HKSAR v. Molla Rasidul

CACC 209/2019

[2020] HKCA 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 209 OF 2019

(ON APPEAL FROM HCCC NO 321 OF 2018)

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J U D G M E N T

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1.On 10 June 2019, following a trial before Deputy High Court Judge Woodcock (the judge) and a jury, the applicant was convicted by unanimous verdict of the jury of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 19 June 2019, he was sentenced to 11 years and 9 months’ imprisonment.

2.The particulars of the charge alleged that the applicant on 10 July 2017, on the 5^th Floor, Block E, Chungking Mansions, together with Islam Shafiqul, trafficked in a variety of dangerous drugs, namely 55.73 grammes of a crystalline solid containing 55.60 grammes of methamphetamine hydrochloride, 74.74 grammes of a solid containing 60.63 grammes of cocaine, 0.14 gramme of a powder containing 0.12 gramme of ketamine, 0.97 gramme of a mixture containing 0.77 gramme of heroin hydrochloride, 184.38 grammes of cannabis resin, 34.28 grammes of cannabis in herbal form, 34 tablets containing 4.85 grammes of chloroethcathinone, 3.86 grammes of a solid containing 3.10 grammes of 3,4-methylenedioxymethamphetamine, 1.51 grammes of a solid containing 0.03 gramme of methamphetamine and 0.52 gramme of 3,4-methylenedioxymethamphetamine, and 36 tablets containing 3.51 grammes of 3,4-methylenedioxymethamphetamine.

3.On 12 July 2019, the applicant filed a notice of application for leave to appeal against conviction only.  He did not provide any grounds of appeal, but said that his counsel would prepare such grounds upon receipt of the appeal bundle from the court.  A copy of the appeal bundle was sent to the Legal Aid Department on 27 August 2019, which after consideration of the papers, refused the applicant legal aid on 8 October 2019.  In the meantime, the applicant was directed by the court to file grounds of appeal by 21 November 2019 and written submissions by 5 December 2019, but he had failed to do so.

4.The applicant submitted a letter dated 16 December 2019 to the Hong Kong Bar Association Bar Free Legal Service Scheme, applying for legal assistance.  He was requested to provide them with certain documents, and he was also informed that if he did not do so his application would not be processed.  In a letter dated 21 January 2020, the Bar Free Legal Service acknowledged receipt of various documents from the applicant on 20 January 2020 but noted that the transcript of his video-recorded interview (pages 36 to 205) had not been included.  He was requested to provide the missing pages. 

5.At the hearing of this application on 5 March 2020, he claimed that he had provided the pages requested on 3 February 2020. Inquiries with the Bar Free Legal Service confirmed his application was still outstanding.  The application was adjourned to 24 April 2020.  In the meantime, the Bar Free Legal Service refused the applicant’s application for legal assistance on 8 April 2020.  He therefore appears in person and expresses his general dissatisfaction with his conviction.

6.At the adjourned hearing, the applicant appeared in person.  He initially stated that he was not advancing any grounds of appeal and wished to withdraw his application.  When pressed on the matter, he said he was not legally represented and did not want to pursue his application. Eventually, he said that fingerprints of a person by the name of “Mohammed” were recovered from the scene and this had been disclosed in the trial bundle but his legal representative did not raise the matter at his trial.  This was his sole complaint about his trial.

The prosecution case

7.On 10 July 2017, police officers had under surveillance the premises located at Flat 6, 5^th Floor, Block E, Chungking Mansions, Tsim Sha Tsui, Kowloon (Flat 6).  The applicant was observed coming out from Flat 6 and was intercepted by the police.  There was a struggle as the applicant tried to get away but he was eventually subdued.  The police gained entry into the Flat 6, which was subdivided into five rooms.  Another male, Islam Shafiqul (PW6), who was also Indian like the applicant, was seen coming out of Room 1, and he too was intercepted by the police.

