HKSAR v. Musah Hakeem Tahiru Alias Tahiru Musa Hakem

CACC 404/2017

[2022] HKCA 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 404 OF 2017

(ON APPEAL FROM HCCC NO 464 OF 2015)

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Before:  Hon Macrae VP, M Poon and A Pang JJA in Court

Date of Hearing:  7 January 2022

Date of Judgment: 7 January 2022

Date of Reasons for Judgment: 21 January 2022

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court)

1.On an amended indictment dated 5 January 2017, the appellant was charged with, (i) Count 1: Trafficking in 256.73 grammes of cocaine, 18.76 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 1.06 grammes of herbal cannabis^[1]; and (ii) Count 2: Dealing with property known or believed to represent the proceeds of drug trafficking in respect of US$736,100, HK$24,005.10 and EURO€1,170^[2]. He pleaded not guilty to both counts and was tried in the Court of First Instance before Zervos J, as Zervos JA then was (“the judge”), together with a jury.

2.On 28 April 2017, the appellant was convicted of Count 1 but acquitted of Count 2.  On 7 December 2017, the judge sentenced him to 14 years and 9 months’ imprisonment in respect of Count 1, and further ordered him to pay a sum of HK$5,765,749.40 within one month and in the event of default, he would go to prison for 5 years, pursuant to section 3(6) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405.

3.By a Notice of Application for Leave to Appeal (Form XI) dated 19 December 2017, the appellant applied for leave to appeal against his conviction, sentence and the confiscation order. The single judge granted him leave to appeal his conviction only on Grounds 2 and 5, but refused him leave to appeal his sentence and the confiscation order on all other grounds^[3]. Thereafter, the appellant filed a Notice of Renewal (Form XIII) in respect of the refused grounds on 26 November 2020, which, however, had been abandoned by him by a Notice of Abandonment (Form VII) filed on 22 April 2021.

4.At the hearing of the appeal, we dismissed the appeal and said we would hand down our reasons at a later date.  This we now do.

The Prosecution case

5.Shortly after midnight on 29 January 2015, the appellant, a Ghanaian Form 8 holder^[4], was arrested and cautioned for the offence of trafficking in a dangerous drug in Wan Chai during a controlled buy operation undertaken by the police^[5]. 

6.No drugs were found on the appellant at that time.  Two mobile telephones, HK$9,005.10 cash, a bunch of three keys and a resident’s card for Room 1, Flat A, Hing Fat Building, Yau Ma Tei (“Room 1”) were seized from him.  It was an admitted fact that he was the tenant of Room 1 at the time of his arrest^[6].

7.Upon a search of Room 1, the drugs particularised in Count 1 in packets kept inside a plastic bag (“P11”), and a number of unused resealable plastic bags were found hidden in the suspended ceiling of the living room.  The total street value of the drugs was HK$470,885^[7]. Human DNA mixture not from the appellant was found on the outer surface and the opening flap of one of the unused resealable plastic bags. That resealable bag further contained 45 transparent resealable plastic bags^[8]. 

8.Moreover, multiple currencies (the subject matter of Count 2) were seized from the bedroom.

9.Amongst the other 300 odds unused resealable plastic bags and four toothbrushes seized from the living room, the police could only find the DNA of the appellant, an unknown female and at least two males on the toothbrushes.^[9]  Nevertheless, neither the appellant’s fingerprints nor his DNA could be found on any of the drugs or the plastic bags that were used to contain them^[10].

10.In his two video-recorded interviews (“VRIs”) taken on 30 January 2015^[11], the appellant denied knowledge of the drugs hidden in the suspended ceiling. He said he shared the room with his Ghanaian friend Shamsudin who would sometimes go to China for business.  He claimed that the various currencies either belonged to his friend Sani, were given to him by his girlfriend Joanne or were sent to him by his sister.  He said that the substantial amount of unused plastic bags belonged to his friend to be shipped to China.  He had no idea what they were for.  He believed the drugs on the suspended ceiling belonged to Shamsudin, because he had once brought some suspicious-looking packages to Room 1.  He had asked Shamsudin not to bring them to his room again.  The appellant also said that his other friends would occasionally visit him and stay at Room 1 for a few days.

