HKSAR v. Khan Asif Ali
Read the full judgment text of CACC 166/2020 on BabelCite. This Court of Appeal judgment was delivered on 19 August 2022.
1. Following a trial in which the jury were unable to agree upon a verdict in respect of a single count of trafficking in a dangerous drug [1] , namely 1,989.4 grammes of a solid containing 1,672.6 grammes of cocaine, the applicant was tried again on the same count before Yau J (the “judge”) and a jury on 17 September 2020 and convicted by a majority verdict; he was subsequently sentenced to 24 years’ imprisonment on 21 September 2020. He now seeks leave to appeal against his conviction only.
Cites 9 cases
|
CACC 166 /2020 [2022] HKCA 1248 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 166 OF 2020 (ON APPEAL FROM HCCC NO 369 OF 2019) ________________________
________________________ Before: Hon Macrae VP in Court Date of Hearing: 19 August 2022 Date of Judgment: 19 August 2022 Date of Reasons for Judgment: 24 August 2022 _________________________________ R E A S O N S F O R J U D G M E N T _________________________________ 1.Following a trial in which the jury were unable to agree upon a verdict in respect of a single count of trafficking in a dangerous drug[1], namely 1,989.4 grammes of a solid containing 1,672.6 grammes of cocaine, the applicant was tried again on the same count before Yau J (the “judge”) and a jury on 17 September 2020 and convicted by a majority verdict; he was subsequently sentenced to 24 years’ imprisonment on 21 September 2020. He now seeks leave to appeal against his conviction only. The prosecution’s case 2.The applicant is from Pakistan but has lived in Hong Kong for over 20 years[2]. On 4 November 2016, at 16:44 hours, he was intercepted by Customs officers in the Green Channel of the Lo Wu Control Point in the New Territories upon returning to Hong Kong from Shenzhen, having left Hong Kong at 16:06 hours, some 38 minutes earlier[3]. A bottle of whisky was found in the duty-free plastic bag he was carrying; and 7 packets containing the dangerous drugs particularised in the indictment were found in various pockets of the applicant’s jacket and trousers. These 7 packets were each tightly sealed with opaque adhesive tape[4]. The retail value of the drugs was over HK$2 million[5]. 3.Under caution, the applicant denied knowledge of the drugs and claimed that the packets had been given to him at a KFC outlet in Shenzhen by an unknown Indian male, who told him to deliver them to Fanling Railway Station in Hong Kong, for a reward of HK$6,000[6]. Following his arrest, the applicant agreed to participate in a controlled delivery operation, which was conducted between 21:00 and 22:30 hours the same day in the vicinity of Fanling Railway Station. During the operation, no calls were made to the applicant’s mobile telephone nor did anyone come to collect the drugs[7]. It was the prosecution contention that the applicant had tipped off the receiver of the drugs by means of WhatsApp audio messages in Urdu (“Exhibit D1”), whilst in custody[8]. The defence case[9] 4.The applicant elected to testify. Essentially, his case was that he was tricked into bringing the 7 packets, which he did not know contained dangerous drugs, into Hong Kong. 5.The applicant was a security guard. However, he also carried goods for other people across the border between Hong Kong and the mainland from time to time. Such people included one Naeem Ahmad, who was a good friend of his, and someone called Indir. 6.On 4 November 2016, Naeem instructed the applicant to go to Shenzhen to collect some goods from Indir and bring them back to Hong Kong. The first time he went to Shenzhen, the goods were not ready but Indir gave him three boxes and some clothing samples, which the applicant brought back to Hong Kong and gave to Naeem. He went to Shenzhen a second time a few hours later but, on this occasion, Indir was not present. Instead, an Indian male gave him a transparent plastic bag containing the 7 packets. He had seen the Indian male with Indir on several previous occasions, but he did not know his name. He was instructed to take the packets to Fanling Railway Station, and then call Naeem. In cross-examination, he claimed he had successfully put the plastic bag with the 7 packets through an X-ray machine on the mainland side of the border without incident[10]. 7.In the course of crossing the border, he bought a bottle of whisky at a duty free shop at Naeem’s request. Since he did not want to carry two bags, he removed his mobile telephone, wallet and other personal items from the various pockets of his jacket and trousers and placed them into the bag with the whisky; after which, he put the 7 packets inside his emptied pockets[11]. 8.Following his arrest, the applicant’s mobile telephone was seized by Customs officers[12]. At about 18:00 hours, a Customs officer (“PW2”) placed the applicant’s mobile telephone in front of him and left the detention room[13]. This was in fact denied by PW2[14]. The applicant then noticed that a light on his telephone was blinking to indicate an unread incoming WhatsApp message[15]. Accordingly, he listened to the missed audio message, which had earlier been sent by Naeem at about 16:48 hours[16]. Between 18:00 and 18:02 hours, he exchanged voice messages in Urdu with Naeem, whose name was displayed as “China”[17]. At about 18:01 hours, he sent a Pakistan telephone number of “GHAR GHAT” (meaning “home”) to Naeem[18], which the applicant said was his younger brother’s number in Pakistan[19]. 9.The audio exchanges were transcribed and translated into English as Exhibit D1[20]. “A” denoted Naeem, while “B” denoted himself.
