HKSAR v. Abedin Minhajaul

CACC 139/2017

[2020] HKCA 807

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 OF 2016)

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Before: Hon McWalters JA in Court

Date of Hearing: 23 September 2020

Date of Decision: 23 September 2020

Date of Reasons for Decision: 9 October 2020

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REASONS   FOR   DECISION

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1.The appellant was charged with two counts of trafficking in dangerous drug(s), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, both of which took place on 26 August 2015. The first count referred to a small quantity of herbal cannabis that the appellant was found to be holding in his left hand when he was intercepted by Customs Officers as he descended from the staircase of a building in Tsim Sha Tsui, while the second count referred to a substantial variety of drugs[1] found on the upper bunk bed inside a room within the same building to which access was gained by keys found on the appellant.

2.At the start of his trial he pleaded guilty to the first count and only stood trial before D’Almada Remedios J (“the judge”) and a jury on the second count on an amended indictment containing only that count.  The appellant was convicted of the second count and was sentenced to a total of 10 years 6 months’ imprisonment.  He applied for the leave to appeal against his conviction in respect of that count.

3.In the Reasons for Judgment dated 20 January 2020[2] I granted the appellant leave to appeal against conviction.  Subsequently, the appellant filed his “Amended Perfected Grounds of Appeal against Conviction” on 30 July 2020. 

4.By a summons dated 16 September 2020 the appellant applied for bail pending appeal.  The appeal hearing before the Court of Appeal had not yet been listed at the time I heard the application for bail.  In support of this application, he filed an affirmation which exhibited his latest grounds of appeal, written submission, an affirmation by his solicitor and the identity proof of his intended surety, for my consideration. 

5.At the hearing of his application I refused it and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The issue at trial

6.It was the appellant’s case at trial that shortly before his arrest, he had been asked by one Muzammel Hoque (“Hoque”) to go to the room in question and deliver a set of keys to the room to Hoque’s roommate, a person by the name of Bablu (“Bablu”), who was present in the room.  When the appellant arrived in the room, Bablu told him that he did not need the keys and asked him to take the keys back to Hoque, together with a small quantity of herbal cannabis which was found in the appellant’s left hand upon his arrest and which was the subject of the charge to which he pleaded guilty. 

7.The appellant’s defence was a denial of knowledge of the drugs stored on the upper bunk bed and a claim that he was set up by Hoque, who, he said, was the tenant of the room and who had provided information to Customs Officers in order to have him arrested.  In support of this claim that Hoque was the tenant of the room, the appellant relied heavily on the fact that Hoque’s fingerprints had been found on one of the bottles that was in the room.

8.Hoque was not called as a witness at trial but his statement was put before the jury under section 65B of the Criminal Procedure Ordinance, Cap 221 as part of the prosecution case.  Hoque’s statement explained that whilst the tenancy agreement showed he was the tenant of the room, he was, in fact, no longer living there at the time of the offence.  He asserted that had let his friend, Afzal (“Afzal”), replace him as the tenant and Afzal was responsible for paying the rent of the room.  The statement of Hoque also contained the following sentence:

“Afzal said that he decided to live in the above apartment with Minhajaul”.

9.The name Minhajaul was clearly a reference to the appellant yet no one in the trial appears to have appreciated its significance as a hearsay assertion that was inculpatory of the appellant as it suggested he was a resident of the room in which the drugs were found.

10.What followed from this statement was that the prosecutor in his closing speech invited to jury to accept all that Hoque had said in his statement were “the truth” and in effect to find that his statement could contradict the appellant’s case, whilst the defence counsel invited the jury to find that Hoque was a “liar” and his statement was a “cover up” by him.  In relation to Hoque’s statement, the judge only directed the jury in the usual terms that the statement should be considered as the direct oral evidence by Hoque and that although they were not bound to accept what was contained in it, they might, nevertheless find that they were able to accept it as there was no evidence to contradict it.   

The evidence on appeal

11.Evidence was obtained from the defence counsel as to how Hoque’s statement came to be put in evidence and why the hearsay sentence was not redacted from it. 

12.Defence counsel claimed that he had persistently asked the prosecutor to call, or at least tender Hoque so that he could be cross-examined on the issue of “set up” by the defence.  Notwithstanding the prosecutor’s indication at one stage to the judge that he would consider doing so, the next day he refused to call Hoque but agreed to his statement being placed before the jury under section 65B.  Between the trial and the appeal the prosecutor died and so I have not enjoyed the benefit of hearing his side of the story.

13.The appellant also applied to adduce evidence from his solicitor of a conversation that his solicitor had with Hoque, post trial, in the course of which Hoque confessed to him that he was a Customs informant and that he had set-up the appellant.    

The grounds of appeal

14.The appellant now advances four grounds of appeal.  The first 3 grounds flow from the prosecutor’s decision not to call Hoque and I have already explained in my Reasons for Judgment for the leave application why I granted leave on those three grounds. 

15.Ground 4 is a new ground of appeal, for which leave has not hitherto been sought, which relies on the evidence of the appellant’s solicitor.  The issue of leave in respect of Ground 4 will be determined by the Court of Appeal at the hearing of the appeal.

