HKSAR v. Abedin Minhajaul

CACC 139/2017

[2020] HKCA 72

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 139 OF 2017

(ON APPEAL FROM HCCC 57/2016)

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Before:  Hon McWalters JA in Court

Date of Hearing: 9 January 2020

Date of Judgment:  9 January 2020

Date of Reasons for Judgment:  20 January 2020

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REASONS FOR JUDGMENT

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A. Introduction

1.The applicant faced two counts of trafficking in dangerous drug(s), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Both offences took place on 26 August 2015.  The first count referred to a quantity of cannabis that the applicant was found to be holding in his left hand when he was intercepted by Customs Officers as he came down the staircase of a building in Tsim Sha Tsui.  The second count referred to drugs found in a room within this building to which access was gained by keys found on the applicant.  At the start of the trial he pleaded guilty to the first count and stood trial on the second count on an amended indictment containing only that count.

2.The particulars of the second count averred that the applicant unlawfully trafficked in 2,327.88 grammes of cannabis in herbal form, 1.16 kilogrammes of cannabis resin, 0.24 grammes of methylenedioxymethamphetamine and traces of trifluoromethylphenylpiperazine, 15.57 grammes of cocaine, 39.8 grammes of methamphetamine hydrochloride and 12 grammes of ketamine, at Room 3, Flat 2D (“Room 3”) on the 1^st Floor of the building on 26 August 2015.

3.The trial of the second count took place before D’Almada Remedios J (“the judge”) and a jury between 18 and 25 April 2017.  The applicant was unanimously convicted of the second count and on 26 April 2017 he was sentenced to a total of 10 years 6 months’ imprisonment[1].  He applied for the leave to appeal against his conviction on that count.

4.At the hearing of the application I granted leave to amend the grounds of appeal and leave to appeal on the Re-Re-Re-amended Perfected Grounds of Appeal.  I said I would hand down my reasons for doing so at a later date.  These are my reasons.

B.   The trial

B.1  The prosecution case

5.At around 1855 hours on 26 August 2015, the applicant was intercepted by patrolling Customs Officers, PW1 and PW2, on the ground floor of Fook Kiu Mansion, 34 Cameron Road, Tsim Sha Tsui.  At the time the applicant was walking down the stairs of this building towards the ground floor.  The Customs Officers stopped the applicant as they believed he was behaving suspiciously.

6.They searched him and found a packet of suspected dangerous drug[2], wrapped in tissue paper, in his left hand.  The applicant’s possession of this dangerous drug is the subject matter of the first count.  After finding the dangerous drug on his person, they questioned the applicant and under caution, he disclosed in English that this dangerous drug came from “the room upstairs on the 1^st Floor.”  When asked where the key to that room was, the applicant answered “In my left back pocket.”   

7.The applicant led the Custom Officers to Room 3 and the keys which had been found on his person were used to open the doors to this flat and this room. 

8.The drugs that are the subject matter of second count were found on the upper bunk of a bunkbed inside the room.  They were packed in hundreds of ziplock bags/plastic bags and some of the packets of drugs were in different boxes.  The drugs had a total street value of HK$394,247.25 at the material time.  The Customs Officers also found 4 electronic scales and 226 unused ziplock bags in a bag.   

9.In respect of the dangerous drugs seized on the upper bunk of the bed, the Customs Officer testified that he had an exchange with the applicant which the judge set out as follows:

“... He immediately cautioned the defendant in English, he asked the defendant, ‘What is this stuff on the upper bunk of the bed?’ the defendant said, ‘I don’t know.’ He asked, ‘What does this stuff belong to?’ The defendant said, ‘It’s me.’ He asked, ‘Where did you buy the stuff?’ and the defendant said, ‘I buy it from my Pakistan friend, HK$50,000, and I sell to another people.’”[3]

10.The prosecution presented its case on the basis that the applicant stored the drugs in Room 3 and acted as the delivery man of the drugs, and on the day he was arrested the applicant was leaving the building to supply to others a small amount of the drugs which came from Room 3.  

