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Hksar v Ravisher Singh

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date10 June 2014
Year2014
Judgement NumberCACC311/2013
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC311/2013 HKSAR v. RAVISHER SINGH

CACC 311/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 311 of 2013

(ON APPEAL FROM HCCC NO. 98 OF 2012)

________________________

BETWEEN

HKSAR Respondent
and
RAVISHER SINGH Applicant

________________________

Before: Hon Yeung VP, Lunn JA and Pang J in Court
Date of Hearing: 16 May 2014
Date of Judgment: 16 May 2014
Date of Reasons for Judgment: 10 June 2014

________________________

REASONS FOR JUDGMENT

________________________

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

1. The applicant sought leave to appeal against his conviction on 22 August 2013, after trial by Toh J and a jury, of a count of conspiracy to traffic unlawfully in dangerous drugs (Count 1), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and section 159A of the Crimes Ordinance, Cap. 200 and against the sentence of 25 years’ imprisonment, imposed on him on 27 August 2013 in consequence of that conviction. At the hearing we dismissed those applications for leave to appeal and said that we would give our reasons in due course. That we do now.

THE TRIAL

2. The applicant stood trial on an indictment containing two counts, albeit that Count 2 was averred in the alternative to Count 1. The Particulars of Offence of Count 1 averred that the applicant had conspired to traffic unlawfully in cocaine with Sen Santanu (“Sen”) and other persons unknown between a day unknown in May and 2 September 2011. Count 2 averred that on 2 September 2011 the applicant had trafficked unlawfully together with Sen in 1,490 millilitres of a mixture of a solid and a liquid containing 0.62 kg of cocaine.

The prosecution case

3. It was an admitted fact that on the night of 31 August 2011 Customs officers had intercepted a Speedpost parcel [1] from São Paulo, Brazil which bore the unique identity label EB 042073817BR. The applicant was stipulated in the Airway bill [2] as the recipient at an address described as “3 Flor, Flat 2, Room D, 25 Ning Po Street, Yau Ma Tei”. The sender was described as being Maria Fernandes. The contents were described as dresses and shoes. However, the parcel was found to contain two wine bottles. Examination of the contents of the two bottles revealed the liquid and solid mixture of cocaine described in the Particulars of Offence of Count 2. [3] The parcel and its contents were seized by Customs officers and arrangements made for a “controlled delivery”. In the afternoon of 1 September 2011 a Speedpost notification card was left in the mailbox of Room 2, 2/F, 25 Ning Po Street, Yau Ma Tei. [4]

2 September 2011

4. In the morning of 2 September 2011 enquiries were made by telephone by a male of a post office worker at Kowloon Central Post Office of the whereabouts of the Speedpost parcel by reference to its unique identity label. The caller was advised that the parcel was available for collection, but that collection required to production of a copy of the identification document of the stipulated recipient of the parcel. [5]

5. There was no dispute that about 12:15 p.m. that day the applicant and Sen were seen entering the Kowloon Central Post Office together, after which they sat together on the staircase that led from the Ground Floor to the customer counters located on the 1st Floor. Soon afterwards Sen went up to the 1st Floor, approached a post office worker at a customer counter and provided a parcel identity number, which was slightly different from that of the parcel in question. [6] Sen returned to where the applicant sat on the staircase and was provided by him with a copy of the applicant’s Identification document, namely a Form 8 Reconnaissance [7] issued by the Immigration Department. It bore the serial number A0193099. On returning to the customer counter, having provided the post office worker with that document together with his own document of identification, Sen was given the parcel, receipt of which he acknowledged.

6. For his part, the applicant moved away from where he and Sen had been sitting on the staircase and, having left the building, he went and stood at a nearby bus stop.

7. As Sen left the post office building at about 12:33 he was intercepted and detained by a number of Customs officers who were wearing plain clothes. [8] As those events unfolded, the applicant ran off in the opposite direction. However, Customs officers ran after him and the applicant was detained. He was found to be in possession of 3 telephones: an Apple i-Phone, a Sony Ericsson and a Blackberry.