8.On a table inside Room 1, the police found the following items.  A blue bag with several other bags inside which contained the various dangerous drugs as particularised in the charge.  A white plastic bag which contained an electronic scale and a large stack of unused transparent resealable plastic bags.  A plastic jar inside which contained cash of over $30,000 and two pieces of paper with writing and figures on them.  A calculator and a notebook containing many lines of writing and figures.  An expert testified that the writing contained references to slang expressions for certain types of drugs, such as “LSD” and “MDM”.

9.The police searched the applicant and found in his possession a mobile telephone, $1,740 cash, a wallet inside of which contained two pieces of paper, with writing on them, and 3 keys on a key ring. On the two pieces of paper there were slang references to “LSD”, “Crack” and “Ice”.  The 3 keys were tested and they were found to be the keys for the main gate and main wooden door of the Flat 6 and the door of Room 1.  The applicant did not have the keys to any of the other 4 rooms of the flat or to the premises he later identified as his home.  

10.In a subsequent video record of interview, with the assistance of an interpreter, the applicant denied knowledge of the dangerous drugs and the large amount of cash in Room 1.  He said he only had one key and the police planted the other keys on him.  He also denied having any relationship with PW6.[1]  He admitted that the two pieces of paper were found in his wallet but he did not have any knowledge of them. He claimed he did not know how to read and write.[2]  He explained that he struggled with the police because he thought they were people out to harm him.[3]  

11.It was the prosecution’s case that the applicant was trafficking in the dangerous drugs in Room 1 together with PW6.  PW6 pleaded guilty to the offence and testified for the prosecution at the applicant’s trial.  He said that the applicant was his roommate and the dangerous drugs in Room 1 belonged to the applicant, which he was watching over for the applicant at the time.

12.It was an agreed fact that the street value of the dangerous drugs at the time of the offence was $126,331.[4]

The defence case

13.The applicant gave evidence in his defence.  He is a non-refoulement claimant from India.[5] He testified that he did not live in Room 1, but lived in Tsim Sha Tsui Mansions.  He said he had previously been to Flat 6 because friends live there, but he had not been inside Room 1.  He said that his friend, Mooji, lived in Room 5 with his wife and child.  Around 15 minutes before he was arrested, he met Mooji downstairs in Chungking Mansions, who asked him to deliver keys to his wife at Room 5, and invited him to stay and chat with her.  Mooji gave him a bunch of 6 to 7 keys, and showed him the one which opened the main gate.  He said he did not understand why only 3 keys were retrieved from him. 

14.The applicant said that when he arrived at the flat only the main gate had to be opened as the wooden door behind it was already open.  He knocked at the door of Room 5 but no one answered.  He also knocked on the door of Room 4, as he had friends there, but again no one answered.  He stayed there for 5 to 7 minutes before he left, and on leaving he was intercepted by the police.  He said his wallet contained pieces of paper but not the two pieces of paper allegedly found by the police. 

15.The applicant  said he had no knowledge of the dangerous drugs in Room 1.  He claimed he was wrongly targeted by the police and was being framed by PW6.

The issues at trial

16.The defence case was that the applicant did not live in Room 1, had no knowledge of the drugs that were present there, and did not have the keys to the main doors of Flat 6 and to the door of Room 1.  He was being framed for possession of the drugs found in the room by the police and PW6. 

17.The judge clearly and comprehensively set out the defence case to the jury in her summing-up to them.  She directed the jury extensively about their approach in assessing the evidence presented to them, particularly how they should evaluate the oral testimony presented by witnesses. She stressed to them the importance of assessing the credibility and reliability of a witness and gave the usual directions in this regard.  The judge then summarised in detail the evidence of the prosecution witnesses, particularly the police officers and PW6, who were under challenge.  She highlighted throughout these summaries the points that were made by the defence in cross-examination.