11.Two sets of Admitted Facts were signed by the parties.  In the second Admitted Facts, the following admission is made in respect of the applicant’s plea of guilty to the first count:

“4. The Defendant pleaded guilty on the 18 April 2017 to one charge of Trafficking in a Dangerous Drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134 in that on 26^th day of August 2015, at the Staircase, Ground Floor, Fook Kiu Mansion, No.34 Cameron Road, Tsim Sha Tsui, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 3.00 grammes of cannabis, in herbal form.”[4]

12.No fingerprint of the applicant was found in Room 3 during the investigation.  Fingerprints of another person named Muzammel Hoque (“Hoque”) were found on an insecticide bottle placed on a table in the room.

13.In the course of cross-examining PW1, Mr Edward McGuinniety, who appeared for the applicant at trial, put to him the defence case that the applicant did not live at the flat where the drugs were found and that the actual tenant of the flat was Hoque.  This prompted Mr Peter Cahill, who appeared for the prosecution, to ask to be allowed to address the judge in the absence of the jury.  Once the jury were sent out Mr Cahill informed the judge that Hoque had given a statement in which he denied living at the subject premises.  A copy of the statement was then given to the judge to read. 

14.In an exchange that took place with the judge, Mr McGuinniety explained the reason for his line of cross-examination:

“MR McGUINNIETY: ... I have instructions specifically that Muzammel was -- Mr Hoque, the person in question - was living at that address, that that was his address, that that’s who gave him the keys to that flat and that his girlfriend lived at that flat and that he lived at that flat in that room, and that if you look at photograph number 8, his jacket is in there and his girlfriend’s dress is in there.

COURT: Sorry, hold on, please. Mr Muzammel was the person living there, you say.

MR McGUINNIETY: Yes. That he was the tenant there, that he was the person that gave the defendant the keys, that he was the person who asked the defendant to go to that flat, that it was to him he was returning the keys, that the person in question has left his clothes there, that the person in question has left his girlfriend’s clothes there, and, not only that, but a fingerprint was found on a bottle inside that room which belonged to him.”[5]

15.This led to the following exchange between the judge and Mr Cahill:

“COURT: So, Mr Cahill, if I see no objection to Mr McGuinniety asking these questions of this officer in the manner that he has, in that these are what the investigations results were and you will also be able to therefore, whatever...

MR CAHILL: Do that, and I might take one step further. In fact, I will take one step further and indicate to the court, based on what I’ve been told now, that this Mr Hoque to be called by the prosecution as a witness, well, to clarify the matters, so...

COURT: Very well.

MR CAHILL: ...I might forewarn my friend that that’s a course that I’m contemplating and -- at the moment.

COURT: Very well. So you...

MR McGUINNIETY: May I have liberty to proceed?

COURT: Certainly.

MR McGUINNIETY: I’m quite aware of my friend’s warning and I’m happy to hear it and look forward to cross-examining him in due course.”[6]

Mr McGuinniety then continued with his cross-examination of PW1 and at the end of that day the judge asked Mr Cahill to inform her on the following day whether he intended to call Mr Hoque.

16.The next day, in the absence of the jury, the following exchange took place on whether Hoque would be called as a prosecution witness:

“MR CAHILL: May I just say one thing, my Lady? You asked indication from me about Mr Hoque. I do not propose to call Mr Hoque but I’ve spoken to my learned friend and it was agreed that it could be put forward as under section 65B of the Criminal Procedure Ordinance.

COURT: His statement, yes.

MR CAHILL: His statement, yes.

COURT: You confirm that, Mr McGuinniety?

MR McGUINNIETY: My Lady, yes.”[7]

17.Later that day Mr Cahill produced Hoque’s statement.  The transcript reveals what then transpired:

“MR CAHILL: My Lady, we now come to a point where I indicated earlier, that there’s agreement between the defence and the prosecution to tender a statement of Mr Hoque under section 65B of the ordinance, Cap 221. We have prepared 14 copies of that.

...

