HKSAR v. Mohammed Naushad

DCCC 708/2020

[2021] HKDC 1611

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 708 OF 2020

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REASONS FOR VERDICT

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Charge

1.The Defendant is charged with two offences:

1^st Charge:

doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, contrary to section 4(1)(c)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134, and

2^nd Charge:

failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap. 221.

2.He pleaded guilty to the 2^nd charge before HH Judge Dufton who, on 22 June 2021, sentenced him to 2 months’ imprisonment. Therefore, the defendant stood trial for the 1^st charge only.

Issue

3.In gist, the prosecution alleged that two packets of substances which the defendant believed to be dangerous drugs were found on him, and the defendant admitted under caution in the video recorded interview (“VRI”)  that he was asked to deliver the ‘goods’ to someone for a reward of $500.

4.There is no dispute as to the defendant being arrested and found to have the said packets. The issue of this case is whether the defendant believed that substances in his possession were dangerous drugs; and whether he was doing an act preparatory to or for the purpose of trafficking in the substances which he believed to be dangerous drugs.

5.The defence objected to the admissibility of the VRI of the defendant who alleged that it was obtained by inducements and threats (see: MFI-2 grounds of objection).  As such, the trial took place by way of alternative procedure.

The prosecution case

6.The prosecution called 3 prosecution witnesses (“PW”).

PW 1

7.PW 1 is PC 22785.  On 5 April 2020, PW 1 and his colleagues, in plain clothes, were on duty. It is not in dispute that (i)  he arrested the defendant, a Form 8 Holder, on that day near No. 1 Humphrey's Avenue, Tsim Sha Tsui and the defendant consented to be searched; and (ii)  upon body search, PW1 found 2 transparent re-sealable plastic bags in the defendant's left front trousers' pocket, and PW1 suspected them to be dangerous drugs. It is agreed that the government chemist later confirmed that the 2 transparent re-sealable plastic bags of substances contained 19.3g and 19.5g of a crystalline solid respectively. They contained neither Part I poison nor any dangerous drugs.

8.PW1 did not caution the defendant after arrest. He brought the defendant to TST police station and arrived there around 1906 hours. He met the Duty Officer there and briefed him the facts of the case and weighed the substances. He used simple English to communicate with the defendant. Before PW1 gave him the Notice to Persons in Custody, he gave the defendant a list for him to identify which language he used and the defendant identified Hindi language. At 1926 hours, he gave the defendant both the Chinese and Hindi version of the Notice (P3a & P3b respectively)  so as to let him know the rights to which he was entitled. He saw the defendant reading the Notice. After that, PW1 asked the defendant to sign to acknowledge that he had read the document. The defendant did not tell him that he wanted to exercise any of the rights mentioned in the Notice.

9.On 6 April 2020, PW1 took the defendant to Yau Ma Tei police station for further investigation. They arrived at 5.53pm. PW1 spoke in Punti, and the police interpreter Mr Lai (PW3)  translated it to English.  Then the Hindi interpreter Mr Jaideep (PW2)  translated what was said by PW3 to Hindi.  The English version of the Notice to Persons in Custody (P3c)  and the Hindi version of the same Notice (P3d)  were served on the defendant.

10.After Mr Jaideep had explained the content of the Notice in Hindi, PW1 asked the defendant to sign to acknowledge that he knew the rights he was entitled to. The defendant did not exercise any of the rights mentioned in the Notice nor express through the interpreter that he did not understand those rights.

11.A written record of interview was taken from the defendant between 6:12 pm and 7:10 pm. In the presence of both the aforesaid interpreters, he said he did not want to say anything.

12.At 7:38 pm, 28 minutes later, PW1 conducted a VRI with the defendant with the assistance of PW2 and PW3. During this 28-minute gap, all of them were still inside the VRI room and PW1 was there making some preparatory work for the VRI to be conducted soon e.g. he checked the recording machine; checked the discs if they were intact; prepared for the exhibits which would be used; and thought of the questions which he would ask the defendant.

13.PW1 explained that since it was the usual practice to conduct subsequent enquiries in cases of drug trafficking, a VRI was taken from the defendant at 7.38pm during which 4 of them were present in the interview room. He denied he had assaulted, threatened and induced the defendant to participate in the VRI and no one in his presence did these things.

