HKSAR v. Mohammad Zaber and Another

CACC50/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 50 OF 2008

(ON APPEAL FROM HCCC236 OF 2007)

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BETWEEN

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Before : Hon Tang VP, Hartmann JA and Saw J in Court

Date of Hearing : 18 August 2009

Date of Judgment : 2 September 2009

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J U D G M E N T

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Saw J (giving the judgment of the Court) :

1.The applicants were jointly charged on indictment with one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Count 4). 

2.The particulars of that charge alleged that they, on 2 June 2007 at Room B on the 5^th floor, No. 1G Wing Sing Lane, Yaumatei trafficked in 157.24 gms of cannabis resin and 96.43 gms of a mixture containing 62.09 gms of heroin hydrochloride.  

3.The 1^st applicant was also charged with a separate count of trafficking in dangerous drugs, the particulars of which alleged that he, on the same day in the corridor of the same address, trafficked in 39.59 gms of cannabis resin (Count 3). 

4.Both applicants were convicted after trial of Count 4.  The 1^st applicant was convicted after trial of Count 3.

5.In addition to the above, the 2^nd applicant was also charged with 2 counts of using an identity card relating to anther person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 (Counts 1 and 2).

6.The particulars of those counts were identical save for the fact that the dates of the alleged offences were different.  They involved the use by the 2^nd applicant of an identity card in the name of one LAO-AT Cresencia, D.

7.The 2^nd applicant pleaded guilty to Counts 1 and 2.

8.The 1^st applicant was sentenced to be imprisoned for 6 months on Count 3 and 8 years on Count 4.  Both sentences to be concurrent.

9.The 2^nd applicant was sentenced to be imprisonment for 15 months on each of Counts 1 and 2.  Both sentences to be concurrent.  She was sentenced to be imprisonment for 8 years on Count 4 and 6 months of the sentences on Counts 1 and 2 was ordered to be consecutive to Count 4.  Thus her total sentence was 8 years and 6 months’ imprisonment.

10.The applicants were convicted and sentenced on 29 January 2008.  The 1^st applicant applied for leave to appeal conviction, out of time, on 8 August 2008.  The 2^nd applicant applied for leave to appeal conviction and sentence on 2 February 2008.

The trial

11.On the evening of 2 June 2007, police officers in plain clothes were patrolling the corridor of 5^th floor, No. 1G Wing Sing Lane, Yaumatei.  The applicants who were boyfriend and girlfriend were observed to be walking towards a staircase.  They were stopped by the police and searched.  In the 1^st applicant’s pocket they found 5 pellets inside a re-sealable plastic bag.  The police suspected that this was cannabis.

12.The applicants were taken to Room B on the 5^th floor where they lived.  These premises were searched and in the bottom right hand drawer of a wardrobe in the living room they found :

(1)  20 pellets which they suspected were cannabis; and

(2)  a quantity of powder which they suspected contained heroin hydrochloride .

Those suspicions proved to be correct.

13.The 5 pellets found in the 1^st applicant’s pocket were determined to contain 39.59 gms of cannabis resin (Count 3).  The pellets found in the wardrobe were determined to contain 157.24 gms of cannabis resin.  The quantity of powder was determined to be 96.43 gms of a mixture containing 62.09 gms of heroin hydrochloride (Count 4).

14.It was the prosecution case that inside the premises occupied by the applicants they also found on a table cling film, tinfoil, a quantity of re-sealable plastic bags and a set of electronic scales.  Paraphernalia commonly associated with drug packaging.

15.It was an admitted fact that the 2^nd applicant was the registered tenant and occupier of the premises.  Both applicants were found to have keys to the premises.  The 1^st applicant’s thumbprint was found on the electronic scales. 

16.It was the assertion of both applicants in the trial that the police had fabricated the case against them.  The 1^st applicant gave evidence.  The 2^nd applicant did not.

These applications

17.Both applicants were represented by experienced counsel in their trial.  Both applicants have been refused legal aid for the purposes of these applications.  Both applicants have in support of their applications (for leave to appeal, and in the case of the 2^nd applicant for leave to appeal out of time) placed before the court lengthy written submissions setting out the basis upon which they assert that their convictions are unsafe and unsatisfactory and should therefore be set aside.

18.In these submissions both applicants have criticised the conduct of their trial by their then counsel.  They have in particulars sought to establish in effect that their counsel’s conduct of the trial was incompetent. 

19.It is the submission of both applicants that a great deal more could have been done in the course of the cross-examination of the prosecution witnesses which would have revealed to the jury that the police had put their heads together to fabricate the cases against them.  Each of the applicants has referred to and described in detail the errors they say their counsel made.  They have each referred extensively to the evidence of the police witnesses in the trial as well as in some cases to the witnesses statements of those witnesses.  They have referred us to the exhibits produced and ultimately the manner in which the judge dealt with their cases in his summing up.