Sen

8. Sen testified that he had come to Hong Kong from India in 2000. He had made a torture claim and had been permitted to remain in Hong Kong pending the resolution of that claim. He had been sentenced to 15 months’ imprisonment for the offence of using an identity card belonging to another and for breach of a condition of his stay in Hong Kong.

9. On 30 October 2012, on arraignment, Sen pleaded guilty to Count 2 on the indictment. However, sentencing was deferred until the conclusion of the trial of the applicant. Having been given an ‘immunity from prosecution’, Sen testified as a witness for the prosecution at that trial.

10. There was no dispute that the applicant and Sen had known one another since about the end of 2007 and the beginning of 2008. They were friends and had even lived together for some years prior to the events the subject of the indictment. They practiced ‘taekwando’ together.

11. Sen testified of occasions in the several months prior to September 2011 on which he had seen other parcels from Brazil in the possession of the applicant. On the first occasion the applicant had explained that the parcel contained bottles of wine sent by his girlfriend. On a subsequent occasion he noted that on labels on the parcel the applicant was stipulated as the recipient at an address in the building in which the applicant lived, but one which was slightly different from his actual address. The parcel had been opened and the wine bottles were empty.

12. On another occasion, at the request of the applicant, he had stood with the applicant in the street outside the applicant’s building for a considerable time awaiting the arrival of a postal delivery. After a postman had entered the building and was leaving sometime later the applicant had intercepted him in the street and showed him his identity documentation, after which he had been given a parcel on which it was stated that it had been sent from Brazil. On their return to the applicant’s premises the applicant had opened the parcel and removed two bottles of wine, the contents of which he emptied into a pot to which he then added liquid from numerous small plastic bottles. Then, he put the resulting mixture on a ceramic plate into a microwave oven. In due course, the mixture was reduced to a white mud-like solid, which the applicant told him was cocaine. The applicant explained that his role was to receive the parcel, process the liquid contents of the wine bottles into a solid and deliver it to the owner.

13. At the request of the applicant, Sen accompanied him in the delivery of the solid cocaine which he had seen the applicant put into a cornflakes packet. Having alighted from a taxi in which they had travelled together to West Kowloon Garden Car Park he saw the applicant place the cornflakes packet on the seat of a parked motor car. Shortly afterwards two men boarded the car and drove away, exchanging waves with the applicant as they did so. Then, he accompanied the applicant as they walked to a bench some distance away, which was occupied by three men, of whom one was Chinese and two African. There, he saw the Chinese man, to whom he was introduced shortly afterwards as Ho, hand the applicant a thick wad of banknotes. The applicant told him that Ho bought the cocaine and sold it in clubs and bars, whilst the African men were influential in drug trafficking in South America and South Africa.

June 2011

14. It was an admitted fact that on 22 June 2011 a Speedpost parcel, in which the applicant was stipulated to be the recipient at an address described as “Room F, 6/Floor, 25 Ning Po Street, Jordan”, had been collected from Kowloon Central Post Office by a person who had provided a document of identification with the number A0193099. [9] The Airway Bill described the parcel as having been sent from São Paulo Brazil by Maria Fernandes and was described as containing clothes and shoes. [10]

2 September

15. Sen testified that in response to the applicant’s request, made the previous day at Sen’s home, he had gone to the applicant’s home on the morning of 2 September 2011 at about 10:00 a.m. On the previous day he had declined the applicant’s request to do some unspecified work for him. The applicant had reminded him that he owed the applicant money and threatened him with consequences if he failed to repay the money. On the morning of 2 September 2011 the applicant told him that he wished him to pick up a parcel for him. The applicant used a telephone, which he put on speakerphone, to make enquiries of the post office in respect of the parcel. The applicant was told that if the person picking up the parcel was not the stipulated recipient of parcel a photocopy of the identification document of the recipient had to be provided. The applicant told him that if he picked up the parcel he would rescind the debt owed to him of $1,200 and in addition pay him $1,500.

16. Sen said that it was in those circumstances that he and the applicant had arrived at the post office at about 12:15 p.m. At the applicant’s suggestion he reconnoitred the 1st floor customer counter area. Then, he had been provided with a piece of paper on which was written the unique tracking number of...

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