14.After conducting the VRI, PW1 took an antecedent statement from the defendant. He agreed in cross-examination that the defendant told him that he could understand Hindi but could not read and write Hindi.

PW 2

15.PW2 is Mr Mishra Jaideep. On 6 April 2020, he received a phone call from someone in Yau Ma Tei Police Station that his interpretation service was required. At 6pm, he arrived at an interview room on 7/F and found that PW1, PW3 and the defendant were there. He was given P3c and P3d.  He gave the Hindi version, P3d, to the defendant in case he wanted to read it. In respect of the content of the Notice, PW2 testified that he had explained all items stated in the Notice to the defendant in Hindi and asked the defendant if he understood. The defendant replied in Hindi that he understood. He and the defendant then signed on both versions of the Notice. The defendant made no request and did not say that he wanted to exercise any of the rights described in the Notice.

16.A record of interview was then taken from the defendant and he said that he did not want to say anything.

17.In cross-examination, PW2 agreed that in taking an antecedent statement from the defendant, he recalled that the defendant said he understood Hindi but could not read and write Hindi.

18.After taking the record of interview and before taking the VRI, there was a time gap of 28 minutes. PW2 saw PW1 make some preparation in relation to the conducting of a VRI. During this period of time, neither did PW2 talk to the defendant nor the defendant talk to him. He also said that PW1 / PW3 did not use any violence, made any threats or inducements to the defendant. He described that the VRI went smoothly.  He strongly denied that he acted as mediator between PW1 and the defendant that he was asked to relate PW1’s threat and inducements to the defendant.

PW 3

19.PW3 is Mr Lai Chui Kit. On 6 April 2021 between 6:01 pm and 6:11 pm, he was in an interview room on 7/F, Yau Ma Tei police station. He was to assist PW1 to issue a Notice to Persons in Custody to the defendant. He read out items 1 to 9 stated on the Notice in English for PW2 to translate the same to the defendant in Hindi.

20.In cross examination, PW3 explained why he simply read out the main points of those items.  He said the sub-items under each main item were just further elaboration of the main points. He also said that he shared an English copy of the Notice with PW2 so that PW2 while listening to him could also read the contents of the Notice. He emphasized that the defendant was made certain that he understood the contents of the Notice before he signed on it.

21.At no stage, did he or anyone in his presence make any threats and/or inducements and use any violence on the defendant in order to get the answers that the defendant gave in the VRI. During the said 28-minute of time, he was in the interview room simply waiting for PW1 to finish making some preparation for a VRI to be conducted. During that period of time, he did not interact with the defendant for he cannot speak Hindi, and he did not see PW2 and PW1 having any interactions with the defendant.

VRI

22.In summary, the defendant admitted in the VRI that:

a. he had no money to buy food and water;

b. prior to his arrest, he was in a premises on 5/F, Chung King Mansion with another person Mohammed Shamim;

c. he was there to smoke ice;

d. Shamim gave him the packets;

e. it was the first time he had seen so much before as he normally smoked only a little bit;

f. he was told to go to No. 1 Humphrey’s Avenue, stand there and hand over the ‘goods’ to another man;

g. he would be paid $500 for doing so;

h. Shamim told him to keep the stuff in his pocket and someone would come and he was supposed to hand it over to him.

Special issue

23.I ruled that there was a case to answer in relation to the special issue. The defendant exercised his right and elected not to testify or called any defence witness. Having heard submissions from the defence and watched the whole VRI in open court, I ruled that the prosecution had proved beyond reasonable doubt that the defendant had taken part in the VRI voluntarily.

No case submission

24.Having given the ruling on the special issue, the prosecution closed its case.  The defence did not make any half time submission, and I ruled that there was a case to answer.  To this end, I have considered all the evidence adduced and borne in mind the principles laid down in R v Galbraith [1981] 1 WLR 1039. The defendant exercised his right and elected not to testify on the general issue and called no defence witness.

Analysis

25.In reaching my verdict, I bear in mind that the prosecution has the burden to prove the charge against the defendant beyond a reasonable doubt.  The defendant has to prove nothing.  I direct myself that I must be sure of the defendant’s guilt.

26.The defendant has a clear record which means that he is less likely to commit an offence and is more credible in what he has said in the VRI. 

27.The defendant elected not to testify in both the special and the general issues and no adverse inference should be drawn against him for doing so.  However, it means that there is nothing from the defence to challenge, to dispute, to weaken and to contradict the prosecution case.

