HKSAR v. Nambukara, Tantrilaga Donasiri Charit Jayasuriya

HCMA 432/2023

[2024] HKCFI 3393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 432 OF 2023

(ON APPEAL FROM TMCC 2070 OF 2022)

________________________

________________________

________________________

J U D G M E N T

________________________

1.The Appellant was found guilty after trial by the Magistrate for one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of the offence were that on 7 November 2022, near Lamppost VA6958, Nam Pin Wai, Long Yat Road, Yuen Long, New Territories, Hong Kong (“the Location”). The Appellant unlawfully trafficked in a dangerous drug, namely two transparent plastic bags containing a total of 977 grammes of cannabis in herbal form. The Appellant was sentenced to 2 months and 2 weeks’ imprisonment and he now appeals against conviction.

Prosecution Case

2.As briefly stated by the Respondent, at 1758 hours on 7 November 2022, PW1 and PW2, both police officers were on patrol with their team members and saw the Appellant holding a white plastic bag walking towards them. The Appellant then turned and took flight, and police chased after him. When they reached the Location, the Appellant tossed a white plastic bag over a fence and into the brushwood about 4 metres away. PW2 therefore stopped and guarded the Location and called for assistance, whilst PW1 continued to give chase with another officer.

3.At 1802 hours, sergeant arrived at the Location and PW2 entered into the area of brushwood where he saw the Appellant toss the plastic bag. Meanwhile, the Appellant was intercepted and eventually subdued by the police despite having struggled at about 400 to 500 metres away.

4.At 1808 hours, PW2 found and seized P2, the said white plastic bag containing the recycle bag, P3, with two transparent plastic bags, P4 and P5 inside, containing a total of 977 grammes of herbal cannabis. At 1815 hours, the Appellant was brought back to the Location and was arrested for the offence of “trafficking in dangerous drugs”.

Defence Case

5.The Appellant elected not to give evidence nor calling any witness at trial.

Magistrate’s Findings

6.On the Magistrate’s finding, the Magistrate identified the following key issues to be considered:

(1)  Can the attempted flight of the Appellant be adduced as evidence in support of the prosecution case?

(2)  Can the Court be sure that the plastic bag found by PW2, Exhibit P2, was the very same one that the Appellant held in his hands and subsequently threw away?

(3)  If the answer to (2) above is in the affirmative, can the Court be sure that the Appellant was trafficking in dangerous drugs?

7.The Magistrate, after considering all the facts, found that, firstly, both PW1 and PW2 were credible, reliable witnesses and there was no material and significant discrepancy. Secondly, the Appellant did not attempt to flee for an innocent reason, but instead the Magistrate found that he fled by reason of him being aware of having committed the offence in question and chose to flee in order to prevent the offence from coming to light. Thirdly, the plastic bag seized by PW2, Exhibit P2, was the very same one that the Appellant tossed into the brushwood and the Appellant did so because he did not want to be caught red-handed with something that was inside P2.

8.So all in all, the Magistrate found that there was sufficient circumstantial evidence to support the only irresistible inference that the Appellant had the intention and ability to use dangerous drugs for trafficking purposes.

Grounds of Appeal

9.Ms Herbert put forward the following grounds of appeal:

(1)  The Magistrate erred in failing to adequately consider the significance of the spelling error of the Appellant’s name as it appeared in the notebooks of PW1 and PW2.

(2)  The Magistrate erred in finding that the motion of tossing the bag into the brushwood would hinder the Appellant’s flight because as a matter of common sense, carrying the bag with him would hinder his flight, making him an easier target to be caught by police.

(3)  The Magistrate failed to consider adequately the prosecution’s burden of having to prove the case beyond reasonable doubt.

(4)  The Magistrate erred in making findings unsupported by evidence.

(5)  The considerations which the Magistrate had taken into account in determining whether this was a trafficking rather than possession were considerations that would also support a finding of simple possession.

10.In detailed written submissions, on the first ground, Ms Herbert submitted that there were the same misspelling of the Appellant’s name in both PW1’s and PW2’s records, inferring the likelihood of collusion and copying. Although the Appellant’s name being 5 separate words and over 40 characters long, meaning the Magistrate would find that the same single error appearing in both notebooks. It is submitted that the same mistake appearing in both notebooks is inherently unlikely unless there is a possibility in the least that cannot be ruled out, that there is a possibility of collusion or copying between both witnesses. Therefore, that would fall doubt on the credibility of the evidence.

11.On ground 2, it is submitted that the Magistrate’s finding also failed to take into consideration that the Appellant managed to run some 400 to 500 metres without being intercepted and thus arguably the throwing of the bag did not significantly hinder his flight. And even that the Appellant could simply leave the bag behind, the Magistrate failed to consider that the decision to throw it must have been made quickly and without the ability to form much thought upon it.

