HKLRD 286.

[3] McGreevy v DPP (1973) 57 Cr App R 424.

[4] Ibid., at 435.

[5] AB p 28B-M.

[6] AB p 42K-43A.

[7] AB p 23D-G.

[8] AB p 42L-N.

[9]  AB p 23B-C.

[10] HKSAR v Abdullah [2009] 2 HKLRD 437.

[11] Ibid., at para 35.

[12] Ibid., at para 21.

[13] HKSAR v Fitri (Unrep., CACC 265/2016, 5 April 2017), at para 24. It may be noted that in a further application for leave to appeal against sentence, the Appeal Committee of the Court of Final Appeal dismissed the application under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484: see HKSAR v Fitri (Unrep., FAMC 13/2017, 27 October 2017).

[14] HKSAR v Islam Azharul (Unrep., CACC 98/2019, 7 January 2020).

[15] Ibid., at para 20.

[16] AB p 285C-D.