HKSAR v. Amarjit

CACC 172/2019

[2022] HKCA 1252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 172 OF 2019

(ON APPEAL FROM HCCC NO 231 OF 2018)

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

Date of Hearing: 23 August 2022

Date of Judgment: 23 August 2022

Date of Reasons for Judgment: 31 August 2022

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R E A S O N S   F O R   J U D G M E N T

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.The appellant was charged with a single count of trafficking in dangerous drugs, contrary to section 4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134. The charge involved 23.4 grammes of a crystalline solid containing 23.3 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 1,000 grammes of herbal cannabis. On 20 May 2019, the appellant was unanimously convicted after trial before Campbell-Moffat J (“the judge”) and a jury, and was later sentenced to 9 years’ imprisonment.

2.On 14 September 2021, leave to appeal against conviction on the sole ground now advanced before this Court was granted by the Single Judge[1]. At the same time, the appellant’s appeal against sentence was abandoned. 

3.On 23 August 2022, having heard the arguments of the parties, we dismissed the appellant’s appeal, saying that we would hand down our reasons in writing in due course.  These are the reasons for our decision.

The prosecution case

4.At about 1:00 am on 26 September 2017, a team of police officers were on duty in the vicinity of Tin Yan Road, Tin Shui Wai, New Territories.  One of the officers (“PW1”), who was carrying out observation in plain clothes in the area, saw a black private car come to a stop by the pavement in Tin Tan Road.  He was at the time about 10 metres from the vehicle.  The driver was a Pakistani male, who was subsequently known to be called Sajed, while the front seat passenger was the appellant^[2]. 

5.Another Pakistani male, named Usman, was seen by PW1 to approach the car as it came to a stop.  Usman opened the nearside rear passenger door but did not get into the vehicle.  PW1 began walking and then running towards the vehicle.  He saw the appellant alight from the front passenger seat, carrying a black bag in his left hand^[3]. PW1 shouted “Police” in Cantonese as he reached the vehicle.  The appellant tried to run away, but was intercepted by PW1 after moving one to two paces towards the front of the vehicle^[4]. The appellant struggled fiercely but was subdued to the ground and placed under control by PW1.  Other officers arrived and also arrested Sajed and Usman.

6.PW1 discovered that, apart from the black bag, the appellant was also carrying a multi-coloured bag, which initially he had not noticed.  The black bag was found to contain the Ice particularised in the charge, together with an electronic scale; while the multi-coloured bag was found to contain the cannabis.  The appellant was arrested for trafficking in dangerous drugs.  Although Sajed and Usman had also been arrested, they were subsequently released.

7.The Ice had a street value of HK$7,699; while the herbal cannabis was worth HK$223,000.

8.No fingerprints of any evidential value were found on the packaging of the Ice or the herbal cannabis; and no DNA evidence was adduced.

Defence case

9.The appellant elected to give evidence.  He was a Form 8 Recognizance holder, who had arrived in Hong Kong in 2006.  At the time of the offence, he was living in Tsing Yi.  He explained that his friend Sajed had offered to take him out for the night on 25 September 2017.  Accordingly, he had picked him up in Jordan at about 10:00 pm.  At this stage, Sajed was not driving the black private car later observed by PW1, but another vehicle which he was to deliver to a garage in Yuen Long. 

10.After Sajed had delivered the other vehicle to the garage, he changed to the black private car observed by PW1.  Sajed and the appellant then had dinner in Yuen Long and were joined by Usman.  The dinner finished between midnight and 12:30 am on 26 September 2017.  Sajed told the appellant that he was going to collect some money and would drop the appellant off in Jordan afterwards.  Usman parted company with them after dinner.  Sajed then drove to Tin Yan Road and stopped the vehicle at about 1:00 am. 

11.After the vehicle had stopped, the appellant, who was sitting in the front passenger seat, did not alight, nor did he open the door^[5]. Instead, the door was opened by PW1, who then shouted something in Chinese, which the appellant did not understand.  PW1 then pulled the appellant out of the vehicle, pushed him to the ground, assaulted and handcuffed him^[6]. The appellant claimed he was not carrying the two bags at any time^[7]; and did not attempt to flee.

The judge’s directions

12.The judge directed the jury on matters including the constituent elements of the offence of trafficking in dangerous drugs, the burden and standard of proof, and their functions of making factual findings, applying her directions on law, and arriving at a verdict.  She outlined the respective evidence for both sides.  No criticism is made of these directions.

