HKSAR v. Ali Haidar

Case No.CACC 105/2019[2021] HKCA 1872

Court

Court of Appeal

Date07 Dec 2021

Judge—

Case Document

100%Judiciary

CACC 105 /2019

[2021] HKCA 1872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 105 OF 2019

(ON APPEAL FROM HCCC NO 2 OF 2018)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Ali Haidar	Applicant

________________________

Before:

Hon Macrae VP in Court

Date of Hearing:	7 December 2021
Date of Judgment:	7 December 2021

____________________

J U D G M E N T

____________________

1.The applicant was unanimously found guilty of a single count of trafficking in a dangerous drug, contrary to section 4(1) (a) and (3) of the dangerous Drugs Ordinance, Cap 134 following a trial before Campbell-Moffat J (“the judge”) and a jury in the High Court. On the same day, he was sentenced to 27 years and 9 months’ imprisonment. He now seeks leave to appeal against conviction and leave to appeal against sentence out of time.

The prosecution case

2.On 24 January 2017, a team of police officers was on anti-narcotics operation in Sheung Shui, New Territories. Some of them were on foot patrol: others were inside a 7-seater vehicle. At 1:20 am on 25 January 2017, the officers on foot patrol intercepted the applicant outside No 21 Jockey Club Road, Sheung Shui. They asked the applicant for proof of identification, whereupon he produced his Form 8 recognizance paper. They also asked to search the rucksack, which was being carried by the applicant. When the applicant took off his rucksack and pushed it at PC 58500 (PW1), turning his body as he did so, his sudden movement caused the officers to think that the applicant might flee, so they pinned him to the ground. In the rucksack, PW1 found what he suspected to be dangerous drugs contained in 16 re-sealable plastic bags. The applicant was arrested for trafficking in a dangerous drug and cautioned in both Cantonese and English. He was asked if he understood, to which he responded, in English, “I understand.”

3.The other officers who were in the 7-seater vehicle, including Inspector Charm Yiu-kwong, were informed of the arrest. Having joined the rest of the team, they placed the applicant in the vehicle. A police photographer arrived to take photographs of the scene and of the suspected dangerous drugs in the applicant’s presence. The packets of suspected dangerous drugs were then also sealed in the applicant’s presence. The officers subsequently took the applicant to Sheung Shui police station, where the duty officer spoke to the applicant in English. The applicant made no complaint to him^{^[1]}.

4.The applicant was then taken to Wanchai police headquarters. Again, a police officer informed the applicant of his rights^{^[2]}. Officers conducted a video recorded interview (“VRI”) between 5:51 and 6:44 am on 25 January 2017, during which the applicant stated, inter alia:

(a)  He was outside No 21 Jockey Club Road, Sheung Shui at 1:20 am because he was “waiting for some people” in order to “give some goods, cocaine”^{^[3]};

(b)  He obtained the cocaine in Fanling and he understood cocaine to be a drug^{^[4]};

(c)  A “Pakistani guy”, known as “Cheng”, gave the cocaine to him^{^[5]};

(d)  The applicant met Cheng in a taxi in Fanling, and Cheng gave him the black rucksack^{^[6]};

(e)  The applicant opened the rucksack and saw cocaine powder inside^{^[7]};

(f)  Cheng told the taxi driver where to drop the applicant, and the applicant was instructed to simply alight at the end of the taxi journey and call a certain number^{^[8]};

(g)  Cheng promised to pay the applicant HK$5,000^{^[9]};

(h)  The applicant had Cheng’s telephone number stored under the name “Big Bro” on his white coloured mobile telephone^{^[10]}.

5.At the time of the arrest, three mobile telephones were found on the applicant: a white coloured Samsung telephone, a gold coloured Samsung telephone and a blue coloured Nokia telephone^{^[11]}.

6.On 25 January 2017, with the consent of the applicant, a pair of buccal swab samples were taken from the applicant. The samples were subsequently delivered to the Government Laboratory for analysis^{^[12]}.

7.16 sealed packets of suspected dangerous drug were delivered to the Government Chemist for analysis. The results of that examination were that they were a total of 8 kilogrammes of a solid containing 6.367 kilogrammes of cocaine^{^[13]}, the subject matter of the count on the indictment.

