HKSAR v. Limbu Prashant

CACC 100/2022 [2023] HKCA 921

On appeal from [2022] HKDC 597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 100 OF 2022

(ON APPEAL FROM DCCC NO 689 OF 2021)

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J U D G M E N T

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1.On 15 June 2022, the applicant was convicted after trial by Deputy District Judge Terence Wai (the judge)  of one charge of trafficking in a dangerous drug, namely, 8,063.29 grammes of cannabis resin, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 47 months’ imprisonment.

2.On 6 July 2022, the applicant filed an application for leave to appeal against conviction and made no reference to any grounds of appeal.  On 29 January 2023, Mr William Allan, counsel for the applicant, filed grounds of appeal against conviction.  He advanced two grounds of appeal.  Ground 1 alleged that the judge had erred in law and fact in finding that nothing in the prosecution case could lead credence and support to the applicant’s claim of lack of knowledge and that the applicant’s assertion was nothing more than a bald denial of knowledge.  Ground 2 contended that the conviction was unsafe and unsatisfactory. 

3.The prosecution evidence, largely accepted, was that on 25 February 2021, Customs officers intercepted two inbound parcels from India, which were addressed to “Mr Saiwant Singh” with the telephone number of “+ 852  6485 6726” and the address of “Floor 2, Flat Number 8, Man Ying Building, Ferry Street”.  He was specifically asked if he was “Mr Saiwant Singh” and he replied, “yes”.  The first parcel consisted of 20 handbags and 64 pouch bags, and an examination by Customs officers revealed that concealed in the inner linings of the 20 handbags were 40 packets of cannabis resin.  The second parcel consisted of 20 handbags and 65 pouch bags, and an examination by Customs officers revealed that concealed in the inner linings of the 20 handbags were 40 packets of cannabis resin.  The 80 packets contained a total of 8063.29 grammes of cannabis resin with an estimated street value of $266,088.57.

4.On 26 February 2021, the Customs officers conducted a controlled delivery operation of the parcels.  A Customs officer disguised as a courier of the delivery company went to the address and called the telephone number as recorded on the parcels.  The applicant answered the call and confirmed he had two parcels to collect.  He approached the Customs officer on Man Ying Street outside the address of the building.  He acknowledged with the Customs officer that he had come to receive the parcels, and he confirmed to the particulars of the receiver’s name, the telephone number and address on the delivery records of both parcels.  After signing the delivery records for the parcels, he accepted receipt of them from the Customs officer.  He was then arrested and, under caution, stated that he was not the receiver as named on the delivery records and did not know him; that the address on the delivery records was not his address, but the telephone number was his; that he was collecting the parcels for a friend, who used an unknown number to call him; that he could not find his friend but was to keep the parcels at his home at “1/F, No 8, Man Ying Building” and was to wait for a call from his friend; and that he had not received any reward for collecting parcels.  The two parcels were opened in his presence, revealing their contents.  He stated that he had no knowledge of the bags in the parcels or that there were dangerous drugs inside them.

5.In a subsequent video recorded interview, the applicant, in the presence of his legal representatives, Mr  Allan and the instructing solicitor, remained silent in response to most of the questions but answered others that he had been told by a friend named “Salwant Singh”, whom he had known for 4 to 5 years, to collect the parcels and whose telephone number was 5682 7017; that he was only told that the parcels contained “a cultural bag”; and that had he known “that this would happen”, he would not have received the parcels.

6.The applicant elected not to give evidence or call any witnesses on his behalf.  The defence case was that the applicant had no knowledge of what was inside the two parcels.