12.On ground 3, it is supposed to be the prosecution’s burden of proving all these matters from all the evidence of this case. It is submitted that the prosecution had failed to prove beyond reasonable doubt. Firstly, on the markings, there had been orange markings. In finding that “not describing the bag having orange markings does not mean the bag does not have the same”. It is submitted that the prosecution had the burden of proving that the bags were the very same beyond doubt.

13.Secondly, on the search of the whole area of the brushwood, without doing it, it could not be ruled out that within the brushwood there was another bag inside, particularly there had not been any evidence or elaboration on how the search had been done, and how it was done between the gap of 6 minutes from the very start until the finding out, there had not been any evidence concerning that. Particularly, given that the area was such a dense vegetated area with trees and vines, and the ground was not flat, the methodology of how the search was conducted was vital for the prosecution to discharge their evidential burden before it could be said that the bag was the very same one. And it was dark and PW2 had to use a flashlight to conduct it, so the visibility was limited as well.

14.So all in all, the evidence of the prosecution case was insufficient to make the conclusion that were the very same one as alleged to be thrown out by the Appellant. Particularly, they had not seen how the bag was landed to that area so there was also a possibility that there existed another bag because if one doesn’t see where the bag landed, how would it be possible, how can one be sure that it is the very same one been found out?

15.On ground 4, there had been findings unsupported by evidence, particularly concerning the size, weight, and shape of P2, there must be an error because there was insufficient evidence to make this finding that was the very same one to be tossed about 4 metres away and there had not been any background evidence whether P2 had been exposed to the elements and there had not been any evidence concerning whether the plastic bag would not be easily biodegradable or not showing signs of exposure to elements, and there had not been evidential basis as what the weather had been like on that day. And therefore the conclusion that it was not exposed to elements for a long time cannot be safe.

16.And on the value of the drugs, there had not been evidence as well. It could be said, it is submitted that that would be some value but the finding that the value was ‘significant’ is unsupported.

17.And on ground 5, the last ground concerning all the matters considered by the Magistrate, the Magistrate has submitted that there can also be a conclusion of simple possession as well. Say for example the drugs were inside a plastic bag inside another recycle bag. That would prevent the distinct and pungent smell of cannabis from spreading and that will also allow for ease of transport and also the defendant’s flight upon seeing the police and tossing the bag. All these matters would also support a conclusion of simple possession instead of unlawful trafficking.

Respondent’s reply

18.Concerning the Respondent’s reply, the response in ground 1, the Respondent would say, as Magistrate also found, that both witnesses were unfamiliar with the language of the Appellant’s name and it was perfectly reasonable for them to have copied the name from another source instead of just having a copying and collusion between the witnesses.

19.On the second ground, the background was that the Magistrate was considering the Appellant’s claim that he fled from the police because he was in breach of the mask mandate by not wearing a mask at all. So the Magistrate was therefore concluding that the tossing of the bag was disproportionate and it was simply unreasonable and illogical for him to throw the bag if he was just running away just because he was not wearing a mask.

20.On ground 3, even though that both witnesses have described the plastic bag as mainly white, rather than orange, but from the photo P7 (27 and 28), in fact the plastic bag on one side is mostly orange but the other side was mostly white. And it was just ordinary that when the police were chasing the Appellant, he was holding a plastic bag and running and tossing the bag, the police could only see the one side of that bag, the white part of the bag. So there was no problem by not describing the plastic bag as having orange marking does not mean that the bag did not have the same.

21.And there was also no practical reason for PW2 to search the whole 20 x 20 metres square area of the brushwood, particularly that he had seen the tossing of the bags and found it about 4 metres away within 6 minutes.

22.And the Respondent also replied that despite the discrepancy in the evidence of PW2 as to whether he saw the plastic bag landed or not, his credibility and strengths of the prosecution case as a whole were not affected in view of the following factors. First, concerning the distance from where the Appellant was when he tossed the plastic bag were relatively short distances, about 4 metres away; and PW2 was near the Appellant when the Appellant tossed the plastic bag. From the photo, one would see the area of that area and the street light was on and PW2’s view was not obstructed. And after the tossing of the bag, the police was no longer in pursuit but simply guarded the area until the search team came and conducted the search for 6 minutes and found it out.

23.And the police had also used a flashlight for illumination during the search and no similar plastic bag was found. P2 was of some substantial size and one could see it from a far. The size, weight, and shape of P2 matched something that could be tossed about 4 metres away and the exhibits P2 and P3, appeared to be relatively new and did not seem to have been exposed to the elements for a long time. And given the quantity of the dangerous drugs and their illegal status, it must be of some substantial value that one would not leave them on the ground in a brushwood without any security. So all in all, the Magistrate had already considered all these matters in coming to the conclusion.

24.And on ground 4, the Respondent rely on the case of HKSAR v Yeung Chor Shing, HCMA 695/2001. The court said that:

“The magistrate was fully entitled to use his common sense to consider whether the mere ‘packager’ defence was supported by the evidence.”