20.We are indebted to Ms Anthea Pang of the Department of Justice for her helpful written submissions which in part we will adopt in this judgment.

21.Ms Pang points out that of the submissions of each of the applicants their complaints broadly stated are that :

(1)  Insufficient regard was had by their counsel and the judge in his summing up to the fact that upon arrest neither applicant was cautioned.

(2)  Insufficient regard was had by their counsel and the judge in his summing up to the fact that there was no contact evidence which directly linked them the drugs found in the wardrobe and in the case of the 1^st applicant to the drugs allegedly found in his pocket.

(3)  Their counsel and the judge failed to appreciate and act upon evidence which demonstrated that the prosecution witnesses were not telling the truth.

(4)  Their counsel and the judge failed to properly appreciate the significance of the fact that the police witnesses said that there were in fact 10 resealable plastic bags on the table when the premises were searched and yet in the exhibit list there are only 9.

(5)  Their counsel failed to arrange for the attendance of a police sergeant and thus the jury were deprived of the opportunity of having placed before them evidence critical to the defence cases.

22.We shall deal with these matters in the above order.

No caution

23.There was no dispute in the trial that neither of the applicants were cautioned when arrested.  The judge dealt with this in his summing up when he said :

“20.     ……

‘… In normal circumstances a suspect would be cautioned when they are arrested — that is, told that they are not under any obligation to say anything — but in this case you heard that hen the 1^st defendant was arrested outside the flat in the corridor and when the 1^st and 2^nd defendants were arrested inside the flat they were not cautioned because the officers said that they did not feel their English was good enough to caution them. 

The fact that they were not cautioned, members of the jury, does not mean that their right to silence was taken away simply because they were not told about it.  You heard that they did not say anything when they were told that they were under arrest. 

The law sensibly says, you may think, that you should not draw any inferences from their silence.  As a matter of common sense, you may think, there could be a lot of reasons why a suspect does not say anything when they are arrested for a criminal offence.  There may be a number of reasons other than that they are guilty of the offence.  So put that out of your mind, members of the jury.’”

24.Given the above direction, it is clear that this complaint is without foundation. 

The absence of contact evidence

25.In the case of both applicants the judge reminded the jury that hair clippings and swabs had been taken from each of them and in each case there was no evidence that these contained traces of drugs. 

26.In the case of the 1^st applicant he said (p. 27K) :

“You have of course the evidence that fingerprint clippings, hair clippings and swabs had been taken from him and you did not hear any evidence about them containing drugs.”

27.In the case of the 2^nd applicant he said (p. 30E) :

“… bear in mind also that fingernail clippings, hair clippings and swabs had been taken from her and there had been no traces of dangerous drugs found.”

Counsel for the 1^st applicant likewise emphasized this in his closing speech.

28.The jury could have been in no doubt about the significance of these findings given that it was the defence case that the dangerous drugs in the wardrobe had been planted there by the police, and that as to the dangerous drugs allegedly found in the 1^st applicant’s pocket, it was the 1^st applicant’s evidence that these were not found on his person, and that the evidence by the police officers to that effect were was a fabrication. 

The prosecution witnesses

29.It was the allegation of both applicants in the trial that all of the drugs referred to in counts 3 and 4 had in fact been brought into the flat by the police officers.  It was the 1^st applicant’s evidence that after he and the 2^nd applicant had been detained by the police in the corridor outside their flat, they had been taken inside whilst the premises were searched with their consent.  He said in evidence that he saw one of the police officers (PW1) take a stool from inside the flat, outside to the corridor.  He saw this officer standing on the stool looking into the ventilation shaft.  Shortly after this the officer came back into the flat carrying a black plastic bag which they then proceeded to ask him about.  He denied any knowledge of it.  That bag, he said, contained the drugs and attempts were then made by the police officers to ensure that he touched this.  (Presumably to ensure that his fingerprints were on it.)

30.The issue of the credibility of the police officers involved in the arrest of the applicants was a paramount issue in the trial.  The 1^st applicant alleged that the officers had deliberately planted evidence in their flat and had attempted to ensure that his fingerprints were found on the black plastic bag containing the dangerous drugs. 

31.Given the above, it is not surprising that in a number of passages in the summing up the issue of the police officers’ credibility is addressed. 