7.The judge found that it was proved beyond reasonable doubt that the applicant had acquired physical possession of the two parcels, which contained a dangerous drug.  As a result, he stated that section 47 of the Dangerous Drugs Ordinance was engaged, and the applicant was presumed to have the drugs in his possession and to have known their nature.  He applied the principles laid out in HKSAR v Hung Chan Wa [2005] 3 HKLRD 291, at [144], as affirmed by the Court of Final Appeal in HKSAR v Hung Chan Wa and Another (2006)  9 HKCFAR 614, holding that the applicant bore an evidential burden in rebutting the presumption under section 47.  See also HKSAR v Ng Po On (2008)  11 HKCFAR 91, at [72]-[74]; R v Lambert and Others [2002] 2 AC 545, at [90].  He also noted that to discharge the burden, there had to be evidence on the issue in question which was more than a bald denial of knowledge and that there should be some evidence, which if believed, could be taken by a reasonable factfinder to support the assertion of lack of knowledge: HKSAR v Yeung Wai Ho Henry [2013] 1 HKLRD 560, at [18]. 

8.Mr Allan takes no issue with the judge’s approach on the law regarding section 47, which was comprehensively addressed by Ms Angel Yuen, for the respondent, in her written submissions.  It is not the usual practice for the prosecution to rely on this section but rather to establish the issue of knowledge by inferential reasoning.

9.The judge found that the applicant’s assertion that he had no knowledge of the drugs inside the parcels was nothing more than a bald denial and that he failed to rebut the presumption of possession and of knowledge under section 47.  In support of his conclusion, he explained that the applicant had not been full and frank in his accounts to the Customs officers and had given different versions about his identity and the particulars of his friend on whose behalf he said he was collecting the parcels; that it was doubtful whether the telephone number of his friend that he mentioned in his interview was genuine because it was only activated on 27 February 2021, a day after his arrest; and that the applicant was evasive when it came to his knowledge about the contents of the parcels as he had initially stated he had no knowledge of what was inside the parcels but later said that they contained “a cultural bag”.

10.The substance of Mr Alan’s submission is to repeat the points he made in his closing address to the judge, in which he contended that certain facts and circumstances supported the applicant’s case that he did not know there were drugs in the parcels.  The judge did not accept the points made on behalf of the applicant and was satisfied to the requisite standard that the applicant knew there were drugs in the parcels. 

11.The points Mr Allan makes are that (i)  the drugs were concealed in the parcels; (ii)  the applicant was not named as the receiver; (iii)  the applicant was not taken by Customs officers to the address on the parcels; (iv)  there was no evidence to rebut the applicant’s evidence that Saiwant Singh was a real person; (v)  the address on the parcel was not the applicant’s address; (vi)  there was no evidence that the address was fake or that Saiwant Singh did not reside there; (vii)  the contents of the parcels of handbags and pouch bags was consistent with the applicant having been told that they contained a “cultural bag”; (viii)  and (ix)  there was nothing suspicious found on the applicant or in his home; (x)  the applicant repeatedly stated that he did not know the parcels contained drugs; (xi)  the applicant was very cooperative and did not try to flee; (xii)  and (xiii)  the applicant admitted that the receiver’s name was not his immediately after he had been arrested and cautioned; (xiv)  the applicant did not remain completely silent but explained that he was collecting the parcels for a friend, who was to collect them later; (xv)  there was no evidence that the applicant was paid to collect the parcels; (xvi)  the opening of the parcels in the presence of the applicant was done at his home not at the receiver’s address; (xvii)  the applicant when shown the drugs in the parcels did not remain silent but stated that he had no knowledge of them; (xviii)  the applicant stated in his interview that he had received the two parcels because his friend “Mr Salwant Singh”)  told him to collect them; (xix)  “Mr Salwant Singh” was a real person and his contact telephone number given by the applicant in his interview was a real telephone number (It is submitted that there was no evidence that this was not a real person or that the telephone number was not real.); (xx)  the applicant’s statement in his interview that “Mr Salwant Singh” did not tell him what was in the two parcels except they contained a “cultural bag” appeared to be true or may be true; (xxi)  the applicant stated in his interview that had he known that the two parcels contained drugs he would not have collected them for “Mr Salwant Singh”; (xxii)  and (xxiii)  the contact telephone number of “Mr Salwant Singh” given by the applicant in his interview was activated on 27 February 2021 whilst he was in custody; and (xxiv)  there was no evidence that Customs officers tried to call the telephone number given by the applicant.

