HKSAR v. Teuhidul Islam

DCCC 203/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 203 OF 2013

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Reasons for Verdict

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1.The defendant has pleaded not guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The prosecution allege the defendant unlawfully trafficked on 5 December 2012 1.92 grammes of cocaine, 4.64 grammes of “Ice” and 5 milligrammes of nimetazepam.

3.Acting on information the police obtained a search warrant for Flat A3, 2nd Floor, Tsim Sha Tsui Mansion.  They suspected there was dangerous drugs stored in the premises.  On 5 December 2012 they hid on the 2nd floor of the target address.  They had a description of a suspect. At 4.25 pm they heard the lift doors opened and saw the defendant in the lift lobby.  They saw the defendant fit the description given of the target and intercepted him. 

4.The police found keys in the defendant’s possession.  The defendant told them he lived in Flat A3 in Room C; the flat had four subdivided rooms.  The keys fit the locks. 

5.The rest of the team arrived at the premises when informed the target had been intercepted.  The police used the defendant’s keys to gain access to Flat A3 and Room C.  Room C was a small unit and only three police officers and the defendant went in whilst the rest were outside. 

6.Upon a search of the premises, an officer, PW2, found the drugs in a box with three empty transparent resealable bags.  The box was in a drawer near the refrigerator.  Police exhibited a photo album of the premises and drugs as Exhibit P8(1-13) and home sketches, P7A and P7B.  The box, drugs and bags were exhibited as P3, 4, 5, 6 and P15.

7.The street value of all the dangerous drugs was agreed to be approximately $9,530.

8.The Admitted Facts, P11, describe the Versace box as containing two plastic bags containing a yellow solid which was 1.92 grammes of cocaine.  It also contained one plastic bag containing a crystalline sold which was 4.64 grammes of Ice and a plastic bag containing one tablet and a tablet fragment of 5 milligrammes of nimetazepam. 

9.No DNA or fingerprint of the defendant was found on the bags or the box.

10.The prosecution’s case is that PW2 found the dangerous drugs in the box in a top drawer of a cupboard.  When PW2 opened up the box, PW1 asked the defendant in English, “What is this?”  He said the defendant did not reply.  He then declared arrest on the defendant for trafficking in dangerous drugs.

11.The defendant also had in his possession two mobile phones and $5,440 in cash. 

12.The police interviewed the defendant later that night, and under caution the defendant denied all knowledge of the box and dangerous drugs.   He told the police he had been burgled the week before and had two mobiles and cash stolen.  He suggested the drugs may have been planted in his home when he was burgled.  He used two phones; one to communicate with friends and the other to communicate with the Immigration Department only.  He agreed he was the sole occupant of the premises.  The $5,440 was rent money collected on behalf of his older brother who rented out five rooms but could not collect the rent himself as he was in prison.

13.The video record of interview was not challenged and exhibited as P9, 9A and B.

14.The prosecution say the defendant was in possession of the dangerous drugs found in the box for trafficking and that is the only reasonable inference to draw.

Defence case

15.The defendant elected to give evidence and did not call any defence witnesses.

16.The defendant’s case is that the drugs did not belong to him nor had he ever seen them before.  They had to have been planted in his home.  He suspects his enemies planned the burglary and planted the drugs as they wanted to see him imprisoned.  He and his brother fought with these enemies in 2010 and the defendant was tried in 2011.  He was convicted after trial and given a suspended sentence.  The charge was assault occasioning actual bodily harm and his only conviction on record in Hong Kong.  He named the enemy as Ruben Hamadad.

17.Despite the Admitted Facts, P11, at paragraph 2 stating, “Between 1630 hours and 1640 hours, PW2, PC 8715, conducted a search inside the room where he found and seized the following items that were then contained in a paper box in black colour”, the defendant’s case is that whilst PW2 was searching the room, a long haired police officer entered the toilet. He stood on the toilet bowl, lifted up the panels of the false ceiling and used a torch to search inside this cavity.  He reached in and pulled out a small black box and said, “Dangerous drugs.”  He then handed the box to PW2 who took it and placed it in the top left drawer of the cabinet next to the refrigerator. 

18.PW1 told the defendant if he pleaded guilty, they would charge him with possession, if not, he would get a sentence of between 3 to 5 years.  This was not put to PW1 or PW2.  The defendant denied he had any knowledge of the dangerous drugs found. 

19.The defendant elaborated on the burglary of 30 November 2012.   The prosecution agreed he reported such a crime and Exhibit P12(1-18) were photographs taken by PW4, a police officer who attended that crime scene.   He had two Nokia mobile phones worth $1,300, one gold ring and $2,800 cash stolen.  The police were called to the premises mid-afternoon.  The burglar broke a window and entered that way.

20.The defendant said two other police officers came later that same night to look over the premises again.  They took photographs of the room with their mobile phones and told the defendant they would investigate the crime.  The defendant took that as meaning they could come back any time.

21.The property agent arranged a handyman to repair the broken window and in fact when he was approached by PW1 and PW2 on 5 December in his lift lobby, the defendant was waiting for this handyman to arrive as arranged.  The handyman did arrive whilst the police were inside and outside the defendant’s room but obviously was sent away by the police.