32.The jury were reminded that they had to be sure that the prosecution witnesses were telling the truth before they could rely on their evidence.  At the outset, the judge said (p. 16G-O) :

“I would suggest that the first issue you will have to decide when you approach each count is whether you believe the prosecution evidence as to where the drugs were found because that really is at the heart of the prosecution case on each of the counts, …

Members of the jury, if you were in any doubt that the police were telling the truth about where the drugs were found, you may think that that really is an end of the prosecution case, that you could not possibly return a verdict of guilty in those circumstances.”

33.This was repeated throughout the summing-up :

“… Well, members of the jury, you will have to consider whether you are satisfied whether the prosecution witnesses were telling the truth about the finding of the drugs.  Remember of course that it is the burden upon the prosecution to satisfy you of the defendants’ guilt.”  (P.22 J-K)

“Members of the jury, in assessing whether the prosecution witnesses are telling you the truth about where the drugs were found, you will no doubt bear in mind the submissions that had been made by defence counsel about the conduct of the defendants.”  (P.23 N-Q)

“As I have said, if you were in (sic) doubt as to whether the prosecution witnesses are telling you the truth about where the drugs were found, I suggest really that is the end of the prosecution case but that is a matter for you, members of the jury.”  (P.24 A-C)

“Before you could draw any inferences, however, you will have to be satisfied that the prosecution witnesses are telling you the truth about finding those items on the table in the positions that they appear in Photograph 9 or at least in the approximate positions they appear in Photograph 9.”  (P.25 O-Q)

34.It is clear from the above that the jury were told emphatically that before they could convict the applicants, they had to be sure that the prosecution witnesses were telling the truth.  Moreover, the judge had directed the jury’s attention to many of the alleged inconsistencies in the witnesses’ evidence which are now relied upon by the applicants.  The judge said (P.22N–26Q) :

“   Now, in considering whether the prosecution witnesses are telling you the truth, you will obviously have regard to Mr Forrest’s submissions regarding what the first prosecution witness, PC51638, had said initially about there being two plastic bags and I just want to remind you of that evidence.  Before lunch on the first day of trial, the officer had referred to finding a black plastic bag inside of which he had found 20 small packets of suspected cannabis resin wrapped in cling film.  He then continued in this way :

‘I found another black plastic bag.  Inside this bag was a resealable plastic bag.  Inside this, there was another resealable plastic bag.  Inside the second resealable plastic bag, there was suspected dangerous drugs in brown powder form.’

So he appeared to be saying that there were two black plastic bags.  He again referred to two black plastic bags after lunch and he said this :

‘At that time, I found this black plastic bag.  There was another black plastic bag.  In this black plastic bag …’

that was the cannabis resin :

‘… in this bag, there was another black plastic bag.  In that black plastic bag, there was a resealable plastic bag.  Inside the resealable plastic bag was another resealable plastic bag, and inside the second resealable bag was the powder.’

So very shortly after that, he was asked whether he could clarify what it was that he was saying and he then said that there had been only one black plastic bag in the drawer which he identified as Exhibit P9, and you will remember Mr Forrest cross-examined him about why he had originally referred to there having been two black plastic bags, and he told you that he said he was sorry that he had misremembered when he had said that.  

Well, it is a matter for you to consider what you make of this evidence.  Do you think that was just an innocent remark on the part of the officer or do you think perhaps it was a slip of the tongue revealing that in fact there had been two black plastic bags?  And of course, the defendant does say there had been two plastic bags.”

“   The second prosecution witness, PW2, PC2582, was the officer who said that he had assisted the WPC to search the 2nd defendant and he said that the form of his assistance to the WPC was staying beside her while she did the search of the 2nd defendant.  You will remember when the WPC gave evidence, she says that she had asked him to turn his back while she was conducting the search on the 2nd defendant.”

“   The third prosecution witness, the WPC, said that what gave her a deep impression was the moment these drugs were found.  She said that the first prosecution witness, PC51638, was squatting down, searching the drawer of the wardrobe.  She said that the officer said that he had found something.  She then looked and had seen him taking a black plastic bag out of the drawer, and you will remember she gave a demonstration of him cradling the black plastic bag in her two hands. 

Her evidence was that PW1 had then shown them the contents of the bag which she described as containing some whitish or yellowish powder and what she described as brownish or blackish lumps.  And members of the jury, you can look at Photograph P8 and see whether you think that corresponds with the description she gave.”

“He said that at that stage, the cling film, the tinfoil, the scales and the bundle of resealable plastic bags visible on Photograph 9 were not on the table.  He said that those items were items that he had seen before in his girlfriend the 2nd defendant’s kitchen and he said that sometimes he had helped her with the cooking.

