HKSAR v. Ahmed Shahnwaz

CACC 56/2021

[2022] HKCA 143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 56 OF 2021

(ON APPEAL FROM HCCC NO 223 OF 2019)

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Before:  Hon Macrae VP in Court

Date of Hearing:  19 January 2022

Date of Judgment:  19 January 2022

Date of Reasons for Judgment:  24 January 2022

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REASONS FOR JUDGMENT

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1.The applicant was convicted on 22 February 2021, following a contested trial before Alex Lee J (“the judge”) and a jury, of one count of trafficking in a dangerous drug. On 2 March 2021, he was sentenced to 13 years and 2 months’ imprisonment. He applied in person for leave to appeal against conviction only. Having heard his application, and the response of Mr Lui, on behalf of the respondent, I refused the application and said I would hand down my reasons in writing, which I now do.

2.It should be noted that the applicant had originally been arrested with two other people, known as Bashir and Rai. They were all jointly charged with trafficking in dangerous drugs. However, the charges against Bashir and Rai were subsequently withdrawn, so that the applicant faced trial in the High Court alone.

The prosecution case

3.At about 9:40 pm on 9 August 2018, the applicant, Bashir and Rai alighted from a taxi in Tin Shui Wai in the New Territories. They were under surveillance by the police, who, it was later elicited by defence counsel in cross-examination of PW1, were acting upon information[1]. The applicant was observed holding a white plastic bag, while Bashir and Rai were empty-handed. The applicant and Bashir walked towards the main entrance of Hung Yan House, while Rai walked towards the rear entrance. The men were then intercepted, the applicant and Bashir by PW1 outside Hung Yan House; Rai, by another officer in the lift lobby. All three men were brought to a nearby lamppost for enquires. In the plastic bag held by the applicant were found 139.1 grammes of a crystalline solid containing 136.9 grammes of methamphetamine hydrochloride[2] in six batches of crystalline solid wrapped in paper wrapping and tissue paper[3]. The applicant’s possession of the plastic bag containing dangerous drugs was not disputed: what was at issue was his knowledge of the presence of the drugs inside the bag. The applicant was also found to have HK$2,270 in cash in his rear trouser pocket. He was arrested and cautioned by PW1 in Cantonese[4].

The defence case

4.The defence case was that the applicant had no knowledge of the dangerous drugs in the plastic bag he was carrying: he believed the bag contained banana peels, which Rai had asked him to throw away into a rubbish bin[5]. Rai had brought the bananas and given him one inside the taxi[6]. The $2,270 cash on his person was rental money from a flat mate[7].

5.The applicant described how, after he had been intercepted, PW1 asked him what was in the bag, to which he responded, in English[8], “I ate banana, inside are peels -- peels”[9]. The prosecution put to him that what he had said about bananas was a “complete fabrication” (although not a “recent fabrication”)[10]. The applicant explained that when they were at Tin Shui Wai police station, one of the officers took the banana peels out from the plastic bag and threw them in a rubbish bin[11].

6.Bashir gave evidence for the defence. He explained that during the journey to Rai’s uncle’s house in Tin Shui Wai, Rai had given the applicant one banana, while he and Rai had each eaten two[12]. Rai then put the peels inside the plastic bag, which was later found to contain the dangerous drugs[13]. When they arrived at Tin Shui Wai, Rai paid for the taxi fare and gave the white plastic bag to the applicant, asking him to throw it away[14].

Recent fabrication

7.In cross-examination of Bashir, the prosecution produced an affirmation made by him, dated 5 March 2019 (P65), in support of the applicant’s application for bail. Bashir confirmed that the document bore his signature, although it was written by a law clerk[15]. The prosecution submitted that the affirmation was inconsistent with Bashir’s testimony at trial in two respects: there was no mention in the document of bananas or banana peels[16], nor was there any mention of Rai asking the applicant to throw the white plastic bag into a rubbish bin[17].

8.During cross-examination, prosecution counsel put to Bashir that this affirmation was a prior inconsistent statement and the story concerning the bananas was invented after the signing and swearing of that affirmation[18]. It was never put to him that this was a recent fabrication.

9.In re-examination, defence counsel sought to adduce the applicant’s subsequent witness statement, dated 15 May 2019. Having heard argument on the matter, the judge found that the statement was inadmissible, since it was being adduced as evidence of prior consistency, in circumstances where prosecuting counsel had not put to the applicant that the banana evidence was a recent fabrication[19].