The application for bail 

16.In his affirmation in support of his bail application, the appellant said he was due to be released on 27 August 2022.  In effect he has already served 5 years, which is equivalent to a sentence of 7½ years’ imprisonment without remission, which represented a substantial part of his total sentence.  He also complained that the appeal hearing was yet to be fixed and so there was a high likelihood that by the time the appeal is heard he would have served most if not the whole of his term of imprisonment. 

17.He was able to offer a cash bail of HK$25,000 to be remitted by his family in Bangladesh and a cash surety in the sum of HK$50,000 by a Thai national who has become a Hong Kong permanent resident.  

18.In support of the application Mr James McGowan, for the appellant, relied on the merits of the grounds of appeal as reaching the threshold of likelihood of success and also the time factor; that is, that unless granted bail the appellant would have served the whole or a substantial part of his sentence.  Mr McGowan argued that the time factor was relevant in two respects.  Firstly, not granting the appellant bail would result in him almost completing his sentence and so render nugatory his right of appeal.  Secondly, it was also relevant to the risk of the appellant absconding in that having served so much of his sentence there was less reason for him to abscond.  Furthermore, the risk of him absconding was lessened by the consequences that would flow from him so doing; namely the financial harm that he would cause to his surety by his act of betrayal and the inevitable sacrificing of his non-refoulment claim.     

The respondent’s submissions

19.Ms Claudia Ng, for the respondent, opposed the present application and submitted that there was no prospect of success in any of the appellant’s grounds of appeal.  She argued that the prosecutor had no duty to call or tender Hoque as he was not a witness listed on the back of the indictment.

20.Ms Ng also submitted that it was speculative to contend that the jury would be influenced by or would have relied on the hearsay statement as neither party had relied on it in presenting their respective cases.

21.In relation to the new Ground 4, Ms Ng argued that even proceeding on the basis that Hoque had made such an admission to the appellant’s solicitor, it remained questionable if what he said now was true and no details had been provided as to how he had successfully framed the appellant.  In respect of this ground Ms Ng foreshadowed the possibility that the respondent would file evidence. 

22.Concerning the time factor, Ms Ng asserted that it was the appellant’s conduct of his appeal that had caused considerable delay in bringing the appeal on for hearing. 

23.Ms Ng suggested that even if the appeal succeeded it was unknown at this stage on what basis the conviction might be quashed.  If the appeal succeeded on Grounds 1-3 then the strong likelihood was that the respondent would apply for a re-trial and, given that the conviction was quashed because of an error occurring at trial, rather than lack of evidence, there was an equally strong likelihood that for such a serious offence a retrial would be ordered.  Ms Ng argued that such a scenario created substantial grounds for believing that the appellant would not attend his retrial, and the risk of him absconding would only become greater if his non-refoulment claim was not successful. 

Discussion

24.Bail pending appeal is only granted exceptionally when the court is persuaded that the ground or grounds of appeal relied upon are likely to be successful or that the appellant is likely to complete the whole or a substantial part of his sentence before the hearing of his appeal, thereby rendering his right of appeal nugatory.   

25.I have already explained in detail in my Reasons for Judgment for the leave application why Grounds 1 to 3 are reasonably arguable and I shall not repeat them here.  I shall merely say that for the purpose of determining the application I shall assume that the merit threshold of the grounds of appeal has been met. 

26.Concerning the time factor, there is force in the respondent’s submission that the appellant is responsible for much of the delay in his appeal being heard and that even if the appeal is successful the strong likelihood is that an order for the appellant’s retrial will be sought and if such an application was made there is a likelihood it would be granted. Whilst it is true that the appellant has already served a significant part of his sentence, the appellant will not have served the whole of his sentence and a substantial part of his sentence, at this time, still remains to be served. His estimated date of discharge is 27 August 2022.  In the course of hearing this application I directed that this appeal be set down before the Court of Appeal on 27 January 2021.  Given that the appeal can be heard shortly I am not persuaded that the time factor, though relevant, is determinative of the application.

27.I turn now to what I regard as the key issue in this application and that is the risk of the appellant absconding.  In this respect I note that, unsurprisingly given the seriousness of the charge, the appellant was remanded in custody pending his trial.  This was no doubt because of the strength of the evidence against him and the likely sentence he would receive if convicted.  The fact that the appellant has served a considerable part of his sentence may lessen the strength of a long sentence being an incentive to abscond but it does not eliminate it.

28.I do not regard the argument that the appellant has too much to lose by absconding as persuasive.  Defendant’s on bail frequently put their own interests above that of their sureties and, in any event, may be able to find other ways of compensating them for the losses they may suffer.  The sacrifice of his non-refoulment claim is not the loss of something he has; merely the loss of a right to apply for asylum. Realistically, this is not a huge loss as his claim has already been rejected by an Immigration Officer and the appellant is presently awaiting the outcome of his appeal hearing.  Should that ruling be unfavourable to him and should he receive it before the hearing of his appeal then he has less, not more, reason to remain in Hong Kong.      

29.Given these matters, and at this stage of the appeal process, I am not persuaded that this is an appropriate case to grant the appellant bail pending his appeal.  This is an application that will benefit from the clarity that will be provided by the hearing of the appeal.  At that time the appellant, and those advising him, can review their position and decide whether, in view of any changed circumstances, a further application for bail should be made.  

Disposition

30.For these reasons I refused the application.

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

Mr James HM McGowan, instructed by Jal N Karbhari & Co, assigned by DLA, for the appellant