HKSAR v. Mushtaq Zeeshan

CACC 223/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 223 OF 2014

(ON APPEAL FROM HCCC NO. 366 OF 2013)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the reasons for judgment of the court):

Introduction

1.The applicant was unanimously convicted after trial before Deputy Judge Tallentire and a jury on 11 June 2014 of one count of trafficking in a dangerous drug, namely 0.51 grammes of cocaine narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”) (Count 2); and another count of trafficking in a dangerous drug, namely a total of 1,546.03 grammes of cocaine hydrochloride narcotic and 2.55 grammes of cocaine, contrary to the same section of the Ordinance (Count 3).  The applicant was acquitted on the same day of a further offence of manufacturing dangerous drugs, namely cocaine, contrary to section 6(1)(a) and (2) of the Ordinance (Count 1).

2.On 25 March 2015, we granted leave to appeal against conviction and treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the conviction on Count 3. After hearing counsel, we subsequently ordered a retrial of Count 3 on a fresh indictment before a different judge.  In respect of Count 2, we dismissed the appeal.  We said we would hand down reasons for our decision in due course. This we now do.

The prosecution case

3.At about 10 pm on 19 March 2013, police officers DPC 59055 (“PW1”) and DPC 7863 (“PW2”), acting upon information, mounted an observation outside a flat situated on the 8^th floor of 231 Nathan Road, Kowloon (“the premises”).  At about 7 am the following morning, the applicant, an asylum seeker from Pakistan, was intercepted by the officers as he was inserting a key into the door to the premises.  Upon being searched, a re-sealable plastic bag containing three smaller re-sealable packets of cocaine, the subject-matter of Count 2, was found.  Also found on his person were two mobile telephones.  He was thereupon arrested for possession of dangerous drugs and cautioned but made no reply.

4.The premises, which were plainly being lived in but were unoccupied at the time, were then searched.  In a bedroom, PW2 found a large quantity of cocaine hydrochloride and a small quantity of cocaine, as well as an electronic scale and a bundle of re-sealable plastic bags.  These drugs formed the subject-matter of Count 3.  Utensils and paraphernalia containing traces of cocaine were also found in the kitchen, which the prosecution alleged was being used to convert cocaine hydrochloride into crack cocaine (Count 1).

5.The applicant had in his possession the remains of a key to the premises, part of which, it would seem on the prosecution case, had broken off in the lock of the door at around the time of his interception.  Personal photographs of the applicant were found inside the premises, some of them openly displayed on both a wall and a wardrobe in the bedroom; some contained in an album found in the living room.  Two fingerprints lifted in the bedroom, one from a mirror and the other from inside a box containing cocaine hydrochloride, were subsequently confirmed to be those of the applicant.

6.It was an admitted fact that the street value of the cocaine hydrochloride found in the premises was $2,363,175.

The defence case

7.The applicant elected to give evidence and called as a witness the lessee of the premises in question, who was also the owner of two restaurants in Yuen Long, one Sandhu Rubin (“Rubin”).  The applicant denied that dangerous drugs were found on his person at the time of his interception.  Furthermore, he was not aware of the presence of dangerous drugs in the premises, which he had not yet entered, nor of any equipment or paraphernalia connected with the manufacturing of crack cocaine.

8.He testified that he had gone to the premises that morning, at the request of Rubin, to mend the door lock in which a key had broken.  He had been to the premises before to install two spy cameras for Rubin and on five or six other occasions when he did some electrical or cleaning work at the premises.  The premises had been rented by Rubin to store goods for his restaurants as well as mobile telephones for another of his businesses.  Otherwise, it was a gathering place for Indians and Pakistanis and was also used by Rubin’s staff, who would sometimes stay there.  Of the two spy cameras at the premises, one was positioned by the door to Flat A and another by the door to Room E to keep an eye on the goods in the flat since a number of people possessed keys to the premises.

9.The applicant said he had visited the premises two days previously on 18 March 2014 but did not see any dangerous drugs or related items in the flat.  He had moved the box which was later found to contain dangerous drugs from one place to another when cleaning, although at that time it had contained shoes.  He had taken his photograph album to the flat during a party on a previous occasion and left it behind.  He contended that there were no photographs of himself displayed on the walls of the premises.

10.Rubin confirmed in his evidence that he had asked the applicant to clean the premises on 18 March and had requested him to fix the broken lock on 20 March.  He further confirmed that he had not seen any photographs of the applicant displayed in the premises on 18 March but recalled that the applicant had previously shown the photograph album to others inside the premises.