COURT: This is a statement. Members of the jury, the prosecution -- this is a statement by Muzammel Hoque. The prosecution and the defence have agreed that this statement, witness statement, can be read into the record. They will not be calling Mr Muzammel Hoque, and I will address you in my directions at the end of the case what you may make of this statement, but this statement goes in as evidence before you by agreement between the prosecution and the defence. So this statement will now be read to you by Mr Cahill.”[8]

18.Mr Cahill then read out Hoque’s statement.  In it, Hoque stated that he had been living in a flat in Star Mansions for about 10 years but after contacting the landlord of Flat C, 1/F, Fook Kiu Mansion in January 2015, he decided to sign a tenancy agreement in respect of it.  Hoque said he started to live in this apartment but that as he felt unhealthy when he lived there he moved out after one and a half months and had never gone back.  He said he let his friend Afzal replace him in renting the apartment.  Afzal gave Hoque money as a deposit and Hoque gave to him the key to the apartment.  The following sentence then appears in Hoque’s statement:

“Afzal said that he decided to live in the above apartment with Minhajaul”[9]

At no stage did Mr McGuinniety take issue with the presence of this hearsay assertion even though the jury were likely to take it as a reference to the applicant. 

B.2    The defence case

19.The defence case was that the applicant had no knowledge of the drugs that were found in Room 3.  The applicant testified that on the day of his arrest he had met his friend Mr Amar Dutta (DW2) and Hoque at a tea house.  Hoque, who was his fellow Bangladeshi and the tenant of Room 3, asked him to deliver a set of keys to Hoque’s roommate “Bablu”.  He called Bablu who then instructed him to meet at the building.  Upon arriving at the building, Bablu led him to Room 3, so that the applicant could go to the toilet.  Bablu told him that he did not need the keys and told the applicant to return them to Hoque.  Bablu also gave the applicant a small packet of cannabis to bring to Hoque.  This was the dangerous drug seized from the applicant’s hand by the Customs Officers when they intercepted the applicant on the staircase.

20.It was the applicant’s case that before this incident he had never been to Room 3, that he had no knowledge of the dangerous drugs in that room and that he had been set up by Hoque who had provided information to Customs Officers so that they were effectively waiting for him as he came down the staircase from the flat.  The applicant claimed he had not made the oral admissions that were alleged by the prosecution when he was intercepted on the staircase and when the dangerous drugs were found in Room 3.  He said he did not speak English and said that no officer had in fact talked to him during the investigation. 

21.DW2 testified that he witnessed a friend of the applicant pass keys to the applicant asking him to bring the keys to another person[10].

B.3    Counsels’ closing addresses

22.In his closing address Mr Cahill relied on the statement of Hoque as part of the prosecution case.  This much is apparent from the following excerpt from his address:

“... Now, the prosecution has called two witnesses and we’ve called -- submitted facts and also a statement from a Mr Muzammel Hoque by way of what’s called Section 65B of the Criminal Procedure Ordinance.

Now, that statement goes in just as evidence, untested by cross-examination although it is, it is still evidence that you can consider and take onboard in your assessment of what is the truth in this particular case.”[11]

23.Furthermore, he invited the jury to accept as truthful, and place full weight on, the contents of Hoque’s statement saying:

“The defendant, during the course of his evidence, has attempted to place the blame on this man, Hoque, and saying that Hoque was the man that tipped them off. You might ask yourself, what would be the motive for doing such a thing as that? There’s no motive been produced, no suggestion of what the motive was. I’d suggest to you that it may well be an attempt to cast the guilt onto someone else rather than himself. Now, this man, Hoque, has made a statement as you will have heard, and will see. In that statement, he indicates that he was in fact the tenant of that flat, but his tenancy only lasted for about a month and a half because he felt unwell in those premises, so he left.

If you look at the date of the actual commencement of the tenancy and his occupation of that, you will find that one and a half months after that date, which was in January, would put him leaving the flat well before 26 August 2017, well before this incident took place. To have his fingerprints found on the bottle that was found in the room, what’s so extraordinary about that, members of the jury? He’s already admitted that he had been in that flat for a short period of time.