22.The defendant is an asylum seeker and holds a Form 8 recognizance paper issued by the Immigration Department.  He cannot work in Hong Kong whilst his claim is assessed and processed.  His room rent is paid for him and he collects food from a food bank.  He gets $30 a month travelling expenses and that is all the income he receives.  He says he does however spend about $200 a month but gets this from his older brother who sublets five rooms in Chung King Mansions.  His brother is also an asylum seeker but came to Hong Kong much earlier than the defendant.  He rented these rooms when he came to Hong Kong on a visa in the year 2006.  That is before he applied asylum here.  He says his brother rents the flat for $8,500 but sublets five rooms for over $15,000.

23.The defendant explained why he had two mobile phones and said it was out of necessity.  He had to keep one exclusively for the Immigration Department to contact him.  This is because they said he must be available at all times.  He got a second mobile phone for contacting friends and family only.  He could afford two phones because they were a gift from a girlfriend.  The two he had stolen less than one week prior to his arrest were bought for $1,300 from money his brother gave him.  He was going to send them home to Bangladesh.

The Law

24.The prosecution has a burden to prove the defendant committed this offence and must prove it beyond all reasonable doubt.  The defendant has nothing to prove.

25.The issue in this case is credibility.  Are the prosecution witnesses credible, reliable and telling the truth?  That question must be addressed even if I reject the defendant’s evidence.  If I do find the defendant had knowledge of and possession of the dangerous drugs, did he possess them for trafficking?  The prosecution must prove that intent beyond reasonable doubt.

26.The prosecution submits that on the evidence the only inference to draw is that the defendant possessed the drugs for trafficking.

27.An inference of guilt can only be drawn if it is the only reasonable inference to be drawn.  I referred myself to the authority of The Queen v Kwan Ping Bong [1979] HKLR 1 where Lord Diplock said:

“The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further facts, such as the knowledge or intent of the accused, which constitutes an essential element of the offence, but that inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.”

28.In deciding if an inference of guilt can be drawn, all the circumstances at the time of the case must be considered as well as other factors.  I referred to HKSAR v Chan Hong [1998] 2 HKC 688 at page 690G.  I quote:

“Such as the intent, use and purpose which the defendant had when carrying the dangerous drugs, the time and place of the incident and the quantity of the drug found.”

Other factors will include the value of the dangerous drugs, the packaging, the defendant’s means to fuel a drug habit and buy in bulk. Also, the defendant’s own drug habits and requirements. Some factors may support a claim of possession for self-consumption.

My Findings

29.I have taken into account all the evidence of the prosecution witnesses and the defendant as well as all final submissions in coming to my findings.

30.The defence submit the defendant had no knowledge of the dangerous drugs and the burglary five to six days prior to his arrest provided someone the opportunity to frame the defendant by planting dangerous drugs in his toilet in the false ceiling.  The police knew his address and to look in the ceiling of the toilet because they had been given this information.  I note the search warrant is the defendant’s exact address minus the Room C detail.

31.The defence submit the police said the drugs were in the drawer instead of in the ceiling to make sure the defendant’s claim of lack of knowledge would not stand up.

32.The defence submit the defendant’s claim is possible and a doubt has been raised.  The prosecution witnesses cannot be found to be reliable or credible. 

33.The defence submit the prosecution should have endeavoured to call a long haired police officer.  PW2 said PC 33223 of their team had “sort of” collar-length hair when asked if any team member had long hair.  PC 33223 was not called by either the prosecution or the defence.  I was referred to the authority of The Queen v Tang Yuk Yan CACC58/1991. 

34.The defence also submit that the defendant told the police where he got over $5,000 cash from and they did not attempt to refute this explanation.

35.The fact no DNA or fingerprints of the defendant were found on the box or drugs and that he has no previous drug related convictions supports his defence.

36.The defence also submit that if the court accepts the prosecution’s evidence, the court cannot properly convict the defendant of trafficking in dangerous drugs.  Even though it is inconsistent with the defence run the court should and could consider an alternative charge of possession if that is the finding of the court.

37.The defence submit on the facts and the circumstances of the case there is not enough to draw an inference of guilt against the defendant as it is not the only reasonable inference to draw. 

38.The prosecution submit the suggestion the drugs were planted to frame him by his enemies during a burglary days before his arrest is nothing but a red herring; a distraction.  It is an attempt to explain away the presence of a significant amount of dangerous drugs in his premises and it is a weak unsubstantiated attempt. 

39.The prosecution suggests it is highly unlikely nearly $10,000 worth of dangerous drugs were planted by anybody.  It also suggests the defendant’s explanations as to the source of the cash referred to is a bare assertion.

40.The prosecution suggests even if the dangerous drugs were in the toilet in the ceiling there is sufficient evidence to prove the charge beyond reasonable doubt.

41.On the issue of credibility, I considered all the evidence of the prosecution witnesses and the defendant.  I am aware the defendant has one previous conviction and it is unrelated to dangerous drugs. The relevance of that fact is he has no obvious history with dangerous drugs. I take that into account.