Grounds of appeal against conviction

11.A number of grounds of appeal have been argued in relation to each of the counts on the indictment upon which the applicant was convicted.  In view of our disposal of the appeal in respect of Count 3, we need only deal with the matter which has caused us to allow the appeal on that particular count.  We shall then deal with the application in relation to Count 2.

Count 3

(Grounds 6 and 7)

12.The principal complaint argued by Mr Haynes, on behalf of the applicant, was that the deputy judge failed to give the necessary directions in law dealing with the applicant’s alleged possession of the drugs inside the premises.  It will be remembered that the drugs found in his physical possession formed the subject-matter of Count 2: the drugs in the premises, which the applicant was allegedly about to enter and which were not in his physical possession, formed the subject-matter of Count 3.  Yet, Mr Haynes submits that the deputy judge did not differentiate in his legal directions between the two types of possession in each count; in particular, he did not properly explain how the jury were to find the applicant in possession in law of the drugs in Count 3 which, unlike the drugs in Count 2, were not in his physical possession; and he gave no assistance by way of standard, specimen or any other direction as to what might be termed ‘constructive possession’.  These complaints formed the basis of Grounds 6 and 7, which we shall deal with together.

13.Mr Haynes points out that in respect of both Count 2 and Count 3, the deputy judge gave the same legal direction in relation to the issue of possession of the respective drugs:

“We know that the defendant denies being in possession of illicit dangerous drugs, so he could not therefore traffic therein. That is what he says. So as a first step, the prosecution have to prove and prove beyond all reasonable doubt, that he did possess them. That is not only did he have the dangerous drugs physically in his possession, but also that he was aware of having dangerous drugs in his possession.”

Mr Haynes submits that this direction may have been appropriate to the issue of physical possession of the drugs in Count 2, but it gave no help on the issue of possession in Count 3, where the drugs were not in the applicant’s physical custody.

14.What he submits the deputy judge should have told the jury, in accordance with the standard, specimen directions on possession in such circumstances, was that:

“A person is in possession of an object if it is in his actual physical custody, for example in his hand or in his pocket, or is otherwise within his control, for example kept in his desk or in his bedroom, and he knows it is there and has the intention to exercise custody or control over it.”

Furthermore, in the context of this case, the jury should have been directed that they:

“…should not equate ownership with possession. In other words, one may possess an object even though one does not own it. An object may be possessed by more than one person at the same time. If two or more people agree to keep a pool of articles or a particular product in one place and that any of them may go there to take or move some of the articles as and when they see fit, then all are in control of the product in the sense that I have described control, and all are in possession of it.”

15.Finally, the jury should have been told that:

“A person’s mere presence in the vicinity of an object is not of itself possession of it. If a person is invited for dinner to a friend’s home, he is not in possession of the objects in that home simply because he is there and knows that the objects are there. The objects are not in his physical custody and he has neither the intention nor the authority to exercise control over them.”

Consideration

16.We agree with this submission.  None of the above directions were given: indeed, the word “control” was not mentioned throughout the summing-up.  Not surprisingly perhaps, the jury asked a question at the end of the summing-up in these terms:

“What needs to be proved to establish that the accused has knowledge of possession or that the substance is dangerous drugs?”

Unfortunately, the answer they received from the deputy judge, with the concurrence of both counsel it might be added, again did not engage the issue of ‘constructive possession’ in relation to the drugs in Count 3, but simply repeated the earlier rather unhelpful direction about knowledge of possession, without explaining how one might be in possession of drugs which were not in one’s physical custody.  The deputy judge said:

“…the prosecution need to prove that the defendant had in his possession dangerous drugs and that he knew he had dangerous drugs in his possession. He does not need to know exactly what the drug is but he must know that he has dangerous drugs in his possession.”

17.With respect, this was a case where, if the deputy judge had simply followed the standard, specimen directions set out above, there could have been no complaint.  Unfortunately, he did not and it was never properly explained to the jury how they could find the applicant to be in possession of drugs in the premises, which, unlike the drugs in his pocket, were not in his physical custody or possession.  Although the deputy judge did remind the jury of the evidence linking the applicant to those premises (eg the photographs on the wall, the photograph album, the fingerprints, the key), all of which was relevant and admissible evidence tending to show the applicant’s connection with and/or occupation of the premises, there was a danger that without proper directions as to the law of possession, in the sense of control, the jury might think that such linkage was enough to find him in possession of the drugs found in those premises.

