Nawab Hussain and Another v. The Queen

CACC000401/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 401 OF 1970

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Coram: Full Court. (Mills-Owens, Huggins, and McMullin JJ.)

Date of Judgment: 16 November 1970

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JUDGMENT

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1. The appellants, that is to say the 1st appellant and his second wife, who are nationals of and residents in Pakistan, arrived at Kai Tak Airport, Hong Kong, on the 2nd June 1970 by Lufthansa flight from Karachi. Their luggage, admittedly, consisted of three pieces, namely two suitcases and one briefcase. On inspection at the Airport all three pieces, according to the evidence for the prosecution, were discovered to have false bottoms, each containing raw opium. The total quantity of raw opium was alleged to be 16,763 grammes, distributed among the three pieces of luggage in the quantities of 7,681, 7,335 and 1,747 grammes respectively. Each of the appellant's appealed against conviction and sentence. As the wife, the 2nd appellant, wished to have her appeal dealt with separately and to put forward fresh circumstances affecting her own position, the appeal of the 1st appellant was heard and determined, it having been first ascertained that the 2nd appellant had nothing to say in support of her husband's appeal. We refer to the 1st hereafter as the appellant. It was common ground at the trial before the District Judge that the appellant himself produced two suitcases, the identity of which he disputes, for inspection in the usual way at the Airport, whilst the briefcase remained in the possession of his wife who was seated on a bench nearby. There was plain and apparently convincing evidence for the prosecution that the appellant produced two suitcases and unlocked them, in the presence of two Revenue officers, by using keys in his possession, and that, in his presence, the officers discovered the false bottoms and their contents of opium. As to the briefcase, the prosecution evidence was that the wife was approached by a woman Revenue officer who, in her presence, discovered the false bottom of the brief case and the opium therein. It was alleged that the appellant, on the opium being discovered in the two suitcases, said "Black stuff all mine", and that when he was shown the briefcase and its contents of opium in the presence of his wife he said that this briefcase also was his. Although the briefcase was unlocked the keys in his possession were, as it was alleged, capable of locking and unlocking it. Each of the three pieces of luggage allegedly contained articles of clothing, i.e. in the area above the false bottoms.

2. There was also the evidence of a police officer to the effect that the appellant made an admission of guilt.

3. According to his evidence, the appellant decided to make a pleasure trip to Hong Kong with his second wife, but, in order to get around monetary and travelling restrictions prevailing in Pakistan, he had to make 'unofficial' - which he admits means illegal - arrangements to obtain a passage and to secure that he had money available in Hong Kong. He made these arrangements through an agent in Pakistan who was in touch with an agent in Hong Kong. The amount he was to obtain in Hong Kong was H.K. $5,000. The agent in Pakistan requested him to take two suitcases with him, with clothing therein, for a person in Hong Kong. The agent provided two suitoases and clothing, and told him that he would be met at the Airport in Hong Kong by his (the agent's) men; should they fail to meet him he was to proceed to the Miramar Hotel. At Karachi, the appellant said, the suitcases were handled by his servant. The first time he handled them was at Kai Tai Airport. On arrival there he told his wife to sit down on a bench, with the briefcase, whilst he took the suitcases for inspection. He noticed nothing unusual about their weight. When the suitcases were searched no opium was shown to him. The suitcases were taken away by the Revenue officers and later he and his wife were simply told that opium had been discovered in all three pieces of luggage. Notwithstanding his demand to be sown the alleged opium the Revenue officers refused to do so. He was completely in the dark as to who was 'blackmailing' him, the police, the customs or the agent in Pakistan. It could, possibly, have been done for political purposes as he was to stand as a candidate in an election in Pakistan. The briefcase was in his possession throughout the journey by air and his wife was not responsible for it. He added, at this point, that he did not think that the two suitcases produced in Court were his and then that this was the first time he had seen them.

4. Under cross-examination the appellant said he was the head of a family of ten persons, with a total available income for their support of the equivalent of H.K. $918 per month. He had spent two year's savings on the trip, paying 7,000 rupees to the agent, who was one Mohamed Ali alias Chinese Koping. This agent had suggested that since they were going to Hong Kong with empty hands they might take two suitcases of clothing to his (the agent's) relatives there. But the two suitcases exhibited were not those they had brought with them; those exhibited were of a different colour and had different locks; the two suitcases he had presented for inspection at Kai Tak were the original suitcases given him by the agent, not those exhibited. The briefcase was his, having been purchased some 18 months before and he used it for carrying seeds to his farm land. He did not know how it came to contain a false bottom. He admitted that letters contained in the luggage were false documents purporting to have been received by him from relatives in Hong Kong, the purpose being to obtain permission from the authorities in Pakistan to make the journey to Hong Kong - it was all managed by the agent and was not his concern. The H.K.$5,000 which he was to receive in Hong Kong was not in payment for bringing the opium. The two suitcases which had been handed to him in Pakistan then contained clothing only so far as he was aware; he had them in his possession at his home there for 1 1/2 or 2 days only. A document he had been given by the agent in Pakistan, upon the production of which in Hong Kong he was to receive the H.K.$5,000 was now missing (the implication being that the Revenue or Police officers in Hong Kong were responsible). He denied possession of the keys fitting the two suitcases exhibited; he saw the keys exhibited for the first time in court. His wife was entirely innocent.

5. The wife also gave evidence in denial of knowledge or possession of the opium. Their belongings, she said, were packed in the briefcase. It was not fully searched at Kai Tak in her presence. No opium was disclosed in her presence; she was simply told later that it had a false bottom containing opium. The two suitcases they had brought with them were not those exhibited.

6. As the District Judge said in his recorded reasons for verdict there was no possibility of reconciling the evidence for the prosecution and that of the defence. He proceeded to analyse the evidence in detail and concluded that the case had been proved beyond doubt.

7. On the appeal the appellant put forward much the same grounds, with the exception that he now suggested that the opium had been placed, by someone, in the suitcases in Pakistan, and someone might, perhaps, have placed opium in the briefcase also. He gave no other explanation as to the false bottom and opium in the briefcase, and on the appeal he did not repeat his claim that the two suitcases exhibited were not in fact the two suitcases he was handed in Pakistan.

8. In our view this was a clear case, fully established so far as the appellant is concerned and accordingly his appeal against conviction is dismissed. His appeal against sentence of 3 1/2 years imprisonment has, obviously, no merit whatsoever; if anything the sentence was on the light side according to prevailing sentences for such offences; that appeal is also dismissed.

Representation:

1st appellant in person.

Evans, Crown counsel for the Crown/Respondent.