10.The defence maintained that the audio exchanges demonstrated the applicant’s innocence. The applicant disagreed with the suggestion that the messages were an attempt to tip Naeem off[26]. He said he had trusted Naeem until a fellow inmate, one Ali Qasim, told him that he too had been deceived by Naeem into committing a drugs offence in similar circumstances[27]. He asserted that at the material time he did not know, and had no reason to suspect, that there were dangerous drugs in the packets[28]. 11.In cross-examination, the applicant accepted that he had not told Customs officers about the existence and involvement of Naeem, his audio exchanges with Naeem, his possession of Naeem’s contact number or the fact that he was supposed to call Naeem and ask to whom the packets were to be delivered[29]. Grounds of appeal & Applicant’s submissions 12.Mr Hanif Mughal, on behalf of the applicant has advanced no less than 7 grounds of appeal. Some of them are interrelated and will be addressed together. Grounds 1 and 3 (inappropriate expressions used in prosecuting counsel’s closing speech) 13.Ground 1 complains that the closing speech of prosecuting counsel was permeated with emotive and inflammatory language, as well as inappropriate expressions of opinion, thus prejudicing the fair trial of the applicant: see Boucher v The Queen[30]; Benedetto v The Queen[31]; Randall v The Queen[32]; HKSAR v Posso[33]. Ground 3 criticises the judge for not intervening to prevent prosecuting counsel from using such language: see HKSAR v Tsong Yi Jian[34]. 14.The applicant submits that such emotive and inflammatory language was persistent and deliberate in nature, and cited five particular instances (in which I have retained Mr Mughal’s respective emphasis):
Mr Mughal also complained about prosecuting counsel’s expressions of personal opinion about the evidence; again citing the judgment in Tsong Yi Jian. 15.Although defence counsel at trial had expressed surprise about certain things prosecuting counsel was saying and seemed to suggest that he had tried to interrupt during prosecuting counsel’s closing speech, his interventions were neither successful nor supported by the judge[40]. In fact, the transcript reveals that defence counsel, who was not Mr Mughal, did not say anything on the record until the end of prosecuting counsel’s speech. Nevertheless, it is argued that a judge has a duty to stop counsel if he states his own personal views: see Tsong Yi Jian[41]. Mr Mughal submitted that the prejudice occasioned to the applicant at trial by prosecuting counsel’s closing remarks to the jury could not be remedied and was incurable even by strong direction from the court. Grounds 2 & 3 (submissions without any evidential basis) 16.Ground 2 complains that prosecuting counsel in his closing speech made various unsubstantiated accusations against the applicant, which were not supported by evidence and/or were never put to the applicant, thus depriving him of an opportunity to deal with the implication, and thereby prejudicing a fair trial. 17.Four passages were cited in support of the argument:
It was said that the judge failed to intervene or give any direction to remedy or rectify prosecuting counsel’s remarks. Grounds 4 & 5 (post-offence conduct – WhatsApp audio messages) 18.Ground 4 averred that the judge was wrong not to give the jury any specific direction as to how to deal with the applicant’s post-offence conduct concerning the WhatsApp audio messages; while Ground 5 complained that the judge erred in not applying his directions on the burden and standard of proof and inferential reasoning to the WhatsApp audio messages, given the allegation that the applicant was trying to tip someone off. 19.Instead, the judge merely told the jury, “How to interpret the messages is a matter for you, but it is a piece of evidence you should consider”[49]. It is said that without a specific direction as to post-offence conduct, there was a real risk that the jury would adopt the prosecution’s reasoning that the applicant knew the recipient would not turn up because he had already tipped him off, and that Customs officers had thereby been manipulated by the applicant during the controlled delivery operation. Prosecuting counsel had made the suggestion on five occasions[50]. The applicant relied on the principles in relation to evidence of post-offence conduct: see HKSAR v Wang Jinwei[51]; HKSAR v Yim Man Ho[52]. Ground 6 (lies direction) 20.Ground 6 contends that the judge was wrong not to give the jury a lies direction, when, in his closing speech, prosecuting counsel had repeatedly suggested that the applicant’s lies not only undermined his own credibility but also supported the prosecution case on knowledge. 