18.Ms Lai, for the Respondent, recognises that the directions on possession were deficient in respect of Count 3 and has mounted a persuasive argument that it would have made no difference to the verdict given the evidence which clearly connected the applicant to the premises.  But with respect, as we have said, the applicant’s connection with the premises was not enough without a proper articulation of the law governing possession, particularly where the type of possession alleged in Count 3 was different from that in Count 2.

19.In the circumstances, we granted leave on this ground and allowed the appeal in respect of Count 3.

Count 2

20.Turning to Count 2, Mr Haynes argued a plethora of grounds of appeal, some of which were essentially factual issues for the jury, and which he had already advanced in his speech to the jury. Nevertheless, we shall deal with each of these issues in turn.

(Grounds 5 and 8)

21.It was submitted that the deputy judge had failed to direct the jury that the evidence which may have been taken by the jury to support the police claim that the CCTV system of the building in which the applicant was arrested was ‘out of order’ was hearsay and could not prove the truth of the claim that it was not in fact functioning (Ground 5).  Allied to this ground was the complaint that the deputy judge failed to remind the jury of the photographs showing the existence of a wireless camera kit, including a router, which tended to establish that the police must have removed a wireless camera from the doorway to the premises in order to suppress a record of their misbehaviour when intercepting the applicant (Ground 8).

22.It was an admitted fact that the defence had requested the prosecution to supply to the defence any recordings from spy cameras or CCTV recordings from the premises or building in question and that the prosecution had informed the defence that the police had discovered no spy cameras at the scene and that the CCTV system of the building had not been functioning at the time.  Mr Haynes’s point in respect of the CCTV recordings was that the applicant was not afraid of the production of any relevant recording which would have confirmed his version of events.  As for the question of spy cameras, Mr Haynes argued that if this evidence did exist, it would undermine the police denials of the existence of such recordings and support the applicant’s version of events.

23.The deputy judge did in fact specifically remind the jury of the admitted fact in relation to the CCTV and the spy cameras.  He also directed the jury in relation to this matter as follows:

“You must also consider whether the defence’s request for CCTV and spy camera recordings in any way supports (the) defence’s version of what happened outside room E prior to the search. Again it is a matter for you to decide. Similarly, the locating (of) what appears to be a router and security kit box at the bottom of the wardrobe in photo 17, P64. Is this of significance? Does it in any way support the defence case of installation of spy cameras or is it of no significance at all? Again, that is for you to look at.”

24.It is true that while the deputy judge did not advise the jury that the mere fact that the prosecution had informed the defence in an admitted fact that the CCTV was not functioning at the material time was not evidence of the truth of that assertion, Mr Haynes himself explained the assertion as “hearsay” to the jury, and made a strong attack in his closing address on the competence and reliability of the police investigation and evidence as a result of the absence of any evidence that the CCTV system was not in fact functioning.  It seems to us, with respect, that Mr Haynes managed to take as much advantage as he could from the absence of the CCTV recordings and the admitted fact and we do not think that, even if the deputy judge had explained the assertion contained in the admitted fact as “hearsay”, it would have made the slightest difference to the strength of Mr Haynes’s attack.  Had he explained the concept of hearsay, the deputy judge would also have had to tell the jury that since there was no evidence whether the CCTV system was or was not in fact functioning, they should not speculate about it one way or the other.  Mr Haynes was arguably better off in the circumstances being able to suggest to the jury on the available evidence that the police were either lying or covering up the evidence.

25.As for the evidence concerning spy cameras, we are satisfied that the issue was fully before the jury.  Not only had Mr Haynes emphasised this matter in strong terms to the jury and suggested, for example, that “…afterwards (the police) realised that these spy cameras would be an embarrassment and they disappeared”, but the judge reminded the jury of this issue in his summing-up.

26.There is nothing in either ground of appeal concerning the absence of either the CCTV or the spy camera recordings.

(Ground 3)

27.A further ground of appeal, which related partly to law and partly to fact, complains that the deputy judge erred in allowing the prosecution to cross-examine the applicant as to his refusal to sign on some of the tamper proof envelopes in which the drugs had been placed, whereas he signed on others, and thereafter directing the jury that the issue went to the applicant’s credibility (Ground 3).  Although Mr Haynes objected to this line of cross-examination, the deputy judge ruled against him, pointing out that during the course of cross-examination of police officers, Mr Haynes had himself put to them that the applicant had refused to sign on the envelopes.  Following his ruling, Mr Haynes said:

“…I accept your Lordship’s ruling but I will expect a direction that this only goes to credit because otherwise there’s this risk…”

The risk counsel was referring to was the prejudicial effect on the applicant’s right of silence, when he had not been obliged to sign on the envelopes.