…

Now, there are two circumstances in particular that may be relevant to your consideration of both charges and which you will have to consider.  The first circumstance is what the police officers say that saw on the dining room table — the living room table, rather — when they entered the flat that day, namely, the scales, the resealable plastic bags, the tinfoil and the cling film.  Now, the prosecution say that the finding of those items on that table is significant because they say the only reasonable inference from the finding of those items so close to each other on the table is that the drugs were being weighed and packaged on the table.

…

Now, members of the jury, if you come to the conclusion that the items found on the table must have been used to weigh and package dangerous drugs, you will have to consider the significance of the fact that no attempt had been made to conceal these items and you will have to ask yourselves whether the only reasonable inference from that is that those people who had just come out of the flat, namely, the 1st and 2nd defendants, were party to trafficking in dangerous drugs.  Before you could draw any inferences, however, you will have to be satisfied that the prosecution witnesses are telling you the truth about finding those items on the table in the positions that they appear in Photograph 9 or at least in the approximate positions they appear in Photograph 9.  

Now, the defendant of course told you that they were not in those positions at all, in fact that they were not on the table at all.  And let me remind you of the prosecution evidence about the finding of the items on the table.  The first prosecution witness, PC51638, told you that Photograph 9 depicts the position of the items when the police entered the flat.  He said that the photographer had moved the items before taking Photograph 10 and had placed a ruler on the table so as to show the dimensions of the items.  

The second prosecution witness also told you that the scale, cling film, tinfoil and resealable plastic bags were on the table when the police entered.  After Mr Forrest asked him if Photograph 10 showed the position of everything on the table when the police entered the flat, the officer had said no.  He said that the police photographer had arranged the items for the purposes of Photograph 10 and he denied Mr Forrest’s accusation that he had spoken to the first prosecution witness about what PW1 had been asked. 

The WPC, the third prosecution witness, also gave evidence of the electronic scales, the plastic bags and the tinfoil being on the table.  She said that Photograph 9showed that. 

The Exhibits Officer, PW4, gave evidence about seeing the items on the table when he entered.  He admitted that there might have been a slight movement of the items because the fingerprint officer had examined the items before the photograph and he gave an explanation of why that had come about.  He said that the fingerprint officer had examined the items first because it had not been known when it was the police photographer would arrive. 

You have heard counsel’s submissions on those matters and I am not going to repeat them to you.  You will have to consider what weight you attach to hem.  So you will have to consider whether you accept the police evidence that Photograph 9 at least approximately reflects the position of the items on the table when the police entered the flat.  And if you are not satisfied of that, you should disregard this evidence when deciding on your verdict.”

35.Given the above directions we are satisfied that there is no merit in the applicants’ complaint.

The re-sealable plastic bags

36.There is no substance in this complaint it is apparent that there were originally 10 re-sealable plastic bags.  One had traces of fingerprints on it and was dealt with separately.  The other 9 were photographed and exhibited.  The one sent to the laboratory for fingerprint examination was given a separate exhibit number.

Failure to call Police Sergeant 47333 to give evidence

37.It is not apparent from the submissions of the applicants how the evidence of the Sergeant would have assisted the defence case.  If counsel had seen the need to have the sergeant or any other police officer called, there would have been raised the matter in the course of the trial. 

38.The applicants suggest that the judge “did not mention to the jury matters which were in their favour”. 

39.There is no merit in this complaint.  The summing-up was fair and balanced.  The jury were reminded that it was for the prosecution to prove the case against the applicants.  The importance of the credibility of the prosecution witnesses was highlighted time and again.  The jury were told that if they were not sure whether the police officers were telling the truth, then that would be the end of the prosecution’s case. 

40.The judge emphasized those matters which could be said to support the defence case, e.g. the fact that the applicants readily admitted to the police when apprehended that they lived in that area; and that they willingly allowed the police to enter their premises for a search.  He highlighted the fact that there was no contact evidence; and the claim made by the 1^st applicant as to how his fingerprint might have been left on the electronic scales. 

41.We have examined that part of the transcript of the trial which has been included in the appeal bundle.  This includes the cross-examination of the prosecution witnesses and the closing speech of the 1^st applicant’s counsel.  It is apparent from this material that the applicants’ defence was conducted diligently and vigorously.  No valid criticism can properly be made of it.

42.There is no substance in the applications for leave to appeal conviction. 

43.In the case of the 2^nd applicant the sentences imposed for the immigration offences are in line with the guidance provided by this court for this offence.  The 2^nd applicant is fortunate inasmuch as the sentences were not made consecutive one to the other. 

44.The applications for leave to appeal conviction and the application of the 2^nd applicant for leave to appeal sentence are dismissed.  

Ms Anthea Pang, SPP of the Department of Justice, for the Respondent

The Applicants in person, present