The Queen v. Mohammad Akbar
|
CACC000589/1983
BETWEEN
Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A. Date: 20 October 1983. __________ JUDGMENT __________ McMullin, V.-P. : 1. The applicant was charged with another man upon a single count of conspiracy to traffic in dangerous drugs. The facts out of which the case arose commence with a police raid upon Room 101, Fuji Hotel, Kowloon on the 2nd of November, 1982. The police party upon entering found the first defendant, Mohammad Akbar and a woman called Mrs. Fung together with two other persons one of whom was an under-cover police officer. 2. A search of the room disclosed a red handbag and a number of cartons which contained small bottles labeled "distilled water for injection" which upon later examination were found to contain a small quantity of salts of esters of morphine disseminated through the fluid contained in each bottle. There were 39 such bottles and the chemical examination disclosed the fact that the total quantum of heroin in the fluid in all the bottles amounted to no more than 2.27 grammes. The defendant and the woman, Mrs. Fung, were arrested and subsequently a second man, Washim Sarwar, was also arrested. 3. The Crown in this case found itself in the not unfamiliar position of being confronted with clear evidence of a trafficking in drugs in which the principal evidence must necessarily emanate from persons suspected of being involved in that offence. In a manner which has become familiar, a bargain was struck. Mrs. Fung was granted immunity by the Attorney General and she agreed to give evidence for the Crown. The other two, the present applicant and Washim Sarwar were charged with conspiracy to traffic and at the conclusion of the trial, Washim Sarwar was acquitted and the present applicant was convicted. 4. The facts of the case thus stated do not disclose the whole background to the affair. Mrs. Fung told the court that she had been in Hong Kong for about 13 years, she was a teacher of English and she had met the 1st defendant, the present applicant, through teaching his wife English. She became very friendly with the two of them, she regarded the applicant as her brother and through the applicant she became acquainted with the other defendant. She was aware that that man was giving some form of medical treatment to the applicant's son. This man, Washim Sarwar, was referred throughout the trial by Mrs. Fung and the applicant as the 'doctor', although it appears he is not a registered medical practitioner in Hong Kong 5. Mrs. Fung was informed, she said, that this man had some medicine to sell and she went on to state that at the applicant's request, she met these two men in Peking Road sometime late in October. She was told by the 2nd defendant that he had medicine the name of which he wrote down for her. The name was heroin but she said that she did not understand what that meant. She was asked to get a customer for this medicine. She did this by means of a friend called Lee. The person whom Lee contacted turns out to be the police informer, a man who was known to her as Jimmy, but who, as it now transpires, was P.C. Kong, the man who was found in the hotel with her on the day of the raid. 6. She told the court that she had shown a sample of the doctor's wares to this man and that she had obtained permission from the applicant to let Jimmy take the sample away in order that it should be tested. The next day she arranged that they should meet at Room 101 in the Fuji Hotel. She said that she and the 1st defendant went there and that the 1st defendant had a suitcase which was opened in the presence of Jimmy and another man who was present, and shortly after that there was a police raid. 7. The defendant's story was quite different. He has been working for sometime in the Shir Khan Club, Chung King Mansions. He said that he came to know Mrs. Fung through his wife. At one point it appears they were very close and regarded each other as brother and sister but this happy state of affairs was interrupted by curious suggestion by her that she should adopt his son. Thereafter their relations were not so good. He had known the other defendant for about six months before the events of November. Washim had treated his son for some unspecified ailment. Mrs. Fang, he said, came to know the 2nd defendant and asked that he should bring this man, the doctor to her house because her mother-in-law was suffering from some illness. The 1st defendant did bring the 2nd defendant to Mrs. Fung's house sometime late in October and there was a later occasion, this was the 1st of November, when they made another visit. On this occasion there was some conversation between the doctor and Mrs. Fung who, it appears, wished the doctor to get her some kind of water. The tenor of the applicant's evidence was that he was not in on this conversation and did not understand what was going on. Nevertheless he agreed to go with the other two when they went to several chemist shops in one of which they bought a number of bottles of a special kind of distilled water which, according to the labelling of the bottle, was to be used for purposes of injection. It must be said at this point that the nature of the bottles and their contents was not suggested to be at that stage in any way suspicious. These bottles were purchased by the doctor but paid for by Mrs. Fung, although she denied that that was so. 8. The following day he was rung by Mrs. Fung who asked him to come and bring the doctor and meet her at the place where they had bought the bottles the previous day. He said that he tried to get the doctor, the other defendant, but was unable to do so, and he went to meet Mrs. Fung on his own. He said that she was then carrying the red bag and she handed it to him to carry for her. He did so and noted that it was heavy. He asked her what was in it and she said that it contained the bottles they had bought on the previous day. He told her that he had been unable to contact the doctor and she said that they would do that when they got to the hotel where she was meeting her friends. 9. They went to the Fuji Hotel and then to Room 101. In that room he saw two men. He said that Mrs. Fung had conversation with one of these men for some minutes which he didn't understand because they were speaking in punti which he says he doesn't understand. Then she told him to hand over the bag. He said that he did so and the bag was opened to disclose some cartons and bottles and very shortly after that the police party arrived and they were arrested. 