10.In his closing address, prosecuting counsel nevertheless, it would seem inadvertently, described the banana episode in terms as a “recent fabrication”, which was “concocted recently to try to confuse a jury as to the real situation”[20]. Immediately after his closing address, and in the absence of the jury, the judge noted that the allegation of “recent fabrication” had not in fact been put to Bashir; instead, “What was put to him at the time was that the account of the bananas was made up after … he had made his affirmation”[21]. The consequence of this, the judge explained, was that if “recent fabrication” had been alleged, the defence should have had the right to rebut the allegation by adducing relevant evidence[22].

11.Following discussions between the judge and counsel, prosecution counsel then clarified his position before the jury[23]:

“…when I spoke of recent fabrication, the term “recent” must be seen in context and it was, perhaps, not the best term to use. What the prosecution is saying is that any fabrication must have taken place after March of 2019, which is the date of the affirmation that you have in front of you as P65”.

12.In order to further redress the matter, the judge permitted defence counsel to read out, during his closing address, the relevant parts of Bashir’s witness statement to the police. A copy of the statement was not, however, produced as an exhibit nor was it shown to the jury. The aspect of the statement that counsel wished to rely on was the mention of a rubbish bin into which the white plastic bag was to be thrown[24]. It was submitted this statement demonstrated consistency with the witness’s evidence in court[25].

13.On this matter, the judge directed the jury in the following terms[26]:

“Now, regarding the cross-examination of Bashir about the affirmation, P65, you would remember my direction to you how you should examine suggested inconsistencies, which I am not going to repeat in full now. You would no doubt bear in mind and follow the full direction I have given on this topic. Here I would just like to highlight certain points for your consideration if you find that they are helpful to you. The main issue you may think here is whether there are, in fact, and in true context inconsistencies between what Bashir said in the affirmation and what his oral evidence in this court is about because Bashir had not mentioned the two aforesaid aspects I have just mentioned in his affirmation.

You may think that the matter about banana and banana peels is just a type of minor detail which a person may omit when recounting an event so that its absence from the affirmation is a matter of no significance. On the other hand, you may think that the matter is of central importance so that if it had happened at all, it would not have been missed. Or you may think that it is somewhere in between. Now, this must be a question for you to decide using your collective life experience and common sense. In so doing you may, if you like, take into account the following:

(i) This affirmation, P65, was apparently not a carefully prepared document. It appears to be a document prepared in a hurry. It was handwritten, not typed, and it got the name wrong on the front page. Instead of saying “Affirmation of Bashir Nasir Hussain”, it said it was “Affirmation of Ahmed Shahnwaz”, which is the name of the defendant. There was also a blank left unfilled at paragraph 5 where a date should be inserted but it was not.

(ii) The affirmation was written in English and it has not been translated to Hindi, which was the mother tongue of Bashir. There is also no record of this document having been read back to Bashir after it was written and before it was affirmed by Bashir. On the other hand, Bashir said that the solicitor clerk who wrote this document for him was also from Pakistan, his own country.

(iii) You may note that this affirmation was prepared for a specific purpose in mind, which was to support the defendant’s bail application. It is not supposed to be a full defence for the defendant in his trial.

(iv) In re-examination you were told that apart from the affirmation, P65, Bashir had also made another statement and this time it was to the police and this police statement of Bashir was made on 15 May 2019, which was more than two months after the affirmation. You were told that the police statement was properly made in the presence of a lawyer and with the help of a solicitor and the statement was read back to Bashir before he signed on it.

Now, this police statement, like the affirmation, P65, is not evidence of the truth of its contents. As I have explained to you time and again, the evidence is what a witness says in the witness box under oath before you.

However, since Mr Laskey has suggested to you in his closing speech that the defence case about banana and banana peels is a “recent fabrication” or a “recent invention”, as a matter of fairness, and in order to give you the whole picture so that you may have a balanced view of what Bashir has said, it is agreed that Mr Pannu may read out to you certain parts of Bashir’s police statement. This is an exception to what I have said earlier, that what counsel says from the Bar table is not evidence. Those parts of the statement which Mr Pannu read to you is evidence of what Bashir has said in that statement. However, this is evidence for a limited purpose only. That is to say, to let you know that the defence account about banana was not “recent” and it can be traced back to May 2019 at the latest. This is the only purpose of letting them in before you.

Now, those parts which has been read to you are paragraph 3, paragraph 5 and Q&A number 5. I do not propose to give you a copy of that statement. However, to refresh your memory, let me now remind you what Bashir has said in those parts. At paragraph 3, among other things, Bashir said that outside of the Space Museum in Tsim Sha Tsui Rai got out of the taxi. He asked him to wait for a while in the taxi. After around 10 minutes, Rai got in the taxi again with a white plastic bag in his hand. Bashir said he saw some bananas in it but he did not know what else was inside the bag. That is paragraph 3.