8.The Government Chemist swabbed the sealing region (inside and outside) of each of the 16 re-sealable plastic bags containing the dangerous drug with a pair of cotton buds for the purposes of DNA examination^{^[14]}. Dr Ip Chi Yuen of the Government Laboratory performed an analysis on the buccal swab samples and found that DNA from two pairs of cotton buds (which had been swabbed on two of the 16 re-sealable bags) could have originated from the applicant^{^[15]}. Dr Ip’s statement was read into evidence under the provisions of section 65B of the Criminal Procedure Ordinance, Cap 221. It was also Dr Ip’s opinion, and this matter was reduced into Admitted Facts, that the most common way to transfer DNA was via “primary transfer” and less commonly, but possibly, via “secondary transfer”. “Secondary transfer” depended on a number of factors, such as the amount of cells left on a surface and the roughness of the surface^{^[16]}.

9.The cocaine in the present case could have been sold for HK$7,264,000 at street level^{^[17]}.

The defence case

10.The defence case was that the applicant was never in possession of the rucksack containing the 16 packets of cocaine; that he was framed up by the police; and that the admissions made in the VRI were the result of oppression and coaching^{^[18]}.

11.On 25 January 2017, the applicant had received a call from a friend, Imran, who invited the applicant to a party in Sheung Shui. The applicant said that he was not familiar with the area and Imran told him to borrow the money for a taxi, which Imran would reimburse him. Accordingly, the applicant borrowed $500 and took a taxi to Sheung Shui^{^[19]}.

12.When the applicant arrived at Sheung Shui, he did not have possession of a rucksack. He only had his three mobile telephones and his wallet with him. A seven-seater vehicle stopped next to him and three persons got out. According to the applicant, Inspector Charm slapped the applicant twice on the face, while someone grabbed him from behind and handcuffed him. The applicant was pressed into a kneeling position. Inspector Charm assaulted him on the ribcage. Then a woman police constable appeared and spoke in Cantonese. The applicant heard the woman say the word “CCTV” and, as a result, the applicant was taken to a tree a few meters away. Nothing happened at the tree. Eventually the applicant was taken on board the seven-seater vehicle. Nobody told the applicant that he was arrested, nor was he informed of his rights. The applicant guessed that someone took photographs because he saw a flash light through the curtains in the vehicle. Then Inspector Charm took out a black rucksack from the back of the vehicle and told the applicant, “This is yours.” The applicant said, “I don’t know.” The rucksack was taken out of the applicant’s sight and he was not shown what was inside^{^[20]}.

13.The applicant was taken to Sheung Shui police station and nobody informed him of anything in English. He only understood he had been arrested when he arrived at Wanchai police headquarters. There, Inspector Charm told the applicant what to say in the VRI. The applicant also alleged that an earlier interview had got underway when he was taken from the interview room into the toilets, where Inspector Charm and some officers threatened him and told him not to ask for a Hindi interpreter. Without a Hindi interpreter and with everything being said in English, the applicant could not understand what was happening during the VRI^{^[21]}. The applicant had come to Hong Kong in 2014, spoke Hindi with his friends and some English in shops and with the authorities, and a little Cantonese. He was proficient only in Hindi^{^[22]}.

14.The applicant said that he never touched the packets of cocaine inside the rucksack. The applicant alleged that the police must have planted his DNA from his buccal swabs onto two of the packets of cocaine. Alternatively, the defence suggested that the applicant’s DNA must have found its way onto the re-sealable plastic bag via secondary transfer^{^[23]}.

Grounds of appeal (conviction)

15.The applicant, who is acting in person, has put forward various sets of homemade grounds of appeal. The main grounds can be identified as follows:

(a)  The police should have performed DNA and fingerprint analysis on the rucksack, which would have shown that the rucksack did not belong to him, since his DNA and/or fingerprints were absent;

(b)  The judge wrongly highlighted the DNA evidence in Dr Ip’s report, which gave preferential treatment to the prosecution’s case;

(c)  The judge was wrong to say that the applicant was not entitled in law to a Hindi interpreter[24];

(d)  The jury were not paying attention but the judge failed to instruct them to do so;

(e)  The judge interrupted, questioned and made comments to defence counsel at trial, thus preventing him from cross-examining witnesses effectively;

