R v Faruque Hussein

The appellant was one of three defendants who stood trial at Luton Crown Court on a charge of conspiracy to cheat the public revenue of excise duty. On 2 December 2024 he was convicted of that offence and sentenced to three years and four months' imprisonment. He appeals against his conviction by leave of the single judge.

The prosecution case was that in the period between 5 March 2019 and 23 September 2019 the conspirators imported raw tobacco and then illicitly processed and packaged it to look like legitimate hand-rolling tobacco brands (Golden Virginia and Amber Leaf), before distributing it to customers on the UK market. The appellant was alleged to be involved with one of his co-accused, a Mr Kim, in arranging the sale of the processed illicit tobacco to various customers on behalf of the members of the conspiracy.

There was no direct evidence of the physical presence of the appellant at the farm near Luton at which the tobacco was processed, nor at any of the locations at which it was stored, but on a search of his home address on 23 September 2019 a quantity of illicit hand-rolling tobacco in Golden Virgina and Amber Leaf branded pouches was found. He appeared to be selling that tobacco at such low prices, between £2.50 and £2.80 per 50-gram pouch, that the prosecution contended it was implausible that he could have believed it was genuine.

During the indictment period the appellant also leased a garage which, when searched on 7 March 2019, was found to contain substantial quantities of tobacco in Amber Leaf and Golden Virginia packaging. Surveillance evidence showed a customer vehicle being loaded from the garage by a co-accused. The appellant's explanation was that he had leased the garage on behalf of a co-accused, Mr Zhou, but that he had handed over the keys to Mr Zhou and had no access to it. He did not know about the tobacco which was being stored in the garage. The keys to the garage were found at the farm where the illicit tobacco was being processed.

In addition to those matters the prosecution relied on various text messages, including messages between the appellant and Mr Kim in which the appellant requested hand-rolling tobacco. The prosecution said that some of these messages alluded to customers of the conspiracy. Other text messages between the appellant and two individuals named "Muzza" and "Samad" implicated him in the supply of hand-rolling tobacco, although none of those messages made express reference to the tobacco being illegitimate.

The appellant accepted that he sold tobacco products, some of which were supplied to him by Mr Kim, but he denied acting dishonestly because he said he was unaware that duty had been evaded. He did not know or suspect that the tobacco being supplied to him by Mr Kim was illegitimate.

The appellant contends that his conviction is unsafe because the trial judge, he says, wrongly acceded to an application by the prosecution to adduce bad character evidence in the form of an exchange of text messages between the appellant and a man named Robert Ball which took place around three months before the indictment period. They read as follows:

The judge ruled that the evidence was admissible under section 101(1)(d) of the Criminal Justice Act 2003 on the basis that it was relevant to an important matter in issue between the prosecution and the defence, namely the question of whether the appellant knew or suspected that the tobacco that was supplied to him by Mr Kim was illegitimate. He said there was a direct link between the appellant's knowledge that the previous tobacco he sold was fake and his knowledge that the tobacco being supplied to him by Kim was fake. The judge declined to exercise his discretion to exclude the evidence because he ruled that any prejudice to the defence could be overcome by appropriate directions to the jury.

The appellant gave evidence in his own defence. It is accepted by Mr Bentley that it was accurately summed up to the jury by the judge in these terms:

On behalf of the appellant, Mr Bentley contends that the judge was wrong to rule that the evidence passed through the section 101(1)(d) gateway. The messages concerned tobacco that was wholly unrelated to the conspiracy and therefore they did not make it any more likely that the appellant knew that the tobacco being supplied to him by Mr Kim during the period of the indictment was illicit.

Alternatively, he submitted that even if the evidence were admissible, its prejudicial effect so outweighed its minimal probative value that it was unfair to the appellant to admit it. There was a significant risk that the jury would not appreciate the distinction between the appellant's knowledge as it related to the tobacco referred to in the Ball messages and the knowledge relating to the tobacco supplied by Mr Kim. There was a real danger that the jury would leap to the conclusion that because the appellant knew that one lot of tobacco was illegitimate, he must have known that the other one was. The Ball messages did not support that conclusion, because it was not alleged that Mr Kim was involved in any way with the earlier tobacco supply. No amount of careful direction to the jury could overcome that prejudice because once they heard this evidence the jury would close their ears to any argument that the appellant was unaware that the tobacco he was purchasing from Mr Kim was illicit.

In our judgment the evidence was plainly admissible for the reasons given by the judge. The only issue is whether it had such an adverse impact on the fairness of the proceedings that it should have been excluded. As my Lord, His Honour Judge Lickley KC put to Mr Bentley in the course of argument, if one stood back and looked at the position objectively, there was a conversation only shortly before the alleged conspiracy in which there was a discussion about fake tobacco being supplied, and then very soon afterwards Mr Kim came along providing tobacco at a cheap price. It might be said that the appellant, being aware that there was fake tobacco out there on the market, even if he was talking about it in jest to another customer, might have thought that there was something slightly dodgy about the fact that he was being offered tobacco at that sort of knockdown price by Mr Kim.

The risk of prejudice was, as the Crown submits, illusory. The judge gave a very clear direction to the jury that they should not conflate any knowledge demonstrated in the Ball messages with equivalent knowledge about the tobacco involved in the conspiracy. They were frequently reminded that the messages with Mr Ball pre-dated the period on the indictment, and they were reminded of that not only by the judge but by the Crown and by Mr Bentley who defended the appellant at trial. There is no reason to believe that those salutary messages were ignored.

The jury were entitled to conclude that the messages did support the Crown's case that the appellant knew that the tobacco that he was supplying during the conspiracy was counterfeit for the reasons set out by the judge in his ruling. The fact that the messages did not concern the tobacco that was the subject matter of the indictment was well-known to the jury, and it did not affect the probative value of the bad character evidence.

For those reasons, despite the clear and concise way in which the matter was articulated by Mr Bentley to us this morning, this appeal is dismissed.