13.The judge summarised the evidence of the prosecution in respect of the events leading to the appellant’s arrest as follows^[8]:

“The prosecution say that he was found in possession of it when he was intercepted -- stopped by PW1. And the circumstances of that interception must have been that he was going to give them to somebody else. He had got out of the car in order to pass them on. They say, I think it is common sense on their case, that, you know, it is the middle of the night, he has stopped in a road in Tin Shui Wai. It is not his home area or we certainly have no evidence it is anyone else’s home area. … That [Usman] or this other person had immediately come as the car is pulling up. This other person is coming out to go to the vehicle. That he had got out of the car carrying those two carrier bags after this person had just got to the vehicle and the door was opened and, perhaps from the prosecution’s point of view, more importantly for their case, as soon as PW1 came up , whether he understood the Cantonese of the police or not, he tried to run away, which would -- the prosecution would say, would show a guilty mind in that he’s trying to run away and he had to be detained and forcibly detained and, of course, the prosecution say it is their case that at that time he was carrying the two bags which had the drugs in and electronic scale.” (Emphasis supplied)

14.Following what we may called the ‘impugned passage’ (in italics) above, the judge then immediately contrasted the prosecution case with a summary of the defence case[9]:

“The defendant, of course, says, ‘Look, I was in the area. I accept I was there. I accept I was in this vehicle, but I was there because I was with Sajed … He had offered to take me out that night.’…

… Sajed told him, he was going to go and collect something but he did not know from whom and he did not know where that collection was taking place. He says he did not get out of the car. The police officer opened the passenger door. The police officer basically dragged him out. That is how they fell to the floor. So it was not a question of him fleeing and falling to the floor. It was him being dragged out and they managed to have a scuffle and a struggle on the floor and he had complained of being assaulted -- by the police.” (Emphasis supplied)

15.The judge immediately went on to make the obvious point that the two versions of events were not reconcilable[10]:

“So, two different stories, is it not, ladies and gentlemen? Two quite different stories and that is -- it is such a typical example of why it is so important to have a jury because it is not very technical. … That is why you are here. But it is clear that the stories are different and it is clear that the stories are so different that somebody cannot be telling the truth. That is a fact is it not?

You cannot fudge this at all.  It has to be, even though [prosecuting counsel] was very careful not to do so, it must be the case on the defence case that the officer is not telling the truth or on the prosecution’s case that the defendant is not telling the truth because it cannot be, can it, any confusion at all over, ‘I saw him get out of the car, therefore, I ran up’ and ‘Somebody came up to me, opened the car door and dragged me out.’  Equally, he had [two bags] in his possession, when he did that, … and ‘I never had any bags in my possession.’  That’s two completely different stories, isn’t it?”

16.We shall come back to these two irreconcilable versions of events in due course.  For the sake of completeness, the judge did make one further mention of the appellant’s flight when dealing with PW1’s evidence^[11]:

“… on [PW1’s] case … somebody going up to the vehicle, somebody getting out. … as he is approaching and getting closer to the [appellant] … he shouts … ‘Police.’ And the [appellant] takes one to two steps to flee … but he grabs him.”

The ground of appeal

17.Mr John Marray for the appellant has advanced a single ground of appeal against conviction, namely, that the judge did not give any flight direction. 

18.It was submitted from the impugned passage that the judge told the jury that the prosecution was urging the jury to infer from the appellant’s alleged attempt to flee and the ensuing struggle, that he knew the bags he was carrying contained dangerous drugs.  Accordingly, a full flight direction ought to have been given.  He referred to HKSAR v So Tsz Kon [2015] 3 HKLRD 169, where the Court held at [58]:

“The prosecution alleged that the defendant attempted to flee the scene after the crime … It is necessary for the jury to consider the following questions:

(1) Whether the defendant did in fact attempt to flee after the crime. If the jury are sure he did, then next consider:

(2) Why did the defendant flee?  The mere fact that a defendant attempts to flee is not in itself evidence of guilt.  There are many innocent reasons why a person may do so, for example, out of fear of the police, or due to commission of an offence unrelated to the present one or of some other disgraceful act.  If the jury think that there is, or may be, an innocent explanation for his attempted flight, then they should take no notice of his attempted flight.  It is only if the jury are sure that the defendant did not attempt to flee for an innocent reason, but instead did so by reason of his being aware of having committed the offence in question and hence choosing to flee in order to prevent the offence from coming to light, that they can regard his attempted flight as evidence which supports the prosecution case.”

19.Although the prosecution and defence cases were similarly irreconcilable, Mr Marray sought to distinguish the case of HKSAR v Mutengu (Unrep., CACC 215/2008, 4 May 2009).  There, a full flight direction had also not been given, but the conviction was nevertheless upheld by application of the proviso to section 83(1) of the Criminal Procedure Ordinance Cap 221, since there was no suggestion of any innocent reason for running from the police and no possibility of the jury convicted on the evidence of flight alone.  Mr Marray suggested in his written argument, although he rather resiled from this position in oral argument, that in the present case there might have been an innocent reason for trying to flee, since Sajed had stopped the vehicle near a park after midnight, and a person was then seen running towards it^[12].