And at paragraph 5 Bashir said, among other things, that when they reached Hung Fuk Estate Rai paid the taxi fare. After that, he handed the white plastic bag over to the defendant and asked him to throw the bag into a rubbish bin. At question 5 the police officers asked Bashir whether he knew why the defendant did not throw the plastic bag after getting off the taxi. Bashir answered it was because defendant could not find a rubbish bin.

Now, members of the jury, no doubt you would appreciate that the fact that a version of events is not “recent” and that it has been repeated on different occasions does not necessarily mean that it is true. At the end of the day, whether or not what the defendant and Bashir said in court about banana and banana peels is true or may be true is a matter entirely for you to decide after considering all the evidence.

In deciding this, you may wish to take into account what counsel said in their respective closing speeches. For the defence, they say that the evidence of the defendant and Bashir about banana is or may be true. Mr Pannu says that Ryan used bananas as a charade. It is a French word, “charade”. The meaning is it is a ploy to deceive the defendant so that when he was later asked to take the plastic bag he would not feel suspicious as he has seen banana peels being put in the white plastic bag.”

Applicant’s submissions

14.The applicant relies on grounds of appeal, prepared by his trial counsel for the purposes of Rule 9 of the Legal Aid in Criminal Cases Rules, although legal aid was ultimately refused and the grounds were never formally signed or filed. Nevertheless, pursuant to the direction of the Registrar of Criminal Appeals on 22 July 2021, and with the applicant’s agreement before me, these grounds have been treated as the applicant’s grounds of appeal.

15.Ground 1 takes issue with the directions on recent fabrication. It complains that the judge erred in not allowing defence counsel to re-examine Bashir as to his statement dated 15 May 2019. It is averred that the proper course was for the judge to recall DW1 for re-examination. It is further said that the judge was wrong not to allow the jury to have physical sight of Bashir’s witness statement, when his affirmation was an exhibit before them.

16.Ground 2 focusses on the jury’s question after they had retired to consider their verdict, namely[27]:

“What kind of evidence can we (be) 100% sure the defendant knows there are dangerous drug inside?”

It is contended that the judge failed to address this question properly, since he did not re-visit the evidence or sum up the important parts of the evidence for the jury.

17.Ground 3, which acknowledges at the outset that this may not be the strongest ground, contends that the prosecution had not conducted a proper investigation of the case in relation to matters which could have absolved the defendant. The argument focusses in particular on the roles of Bashir and Rai, and alleges that their involvement was not properly investigated by the police.

18.Ground 4 avers that the judge’s summing-up was unbalanced and includes a further complaint that the defence of a “set-up” by Rai was never properly put before the jury.

Respondent’s submissions

Ground 1

19.Mr Lui submits that the allegation of recent fabrication was immediately and unequivocally withdrawn by prosecuting counsel, as soon as it was picked up by the judge during his closing address. This was then further remedied by defence counsel being permitted to read out parts of the applicant’s subsequent statement during his own closing address. It is pointed out by Mr Lui that if the complaint now is that Bashir should have been recalled for further examination, defence counsel never mounted such an application. Furthermore, the directions given by the judge in relation to prior inconsistent statements[28] conformed with Specimen Direction 27, and his directions outlined above at [13] supra were correct, comprehensive and fair. The respondent argues that it was proper for Bashir’s affirmation to be produced, since it was being used to contradict his oral evidence, and was done in accordance with the requirements of section 14 of the Evidence Ordinance, Cap 8.

Ground 2

20.Mr Lui notes that the judge’s proposed answers to the questions were endorsed by both counsel. He submits that the jury were not asking for a review of the evidence in its entirety: they were asking about the “kind of evidence” that would make them “100% sure” the applicant knew there were dangerous drugs inside the white plastic bag. The judge’s answer conformed with Specimen Direction 1. As for the jury’s second question, namely:

“Do we need to (be) 100% sure he knows there are drugs inside the bag before he was found guilty?”,

the judge’s answer was in accordance with the Court’s formulation in HKSAR v Fok Ka Po Joe[29].

Ground 3

21.It is submitted that the allegations made by the applicant against Rai and the police were fully ventilated at trial, as was the allegation that the applicant had been “set up” by Rai. No application for any stay of proceedings by the defence was made.

