HKSAR v. Malik Mohammad Tariq also known as Mohammad Tariq Malik

CACC 203/2021

[2021] HKCA 1722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 203 OF 2021

(ON APPEAL FROM DCCC NO 276 OF 2020)

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Before:  Hon Zervos JA in Court

Date of Hearing:  16 November 2021

Date of Decision:  16 November 2021

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D E C I S I O N

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1.This is an application for bail pending appeal. The applicant was convicted after trial by District Court Judge Dufton of having custody or control of counterfeit currency notes, contrary to section 100(1)  of the Crimes Ordinance, Cap 200, on 3 August 2021 and sentenced to 4 years’ imprisonment on 31 August 2021.

2.On 14 September 2021, he filed an application for leave to appeal against his conviction and sentence.

3.The brief facts of this case were that on 29 September 2019, a party of police officers executed a search warrant at the applicant’s home where they found under the pillow of the applicant’s bed a white plastic bag containing 521 HK$1000 notes which were later confirmed to be counterfeit.  The applicant is a Pakistani national who was a Form 8 recognizance holder at the time of the offence.  He rented the flat with social welfare funds he received as a torture claimant.

4.The grant of bail pending appeal to a convicted person is an exceptional remedy which may be granted where it appears that the appeal has a strong likelihood of success (the merits ground), or whether there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the time ground).  When the applicant relies on the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising, in that the grounds of appeal afford some real chance of success: HKSAR v Xu Zhou, unrep., CACC 139/2021, 22 October 2021, at [6].

5.In his homemade grounds of appeal, the applicant complains that (1)  he did not receive “good representation or assistance” from his legal representatives; (2)  no DNA or fingerprints were found on the fake banknotes; (3)  he has new information about who put the fake banknotes at his home.  No grounds of appeal are raised by the applicant in respect of his sentence.

6.The applicant appears in person in support of his application.  He claims he is innocent and has new information as to the identity of the person who put the fake banknotes at his home.  He submitted a letter dated 15 September 2021 that is addressed to him from a person who is a current inmate in prison.  The author of the letter claims he knows who set up the applicant and provides several names.

7.I will briefly comment on each of the grounds he advances in support of his appeal against conviction. 

8.The applicant was represented by very experienced counsel at trial and he does not identify in what way his legal representatives were seriously neglectful in the case they conducted on his behalf.  The applicant did not give evidence or call witnesses.  The defence case was the prosecution had failed to prove that the banknotes were reasonably capable of passing for a currency note and that the applicant was in possession of them.  The defence case was rejected by the judge in his comprehensive reasons for verdict.

9.The lack of DNA or fingerprints belonging to the applicant on the relevant exhibits was an issue raised at trial.  The judge addressed this matter in his reasons for verdict.  He explained this did not cause him to doubt that the only inference to draw from the finding of the counterfeit banknotes, underneath the pillow of the applicant’s bed in the premises where he lived alone, was that he had in his custody or under his control the counterfeit banknotes.

10.The new information provided by the applicant has been passed on to the police for investigation.  As to whether it is credible and reliable will depend upon the outcome of the investigation.  At this stage, all that is before the court is his unverified claim that he has information as to the actual identity of the person who put the counterfeit banknotes at his home.

11.In light of the foregoing, I am not satisfied there is a basis to grant the applicant bail pending appeal on either the merits ground or the time ground.  The application is therefore refused.

Mr Prakash L Daryanani, SPP, of the Department of Justice, for the respondent

The applicant appears in person