HKSAR v. Dramane Mouhamed Saiti

FAMC No. 32 of 2019

[2021] HKCFA 4

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 32 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 191 OF 2016)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.We dismissed this application for leave to appeal at the conclusion of the hearing and indicated that we would hand down our reasons for doing so in due course.  These are those reasons.

2.The applicant was convicted, on 3 June 2016, before Campbell-Moffat J and a jury of one count of trafficking in 1,388 grammes of a powder containing 442 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap.134).  He was sentenced to a term of 16 years’ imprisonment.

3.The prosecution case was a simple one.  At about 7.30pm on the evening of 25 September 2015, the applicant, carrying a black plastic bag, boarded a taxi driven by PW1 in Sham Shiu Po and asked to be driven to an address which the applicant showed PW1 in a “WhatsApp” message on his mobile phone.  The address was of a petrol station in Sheung Shui and PW1 drove the applicant there.  On arrival, a team of police officers including PW2 intercepted the taxi and found the applicant sitting in the rear passenger seat with the black plastic bag between his legs.  PW2 arrested and cautioned the applicant, who remained silent.  The applicant was taken to Sheung Shui Police Station and then to Wan Chai Police Headquarters. The black plastic bag was found to contain the cocaine, the subject of the charge.

4.The applicant gave evidence at trial.  His defence was also simple.  He testified that he had known a Nigerian friend called “Network” for 18 months. At 6.30pm on 25 September 2015, Network called the applicant to collect some food and medicine which Network had brought for the applicant from Africa. Network gave the applicant an address in Chinese via a phone message.  The applicant then left home and caught PW1’s taxi to go to Sheung Shui.  He did not bring the black plastic bag with him and did not see it in the taxi.  When the taxi arrived at the petrol station, and before he alighted, the police arrested him.  It was only when he attended a subsequent video-recorded interview at the police station that the police showed him the black plastic bag said to contain drugs.  In short, the applicant’s defence was a denial of possession of the drugs and that the police had framed him in respect of the charge.

5.Following his conviction, the applicant applied to the Court of Appeal for leave to appeal against his conviction and sentence.  On 5 June 2018, the Court of Appeal refused both applications and dismissed his appeals.[1] In respect of his conviction, the applicant raised two broad grounds of appeal, first, alleged incompetence of his trial counsel[2] and, second, unfairness in the trial judge’s summing-up.  One aspect of the former was that his counsel had failed to act on his instruction to call the supposed informant who gave information on his wrongdoing to give evidence.  It was the applicant’s contention on appeal, as on the application for leave before us, that the only reason he went to Sheung Shui was because he was invited there by “Network” and, since the police were waiting for him at the address he was given, the person responsible of his presence there must, prima facie, have been the police’s informer or someone connected to him.  The identity of the informer should, it was contended, therefore have been disclosed and the failure to apply for such disclosure amounted to flagrant incompetence.

6.In respect of this aspect of the appeal, the Court of Appeal held:

“The applicant complained that counsel had failed to act on his instruction to call the supposed informant who gave information on his wrongdoing to give evidence. However, there was no basis for counsel to have made any application to call the supposed informant in this case and counsel would have known full well that no judge would have granted any such application, which could have led to identifying the informant. For the identity of informers is specifically protected under section 57 of the Dangerous Drugs Ordinance, Cap. 134. See HKSAR v Agara [2014] 2 HKLRD 648, applied in HKSAR v Mushtaq Zeeshan, CACC 223/2014, unreported, 15 June 2015 at [32]-[34] and HKSAR v Mushtaq Zeeshan (No 2), CACC 394/2015, unreported, 15 November 2016 at [58]-[64]. In any event, if the drugs were found in the applicant’s possession, which was the central issue before the jury, the identification of any informer was of no relevance. His identification could hardly be said to be necessary to demonstrate the applicant’s innocence.”[3]

7.Before us, the applicant maintained that the failure to make an application for disclosure of the identity of the police informer had caused him such substantial and grave injustice that leave to appeal to the Court of Final Appeal should be granted. It was contended on behalf of the applicant that, in the light of his clear record and absence of any evidence suggesting a connection with dangerous drugs, the circumstances of the invitation from “Network” to go to Sheung Shui and the fact the police were lying in wait at the petrol station, the person responsible for his presence must have been the police’s informer or connected to him.  It was submitted by Mr James McGowan that, in the circumstances, the disclosure of the identity of the informer fell within the “innocence at stake” exception to section 57 of the Dangerous Drugs Ordinance (Cap.134), as explained in HKSAR v Agara [2014] 2 HKLRD 648 at [3] and [4].

8.Leaving aside any question as to the correctness of HKSAR v Agara [2014] 2 HKLRD 648, and Mr McGowan did not raise any challenge to it, we were satisfied that the Court of Appeal were correct in concluding that there was no basis for ordering the disclosure of the identity of the police informer in this case. 

9.Such disclosure would only have been justified if the information was necessary in order to demonstrate the accused’s innocence, on the basis of the “innocence at stake” exception to the common law rule that the names of informers should not be disclosed. 

10.But no such necessity could be shown in the present case.  The central issue before the jury was whether the applicant was caught in possession of the drugs or was the victim of a trumped up charge.  The trial judge properly directed the jury on this issue and the jury unanimously convicted the applicant, indicating that they must have accepted PW1’s evidence and been sure that the applicant got into the taxi with the black plastic bag and that it was found in his possession when the police arrested him at the petrol station.  In other words, the present case did not turn on the identity of the informant, which was irrelevant to the applicant’s defence.  On the applicant’s own evidence, the act of the informer which was part and parcel of the allegedly trumped up charge was the act of contacting the applicant and inviting him to go to the address in Sheung Shui he texted to him.  In the light of the central issue of the case, which was resolved against the applicant by the jury, disclosure of the informer’s identity would not have demonstrated the applicant’s innocence of the trafficking charge or materially assisted his defence.

11.For these reasons, the failure to apply for disclosure of the identity of the informer did not amount to flagrant incompetence of the applicant’s trial counsel and the Court of Appeal’s rejection of the ground of appeal based on the absence of disclosure of the informer’s identity did not involve a departure from an accepted norm so serious as to constitute substantial and grave in justice to the applicant. 

12.The application was accordingly dismissed.

Mr James H M McGowan, instructed by Littlewoods, assigned by the Director of Legal Aid, for the Applicant

Ms Margaret Yu SADPP (Ag.), of the Department of Justice, for the Respondent