12.In his oral submissions, Mr Allan complained that the judge was wrong to conclude there was nothing in the prosecution case which supported the applicant’s claim of lack of knowledge, emphasising that the drugs were concealed in the parcels, the applicant was not named as the recipient, the applicant had not been taken to the address on the parcels, “Mr Salwant Singh” was a real person and the applicant gave contact telephone number of “Mr Salwant Singh”, which was real, in his interview with the Customs officers.  The judge addressed these matters but I point out that it would appear that some of them were not canvassed at trial so there was no evidence as to whether “Mr Salwant Singh” was a real person and whether or not the Customs officers went to the address on the parcels.  As for the telephone, it was an admitted fact that it was a prepaid telephone number, which was activated on 27 February 2021.  The applicant had been arrested in the morning of 26 February 2021 and was interviewed in the afternoon of the next day, 27 February 2021, when for the first time, he gave the contact telephone number, having previously denied that he knew the named recipient of the parcels and stated that he was unable to contact the person who asked him to collect the parcels.

13.As already noted, the points made by Mr Alan were also made in his closing address to the judge, who addressed these matters in his reasons for verdict as seen in the following passages:

“35. Mr Allan pointed out that the defendant never admitted knowledge of the presence of the cannabis resin, which was well-concealed in the linings of the handbags inside the two parcels. In fact, once the contents of the parcels and the cannabis resin concealed in the handbags were revealed, the defendant immediately told PW3 that he did not have any knowledge about the drugs concealed inside the handbags.

36.  He submitted that such denial, coupled with the defendant’s cooperativeness with the customs officers, the lack of any attempt to escape from the officers’ custody, and the absence of drugs or other contraband on his person and in his home, showed that the defendant’s claim of lack of knowledge about the presence of drugs in the parcels might be true.

37.  The lack of attempt to escape, the absence of contraband on the defendant’s person and in his home, and his seemingly cooperative manner by themselves are not necessarily indicia of innocence.

38.  In considering whether the defendant’s denial of knowledge under caution is true or might be true, it is necessary to consider, among other things, the entirety of the defendant’s behaviour and his answers to questions other than those about his knowledge of the presence of drugs in the parcels.

39.  In the course of his encounters with PW3, the defendant had not been open and frank right from the beginning.  Before PW3 revealed his identity as a customs officer, the defendant, no doubt thinking that PW3 was a courier, claimed himself to be the receiver stated on the parcels “Mr. Saiwant Singh”, and his address to be the address written on the parcels as the receiver’s address when he was collecting the parcels.  These claims were obviously untrue, in light of what we now know about his name and address.

40.  After PW3 arrested and cautioned him, the defendant, in answer to PW3’s asking if he had any knowledge about the receiver “Saiwant Singh”, said: “It’s not me.  I don’t know him”; with regard to the receiver’s address, he told PW3 that it was not his address.  However, he maintained throughout that the receiver’s telephone number was his own telephone number.

41.  As to why he was there to collect the parcels, he told PW3 that his friend had told him to come and receive the two parcels, that his friend used an unknown number to call him, and that he could not find this friend.  The defendant said he would put the parcels in his room and wait for his friend to call him.

42.  However, on the following day in the VRI, what the defendant told the interviewing officers about this friend was quite different from what he had said the previous day.  In this interview, he said that this friend was “Salwant Singh”, (a name which is different from the name of the receiver on the parcels “Saiwant Singh” by just one letter).  He further said that he had known this friend for 4-5 years. In answer to the question “Do you have any contact of your friend?”, the defendant answered with a telephone number “5682 7017”. 

43.  In the course of just one day, from the defendant’s own mouth, information about this friend of his had changed from someone whom the defendant could not find to someone bearing the name “Salwant Singh” who had a contact telephone number which the defendant was able to tell the interviewing officers about.