I submit to you that that takes the case of the defence no further. In fact, it takes it nowhere, in our submission. Now, that particular statement he made, members of the jury, although it was not subject to cross-examination, has in it, in the beginning of it and at the end of it, particularly at the beginning, indicates that it was made under sanctions of criminal action if he lies, so you may well take that into consideration, in accepting what he says as being the truth.”[12]

24.In his closing address Mr McGuinniety sought to portray Hoque’s statement as a tissue of lies.  He said:

“We’re saying, we have said, that the defendant was set up by Muzammel Hoque, who did go to that room and things that we’ve told you about did transpire, we did take the tissue with some drugs in it and we did plead guilty to that. The question for you is what do you make of the other evidence, if it is evidence? My friend has said the points they make take the case nowhere. Maybe they don’t. So, can I now please turn to this absolute gem of a statement. It’s a real cracker and I love it and I’m going to tell you why I love it.

Because, members of the jury, everywhere I look, I see doubts.”[13]

25.He then went through the statement criticising different assertions in it with a heavy use of sarcasm, concluding with:

“... Muzammel Hoque is a liar.

This statement is a cover up and you can be pretty sure that this was a setup and if you can’t be sure it was a setup, you must have your doubts, and if you don’t, well, it’s a matter entirely for you. ...”[14]

26.Mr McGuinniety made no reference to the hearsay assertion by Hoque of what Afzal had told him in respect of “Minhajaul” residing with him in the apartment. 

B.4    The judge’s summing-up

27.In respect of the Hoque statement the judge directed the jury as follows:

“ The written statement of Muzammel was read to you. It constitutes evidence in this case just as if Muzammel had appeared in person before you and given direct oral evidence of matters in that statement. The matters in his statement should be considered by you along with all the other evidence. You are not bound to accept what is in the statement. On the other hand, since there is no evidence to contradict the statement, you might feel that you are able to accept what it says. You can accept or reject what Muzammel had to say.”[15]

C.      The Re-Re-Re Amended Perfected Grounds of Appeal

28.Counsel for the applicant, Mr James McGowan, advanced the following grounds of appeal:

(1)  The prosecutor improperly refused to call or tender for cross-examination the witness Muzzamel Hoque.  This was a material irregularity which led to the applicant not being fairly tried.

(2)  As a consequence of the prosecutor’s improper refusal to call Mr Hoque the trial defence counsel was compelled to adopt an alternative strategy of agreeing to the admission of Mr Hoque’s statement under section 65B of the Criminal Procedure Ordinance notwithstanding that he would be inviting the jury to disbelieve parts of it and to find Mr Hoque an untruthful witness.  This strategy forced upon the defence counsel by the prosecutor led to the applicant not being fairly tried.

(3)  In directing the jury on the statement of Mr Hoque the judge erred by:

(i)  misdirecting the jury that this evidence was not in dispute when parts of his statement clearly were; and

(ii)  failing to direct the jury that they could not rely on that part of the statement which contained hearsay assertions that the applicant lived in the apartment in which the drugs the subject of the count were found.

(4)  For the reasons set out in the first three grounds of appeal “and/or generally, particularly given the inherently unsatisfactory nature of PW1’s testimony, there must be a ‘lurking doubt’”[16] in respect of the safety of the applicant’s conviction.

29.The first and second grounds of appeal flow from what Mr McGowan was told when he contacted Mr McGuinniety in order to understand how it was that Hoque’s statement came to be adduced under section 65B of the Criminal Procedure Ordinance.  In a letter to Mr McGowan Mr McGuinniety wrote:

“...Then on 29^th March 2017, just over 2 weeks to trial the prosecution served us with a statement showing that fingerprints had been found on a bottle in ‘the flat’ which fingerprints belonged to MH. From that point on I believe I pestered the Prosecution with requests for them to call MH – they refused. Then some time between 10^th April 2017, when MH’s statement was taken by the police and the start of the trial which was 18^th April, (Easter was 14-17^th April) the prosecution served us with the statement of MH. This statement seemed old somehow, and the fact that MH was saying one thing about his home address and then stating that he had lived in the very flat where the DD had been found did not at all ring true. I did further ask the Prosecution to call MH – they refused so the best thing we had was his statement.