20.Mr Marray also pointed out that, while the jury was told in the Mutengu case that running away did not necessarily imply guilt, the jury in the appellant’s case was told that running away could show a guilty mind.  Citing HKSAR v Yuen Yu Kin [2018] 4 HKLRD 717 and HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155, it was contended that, in the absence of a full flight direction, the conviction was unsafe.

Respondent’s submission

21.Ms Sabra Lo, on behalf of the respondent, submitted in response that the appellant’s flight was neither the focus nor a significant issue in the trial and a full flight direction was not required in the circumstances.  The fundamental issues, which were repeatedly summarised by the judge, were whether the appellant was carrying the bags and whether he had the knowledge and intention to possess the drugs in the bags.  While the prosecution closing speech referred to the appellant’s flight^[13], it was in the context of trying to persuade the jury to accept PW1’s account, rather than inviting them to draw an inference against the appellant based on flight. Similarly, when defence counsel in his closing speech mentioned the matter^[14], the purpose was to attack PW1’s credibility that the appellant did not drop the bags when he was intercepted. 

22.Ms Lo argued that the issue of flight was only ancillary to the other evidence in the prosecution case.  In any event, no innocent reason for the appellant’s flight was ever advanced either in evidence or in argument: instead, it was his case that he did not flee.

23.She submitted that there was strong evidence to infer knowledge from the circumstances: the appellant was in someone else’s vehicle that had stopped at 1:00 am at a location which was not in the area of his home; Usman had reappeared, approached the vehicle and opened the rear passenger door; the appellant had immediately alighted carrying two bags; herbal cannabis could be seen “peeping out” of the top of the bag[15], while the black bag had a large, unsealed opening so that one could easily see what was inside[16]; and both bags were heavy, the drugs alone weighing together over 1.23 kilogrammes, but there were other contents of the black bag as well.  There was no suggestion in the evidence of any innocent reason to flee.  It was submitted the verdict would have been the same even if a flight direction had been given, and it would, therefore, be appropriate, if necessary, for this Court to apply the proviso.

Discussion

24.As the judge pointed out, and Mr Marray accepted, the contrast between the respective versions of the prosecution and the defence was stark.  Either the appellant alighted from the vehicle with the two bags in his hands and tried to flee, resulting in a struggle with PW1; or PW1 opened the door of the vehicle and dragged the appellant, who was never holding any bags, out onto the pavement.  It was never the appellant’s evidence that he saw PW1, became frightened and decided to decamp from the vehicle empty-handed; nor was such a submission made to that effect on his behalf by his counsel.  His evidence was that the door was suddenly pulled open by PW1, who then said something in Chinese which he did not understand, dragged him out and pushed him to the ground[17].

25.The jury were given a very clear direction, which has come to be known as the Liberato direction, to the following effect[18]:

“If the defence put forward by the defendant - in this instance, he gave evidence - but if the defence put forward by the defendant is or may be correct, then the defendant is entitled to be acquitted. You do not have to positively believe the evidence relied upon by the defence. You cannot find an issue against the defendant contrary to that evidence if that evidence gives rise to a reasonable doubt about the issue. So it is all about giving the benefit of the doubt to the defendant.”

26.It follows that if the jury entertained any reasonable doubt about the issue of the appellant’s alighting from the vehicle carrying two bags of dangerous drugs in his hands, one of which contents at least was plainly visible, on the basis that he might instead have been dragged out of the vehicle by PW1 when he was in fact empty-handed, they would have acquitted him on this direction.  However, once the jury were satisfied that he did alight from the vehicle with the two bags containing dangerous drugs, then a conviction, it seems to us, was inevitable.  Whether he fled or not did not affect the resolution of this stark issue of fact.

27.A similar conclusion was reached on not dissimilar facts in the Mutengu case[19]:

“31. In the present case, unlike the position in Mo Shiu Shing, the applicant’s evidence was that he had not fled or attempted to flee; had not opposed his arrest in any way and that the police evidence to the contrary was wholly fabricated. The police evidence was that, after the applicant had been approached by them and informed that they were police and that they wish to search him, the applicant had simply commenced to run away. On their evidence there was nothing to suggest any ‘innocent’ reason for him having done so. On the applicant’s evidence the police had wholly fabricated their evidence in this regard and he had never attempted to flee or oppose his arrest. In his evidence he therefore put forward neither explicitly nor by implication any ‘innocent’ reason for his flight.