44.  Mr Allan submitted that since the telephone number 5682 7017 that the defendant gave as Salwant Singh’s was a genuine number, as evidenced by the fact that it was an activated number, this shows that what the defendant said about this person was true or might be true.

45.  If the telephone number, which clearly is a means of contact, that he gave during the VRI was indeed his friend’s number, then it renders untrue his claim made the day before to PW3 that he could not find this friend.

46.  However, it is even doubtful whether this number was indeed his friend’s telephone number, in view of the admitted fact that this telephone number was activated on 27 February 2021.  By the time of the activation of this number, the defendant had already been arrested in connection with the present case and was in custody.  If this number was activated after his arrest, how could this telephone number have been his friend’s contact?

47.  He was just as evasive when it came to his knowledge about what the parcels contained. When the contents of the parcels were revealed to the defendant at his home, and he was asked if he had any knowledge about the pouch bags and handbags inside, his answer was “No, first time see them”.  During the VRI, he was asked whether his friend had told him what was inside the parcels; initially he said “no”, but he went on to say “ar no, I was not told anything, only they had given a short information saying that there will, that is a cultural bag”[1].

48.  It can thus be seen that the defendant chose not to be frank about his identity and his address when he collected the parcels; his answers about the particulars of the friend who had allegedly sent him to collect the parcels changed from one day to the next; and his claim of lack of knowledge about the bags inside the parcels was similarly lacking in consistency.”

14.It was not in dispute that the contact telephone number belonged to the applicant and that he collected and signed for the two parcels after he had confirmed the particulars of the name, telephone number and address on the delivery records.  The judge accepted that at the time of the delivery, the applicant acknowledged to the Customs officer that he was “Mr Saiwant Singh”.  Upon his arrest and caution, the applicant initially denied that he knew the addressee, “Mr Saiwant Singh”, and said that he collected the parcels for a friend who used an unknown telephone number to call him.  He later claimed, however, in his interview that he collected the parcels for his friend, “Mr Salwant Singh”, whose telephone number was “5682 7017” and who told him that the parcels contained “a cultural bag”.  The address on the parcels was the second floor of the same building where the applicant lived on the first floor.  The judge noted the applicant’s varying accounts regarding his collection of the parcels for someone else and his knowledge of what was contained in them.  He rejected the applicant’s exculpatory statements, which he was entitled to do: HKSAR v Touray Edrisa and Another, unreported, CACC 124/2010, 26 August 2011, at [39]. 

15.As noted by Ms Yuen, the applicant’s explanations in the interview were either inconsistent or incredible and were not sufficiently substantial to raise a reasonable doubt as to the issue of knowledge.  She also submits that the points made by Mr Allan were hardly supportive of a lack of knowledge on the part of the applicant and did not address to any significant degree or at all the issue of whether the applicant knew there were drugs in the parcel.  The fact that the drugs were concealed in the parcels, which the applicant had not opened, did not indicate that he did not know or must not have had prior knowledge of the contents.  Even though the applicant was not named as the receiver of the parcels and the address was slightly different to his home address, the telephone number of the intended recipient belonged to him, and he signed for and received the parcels.  The lack of an attempt to escape or the absence of contraband or drugs on the applicant or in his home and his seemingly cooperative manner were not indicia of innocence, which in any event ignores the evidence that did implicate the applicant knew that the parcels contained a dangerous drug.

16.Following his analysis of the evidence and resolution of the issues, the judge was entitled to conclude that the applicant knew the parcels contained a dangerous drug.  It would seem that he could have been satisfied to the requisite standard that the only reasonable inference to draw from the evidence and his findings was that the applicant knew there were drugs in the parcels.

17.It follows from what I have said that I am not satisfied that the grounds of appeal against conviction are reasonably arguable, and leave to appeal is therefore refused.

18.The applicant is reminded of his right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a further direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Angel Yuen, SPP (Ag), of Department of Justice, for the respondent

Mr William Allan, instructed by Mohnani & Associates, for the applicant