...

MH’s statement was described by the defence, (by me) in my closing address to the jury as an out an out lie. I did not think to delete part of it, as in its entirely it smacked of an obvious attempt to frame up the defendant which was exactly our case. I did not want any redactions so that the jury could question what had been hidden. It was too incredible for belief that PW1 had denied even knowing the name MH, this given as said the short time elapsed since the statement had been taken. This line was made very clear to the jury – despite PW1’s denial of knowing of MH or his statement it was here in all its unredacted glory for all to see courtesy of the statement being admitted. The useful and obvious follow on from this point was that the Prosecution was trying to hide something and that therein laid a reasonable doubt about the truth/reliability of the prosecution case.

Far from asking/expecting/hoping that the jury would rely on MH’s statement and anything in the statement, the exact opposite was true and I did pointedly outline to the jury that this statement was nothing but a lie and a cover up. There seemed then and it still seems now that there was no need to specifically delete any particular sentence from the statement which was being held up to the light for the jury to read and disparaged as an obvious tissue of lies.

I do not think I would change that decision even with the light of hindsight. That the jury convicted the defendant was immensely disappointing but as with DD cases it was not surprising. I do not think that the fact that I did not redact the ‘offending part’ as you put it was anything like as offensive as you suggest.

In any event, such decision not to redact was not an oversight but part of our case, nor do I believe that my tactic was wrong or error ridden. You can say what you like in your submissions as you review the case and how it was handled but the verdict, in my opinion, did not in any way hinge on that ‘offending part’ remaining unredacted.

I knew that when I was dealing with the Prosecution in this case I wasn’t going to get everything my way and what I really wanted in this case was to have MH called as a Prosecution witness – it seemed to me, to be a reasonable request but it was not met with any assent. MH’s statement was the second best piece of evidence and the only independent way we had to show the jury who he was and confirm his exercise – not as someone fictionalized or fabricated but a real person, who had lived in that very flat despite having another home for the past 10 years – someone whose fingerprints had been found on bottle in the material flat and someone who had framed the defendant for this case and not a non-existent person made up by the defendant to excuse himself but someone who was linked directly to the flat in which the DD were found.”

30.In respect of his third ground of appeal Mr McGowan submitted that, contrary to what the judge said in her direction to the jury in respect of the section 65B statement, there was evidence in the applicant’s testimony contradicting Hoque’s statement where he quoted Afzal as stating that he lived in the apartment with “Minhajaul” and “weight” issues should be considered before accepting the statement.

31.Mr McGowan contended that Specimen Direction 35 should have been given, that is that the jury did not have the opportunity to see and hear Hoque in the witness box and the evidence had not been tested under cross examination, and submitted that without such a direction there was a material irregularity.

32.Mr McGowan also submitted that the judge failed to caution the jury as to the limited use they could make of Hoque’s statement in respect of the hearsay assertion as to what Hoque said he had been told by Afzal.

33.In support of his fourth ground of appeal Mr McGowan submitted that, there were contradictions in PW1’s evidence and gave the following examples:

(1)  He first claimed that he had never heard of Hoque, and not knowing that Hoque was the tenant, and then later admitted that Hoque had made a statement, which was actually witnessed by PW1 just a week before the trial commenced. 

(2)  There were also contradictions on the issue of the number of his colleagues who were present, the time when notice to person in custody was given, and the issue of whether the applicant knew English.

D.      The respondent’s submissions

34.Ms Claudia Ng appeared for the respondent.  In relation to the first ground of appeal, Ms Ng submitted that the judge appropriately adopted and directed the jury in accordance with Specimen Direction 34 in her summing-up.  She emphasised that Hoque’s statement was read out in full without being met with any objection from the defence counsel.

35.With reference to the letter of Mr McGuinniety explaining his conduct of the defence, Ms Ng submitted that the defence strategy adopted by him represented an informed decision by an experienced defence counsel to use Hoque’s statement to impugn the credibility of the prosecution witnesses, and to demonstrate to the jury the inherent improbability of Hoque’s version that he was not the tenant of Room 3 at the material time. 

