HKSAR v. Sohag Howlader

CACC 83/2021

[2022] HKCA 696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 2021

(ON APPEAL FROM HCCC NO 399 OF 2019)

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Before: Hon Anthea Pang JA in Court

Date of Hearing:  13 May 2022

Date of Judgment:  8 June 2022

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J U D G M E N T

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1.The applicant pleaded not guilty to one count of “trafficking in dangerous drugs”[1] and stood trial before Barnes J (the judge) and a jury.  On 24 March 2021, the applicant was found guilty by a majority verdict of 5:2 and was subsequently sentenced to 11 years and 9 months' imprisonment.  He now seeks leave to appeal against his conviction. 

The prosecution case

2.On 28 April 2019, after attending a briefing concerning a premises situated at Room C, 3rd Floor, 23 Wing Kwong Street, To Kwa Wan (the Premises), a team of police officers raided the Premises with a search warrant.  The applicant, who answered the door, was the sole tenant there. 

3.Upon searching the Premises, four packets of dangerous drugs, the subject of the count, were found inside a white bag that was placed on the bedside table in the bedroom.  As a result, the applicant was arrested. 

4.After the arrest, the applicant took part in a video-recorded interview.  Although, in the beginning, he expressed his wish of not saying anything, he admitted that he was the tenant of the Premises and was the only person who lived there.  The applicant also said that he did not know why the four resealable bags were found on top of his bedside table and he claimed to have no knowledge of their contents. 

5.Indeed, 2 days before the arrest (26th April 2019), another team of police officers received information concerning dangerous drugs and they conducted a search at the Premises but nothing incriminating was found. 

6.The street value of the drugs involved was about $220,000. 

The defence case

7.The applicant is a Bangladeshi asylum seeker who came to Hong Kong in 2004.  At the material time, his asylum application had not yet been resolved. 

8.At trial, the applicant elected to give evidence.  In a nutshell, he sought to advance a case of frame-up. 

9.The applicant admitted that he had been the tenant of the Premises for a year, relying on the International Social Services and his brother to pay the rental.  He said that the lock on the grille and the wooden front door of the Premises were faulty and he only used a wire to secure them when he went out. 

10.On 26 April 2019, a team of police officers came to the Premises for a search but nothing was found.  PW1 was present on that occasion and had asked the applicant for his telephone number, offering him money if he could provide information to them in the future. 

11.The applicant told the jury that he had gone out for drinks the night before his arrest.  On his return, he had secured the grille and wooden door as usual.  He then went to sleep. 

12.The following morning, he was awaken by a sound.  He later noticed that PW2 had entered the Premises, revealing his police identity.  Shortly afterwards, PW2 put on a pair of gloves and crawled under the applicant's bed, coming out with a white bag.  From the white bag, PW2 took out a smaller bag and when the applicant said he did not know what was contained in that smaller bag, the police uttered foul language and said the dangerous drugs belonged to the applicant.  When the applicant turned around to talk to that police officer, PW2 suddenly grabbed hold of the applicant's right wrist and put that small bag into his palm.  The applicant threw the bag away but PW2 picked it up and put it back into the white bag. 

13.According to the applicant, PW2 later took out a white bag with red and blue colouring and put it on top of the bedside table, telling another police officer to take a photo of that.  Nobody ever declared arrest on him. 

The summing-up

14.When summarising the defence case, the judge said,

“The defence case, very briefly, was there was never any plastic bag with red and blue colouring in his flat. It was not his. He did not even know anything about it. And he said that he had no idea how it got there. He suspected that it was framed by the police or someone who bore a grudge against him. And he said that at the time, the -- on the 28^th of -- there was a search on his premises on 26 April, two days before this incident, and nothing was found.”[2]

15.The jury was sent out for deliberation on 24 March 2021 at 1029 hours.  At 1447 hours, the judge answered two questions from the jury, the one which the applicant suggests to be pertinent to this application is: “Are there ways we can be sure that the defendant knew they were dangerous drugs?”.  In reply, the judge reiterated her directions on circumstantial evidence and used examples to demonstrate how an irresistible inference could be drawn in a particular set of circumstances.[3] 

16.The jury was then again sent away for deliberation, returning about an hour later with a guilty verdict of 5:2. 

The perfected grounds of appeal

17.The grounds, as contained in the Perfected Grounds of Appeal, are:

(1)  the judge wrongfully permitted evidence to be adduced before the jury in respect of the information received by the police (the target evidence);

(2)  the judge failed to give any direction to the jury on the target evidence;

(3)  the judge failed to give timely and sufficient directions on the drawing of inferences against the applicant when the prosecution relied solely on circumstantial evidence to establish the essential ingredients of the charge;

(4)  the jury’s finding of the applicant’s knowledge was or might have been tainted and unduly influenced by the target evidence; and

(5)  as a result, the conviction was unsafe and unsatisfactory. 