42.The police targeted the defendant and his home because of information received.  This is not uncommon.  Search warrants are often obtained because of some information received about criminal activity, locations or personalities.  The fact the police had information of drug activity linked with the defendant and his premises does not in any way support or bolster the defendant’s claim that he had been framed and the drugs planted, insinuating that the persons who did this then went on to inform the police.

43.I agree with the prosecution’s submission that the allegation the drugs were planted during a burglary five to six days prior to his arrest is a red herring.  As to the handyman arriving, this was of no consequence to either the prosecution’s or the defendant’s case.

44.I do not believe a person who was an asylum seeker like the defendant but who was now married to a Hong Kong resident would himself or with others break in and leave nearly $10,000 worth of drugs to frame the defendant.  It is a large and significant amount of money to throw away.  In addition, someone would have had to carry it there risking arrest, facing a serious charge and a term of imprisonment.

45.I reject this allegation by the defendant as an attempt to explain away and distance himself from the dangerous drugs.

46.I also reject his evidence the drugs were hidden in the false ceiling.  This again is an attempt to distance himself from the drugs and deny knowledge.

47.I accept the prosecution witnesses’ evidence as the truth.  I find them credible and believe the drugs were found as described by PW1 and PW2.

48.If they were told where to look, the police would have gone to the bathroom to start their search.  I note it is next to the entrance and it would have been just as logical to start there. 

49.If only one officer knew of the setup alleged and he was not PW1 or 2, he would have waited for the search to reach the toilet before uncovering it, if not uncovered by PW2. 

50.As it was, PW2 said he finished his search in the toilet and did stand on the toilet bowl to look into the false ceiling.  He would have found it if it was really there.  I find no reason to disbelieve PW1 or 2’s evidence.

51.Much is made of the fact the defendant mentioned a long haired member of the team and PW2 said PC 33223 had “sort of” collar-length hair.  As I have said, neither the prosecution nor the defence called this witness.  The defence say it was the duty of the prosecution.

52.The authority of The Queen v Tang Yuk Yan CACC58/1991 relates to identifiable police officers being called during the course of a voir dire by the prosecution.  Officers alleged to have used force and threats against a defendant were not called to give evidence.  This relates to the duty of the prosecution to prove a record of interview was voluntary and that onus was on the prosecution.  That situation is not the same, would not applicable here.  This is not a voir dire scenario where an admission is challenged.

53.The prosecution, as I have said, does have to prove the charge beyond reasonable doubt.  They rely on the evidence they produce or submit and their witnesses.  I make my finding based on the evidence before me.  If it is lacking or insufficient, that will be to the defendant’s benefit.  The prosecution decided not to or did not think to call PC 33223 but rely on the evidence before the court.  That is not fatal to their case.

54.The defendant’s evidence that he would not hide dangerous drugs at home because police officers investigating the burglary may come back to his premises is again not convincing.  If the police came back, they would not be there to search his premises.  They would need a search warrant for that.  This is another attempt to distance himself from the dangerous drugs he had no knowledge of. 

55.In short, I reject the defendant’s evidence the drugs were hidden in the ceiling by others unbeknownst to him.  Even though I reject his evidence, I have to be sure the prosecution witnesses are credible and reliable.

56.I am sure, as I have said, PW1 and PW2 were telling the truth as to where the drugs were found.  It was in a box in a drawer in an obvious location, the defendant had to have known it was there.  I go further, as he was the sole occupant of this room, I am sure the drugs belonged to him.

57.The fact there was no DNA or discernible fingerprints of the defendant on the box or drugs is not proof they did not belong to him.  I have noted this fact but am sure as they were in his drawer of his room, they can only belong to him. 

58.I will address whether the only reasonable or irrefutable inference is he was trafficking that dangerous drugs.

59.Relevant factors include the cost and value of the drugs and the fact the defendant has no income that would indicate he could afford to buy such quantities for his own consumption.

60.He is not an obvious drug addict nor has a history of drug abuse that he has disclosed. 

61.He was in possession of two mobiles when one would suffice for personal use.  His reason for using or being in possession of two was ridiculous.  In fact, he says two were stolen along with $2,800 cash only five to six days before his arrest.  How he can afford to buy or run so many in such a short period of time is suspicious.  His possession of $5,440 and loss of $2,800 is suspicious too.  His attributing the cash and the money to buy stolen phones to his brother, I find convenient and unsubstantiated.  When asked where he obtained the two mobiles seized from him when he had no income, he said they came from a girlfriend.  Again, a convenient answer.

62.A gift of one, one could accept, but two, I find suspicious.  Here is an asylum seeker with no income found in the space of one week to own or possess four mobile phones, a large quantity of cash and $9,500-odd worth of dangerous drugs. 

63.I find no reasonable man could fail to draw the reasonable inference from the direct facts that the defendant was trafficking the dangerous drugs of this charge.  I reject the submission that a simple possession charge would be appropriate. 

64.The prosecution have discharged its onus and proved all elements of this charge beyond reasonable doubt.  Accordingly, I convict the defendant of this charge.