28.It seems to us that since the applicant had seen fit to sign on three envelopes but not the others, prosecuting counsel was perfectly entitled to ask him why.  In the event, the judge dealt with the matter fully in the summing-up in the following terms:

“You will recall the raising the fact that the defendant signed on three of the exhibit labels on the tamper proof packets, but refused to sign any more. Mr Haynes originally raised this and Mr McNamara (counsel for the prosecution) questioned the defendant as to the reasons why.

I now direct you that the defendant has every right to refuse to sign. He has no duty to give reasons or to justify it. That does not stop Mr McNamara asking him, and if he chooses to answer, that is perfectly acceptable. If he decided not to answer, that again would be acceptable. However, members of the jury, you must not find anything adverse to the defendant in his refusal. He has every right to refuse to sign those labels, however, his reasons may touch upon credibility. That is a matter for you to decide.”

We can see absolutely no basis whatsoever for any complaint about this issue or this direction.  Indeed, this was the very direction Mr Haynes said he “expected” from the deputy judge in due course.

(Ground 2)

29.A further ground which may be said to relate to both law and fact was that the deputy judge should never have admitted highly prejudicial personal photographs of the applicant into evidence, which photographs were more prejudicial than probative, since they were not relevant to any of the counts on the indictment (Ground 2).  We have already dealt with this matter (at para 17 supra) when dealing with the complaint in relation to Count 3.  The photographs were plainly relevant and admissible evidence on a live issue in the case, namely the extent of the applicant’s connection with and/or occupation of the premises.

30.In the event, and pursuant to a request made by Mr Haynes prior to closing speeches, the deputy judge directed the jury as follows:

“Now, I am going to give you a special direction, at the request of Mr. Haynes, and that is in relation to the photographs. You have seen the collection of photographs and they have been produced to you in the photo album, which I believe is P33, and the loose photographs, P34. All were found in the room E. I will not dwell on where they were found, I will do that at a later stage. They show the defendant in various poses and situations. Some of you may find them rather silly. Some of you may find them, the hints of macho style, rather distasteful. Put that out of your mind. The only significance of those photographs is that as a matter of evidence, and the only value is that they are photographs of the defendant found within the premises.

I say found within the premises, because that is a matter that the defendant does not deny. He gives a reason why they are in the premises. It is also, I would say to you, common sense that people play act for taking photographs … that does not mean to say that there is anything wrong with that. So, what my message to you is, just accept them for photographs and do not draw any prejudicial inferences against the defendant.”

Mr Haynes received an extremely favourable direction at his own request about the content of the photographs.  There can be no possible complaint about the introduction of these photographs at the trial.

(Ground 4)

31.A number of grounds of appeal relating to law were then argued.  Ground 4 concerns a complaint that the verdicts as between Count 1 and Count 3 were inconsistent.  Although this ground does not specifically engage Count 2, we should make it clear that there can be no conceivable argument on the authorities and on the evidence that the verdicts in respect of Count 3 or, for that matter, Count 2 were inconsistent with the applicant’s acquittal on Count 1.

(Ground 1)

32.Complaint is also made that the judge should have acceded to a defence application that they be informed of the identity of the informant and/or his relevant circumstances, including whether he had a criminal record, whether he was a regular informant and whether he had been paid.  This was so because there was a realistic possibility that a malicious third party might have played a part with the police in setting the applicant up.

33.It is instructive to see the way the argument was put and developed before the deputy judge.  It seems clear that the application was prompted by little more than speculation that something might turn up which assisted the defence.  Mr Haynes explained the basis of his application to the deputy judge as follows:

“Now, the defendant has been in Hong Kong for some time and like most defendants, and it’s no secret to his Lordship, he’s had some arrests in the past. He has, of course, acquired both friends and enemies and he has reasonable grounds for believing, placed in his situation, that somebody with some animosity towards him has set up the flat with drugs so that the first person who comes to the flat after the drugs have been placed will be pounced on and it’s for those reasons that we say, in fairness to the defendant, the prosecution should supply us with the name of this informant because (if) it turns out that the informant is in fact a person with whom this defendant has had a grudge in the past - and there are a number of people he’s had grudges with during his time in Hong Kong - it clearly would be material to the defence and assist the defence to make up the defence that he has been set up maliciously by some past enemy.”