And also similarly in Wong Yin Yu v The Queen [1972] HKLR 6, the Court of Appeal held that a jury is:

“entitled, in the absence of evidence as to the precise value of a quantity of dangerous drugs, to take cognizance of the notorious fact that salts of morphine can be sold illicitly at a very high price.”

25.And even though there was no evidence before the court as to the distance, that size of the bag could be thrown away while running, from all the circumstantial evidence, particularly the substantial quantity and the value of the drugs, that the Magistrate was entitled to make use of his common sense or take judicial notice of the facts that he had found out.

26.On the last ground, on the facts of the case concerning the total quantity of the drugs, how it was packaged, the Appellant running away upon seeing the police and that the value of the drugs of substantial value, the Respondent would say that if one just consider the factors singularly, that it may come to a finding of similar fashion. But if taking all these matters into account, the Magistrate was entitled to consider all the circumstantial evidence and find that it was a case of unlawful trafficking.

27.So all in all, the Respondent would say that the appeal should be dismissed accordingly.

Consideration

28.In the recent Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial court. The judge must be satisfied that the Appellant’s guilt had been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the Magistrate to convict.

29.The court recognise that the appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

30.On ground 1, about the same spelling mistake of the Appellant’s name by both witnesses. The Magistrate had in fact already duly considered that the only error was an “A” that was written as an “E”. Given that both witnesses were not familiar with nor fluent in English and that there was no issue taken on identity, that mistake did not affect their credibility, or as what the Respondent also pointed out, apart from the above mistake, there was no other identical mistake found and it was not uncommon for officer to copy the name from other sources, particularly the Appellant’s name was really relatively so long. And there was no actual evidence of collusion nor copying. Therefore this ground 1 must fail.

31.On ground 2, about the action of the Appellant’s tossing the bag which would hinder Defendant’s flight. On proper reading of Magistrate’s findings, it was just on replying defence’s suggestion that the Appellant may run away just because he was not wearing the mask. Thus, the Magistrate considered that his action was mostly disproportional and unreasonable and tossing the bag would also make him an easier target. Ground 2 is also clearly without merit and must fail too.

32.On ground 3, about the Magistrate’s finding on markings of the bag; the search of the brushwood; how the search was conducted and not seeing how the bag landed, the Appellant submitted that the prosecution has failed to discharge its burden of proof on all these areas to prove the bag was actually the very same one thrown by the Appellant.

33.However, the Magistrate had indeed analysed all these matters in details, including that the plastic bag had one side in orange but the other side was mostly in white. I have also seen the photos P7 (27 and 28). Further, given the actual surroundings of the Location (see photos P7 (25 and 26) ), the fact that the bush area was of about 20 x 20 metres large, a dense vegetated area with trees and vines, and PW2 had actually seen the Appellant toss a bag to that area and PW2 had guarded and later searched for about 6 minutes to find it out. So the Appellant’s suggestion that there may have been another bag was truly speculative and without evidential basis. while the Magistrate had actually gone through a very detailed analysis to find that the bag seized was the one thrown by the Appellant (see paragraph 35(a) to (o) of the statement of findings). Therefore this ground also failed.

34.On ground 4, about the size, weight and shape of P2 whether it had been exposed to the elements and the lack of valuation of the drugs, no doubt the Magistrate can apply his common sense and daily experience to say that it was about a similar size, weight and shape of the plastic bag that could be tossed from that distance to be found. That also applies to the outlook of the transparent bags containing the herbal cannabis (see photos P7 (31 to 34) ). As to the value of the drugs, it was nearly 1 kilogramme of herbal cannabis. It cannot be said that the Magistrate had faulted by saying it must be of some significant monetary value. Therefore, ground 4 also failed.

35.Lastly, on the findings of trafficking instead of simple possession, as what the Respondent had also replied, it may be true when some factors in these cases be taken and considered individually, that may lead to a finding of simple possession. However, when considering all these matters collectively, say 2 bags of dangerous drugs of some size containing a total of 977 grammes of herbal cannabis (see photo P7 (31 to 34) ) which was containing inside a recycle bag and a further plastic bag to prevent from the distinct and pungent smell and for ease of transportation, and that the Appellant immediately fled upon seeing the police and tossing the bag to the bushes, and the substantial value of the drugs. Therefore the Magistrate was really entitled to come to the finding that it must be unlawful trafficking, particularly without any other evidence for explaining the possession of such a large quantity of drugs in this case. Therefore, this ground also failed.

36.So, by way of rehearing on all the evidence before this court, I am also satisfied that the Appellant’s guilt has been proven beyond all reasonable doubt. Therefore, the appeal is dismissed accordingly.

Ms Elizabeth Anne Herbert, instructed by Chaudhry Solicitors, for the Appellant

Ms Chan Yuk-lui Ivy, PP of the Department of Justice, for the Respondent