(f)  The applicant’s trial counsel was flagrantly incompetent, in that^{^[25]}:

(i)    He did not raise at trial how the police officers had ill-treated the applicant in the police station and did not request for the CCTV footage inside the police station to be produced;

(ii)   He did not cross-examine witnesses in detail as to how the applicant was intercepted and searched, and did not question how the applicant’s DNA was not found on other packets of dangerous drug;

(iii)  He did not question why the police did not perform DNA or fingerprint analysis on the rucksack;

(iv)  The applicant requested the Legal Aid Department to appoint another named counsel but the request was not acceded to; therefore, the applicant had the “strong conviction” that his assigned trial counsel failed to defend him properly or professionally.

(g)  The admissions in the VRI were not made voluntarily.

Affirmations of trial counsel and solicitor

16.In reply to the applicant’s allegations of flagrant incompetence, Mr Shaun Kelly, counsel at trial, and Mr Dheeraj Suresh Mohnani, solicitor at trial, have filed their respective affirmations together with various sets of notes taken during legal visits^{^[26]}.

17.From their affirmations and the attached materials, the following matters may be noted:

(a)  On 12 September 2017, the applicant gave instructions that the rucksack had been planted on him and the solicitor made a note that the CCTV footage near the place of arrest had not been obtained. The applicant also gave instructions that he had been assaulted at the place of arrest, had not been provided with a Hindi interpreter despite his request and had been threatened by police officers^{^[27]};

(b)  Before 25 October 2017, the defence team had made enquiries with the Department of Justice as to the existence of any CCTV footage in the vicinity of the place of arrest, but the Department of Justice replied that there was no CCTV footage in the area^{^[28]};

(c)  On 19 March 2018, the applicant made the allegation of the police planting the applicant’s DNA from a water bottle onto the packets of cocaine^{^[29]};

(d)  On 1 February 2019, the applicant expressed his lack of confidence in his counsel, after the latter advised him on the strength of evidence and his view as to the merits of his plea^{^[30]};

(e)  On 14 February 2019, in a set of typed instructions signed by the applicant, in addition to the complaint of assault at the place of arrest, the allegations that Inspector Charm had instructed him, “Do whatever I said, you will only get a 6 months’ sentence” in Sheung Shui Police Station and had coached him what to say in the VRI in Wanchai Police Headquarters were recorded for the first time. The applicant also stated when the buccal swab samples were taken, he was only told to open his mouth and could not recall whether he had signed a consent form^{^[31]}.

18.Both Mr Kelly and Mr Mohnani stated that they did not see the jury being inattentive or acting in a manner that could have indicated inattention, and that the applicant never alerted them to such a matter during the trial^{^[32]}.

The respondent’s submissions (conviction)

19.Mr Henry Ma, for the respondent, opposed leave to appeal against conviction being granted. In relation to DNA on the rucksack, Mr Ma submitted that the absence of DNA was a neutral fact and could not have assisted either the prosecution or the defence at trial.

20.As for the judge highlighting Dr Ip’s evidence, Mr Ma pointed out that the judge reminded the jury of a point which the defence made, namely, that the expert only stated that the DNA on the packets of cocaine “could have originated”, as opposed to “did originate”, from the applicant^{^[33]}. That was hardly giving preferential treatment to the prosecution. Immediately before and after making that comment, the judge instructed the jury that they could reject the expert evidence if they were not sure of it^{^[34]}.

21.As for the lack of a Hindi interpreter during the VRI and the issue of police ill-treatment, Mr Ma submitted that these matters were raised during the voire dire, and again before the jury. Counsel, on the applicant’s behalf, also argued the point extensively in his closing speech^{^[35]}. The judge instructed the jury as to how they should consider the two issues^{^[36]}, later reminding the jury of the evidence of police ill-treatment and how the applicant was not proficient in English^{^[37]}. Mr Ma suggested that the judge directed the jury on the issue adequately, and it was for the jury to determine whether the applicant was prejudiced in the VRI.

22.In relation to the assertion of jury inattention, Mr Ma relied upon the affirmations of both trial counsel and solicitor to the effect that no such thing had happened.