18.After summarising the evidence of PW6, the judge went on to stress to the jury that they had to carefully evaluate his evidence and treat it with caution.  She said:

“Members of the jury, PW6 was a special witness and the fact that PW6 has pleaded guilty is now known to you, but it can have no bearing on your decision in this case of this defendant. The prosecution has to prove its case against this defendant so that you are sure of his guilt, just as the prosecution would have to if PW6 had not pleaded guilty. You can only determine the defendant’s guilt on the evidence against him. Do not make any assumptions about his case because PW6 has pleaded guilty to the same charge that he faces. The fact that he has been convicted of that offence does not in any way assist the prosecution in proving its case against the defendant.

There is another important issue concerning PW6 that you must also take into account in assessing his credibility. He told you he is yet to be sentenced and he frankly and honestly agreed that because of his co-operation with the prosecution and because he has given evidence in this case, he may receive a considerable reduction in his sentence. You should be careful and cautious when considering his credibility as a witness and before you accept his evidence, in view of the possibility that it may be tainted, ask yourself whether he may be falsely incriminating the defendant so he can receive a considerable shorter sentence than he otherwise might have received.”[6]

19.The judge also reminded the jury of the defence challenge to PW6’s credibility as a witness and repeated what she had told them about their duty to assess the credibility and reliability of the evidence presented to them.

20.When addressing the evidence of the applicant, the judge gave a full summary of his testimony and issued the standard directions that he was not obliged to give evidence and he did not have to prove his innocence.  She told them that it was for them to decide whether to believe the evidence of the applicant or whether it may be true.  She went on to stress:

“I have previously told you that if the account given by him is or may be true then the defendant must be acquitted. I have also previously told you that even if you reject the account given by the defendant, that does not relieve the prosecution of its burden of making you sure by evidence of the defendant’s guilt.”[7]

21.In respect of the issue of the fingerprints raised by the applicant, I am informed that the fingerprints of PW6 were found on the notebook (exhibit P60) and the 2 pieces of paper (exhibit P74) in the plastic jar inside the room.  Also found on the notebook were the fingerprints of a person by the name of “Mohammed Tofael Ahmed”.  It appears that defence counsel dealt with this issue by focusing this evidence in his challenge of the evidence of PW6.  This was mentioned by the judge in her summing-up to the jury, where she highlighted to them that an example of the inconsistency that the defence relied on was where PW6 said he did not open the jar of money, nor touch anything in it, and yet his fingerprints were found on the paper inside the jar.  She mentions another example and reminds the jury to consider these inconsistencies and “whether they are material or trivial or affect a witness’s credibility”.[8]

22.The fingerprint evidence was used by defence counsel to challenge the credibility of PW6.  Defence counsel obviously made a tactical decision that little, if anything, could be gained in the context of the case against the applicant by raising the presence of the fingerprints of the other person on the notebook.  The case against the applicant came primarily from PW6 and the fact that he was intercepted by the police leaving the flat, having in his possession the keys to the flat and the room as well as two pieces of paper in his wallet evidencing his involvement in dealing with dangerous drugs. 

23.The applicant is bound by the tactical decisions of his counsel.  The approach taken by defence counsel in relation to the fingerprint evidence was perfectly proper and did not undermine the fair trial of the applicant.  There is no substance to this complaint.  

24.The issues at trial were whether the prosecution had proved that the applicant was in possession of the dangerous drugs, and if so, whether he possessed them the purpose of trafficking.  Those issues were fairly and properly put before the jury to consider and I can find no fault in the way that they were addressed by the judge in her directions to the jury.

Conclusion

25.In light of the foregoing, I cannot find any discernible ground of appeal against conviction that is reasonably arguable. Accordingly, I refuse the applicant leave to appeal against his conviction.

26.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Bobby Cheung, SPP of the Department of Justice, for the respondent

The applicant appeared in person

[1] Appeal Bundle, 119.

[2] Appeal Bundle, 144 – 145.

[3] Appeal Bundle, 28K, 172 – 173.

[4] Appeal Bundle, V, Admitted Facts, at [1].

[5] Appeal Bundle, VI, Admitted Facts, at [9].

[6] Appeal Bundle, 26E – Q.

[7] At 27Q – T.

[8] Appeal Bundle, 7C – F.