The Defence case

11.The appellant elected to give evidence and called one witness, David Jordan (DW2).

12.The appellant testified about his relationship with Joanne and how she gave him US$700,000 in cash before.  Further, on the night of his arrest, Sani gave him US$90,000 for safekeeping.  After that he left Room 1 and went to Wan Chai to meet DW2.

13.There was no issue in relation to his arrest or that the drugs and the foreign currencies in question were found in various places inside the flat.  However, he stressed that he did not witness the search. The investigating team leader (“PW4”), was not present during that search.  He said that he was not shown any of the drugs or the foreign currencies at the scene except a bag of African food.

14.The defence case was that he had no knowledge of the presence of the drugs in the room and they could have belonged to Shamsudin or been left by a former tenant the identity of whom was unknown.

15.DW2, who also came from Ghana, gave evidence that after he got to know the appellant in 2010, he had seen a European lady whom the appellant said was his girlfriend.  He had not heard of the name Sani or Shamsudin from the appellant.

The appellant’s grounds of appeal and submission

16.There is no complaint to the summing up. The appeal is based on the two grounds of appeal for which leave was granted by the single judge:

(1)  The reply and direction given by the trial judge to a question asked by the jury after they had commenced their deliberations was inadequate is addressing their concerns (Ground 2);

(2)  This renders the appellant’s conviction unsafe and/or unsatisfactory (Ground 5).

17.The subject of Mr Bruce SC’s complaint relates to the direction given by the judge in response to a question posed by the jury, which was written on a piece of paper passed to the judge in the afternoon of 28 April 2017.  The relevant question reads^[12]:

“(3) There are (a) number of doubts on (the) evidence given by (the) defendant & PWs, such as the presence of (the) defendant or the police team leader during house search. However, those doubts may not constitutes [sic] direct evidence to the two counts. What are the perspectives when we consider those doubts? Simply neglect or what?”

18.In reply, the judge further directed the jury in the following terms^[13]:

“Now, I turn to the third question. There are a number of doubts on evidence given by defendant and PWs, such as the presence of the defendant or the police team leader during house search. However, these doubts may not constitute direct evidence to the two counts. What are the perspectives given when we consider those doubts? Simply neglect or what? You do not have to decide every point which has been raised, only such matters as will enable you to say whether the counts against the defendant have been proved. You will do that by having regard to the whole of the evidence and forming your own judgment about the witnesses and about which evidence is reliable and which is not.

You must decide the case only on the evidence that you have heard and seen.  You decide on the evidence that you find proven whether the elements of the offence in question have been satisfied.  The prosecution must prove each of these elements so that you are sure, that is beyond reasonable doubt.  If you are not sure of any of these elements, the defendant is not guilty of the count.  But if you are sure of each of these elements, then the defendant is guilty of the count.”

19.Mr Bruce SC complains that it was clearly demonstrated in their question that the jury was having trouble in resolving the competing evidence of the prosecution and the defence.  The jury was at least not rejecting the appellant’s evidence at that stage.  Mr Bruce contends that the question cried out for a Liberato direction.  They should have been told that if they considered what the appellant had told them might be true, he was entitled to an acquittal.  The jury should also be reminded that even if they were to reject the appellant’s testimony, they still had to determine whether the prosecution could prove their case beyond reasonable doubt.  Mr Bruce further complains that the judge gave them no guidance as to how to deal with peripheral points such as whether PW4 was present at the time of the search.  It is submitted that the jury derived no assistance from the general answer given by the judge which failed to address the jury’s concern.