23.Regarding the alleged excessive interventions of the judge, if there was a discussion between the judge and defence counsel during examination of a witness, it was carried out in the absence of the jury. As such, the discussion could not have prejudiced the defence case. Mr Ma, who had himself been prosecuting counsel at the trial, submitted that the judge did not take over the cross-examination of witnesses, nor did she do anything to prevent defence counsel from advancing the defence case.

24.Regarding the allegations of flagrant incompetence, the respondent submitted that none of the applicant’s allegations had any substance. It was submitted that Mr Kelly had correctly formed his view about the relevant matters^{^[38]}, and it was within his professional judgment not to argue the lack of DNA and/or fingerprint evidence from the rucksack in the trial, since its evidential value was neutral.

Consideration (conviction)

25.I can see no reasonably arguable grounds of appeal against conviction in this matter. The absence of DNA evidence from the rucksack could not prove anything. On the other hand there was DNA evidence from the applicant on the packets of dangerous drugs inside the rucksack, which the judge dealt with perfectly fairly, pointing out that whatever the expert meant when he said that the DNA “could have” originated from the applicant, the fact was that there was a 1 in 20.8 quintillion chance of someone else having the same DNA as the applicant[39].

26.As for the absence of a Hindi interpreter and the issue of ill-treatment, these matters were presented before the jury and I can see no error in the way the judge directed the jury. Indeed, her directions placed the matter fairly before them. It should be remembered that the applicant had agreed to the VRI being conducted in English when specifically asked[40].

27.It is here that I should say that the Court is in receipt of a letter dated 2 December 2021, under the hand of Mr Eric Cheung of the Clinical Legal Education Office of the Faculty of Law of the University of Hong Kong suggesting that the judge may not have fully followed what has come to be known as the eponymously-named Mushtaq direction from the decision of the House of Lords in R v Mushtaq[41], as applied by the Court in HKSAR v Yiu Chi Ming[42]. I have considered the possible merits of this argument on the evidence and in the circumstances of this case.

28.The judge’s direction was this[43]:

“When talking about that, Mr Kelly says to you, “Please look at basically two things.” Were these admissions voluntary? Did he voluntarily make these admissions? Was he happy to do so?

And also, was he prejudiced because he did not have a Hindi interpreter? How do you look at those two aspects of that? When you look at it, please, please look at it and ask yourself, and this is the point, were they or is it possible that they may have been made because of some form of oppression, feeling like he had no other choice, because of the behaviour of the police; because of threats by the police or the alleged assault by the police?

He was scared. Did he do it for that reason? Was there some sort of promise or what we call an inducement? “If you do this, you’ll only get six months.” So oppression, threats or assault, inducement. Were those the reasons he, in fact, said what he did? Because if they were the reasons that were operating on his mind, then he was not making a voluntary confession. If you found that was the case, you should ignore the whole of that confession evidence because it would not be fair to the defendant.

In the same way, you could look at it and ask yourself, “What do I think of his English? Do I think it’s proficient? Do I believe he was comfortable and happy to answer the questions and knew what he was saying when he made those admissions? If I think that he was prejudiced because he should have had, I think, a Hindi interpreter. The rules obviously suggest it would be better. But if he is happy to have an English interview, and the interview is conducted as best it can be in English. But if you think it makes what he said unreliable, ignore the interview because it would not be fair to the defendant for you to take it into account.” (Emphasis supplied)

The argument is that, although the judge referred to a possibility of what the applicant said being true in the first italicised passage, she did not tell the jury that if they found or may have found that he was oppressed or prejudiced, then they should disregard the admissions.

29.I do not accept that this is a reasonable argument. Indeed, I consider the Mushtaq point was appropriately conveyed in the passage impugned. With respect, this complaint (or concern) springs from a rather one-sided, semantic and somewhat unrealistic interpretation of the judge’s directions. Moreover, as has been said time and time again, a summing-up must be looked at as a whole. At the outset of her summing-up, the judge gave the jury this direction[44]:

“How does the prosecution do that? It does that by making you sure of it. That is the same reason you might have heard as proving a case beyond reasonable doubt. Nothing less than that will do. If, after considering all of the evidence, you are sure that the defendant is guilty, then you must return a verdict of guilty. If you are not sure, you must return a verdict of not guilty. If the defence put forward by the defendant is or may be correct, then the defendant is entitled to be acquitted. You do not have to positively believe the evidence relied upon by the defence. If that evidence gives rise to a reasonable doubt, you cannot find that issue against the defendant contrary to the evidence.” (Emphasis supplied)

This direction would have equally applied to the issues of oppression and fairness and whether the jury could rely on the VRI as it would to any other aspect of his defence. The jury were effectively instructed that they could not find such issues against the defendant, even if they did not accept his own evidence on a particular issue, if the evidence gave rise to a reasonable doubt about it.