Ground 4

22.Mr Lui argues that it was made abundantly clear to the jury that the applicant’s defence was that he was an innocent scapegoat for Rai, and that the police had failed to investigate the case properly. It was further contended that the defence claim that the applicant was “set up” by Rai did not in fact have any evidential basis and was entirely speculative. Prior to the trial, defence counsel had made formal enquiries of the prosecution as to whether Rai was a police informer and received the unequivocal answer that he was not. Although there was some suggestion by defence counsel that the issue would be taken up in front of the judge for a ruling prior to trial, it never was.

Consideration

23.I do not find any of the proposed grounds of appeal reasonably arguable. In respect of Ground 1, the judge’s way of remedying any potential unfairness arising from prosecuting counsel’s remark, by allowing prosecuting counsel to withdraw the imputation and permitting defence counsel to read the relevant parts of the statement (which had already been referred to in evidence, albeit not produced), was within his discretion and was, in fact, endorsed by defence counsel. It should be remembered that it was not open to either party to recall Bashir, or any other witness, at this stage of proceedings after the evidence had closed and speeches had begun. Furthermore, the judge’s directions to the jury on this matter, which I have set out in full at [13] supra, were extremely inciteful and fair to the applicant.

24.In relation to Ground 2 and the judge’s answer to the jury’s questions, I do not think it is reasonably arguable that the judge’s answers were inappropriate: on the contrary, what he told the jury was entirely in accordance with the directions of the Court of Appeal in Fok Ka Po Joe that words such as “certainty”, as well as notions of percentages, were to be avoided in judicial directions. Moreover, the way the judge dealt with the questions was again endorsed by defence counsel.

25.As for Ground 3, this is not a proper ground of appeal and none of the alleged failings of the police in investigating this case amount to a reasonably arguable ground of appeal. Furthermore, there is no arguable basis for saying that, by virtue of these alleged matters, the applicant did not receive a fair trial. Rightly, the author of this ground accepts that “this may not be the strongest ground”.

26.Finally, in respect of Ground 4, it is not accurate to say that the defence allegation that Rai (or, for that matter, someone else) “set up” the applicant was never placed before the jury. At the outset of his summing-up, in his description of the respective cases of the prosecution and defence, the judge clearly explained that it was the defence case “that he was an innocent scapegoat used by Rai”[30]. This ground is neither reasonably arguable nor accurately pleaded. Nor is it reasonably arguable that the summing-up was unbalanced. The judge’s directions included not only readily understandable and legally correct instructions on the applicable law, but a very full and fair recitation of the competing issues and evidence.

Conclusion

27.Having found that there are no reasonably arguable grounds of appeal against conviction, I must refuse the application for leave. In refusing leave to appeal, the applicant is reminded that he has the right to renew his application for leave to the Court of Appeal, but he should also be warned that the Court has the 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 his renewing the application.

Mr Ira Lui ADPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] Appeal Bundle (“AB”), p 23I-J.

[2] AB, p 7K-O. Inside the plastic bag (P11) was a purple plastic bag referred to as the “Ribena” bag (P12). Inside P12 there was a re-sealable plastic bag (P13) and inside P13 there were 62 paper wrappings (P14-P19) in six pieces of tissue paper. Inside the tissue paper wrappings was a further layer of wrapping containing the crystalline solid (P1-P6). See AB, p 28M-R.

[3] See Admitted Facts: AB, p 4 at [3].

[4] AB, p 28R-T.

[5] AB, pp 8A-D; 35S-U; and 93P-R.

[6] AB, p 93A-D.

[7] AB, p 23O-Q.

[8] AB, p 119N-P.

[9] AB, p 97F-H

[10] AB, p 121Q-R.

[11] AB, pp 99T-100B.

[12] AB, p 180 E-F.

[13] AB, p 180 I-J.

[14] AB, pp 38A-E; and 181K-N.

[15] AB, p 199A-B.

[16] AB, p 63R-T.

[17] AB, pp 40E-J; and 204J-N.

[18] AB, p 205P-R.

[19] AB, pp 129A-133C.

[20] AB, p 64H-I.

[21] AB, p 65K-N.

[22] AB, p 65Q-T.

[23] AB, p 66B-E.

[24] AB, p 75I-J.

[25] AB, p 75K-M.

[26] AB, pp 40P-43M.

[27] AB, p 48K-L; p 176.

[28] AB, pp 18L-19I.

[29] HKSAR v Fok Ka Po Joe [2018] 2 HKLRD 1223.

[30] AB, p 8D-E.