Following prosecuting counsel’s response, in which Mr McNamara, for the prosecution, placed reliance on several points made by Stock VP in HKSAR v Agara [2014] 2 HKLRD 648, Mr Haynes replied:

“Now, my learned friend says there’s a burden on the defence to show that the tenable defence depends on – can be materially affected, I would say, by whether or not we know the identity of the informer. Well, since we don’t know, these are the possibilities: the identity of the informer may turn out to be a dud, he may be totally unknown to the defendant, it may amount to nothing; the identity of the informer turns out to be an ex-acquaintance of known person (sic) to the defendant; and it may be possible for the defendant to then say, ‘Well, yes, this man does have a grudge against me’.

I don’t know quite what Stock VP was thinking about, it’s probably a long time since he’s defended a case, but when you think about it - put forward a case on the balance of probability, the court is to some extent in the hands of the defence counsel in the same way it is when there are a number of co-defendants and it’s not clear whether one of the co-defendants is going to attack another one and so questions of the admissibility of criminal records and so forth arise. Counsel is then asked by the trial judge what the defence line will be and he has to indicate who will be speaking, what it will be, without throwing away his privilege of not revealing his defence in advance. It’s quite a difficult and delicate task.

But how would a defendant, who doesn’t know who the informant is, ever be able to demonstrate in some very forcible way that he is jeopardised by not knowing who the informant is, because he doesn’t know who he is.

…..

There’s no way a defendant can produce a probative case with that. All he can say is, is this the kind of case on these facts where that is a tenable possibility? And I’m saying it is a tenable possibility and therefore it is in the interests of justice, because otherwise his route to justice is obstructed, that he should know who this informant was.” (Emphasis supplied)

34.With respect, Mr Haynes should never have made the wholly impertinent and unwarranted comment he did in the above passage about the Vice President of the Court in Agara, although we should add that he has since apologised in writing for his remark.  But in making it, he revealed that his application was nothing more than a speculative fishing exercise, in which the defence could raise no more than “a tenable possibility”.  Even if one accepts that there was such a tenable possibility, which we do not, that possibility was one might think severely compromised by the finding of dangerous drugs in the applicant’s pocket.  We agree with Ms Lai that there was nothing which came anywhere near providing the basis for the “innocence at stake” exception discussed in Agara.  The deputy judge was entirely correct to reject the defence application and this ground is totally devoid of merit.

(Ground 9)

35.Finally, it is argued that the deputy judge failed to give a so-called Liberato direction in accordance with R v Liberato (1985) 159 CLR 507, as adopted and applied in HKSAR v Mosen [2011] 1 HKLRD 45.  Furthermore, he failed to tell the jury that even if they did not positively believe the evidence for the defence, they could not find an issue against the accused contrary to that evidence, if the evidence gave rise to a reasonable doubt about that issue (Ground 9).

36.This ground is wholly unrealistic.  The jury were carefully and repeatedly told that it was for the prosecution to prove each element of the offence beyond reasonable doubt; they were specifically told to consider the possibility that someone might have acted out of malice to set the applicant up, whilst “bearing in mind that the defence have nothing to prove”; they were asked to consider his explanations for the fingerprints, “bearing in mind that the burden of proof is squarely upon the prosecution”; and they were directed:

“Finally, I want to say that even if you reject the evidence of (the) defence as wholly untrue, and I say if - that is a matter for you - that does not lead to an automatic conviction of the defendant on all or any charge. You would still have to examine the prosecution case carefully on each charge to see if any or all are proved beyond all reasonable doubt to the extent that you are sure…”

37.Read as a whole, it is quite clear that the summing-up fully, fairly and appropriately conveyed the message that even if the jury did not believe the defendant and his witnesses, they could still not convict unless they were satisfied so that they were sure of the prosecution allegation and that any doubt must be resolved in the applicant’s favour.

Conclusion

38.For the above reasons, we dismissed the appeal in relation to the conviction on Count 2.

39.In view of the serious nature of the offence, we were addressed on the question of a retrial on Count 3 and, having heard counsel, we considered that there should be a retrial of Count 3 on a fresh indictment.  We also ordered that the trial be expedited before another judge.

Ms Anna Y K Lai SADPP & Ms Phenix Tse PP, of the Department of Justice, for the Respondent

Mr John Haynes, instructed by George Chan & Co., assigned by Director of Legal Aid, for the Applicant