28.Besides, I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw against the defendant from the facts proved.

29.The VRI of the defendant comprised both admissions and self-serving assertions.  I must consider the whole statement, both the incriminating parts and the excuses or explanations given by the defendant in deciding where the truth lies. In other words, I give myself directions in accordance with the principles laid down in R v Sharp (1988)  1 WLR 7.

Reasons for the ruling on special issue

30.I find the defendant’s allegations against the prosecution witnesses that he was threatened and inducted to participate in the VRI not true, for, inter alia, the following reasons.

31.Having considered all the evidence and applied common sense and logic, I find all the prosecution witnesses were credible and reliable and they were not shaken under cross-examination.  As such, I find that PW3 did explain the main points of the Notice in English, and PW2, sharing the English version of the notice with PW3 and listening to what PW3 said in English, did translate the same in Hindi to the defendant.  As such, the defendant was fully aware of his rights. 

32.Second, the defendant signed on both the English and Hindi version of the Notice.  It is noted that in the VRI, when the defendant was shown the Notice and asked where his signature was, he immediately pointed it out. If he did not understand the contents of the Notice and/or was forced to sign under threat and inducement, he would not have given a spontaneous and natural response (PN[1]: 76). 

33.Thirdly, the defendant’s answers and his demeanor during the VRI are quite telling.  The VRI commenced from 1938 to 2048 hours on 6 April 2020. During the whole interview, as I observed, the defendant was calm and composed.  He looked complacent and relaxed.  He was stable throughout the VRI. When PW1 was introducing the equipment in the VRI room, the defendant, folding both of his arms in front of his chest, did look around and nodded his head (PN: 55, 58).

34.When the defendant was asked:

(i)  whether he understood the contents of the Notice, he said “yes” (PN: 84);

(ii)  whether he agreed to undergo the VRI, he said “yes, continue” (PN: 105);

(iii)  when he was told that the VRI would soon commence, he said “ok” (PN: 92);

(iv)  whether he wanted a lawyer, he said “I want to go by the law” (PN: 116), and upon further asking, he said “no” (PN: 122).

35.At that stage, (a)  he was in fact reminded of his rights which was explained to him earlier on; and (b)  he was fully aware that he could get a lawyer but he refused.

36.The VRI proceeded with questions asking if:

(i)  he was mentally fit to continue with the VRI, he said “yes, yes” (PN: 128)

(ii)  he understood the meaning of caution, and he nodded his head and said “yes” (PN: 134, 652).

(iii)  he expressed that he wanted an interpreter (PN: 151).

37.In other words, he knew he could there and then remain silent and could exercise any of the rights previously explained to him.  He did require the service of interpretation. It means that he knew his rights and he asked for it. 

38.At some stages, the defendant even volunteered extra information to the police before being asked of (PN: 350).  I note that he was eager to express himself by using different gesture to elaborate the events (PN: 627, 660, 698, 738, 783).  He even held a pen in his hand to write something so as to explain and to demonstrate how the packets were put in his pocket and how he changed his clothes (PN: 778). All these show that he was more than willing to answer questions and he tried his best to explain to the police what had happened.

39.Towards the end of the VRI, he invited the police to ask him more questions and made it clear that he would answer all the questions, tell the truth and produce proof (PN: 805, 807, 833, 851, 871). He also said that he was cautious and smart; he had a brain; he could write and read; he would die for truth; he would fight for the truth and he would give evidence (PN: 830, 817, 819, 824, 833).

40.All these show that he understood his rights of silence but he was more than willing to take part in the VRI so that he could proffer his version of the story.  I am sure that the defendant voluntarily took part in the VRI.

General Issue

41.I now come to the general issue. 

42.Mr Sujanani representing the defendant stated in his closing submissions that “the defendant will rely on the evidence in the VRI to support his contentions, there being that he had been consuming ice on the evening prior to the commission of the offence, he did not know what the substances were and that he had been framed.” 

43.Both Mr Wong for the prosecution and Mr Sujanani provided PN of the transcripts supporting their respective stance.  It goes without saying that I must consider the whole of the VRI and consider the answers given by the defendant in the proper context in light of the questions being asked.

