HKSAR v. Ayoub Hani Muhi Eddine

CACC000340/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram: Hon Nazareth V-P, Mayo and Stuart Moore JJA in Court

Date of Hearing: 23 February 1999

Date of Judgment: 23 February 1999

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JUDGMENT

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Nazareth V-P (giving the judgment of the Court):

1. The applicant was charged before Wong J sitting with a jury in the Court of First Instance with trafficking in a dangerous drug, namely 475.97 grammes of a crystalline solid containing 468.28 grammes of methylamphetamine hydrochloride commonly known as "ice". He was found guilty after trial and sentenced to 15 years imprisonment. He now seeks leave to appeal against conviction.

2. The evidence came very substantially from a police informer referred to as Mr X. He said he had known the applicant for about two years before the date of offence, i.e. 17 October 1997. His evidence was that the applicant told him on 13 October 1997 that he would have no problem in delivering "ice" to him in the next few days, i.e. sell it to him. Mr X reported that to the police and was instructed to set up a purchase. The price was agreed. They discussed how it was to be carried out and at which hotel. Mr X kept the police informed. Mr X and the applicant then met twice and also had telephone conversations. They met again on 16 October 1997 and agreed that the deal would take place the next day, 17 October, before noon. The applicant had taken up a hotel room and would stay overnight there. He said he would deliver 600 grammes first and then later a further quantity.

3. Mr X said he went with the applicant to the Hyatt Regency Hotel where a room had been taken up by the applicant. He said the applicant had not enough to pay and he, Mr X, lent it to him. It was agreed that Mr X would take up another room in the hotel and go from there to the applicant's room. Before 8 am on the following day, the 17th, the applicant telephoned him to collect the drug immediately. Mr X took up a room before 9 o'clock and from there telephoned the applicant and gave him his room number. The applicant told him he would call back as to when Mr X was to go and collect the drug. Some time after 9 am Mr X went across to the applicant's room and knocked twice. It was opened by the applicant who produced a shopping bag. Mr X put his hand into it to feel the drug then withdrew his hand and put on his glasses which was his prearranged signal to the police who were waiting in an adjoining room. The police dashed towards the door.

4. Senior Detective Inspection Abbott gave evidence that he and other police officers were waiting in Room 1123, that is the room adjoining the applicant's room, No. 1122. He said that he went into the corridor at about 9.20 am, pretending to be a tourist who had lost his key. He noticed that the door to Room 1122 was ajar and saw a man who was inside talking to Mr X. The man looked at him. He went towards the door, shouting to his colleagues.

5. As he entered the room, he saw the applicant bending down, dropping a bag, and running into the room. The applicant was chased and caught. There was also a Pakistani man in the room who was also apprehended by the police. The police asked him about the bag. His answer was "What bag?" He added that he had only arrived in the room that morning.

6. The contents of the bag were later proved to be the "ice" which was the subject of the charge.

7. Other police officers also gave evidence.

8. The applicant who is Lebanese gave evidence and so did his wife. This was to the effect that they were dealers in imitation jewelry. I parse to say here that the applicant's evidence and version were detailed and rather involved. It extended to several pages of typescript. It is only necessary for me to give an outline. Mr X, he said, was a commission agent and set up sales to a man called Roy. In short, the applicant thought the bag contained money for imitation jewelry and other items supplied and to be supplied to Roy. The applicant mentioned in his involved version that Mr X told him that he had some problem getting back into his room in Chung King Mansion and so had to get a hotel room. He, Mr X, did not have enough money and it was the applicant who lent him some. The applicant also said the Pakistani was to go to Aberdeen to help to pack goods sold to Roy. On 17 October he met Mr X who sent him to his, Mr X's, hotel room to answer a telephone call which Mr X said he was expecting from Romania. Mr X, he says, also telephoned the Pakistani to go to the same hotel room. Shortly after the Pakistani man had arrived, Mr X knocked at the door. He had a bag in his hand and asked if Roy was there. He left the bag there and withdrew. The applicant noticed an expatriate observing this in the corridor. Mr X then kicked the bag into the room and told him to take it as it contained money. He bent over to do so and the man pushed into the room and said he was arresting him. That in short, he said, was how he came to be arrested.

9. In his notice of appeal he only stated that he wished to appeal as his trial was unfair and that the judge and jury did not consider his reasons. Before us today he has raised several points. The first was that the Pakistani man who was found in the room had written a statement and he invited the Court to look at it. It is not clear what that statement has to do with this appeal or whether there is such a statement in the court records as he says.

10. His second point is that during the trial Mr X told the judge there was a conspiracy. The judge, he says, was not pleased about that nor the prosecution. Because of that the judge in collusion with the prosecution started the trial all over again. That is a misconception on his part. What seems actually to have happened is that Mr X mentioned prejudicial details of his former relationship with the applicant in consequence of which the judge aborted the trial and commenced a fresh trial before a different jury. It is that trial with which this appeal is concerned.

11. His third point was that the judge mentioned to the jury two fingerprints on the bag which were from the same hand, whereas Mr X had given evidence that he had taken the bag with both hands and therefore there should have fingerprints from both hands on the bag. This, he says, the judge did not mention.

12. His fourth point is that Mr X said there was someone in the corridor whereas the police said there was no one in the corridor. That also the judge did not tell the jury.

13. His fifth point was that Mr X had told the court that he drew $2000 from an ETC machine and lent it to the applicant to meet the costs of the hotel room whereas Mr X told the police that he would himself pay that amount. This also, he said, the judge did not point out to the jury.

14. His sixth point was that Mr X claimed to have known him since 1995 but there was no evidence to support that.

15. His seventh point was that the judge asked Inspector Abbott, who had led the police team waiting in the adjoining room, why he gave the applicant a book to sign. He says Inspector Abbott denied he gave him the book to sign. Yet police officer No. 961, he says, gave evidence that he saw Detective Abbott give him a notebook and pen to sign.

16. Finally, he says that the lady who opened the door to him and said she was a member of the staff of the hotel was in fact a police officer. She had testified that she never saw him and had never left the room. But when his solicitors asked her who was the leader of the police, she did not know. Yet all the other police said Inspector Abbott had been the leader.

17. It has to be said that it is difficult to see what effect any of these points could have had on his conviction. It is plain that the jury accepted the evidence of Mr X and of the police officers which supported him to a significant extent. Once that evidence is accepted, plainly these tangential points could have had little effect upon the result. The applicant was represented by counsel. The judge fully outlined the evidence with care. There is no reason to doubt that the jury did not consider it with care. The crucial evidence having come from an informer, the judge went to lengths to warn them that they should approach it with great care. They unanimously came to the conclusion that the applicant was guilty. We can see nothing to fault that conclusion. Plainly, there is no merit whatsoever in any of the grounds advanced by the applicant.

18. We accordingly refuse leave. Having regard to the fact that there is a total absence of merit in the application, we disallow four months of the time which the applicant has spent in custody from counting towards his sentence. The result is that he will spend four months extra in prison.

Representation:

Applicant in person

Mr A.A. Bruce, SC, SADPP and Miss A. Pang, SGC for Director of Public Prosecutions