36.Furthermore, she asked the court to note that neither the defence counsel nor the prosecuting counsel made reference to Azfal’s intention to live in Room 3 with the applicant, nor did they inform the judge that Specimen Direction 35 on the issue of hearsay statement would be required before the summing-up started.  In any event, Ms Ng submitted, it was never the prosecution case that the applicant was the tenant or occupier of Room 3. 

37.Finally, Ms Ng referred to the fact that the judge, in summing up the defence evidence, repeatedly emphasised the applicant’s evidence that he lived on Haiphong Road instead, the 2 other keys in his possession were to open his own flat and it was only his first time to visit Flat 2D on the day of his arrest on receiving Hoque’s instruction to deliver the bunch of keys to Bablu.  Ms Ng submitted, given the parties’ respective positions and the cases they ran at trial, the judge’s summing up as a whole was fair and balanced, and no material irregularity had arisen.

E. Discussion

38.Where a ground of appeal is based upon the Court of Appeal receiving fresh evidence and ultimately accepting that evidence as credible, it is my view that the role of a leave judge is rather limited.  Where the fresh evidence is prima facie credible, for example, because it comes from a person of good character and there is nothing to undermine the credibility of the deponent or the facts which the deponent affirms, then, in that situation, I do not think that the role of the leave judge is to assess the likelihood of the Court of Appeal ultimately finding the fresh evidence to be credible and of receiving it.  Rather, I see the leave judge’s role as limited to determining whether it is reasonably arguable that if the fresh evidence were to be received and found credible it would afford a reasonably arguable ground of appeal.  In the present case the contents of Mr McGuinniety’s letter would, it seems to me, fall into such a category. 

39.However, where the fresh evidence comes from persons of bad character, such as convicted defendants, who clearly have a self-serving motive for the assertions to which they depose and whose assertions lack support from credible independent sources, then I do not think that the leave judge is bound to automatically accept such evidence.  If the leave judge concludes that no appellate court could reasonably find the assertions credible then, in my view, the leave judge is entitled to refuse leave to appeal in respect of that ground.  In adopting such a course I do not believe the leave judge is usurping the function of the Court of Appeal. 

40.Before leaving this issue I should say that it is also my very strong view that when contemplating advancing a ground of appeal that is dependent for its success on fresh evidence being received by the Court of Appeal pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221, counsel for an applicant has a positive duty to the court to form a professional assessment of the credibility of the intended fresh evidence both at the stage before he files his ground of appeal, and again at the stage when the respondent has filed evidence and submissions in reply. 

41.Such a duty is required of counsel for an applicant by the Court of Appeal in the context of advancing incompetence of counsel as a ground of appeal.  In HKSAR v Apelete (No 1)[17] Macrae VP, in giving the judgment of the Court of Appeal, said:

“62.   At one point during exchanges with the Court, Mr McGowan sought to suggest that counsel on appeal putting forward a complaint of flagrant incompetence against trial counsel was ‘in the same position in a trial where a defendant’s account of something is extraordinary, but that’s what he said happened’.  For the reasons articulated by Lord Thomas CJ in A(EO), we emphatically repudiate such thinking.  An appeal is not a trial: unlike the putting of instructions at a trial, appellate counsel is required to make his own conscientious assessment of such allegations as a professional barrister before putting them forward as a ‘properly arguable’ ground of appeal; and no such assessment can properly be made without first looking for independent confirmation of the allegations and consulting the previous legal representatives.”

42.I see no reason why the same duty should not be cast on counsel in respect of other grounds of appeal that is dependent for their success on the appellate court receiving and finding credible fresh evidence under section 83V of the Criminal Procedure Ordinance. 

43.I shall now turn to the grounds of the present application.  In respect of the first ground of appeal, if Mr McGuinniety’s evidence was accepted then it would follow from the prosecutor’s actions in adducing Hoque’s statement as part of its case that he, the prosecutor, was of the view that:

(i)  Hoque had evidence relevant to the issues in the trial and that his evidence would advance the prosecution case;

(ii)  Hoque was a person whom the prosecution could put before the jury as a witness worthy of belief.