Grounds 1, 2 and 4

18.At the hearing, Mr Bernard Yuen, counsel for the applicant but not at the proceedings below, when being asked by the court, frankly admitted that the target evidence indeed supported the defence case and was, in the circumstances, properly adduced before the jury.  Therefore, ground 1 was withdrawn. 

19.In respect of grounds 2 and 4, Mr Yuen mainly relied on HKSAR v Chung Tang Ping[4] to suggest that evidence concerning a “target person” should not be disclosed to the jury as it is irrelevant to whether the defendant is guilty or not, and it may also cause the jury to be biased against the defendant:

“37. Although it was the defence that proactively brought up the issue that the police acted upon information … with the express purpose to reinforce the defence’s stance, the Trial judge should proactively explain to the jury when he was directing them the reason for disclosing to them the applicant’s identity as the police’s target person, in order to avoid causing the jury to be biased against the applicant on the ground that the applicant was the police’s target person. He should also make it plain to them that they should not on that ground form the notion that the applicant therefore must be related to the police’s anti-dangerous drugs activities, and that the applicant had taken part with knowledge in the said offence.” (emphasis added)”

20.Mr Yuen submitted that since the judge repeatedly referred to the target evidence at various places of the summing-up, and had put undue emphasis on the fact that the applicant was the tenant and sole occupier of the Premises, significant prejudice had been caused to the applicant. 

Ground 3

21.This complaint related to the alleged failure of the judge to give any direction on the drawing of inferences until after the jury had posed the question regarding the applicant’s knowledge of the drugs.  Mr Yuen submitted that this direction was particularly important in a case like the present one where the prosecution relied solely on circumstantial evidence to establish the essential ingredients of the charge.^[5] 

22.Mr Yuen further submitted that even when the direction was given in answer to the jury’s question, the direction fell short of the requirements set out in Winnie Lo v HKSAR^[6]. 

Consideration

Grounds 2 and 4

23.The following matters are relevant when examining whether Mr Yuen’s complaint about the target evidence could reasonably be made out:

(1)  it must be borne in mind that the target evidence was introduced in this case, and indeed required, by the defence, without which there would appear to be no anchor for the applicant to run the defence of frame-up; 

(2)  secondly, as submitted by Mr Derek Wong for the respondent, the target evidence actually related to the Premises and not to the applicant.  Therefore, the target evidence, on its own, did not carry any imputation that the applicant was a drug dealer; and

(3)  thirdly, the prosecution did not, in any way, seek to rely on the target evidence to implicate the applicant.  Nor did prosecuting counsel refer to the target evidence in any detail in his closing speech, except to remind the jury that they could not go beyond that evidence to speculate: 

“… All the evidence is that they had that information. And that’s all you can act on. You’re not entitled to speculate on who gave them the information, why they were given the information, how they were given the information, or anything else.” (emphasis added)^[7]

24.Therefore, it is against such a background, and not in a vacuum, that the concern expressed by the Court of Appeal in Chung Tang Ping should be assessed.  In this connection, it is helpful to note the observations made by Zervos JA in HKSAR v Shakeel Ahmed^[8] when dealing with a ground of appeal similar to that raised in grounds 2 and 4, where his Lordship, after re-visiting the relevant authorities, said,

“41. Critical in answering this ground of appeal is how the defence case was presented at trial and to assess the exact nature of the evidence that was claimed to be hearsay and highly prejudicial. The appellant did not dispute he was in possession of the two keys to Flat D that were on his keychain or that there were drugs in Flat D at the time of his arrest. It was his case he had been targeted by the police and a search warrant was obtained for Flat D because he had been set up by Ms Nguyen and the police had been tipped off to apprehend him inside the flat with the drugs.”

25.Similarly, in the present case, the applicant said that he had been set up either by the police or by someone bearing a grudge against him.  The applicant suggested, that was why his premises were targeted by the police and why two searches were made, which, on the second occasion, resulted in the dangerous drugs found. 

26.While it is true that, unlike the case of Shakeel Ahmed, counsel and the judge did not, in this case, specifically mention to the jury that the information was not evidence in itself, but given the way the jury was addressed, they could have been left in no doubt that the target evidence was only adduced to support the defence case of frame-up, and not for any other purpose.  Firstly, as recorded above, prosecuting counsel had told the jury that they could not use the information to speculate “anything else”.  Secondly, defence counsel, in his closing speech, particularly stressed that, 

“… all we know that on two separate occasions, two separate police teams, were somehow told that the defendant was dealing in dangerous drugs or had dangerous drugs in his home. On the first occasion nothing, and on the second occasion, drugs, according to the police, under his bed.