10. The under-cover police officer, P.C. Kong, gave an account of the affair which, insofar as he was involved in the action, was similar but in one important respect different. He said that when Mrs. Fung and the applicant entered the room, it was the applicant who opened the bag and who produced from it the cartons, though he did not actually extract the bottles from them. 11. There was evidence from a shopkeeper called Yu who told the court that a red suitcase of the kind which had contained the bottles had been purchased on the 30th of October. It was the Crown's case that this further connected the applicant with the trafficking in the drugs. There was, however, other evidence to show that two such suitcases have been purchased. Mr. Yu recalled that the applicant had purchased a similar case 7 or 8 days prior to the 30th of October. On each occasion he was in the company of the other defendant. His story was that one of these bags was for the second defendant. Mr. Sedgwick's point is that there was nothing to show that the bag with the bottles in it was that of the first defendant. 12. There was also evidence given by the seller of the distilled water but that did not in any respect materially differ from the account given by the 1st defendant. 13. On the basis of those facts, the Judge said "It was abundantly clear that Mrs. Fung was trying to sell dangerous drugs to Kong whom she thought was a potential buyer. In all the circumstances of the case I was sure that the defendant knew all about the transaction and had agreed with Mrs. Fung to traffic in dangerous drugs." It is important to note that the Judge at the outset of his Reasons for Verdict had totally rejected the evidence of Mrs. Fung who was quite clearly not merely an accomplice but possibly the person most deeply involved in the affair, whatever the nature of it might be. 14. Mr. Sedgwick on behalf of the applicant this morning takes a single point. He says that he does not quarrel with the finding of primary fact that it was the applicant who had opened the bag and removed the cartons therefrom but he says that the Judge's finding, from that and the other circumstances recited above, that the applicant must necessarily have been involved in a conspiracy with Mrs. Fung exceeded the quality of the evidence available to him. 15. In the Grounds of Appeal it was put in the following way:
16. Counsel says that this is one of those cases in which it would not be proper to say that the only reasonable inference to be drawn from the facts was the inference of guilt. He has referred us to a number of cases which it is needless to enter upon in any detail but he particularly enlists the dictum of the court in Benmax v. Austin Motors [1955] A.C. to the effect that when an appellate court is dealing with the findings of a Judge of trial, it will find it itself more entitled to interfere where a finding is on the basis of an inference from primary fact rather than in the case where the court is considering a finding of primary fact itself. 17. Mr. Hodge for the Crown asked the court to say that the whole shape of the event points irresistably to the guilty complicity of this applicant in a conspiracy to traffic in the drugs which were seized. He points out that it is plain on the evidence that Mrs. Fung had agreed to supply 39 bottles and had fixed a date for meeting in the Fuji Hotel and had moreover suggested that she should bring an elder brother with her, a suggestion which was accepted by her vis-a-vis who said that he too would bring a supporter. He points secondly to the fact that the 40 bottles had been bought on the previous day in the defendant's presence and that they had when seen on the following day unsealed although they were sealed on the previous day. Then he says it is significant that when the police arrived they discovered that it was this applicant who was the elder brother who had been referred to in the plan outlined by Mrs. Fung. Then there was the evidence that he had carried the bag for her. There was evidence that he and the other defendant had purchased the bag on the 30th of October. Finally, there was the fact that,in P.C. Kong's evidence it was the applicant who opened the bag in Room 101. All these circumstances he suggests fully justify the judge's conclusion. 18. We nevertheless feel that there remains a lurking doubt. Mrs. Fung's evidence had been totally rejected and what stood against the applicant thereafter was a very narrow sub-stratum of facts. There was nothing to show that he had been involved in the conversations concerning the financial rewards expected from this deal which were very considerable .The evidence of Mrs. Fung, which had been rejected, included reference to those rewards which would have been in the region of about $200,000. When the bottles were purchased on the 1st of November there was nothing to indicate that that might not be in itself a legitimate transaction. 19. The judge was not rejecting the idea that the 2nd defendant had occupied the position of a medical adviser of some kind to the 1st defendant and his son. When the bottles were carried by the defendant for Mrs. Fung, that must be seen against the background of his own story that he had tried to get the doctor to join him before meeting Mrs. Fung and had been unable to do so because he could not get him on the telephone. Although the Judge did reject the defendant's evidence generally, insofar as it denied guilty complicity, he did not specifically reject his evidence that the doctor-- the 2nd defendant - was to be present when he joined Mrs. Fung on the 2nd of November. If that had been the case, it lent some colour to the idea that the 2nd defendant and Mrs. Fung had between them some business relating to medical treatment which might, from his point of view, have been of an innocent nature. Certainly the parties most clearly involved in the affair were "the doctor" and Mrs. Fung and without the latter's evidence the problem of the applicant was at least equivocal. 20. Again, the Judge did not specifically refer to the fact, which has been heavily underlined by Mr. Sedgwick, that the applicant had at least a very poor grasp of the punti language and that there was a conversation in that language between P.C. Kong and Mrs. Fung immediately prior to the arrival of the police. Had it been clear that there was a conversation relating to dangerous drugs at that point to which the applicant was a participating party, the matter would have stood very differently. 21. There is no doubt that the circumstances as I have outlined them are extremely suspicious but we cannot say in the upshot that we are left without a lurking doubt. There are factors in the case which, had the Judge sufficiently attended to them, might have moved his decision in the opposite direction. For these reasons therefore the application will be granted and treating it as the hearing of the appeal, we allow the appeal, we set aside the conviction and the sentence. Representation: A.W. Sedgwick (Hampton, Winter & Glynn) for Appellant. A. Hedge for Respondent/Crown. |