44.In these circumstances I am of the view that it is reasonably arguable that if the prosecutor refused to call Hoque then he acted improperly in doing so.

45.In relation to the second ground of appeal I am of the view that it was the prosecutor’s refusal to call Hoque that prompted the defence strategy to place Hoque’s statement before the jury.  I shall refrain from commenting on the viability of this strategy in the absence of any complaint on incompetence of trial counsel in this appeal.  However, if the prosecutor’s refusal to call Hoque was improper and if it was accepted that it was this refusal that prompted Mr McGuinniety to adopt the strategy that he did adopt, then it is reasonably arguable that any unfairness that resulted from adopting this strategy is attributable to the conduct of the prosecution.

46.In respect of the first limb of the third ground of appeal, it is, in my view, reasonably arguable that a material irregularity resulted when the judge directed the jury that there was no evidence to contradict Hoque’s statement when plainly the applicant denied occupancy of Room 3 and it was clear from Mr McGunniety’s closing address that the defence challenged the Hoque statement and asserted that it contained lies. 

47.In respect of the second limb of the third ground of appeal I note that the prosecution case did not proceed on the basis that the applicant was the tenant or the occupier of Room 3.  Nevertheless, a strong inference of possession could clearly be drawn against the applicant if the jury accepted that he was in fact the occupier of this room.  Here there was no redaction of that part of Hoque’s statement concerning what Afzal said in respect of his intention to live with the applicant; the judge did not direct the jury to disregard this part of the statement; and finally there was the undisputed fact that at the time the applicant was arrested he was in possession of keys that could open the door of Room 3.  I am of the view that it is reasonably arguable that the cumulative effect of these matters would create a real risk that the jury might impermissibly act on Afzal’s hearsay assertion and find that the applicant was the occupier or the tenant of the room and was, therefore, in possession of all the drugs found in it. 

48.I am not persuaded that the last ground of appeal, in so far as it relies on the alleged “unsatisfactory” nature of PW1’s testimony, is reasonably arguable.  Such problems as existed in respect of his testimony were placed before the jury by Mr McGuinniety in his closing address and the judge in her summing-up and it was then a matter for the jury to decide what weight they should accord his evidence.  However, I grant the applicant leave to argue lurking doubt as it applies to the first to third grounds of appeal.  Leave was therefore granted in respect of a redacted fourth ground of appeal that has all reference to the evidence of PW1 removed from it.    

F.       Disposition

49.For these reasons, I granted the applicant leave to appeal in respect of the first to third grounds of appeal but in respect of the fourth ground of appeal only in the redacted form that I have explained above.    

Ms Claudia Ng SPP, of Department of Justice, for the respondent

Mr James McGowan, instructed by Jal N Karbhari & Co, for the applicant

[1]  For first count, the sentence was 6 weeks’ imprisonment, and for second count the sentence was 10 years and 6 months’ imprisonment with both sentences ordered to run concurrently with each other.

[2]  The dangerous drug was 3 grammes of cannabis in herbal form. 

[3]  Appeal Bundle, page 27K-N.

[4]  Appeal Bundle, page 10.

[5]  Appeal Bundle, page 202E-L.

[6]  Appeal Bundle, page 204N-205C.

[7]  Appeal Bundle, page 207C-H.

[8]  Appeal Bundle, pages 208K-209A.

[9]  Appeal Bundle, page 83.

[10]  Appeal Bundle, page 124J.

[11]  Appeal Bundle, page 55L-O.

[12]  Appeal Bundle, pages 58L-59C.

[13]  Appeal Bundle, page 68A-E.

[14]  Appeal Bundle, page 69Q-S.

[15]  Appeal Bundle, page 25J-N.

[16]  Paragraph 11 of the Re-Re-amended Perfected Grounds of Appeal Against Conviction.

[17]  [2019] 5 HKLRD 574, 597 at [62].