20.As there is a substantial risk that the judge’s further directions were insufficient in resolving the real difficulties faced by the jury, the guilty verdict is unsafe and unsatisfactory.

Respondent’s submission

21.In reply, Ms Alice Chan, counsel for the respondent, submits that what the jury question referred to as “doubts” plainly meant “discrepancies”.  The jury was trying to find out whether the difference between the appellant and the police officers’ evidence would have any significant impact on the elements of the offences.  As the real issue at the trial was the appellant’s knowledge of the drugs in the suspended ceiling, issues such as the presence of PW4 during the room search was a mere peripheral matters^[14]. Ms Chan submits that by asking the jury to focus on the elements of the offence, reminding them to concentrate on the evidence they found proved and the burden of proof, the judge’s direction simply brought their attention back from peripheral matters to focus on whether they found the elements of the charge proved.  It is submitted that in the context of responding to the jury’s question on factual disputes that were immaterial or peripheral to the issue in the case, a Liberato direction was unnecessary: HKSAR v Zhou Limei[15].

Discussion

22.At the start of his oral submissions before us, Mr Bruce accepted that in the present trial, there was hardly any dispute as far as the facts were concerned.  The only issue was knowledge.  It was never suggested that the drugs were planted there by the police.

23.Defence counsel, in his closing submissions, had emphasised at length the inconsistencies between the prosecution and defence evidence as to the house search, such as whether there were four or five policemen in the bedroom and whether PW4 was present or not[16].  Counsel then submitted that the only reason for the appellant to contradict something which was so obviously different was that the appellant’s account was true[17].   That also echoes the earlier submission of the Defence counsel that:

“If what the police officer say is contradictory, doesn’t make sense, doesn’t seem to be logical and correct, and yet the defendant tells another story does seem to be logical and correct that one might have seen. Doesn’t that help support the rest of what the defendant says?”[18]

24.With these submissions and as can be seen from the jury question, the jury were clearly alive to the only issue in this case. They were invited by the defence to accept what the appellant said as to the lack of knowledge was or might be true.  The circumstances of the search were only peripheral issues.

25.When the judge consulted both counsel on their views as to his proposed reply[19], he told the parties, rightly in our view,  that “it’s best to emphasise what they have got to be sure about”[20]. When defence counsel tried to embark on the credibility issue, the judge said that he had, in his summing-up, told the jury to have regard to the whole of the evidence about witnesses and about which evidence was reliable.  He repeated that when answering the jury’s question[21].

26.The judge’s direction was twofold, namely, that the prosecution did not have to prove every point; and all the elements of the offence had to be proved beyond any reasonable doubts that they might have.  The jury was in essence directed that peripheral matters which did not go to the issue of knowledge could not affect the central issue. The direction given by the judge sufficiently addressed the jury’s concern and we note that the jury raised no further questions thereafter.

27.The Liberato direction, which only relates to the burden of proof in criminal cases and not to any factual issues in dispute, had been given by the judge in his summing-up[22] and did not warrant repetition.

28.Mr Bruce’s submission that the judge should have told them to ignore the peripheral issues is, with respect, misconceived. The judge emphasised in his summing-up that “the facts of this case are your responsibility”[23] and “when it comes to the facts of this case, it is your judgment alone that counts”[24].  In his summing-up, the judge set out the series of issues raised by the defence in relation to the police evidence as to the circumstances of the search[25].  He went on to direct them that “It is a matter for you whether there is any significance in these matters individually or collectively going to any issue of fact or to the credibility of the witnesses”[26].  The jury had also been told that they did not have to accept or reject all of a witness’ evidence and were entitled to accept parts and reject other parts[27].

29.In our view, the judge dealt with the question impeccably. For the above reasons, the appeal was dismissed.

Ms Alice Chan, SADPP of the Department of Justice, for the respondent

Mr Andrew Bruce SC, instructed by Tung, Ng, Tse & Lam, assigned by Director or Legal Aid, for the appellant