32. Nevertheless the evidence of the applicant’s flight was an important aspect of the prosecution’s case against the applicant. As the judge said when she concluded her summing-up of the prosecution evidence:

‘So that was the prosecution evidence. You have to consider what they have said. You have to consider whether what they have said is accurate and whether you believe those offices. If you believe them, you have to decide whether you can draw the inferences that they ask you to make about the knowledge that can be inferred from the defendant’s behaviour; in other words, his behaviour was such - by running away, by having the drugs in his underpants, by loitering at that particular place - that he must have had the drugs for trafficking and he was there for that particular purpose, and that his behaviour indicates also that he knew that what he was carrying was dangerous drugs.’

33. In our view the fact that the applicant’s case was that he had not run away does not mean that a flight direction need not have been given. In the event the jury had rejected the applicant’s evidence in this regard and accepted that of the police, the requirement remained for a direction as to the approach they should take to the evidence of flight. Any such direction should, as stated by this Court, differently constituted, in Mo Shiu Shing[20], have made clear to the jury that the evidence of the applicant’s flight could be no more than supportive of the prosecution’s case if there was no ‘innocent’ explanation for his running away.

34. As said in Mo Shiu Shing per Stuart-Moore JA at page 62F:

‘… we strongly recommend …, where it is necessary and appropriate to direct upon “flight” because the prosecution has attached proper significance to it, that the jury is told this may be supportive of the prosecution case if it has been proved that no innocent reason existed to run away. In some respects, stated in this way, the direction is doing no more than stating the obvious.’

35.     But given the circumstances of this case, while we accept that the direction to the jury on the evidence of the applicant’s flight fell short of what it should have been, that can be no doubt that the jury’s verdict would inevitably have been the same even had a fuller direction been given.  That is because there was no suggestion of any innocent reason for the applicant having run from the police and because, given the nexus between the finding of the drugs upon the applicant’s person and his flight, there was no possibility of the jury convicting on the evidence of flight alone. That evidence could only have, in the circumstances of the case, been regarded by them as ancillary to and merely supportive of the rest of the evidence in the prosecution case.”

28.Mr Marray argues that the case of Mutengu is distinguishable.  However, we do not consider that the evidence of flight in the case before us was “an important aspect of the prosecution case against the applicant” (which is how it was described by the Court in Mutengu[21]) at all.  Nor were the jury directed, as they were in Mutengu, that they could infer the defendant was trafficking in drugs from his flight, even though the mere fact of his running away did not necessarily mean he was guilty[22].  In fact, we agree with Ms Lo that prosecuting counsel in the present case did not rely inferentially on flight in his closing address to the jury.  Although the judge did mention it as one of the prosecution’s arguments, even she did not give any emphasis to it as a significant feature of the evidence.  In any event, as we have said, the very full terms of the Liberato direction would have ensured that if the jury entertained a reasonable doubt that PW1 might have pulled the appellant from the vehicle empty-handed, as he claimed, they would have acquitted him. 

29.At the end of the day, if the jury were not sure the appellant alighted from the vehicle carrying two bags of dangerous drugs, one of which at least was openly displaying its contents, they would have acquitted him, and the evidence of flight would not have taken the prosecution case any further.  If they were sure he did alight from the vehicle carrying two bags of dangerous drugs, they would almost certainly have convicted him and the evidence of flight was ancillary to that fact.  No jury could have convicted the appellant because of his flight alone.  The alighting, possession and attempt to flee were all inextricably linked.

30.It is not for judges to conjure up evidence or a defence scenario which the defendant has not given: see HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368, at [31]:

“Where, for instance, the defence’s evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to direct the jury on those alternative factual scenarios. Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing-up, these allegations bearing little or no resemblance to what was the reality at trial. In the passage from the judgment of McWalters JA, he refers to the appellant’s primary defence and secondary defence. This was with respect confusing. There was no alternative defence run by the appellant: the only defence he ran was that he had nothing to do with drugs and that he was framed. The other scenarios referred to by defence counsel in his final submissions and by McWalters JA were not alternative defences at all but were mere speculations.”

31.The appellant’s evidence was that he knew nothing at all until his car door was opened and he was dragged from the vehicle by PW1.  There was no evidence, or room on that account, for any suggestion that he had fled, perhaps because he thought PW1 may have been a robber who was up to no good.  Had he given such evidence, prosecuting counsel would have dealt with the claim; no doubt by asking why he did not simply remain in the car and lock the door.

32.In all the circumstances, we do not consider that the failure to give a full flight direction was a material irregularity in the circumstances of this particular case.  Even if we were not correct and the irregularity was material, we would without any hesitation have applied the proviso, since such a direction would not, in our judgment, have made any difference to the verdict.

33.It was for these reasons that the appeal was dismissed.

Ms Sabra Lo SPP, of the Department of Justice, for the Respondent

Mr John Marray, instructed by Stevenson, Wong & Co, assigned by the Director of Legal Aid, for the Appellant