30.Looking at the directions as a whole, this matter does not afford a reasonably arguable ground of appeal.

31.As for the remaining complaints by the applicant, none of them are reasonably arguable. The affirmations of the applicant’s trial counsel and solicitor provide an answer to his complaints, not merely in respect of their own alleged flagrant incompetence but also in relation to the jury’s alleged inattention, about which, rather tellingly, the applicant never voiced any concern during the trial. Indeed, that suggestion is positively refuted by both of them.

32.Before me today, the applicant has laid stress on the fact that he did not want the counsel assigned to him by the Director of Legal Aid at trial and had expressed his preference for another counsel, which was refused. It is true that the applicant raised his preference for another counsel with the judge on 12 February 2019 before the trial began. Accordingly, the judge adjourned the case at 10:02 am for the applicant to speak to Mr Kelly and, at 2:33 pm, the same day, Mr Kelly told the judge, following his discussions with the applicant, that he would continue to represent the applicant. No complaint or concern over his representation was ever raised again with the judge, and Mr Kelly continued as counsel from then until verdict.

33.The one final matter raised, which caused me to go into the record of proceedings and summing-up in some depth, is that the applicant’s solicitor did make a complaint to a magistrate about ill-treatment on the court record on 26 January 2017. That may be so, but it does not mean that he made a report of ill-treatment to the Duty Officer upon his arrival at Sheung Shui police station in the early hours of 25 January 2017: indeed, the evidence of the Duty Officer was that he did not. But even if a complaint was made to the magistrate one day following his arrest and interview, that was not evidence that the applicant was in fact ill-treated: all it meant was that a solicitor on his behalf and on instructions said that he was. In any event, this question of whether he had made a complaint does not seem to have been a live issue at trial and it was not mentioned by the judge other than in reciting the evidence of the Duty Officer, who gave general evidence as to how he processed, and what he said to, the applicant upon his arrival at the police station.

34.I can find no reasonably arguable grounds in respect of any of the applicant’s other complaints and his application for leave to appeal against conviction is refused. I turn to his application for leave to appeal against sentence out of time.

Reasons for sentence

35.Upon his conviction, the applicant indicated that he did not wish to advance any mitigation^{^[45]}. The judge referred to R v Lau Tak Ming & Anor^{^[46]} and HKSAR v Abdallah^{^[47]}, and considered that, by strict arithmetic, the starting point should be 26 years and 9 months’ imprisonment. She further noted that the applicant was a Form 8 recognizance holder, as a result of which she enhanced his sentence by one year. The final sentence was 27 years and 9 months’ imprisonment^{^[48]}.

Grounds of appeal (sentence)

36.The applicant, by his Form XI, did not explain why he was late in applying for leave to appeal against sentence^{^[49]}. He merely stated that the judge “omitted to give me sentence” and that other inmates who had been convicted of trafficking in dangerous drugs of a larger quantity received a shorter sentence than the applicant.

The respondent’s submissions (sentence)

37.Mr Ma submitted that the sentence was neither manifestly excessive nor wrong in principle, and that the judge had adopted a starting point within the correct range in accordance with the authorities.

Consideration (sentence)

38.The applicant’s application for leave to appeal against sentence, which was in accordance with the appropriate guidelines, is not reasonably arguable and leave to appeal out of time, for which no satisfactory explanation has been given, is refused. Indeed, the applicant was perhaps fortunate that the enhancement of his sentence by the judge was only by one year.