So members of the jury, a possible answer to this case, you may think, that someone was trying to frame the defendant. And that’s why the defendant received this -- the police received their intelligence on the 26th resulting in a search of his home. Then when nothing happened, when no drugs were found in his home on the 26th, an informant, again an unknown informant, provided intelligence to another police team on the 28th, that the defendant had dangerous drugs in his home.” (emphasis added) ^[9]

27.Further, the judge had, in the summing-up, fairly and helpfully directed the jury to focus on the essential matters which took place in the Premises rather than any information which the police might have obtained before going there:

“ So first of all, you have to decide whether the defendant was in possession of the dangerous drugs inside the bag in this case. You have to consider all the evidence you have received in this case and come to your conclusion as to the facts of this case. What actually happened inside the flat? What was found? Where was it found? So the main and most important issue you have to resolve was whether the search took place as testified by the police officers, mainly of course PW1 and PW2, that their evidence was the white bag with the colouring -- with the red and blue lettering, was found on top of the bedside table inside the bedroom. That is the evidence. So that of course is the most important part of this case. So consider all the evidence and come to your conclusion what actually happened, what were[sic] the facts.”^[10] (emphasis added)

28.In my view, the futile result in relation to the information given on the first occasion must also have served as a forceful reminder to the jury that the information received by the police might not necessarily be correct and that the premises targeted might not necessarily be involved in drug trafficking or in anything unlawful.  This reminder, coming from the undisputed evidence, would have operated effectively on the minds of the jury as if they had been directed that the information had nothing to do with the guilt or innocence of the applicant. 

29.Given the facts of this case with the earlier futile search of the Premises, and after taking into account how the prosecution case and the defence case were run, as well as the judge’s direction to the jury that they had to focus on the evidence of the police officers at the scene, I do not consider it reasonably arguable that the target evidence had a prejudicial effect on the jury that operated unfairly against the applicant.  Nor could it be reasonably arguable that the jury in this case would somehow depart from considering the parties’ respective cases and, on their own, engage in an impermissible line of reasoning concerning the target evidence. 

30.Finally, although Mr Yuen suggested that as the judge had put undue emphasis on the applicant being the tenant and sole occupier of the Premises and that such had added significantly to the prejudicial effect of the target evidence, I consider the argument to be circular.  As a matter of common sense, before the applicant could be framed up through the giving of information relating to the Premises, the applicant must have had a close connection with the Premises.  If not, even if drugs were found there, the applicant would not be held responsible.  Thus, the fact that the applicant was the tenant and sole occupier of the Premises was indeed part and parcel of the defence case of frame-up and no objection could be raised about the judge making reference to it. 

Ground 3

31.This ground can be disposed of quickly.  When summing up the case, the judge had already directed the jury on circumstantial evidence:

“Now, of course in this case if you accept the evidence of the two prosecution witnesses, then the drug was found inside his bedroom. Now, you know on evidence that he is the only person who lived there. He is the tenant of that place. It is proved by the tenancy agreement, his fingerprint DNA, and also he himself admitted that he was the tenant and he was the only person who lived there. There was no other person. So that is of course an important part that you have to decide, whether he was in control of the bag. Then you consider, if he is the only person living there and it is right there next to the bed, open, would he not know that it was there? Would he not know that there was inside the bag these other four packets? …

…

…the prosecution rely on various circumstances in relation to the offence and the defendant, and they say that if you look at all these together it will lead to the sure conclusion that it was the defendant who had committed this crime of trafficking in dangerous drug. So that is what circumstantial evidence means.

…

Then, all right, let us look at what are the circumstantial evidence in this case. And I have already mentioned, say for instance, he is the tenant in the premises. …

…

…I have already reminded you he is an asylum seeker, meaning that he had no income by working. …

…

…So that is important also in this case because you know that there were four bags of drugs, two different types, cocaine and ‘Ice’, and the street value is very high. Together, over $200,000.”^[11]

32.Further, in reply to the jury's question, the judge used concrete examples to tell the jury how an inference drawn against the applicant must be the only irresistible inference.^[12]  Given the relatively simple facts of this case and the relatively narrow issues before the jury, I am of the view that the directions given were adequate and it would not be reasonably arguable that any unfairness had resulted because of the way the jury was directed.  

Ground 5

33.This is the general ground complaining that the conviction was unsafe and unsatisfactory because of the specific grounds advanced.  As I do not see any merits in grounds 2 to 4, whether taken individually or collectively, this general ground would therefore necessarily fail. 

Conclusion

34.In light of the above, I refuse leave on all the grounds. 

35.The applicant could renew his application before the Court of Appeal but a warning is now given to him that should he do so, and should the Court of Appeal find no merit in respect of the renewal application, the Court of Appeal may order loss of time which the applicant has spent in custody pending his appeal. 

Mr Derek Wong Chun-hin, SPP, of the Department of Justice, for the Respondent

Mr Bernard Yuen Kwok-wah, instructed by M/s Cheung & Liu, assigned by the Director of Legal Aid, for the Applicant