44.I should also mention that although the defendant admitted in the VRI that he took ice prior to the alleged offence and was addicted to ice, however, I bear in in mind that the present charge did not relate to the ice he smoked on the offence day.  Besides, I will still give good character direction to the defendant despite the admissions that he smoked ice before arrest. 

45.As previously said, the VRI is a mixed statement, containing admissions (inculpating parts)  and self-serving assertions (exculpatory parts). In accordance with the principles in R v Sharp, I have considered the entirety of the VRI.  In reaching my verdict, I take the view that the inculpatory parts are true admissions and I attach full weight to them.  In respect of the exculpatory parts, they were not given under oath and not tested under cross-examination. Having considered the entire record and all the evidence adduced, I will not attach any weight to them.

46.Insofar as the defendant’s belief is concerned, I note that the defendant did on some occasions deny knowledge of what was inside the two packets and asserted that he was framed up:

PN: 250

(PW2): He gave something to me in the room

PN: 293

(PW2): What I consumed at home, I am aware of it, but I don’t know what was inside this packet

PN: 410-413

(410, PW1): Well, do you know what these two packets are?

(413, the defendant): This I don’t know, at that time this also, was consuming more and more

47.However, the following admissions are proof that he knew or believed the substances were dangerous drugs:

PN: 239

(the defendant): at that time he took me to smoke, he told me let’s go there have work and also at that time I did not have work too. Just went out of greed of smoke

PN: 241-244

(241, the defendant): He said he would give me 500 rupees for the work to be done

(242, PW2): He also took me to smoke there and also for the work so I can get five hundred dollars

PN: 246 - 252

(246, PW1): What kind of work was the work to which you referred?

(249, the defendant): He said to me that er – friend would, give him some goods. He said it was kept in the room in pocket in room – and I checked too, gave me in room too

(250, PW2): He gave something to me in the room

PN 390-400:

(390, PW1): Well, he/she gave you something to consume. What did (he/she)  give you to consume?

(393, the defendant): He gave me ice to consume. I consume ice.

(394, PW2): Because I some ice, so he gave me ice to smoke

(396, PW1): Well, do you have any recollection of these two packets of suspected dangerous drug?

(399, the defendant): It was first time I have seen this much. Normally I take very little bit – get little

(400, PW2): First time I saw in er- like so many, I – normally take very little bit

PN 402 – 405

(402, PW1): The meaning of ‘the first time seeing (that)” – so at that time, did you pocket them and leave – as you mentioned – that is, the flat from which (you)  obtained (them)?

(405, the defendant): First time I took much in the packet – went outside

PN 466 - 473

(466, PW1): Do you have the habit of consuming dangerous drug

(469, the defendant): Addicted – I have been taking it for long time. To this…

(470, PW2): Yes, I am – I am er – talking[2] it from er- a very long time.

(472, the defendant): No every week. I never did business of it. I just consume it…

(473, PW2): But – but I never did any business, I never sell, I just consumed er- myself.

48.Having considered all of the answers in context especially those quoted above, I am sure that the defendant believed that the substances were ice.  He was smoking ice in the room and he was on that same occasion given the substances as a result of which he said in the VRI that “It was first time I have seen this much.  Normally I take very little bit – get little”.  My analysis is that when he said “this much”, that answer, what he meant was so much “ice” and not anything else.  The most natural meaning, put in context, must refer to ice, and I am sure he meant ice. The defendant said he had looked at them and it was the first time he had seen so much. As shown in the photographs (P2), they were crystal-like objects placed inside 2 transparent re-sealable plastic bags.  He further said that he normally took a little bit of it.  I find “little bit” refers to ice.  And he admitted he is an ice abuser. 

49.The defendant admitted that he brought the two packets to where he was arrested.  He was there to deliver the ‘goods’ for a reward. Given that they were 2 packets of crystal-like objects; that the defendant was to deliver them for a reward; the reward was $500 which is especially to the defendant, who has no money for food and is a Form 8 holder, quite a lot of money; the “goods” must be dangerous drugs, i.e. ice.  I am sure that “the goods” refer to what he believed to be ice at that time. 

50.While he was there waiting, he was arrested. Having considered he was in possession of the ice, and upon instructions he was to hand over the packets to someone but not for his own consumption, I find these were acts preparatory to or for the purpose of trafficking in a substance which he believed to be ice.

51.I find that the prosecution has proven all the elements of the offence beyond reasonable doubt and the defendant is found guilty as charged.