‘Loss of time’ warning

39.Having refused all the applicant’s grounds for leave to appeal against conviction and sentence, I am bound to give him this warning. He has the right to renew either his application for leave to appeal against conviction, or his appeal for leave to appeal against sentence out of time, to the Court of Appeal. However, he should understand that the Court has power to order the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the conclusion that there was no justification for the renewal of either application. I should bring this power to the attention of the applicant for two particular reasons: firstly, he has made serious allegations of flagrant incompetence against his legal representatives. If they are repeated at the appeal and found to be wholly unjustified, the Court will normally order loss of time. This is made clear in the Court’s Practice Note (Crime: Sentence: Loss of time)[50]:

“The Court has also become concerned at the frequency with which unmeritorious allegations of incompetence are made against counsel and solicitors. Such an allegation causes the practitioner whose reputation is thus impugned to expend considerable effort in the preparation of affidavits or affirmations and, often, in attending the hearing of the application. Although allegations of flagrant incompetence will always be examined carefully, the frequency of wholly unwarranted allegations has increased, both at the hands of represented and unrepresented applicants. An unwarranted assertion of incompetence will normally attract an order for loss of time.” (Emphasis supplied)

40.Secondly, although not as significant as the first consideration, the applicant is out of time in applying for leave to appeal against sentence, although his application for leave to appeal against conviction was made in time, at which time his application for leave to appeal against sentence was crossed through. The Court has previously ordered loss of time, where an unarguable appeal against sentence has been mounted out of time: see HKSAR v Chan Ka Wah[51]. I have already said that the applicant could have received a longer enhancement for the fact that he is a Form 8 recognizance holder carrying out an extremely serious crime on the streets of Hong Kong.

(Andrew Macrae)
Vice President

Mr Henry Ma, counsel on fiat, instructed by the Department of Justice, for the Respondent

The Applicant appeared in person

[1] Appeal Bundle (“AB”), pp 42N-43C, p 44D-L.

[2] AB, p 45A-L.

[3] Counters 200-205.

[4] Counters 210-227.

[5] Counters 230-237, 292-293.

[6] Counters 313-322, 533-562.

[7] Counters 325-328.

[8] Counters 333-334.

[9] Counters 441-446.

[10] Counters 503-516, 605-608.

[11] At [4] of the Admitted Facts, AB, p 9.

[12] At [10] of the Admitted Facts, AB, p 12.

[13] At [5] of the Admitted Facts, AB, pp 9-11.

[14] At [7]-[8] of the Admitted Facts, AB, pp 11-12.

[15] AB, p 25O-U; The report of Dr Ip was adduced under s.65B Criminal Procedure Ordinance, see [12] of the Admitted Facts, AB, p 12.

[16] At [13] of the Admitted Facts, AB, p 13.

[17] At [14] of the Admitted Facts, AB, p 13.

[18] The voluntariness of the VRI was ruled admissible following a voire dire.

[19] AB, p 38D-Q.

[20] AB, p 40A-R, pp 41N-42N.

[21] AB, pp 45L-46S.

[22] AB, pp 36J-37K.

[23] AB, p 54D-S.

[24] What the judge actually said was that “he (the applicant) was not bound in law to have a Hindi interpreter. The rules obviously suggest it would be better. But if he is happy to have an English interview, then the interview is conducted as best it can be in English”: AB, p 30M-O. As pointed out in [26] infra, the applicant agreed to have the interview in English.

[25] The applicant’s affirmation dated 29 October 2020.

[26] The applicant waived his legal professional privilege in his affirmation dated 30 December 2020 and his letter dated 30 November 2020.

[27] pp 11-14 of SK-1, Exhibit to Mr Shaun Kelly’s affirmation.

[28] p 15 of SK1, Exhibit to Mr Shaun Kelly’s affirmation. Mr Hanif Mughal, of counsel, with a representative of the solicitors’ firm were present at the legal visit on 25 October 2017.

[29] Mr Trevor Beel, of counsel, with a representative of the solicitors’ firm were present at this legal visit.

[30] At [3(g)] of Mr Kelly’s affirmation.

[31] SK-2, Exhibit to Mr Shaun Kelly’s affirmation.

[32] At [8], Mr Shaun Kelly’s affirmation.

[33] AB, pp 25K-26K.

[34] AB, pp 25E-27E.

[35] AB, pp 235M-237E.

[36] AB, pp 29J-30P.

[37] AB, pp 45L-47D.

[38] At [6] of Mr Kelly’s affirmation.

[39] AB, p 26E-U.

[40] Counters 38-44.