21.The applicant submits that even on an issue which is not determinative of the guilt of an accused but is material to the jury’s verdict, the giving of a lies direction is an accepted norm, even in cases where no party asked for one at trial: see Yuen Kwai Choi v HKSAR[53]. Ground 7 (lurking doubt) 22.Ground 7 complains that in the absence of any direct, cogent evidence that the applicant knew of the presence of dangerous drugs, the circumstantial evidence was insufficient to draw an irresistible inference of knowledge, thus raising a lurking doubt as to his conviction. Respondent’s submissions Reply to Grounds 1 & 3 (inappropriate expressions used in closing speech) 23.Mr Raymond Cheng, on behalf of the respondent, submits that the impugned expressions of prosecuting counsel, whilst blunt, sought only to impress upon the jury that the applicant’s evidence was not credible. 24.Furthermore, the impugned expressions were made only as submission points for the jury rather than indicating his personal opinion. They were clearly distinguishable from the clear statements of personal opinion made by prosecuting counsel in Posso[54] and Tsong Yi Jian[55]. 25.Defence counsel did not ask for the jury to be discharged, nor did he invite the judge to give any remedial directions to the jury. Nonetheless, the judge reminded the jury three times that they were free to accept or reject counsel’s views and that it was for them alone to decide the facts of the case[56]. Such directions would have effectively remedied any potential prejudice. In any event, the jury should have been capable of discerning and discounting adversarial hyperbole in submissions from prosecuting counsel. 26.Unlike the 79 instances of impugned remarks and conduct of the prosecuting counsel in Randall[57], any emotive language or expressions from prosecuting counsel in the present case were isolated occurrences and could not be regarded as “so gross, or so persistent or so prejudicial, or so irremediable” that the trial would be rendered unfair. Reply to Grounds 2 & 3 (submissions without evidential basis) 27.The respondent submits that the four impugned passages had caused no prejudice to the applicant. 28.In respect of the applicant’s knowledge that the whisky was dutiable, the respondent accepts that the applicant had not been cross-examined on the matter, but it was submitted that since the applicant had attempted to walk through the Green Channel, prosecuting counsel was entitled to submit that “presumably” he didn’t know he was not entitled to a duty-free bottle of whisky[58]. The applicant suffered no prejudice because: (1) prosecuting counsel went on immediately to say, “Now, it’s not a morally reprehensible thing to do that, he just didn’t know. We don’t rely on that as an important factor”[59]; (2) the submission had been countered by defence counsel who responded, “This trial is not to be decided on presumption”[60]; and (3) the judge reminded the jury that although the applicant had pleaded guilty to the relevant offence for importing dutiable whisky, they should not draw any adverse inference or hold any prejudice against him for this reason and should simply ignore the matter altogether when considering their verdict. The judge also said that the jury could regard the applicant’s guilty plea in his favour as evidence that he would readily admit his guilt for an offence he had committed[61]. 29.In relation to the applicant’s previous trading trips, the applicant testimony in evidence-in-chief was brief[62]. He gave more details in cross-examination[63], which then led to his admission that he checked and knew the nature of all the goods he had traded previously because he did not usually trust people[64]. This contrasted, of course, with his last trip. Furthermore, it had been put to the applicant that he had lied in saying that the $6,000 reward was for the five trips rather than the last trip: this suggestion the applicant denied[65]. There was a sufficient basis for counsel to submit that the applicant’s story of his trading trips should not be believed. 30.In relation to the applicant’s attempt to obtain CCTV evidence, the respondent accepted that the applicant had not been cross-examined on the matter. However, it had been put to the applicant that his story about collecting the packets at KFC, and passing them through an X-ray machine depended on the applicant alone; to which the applicant agreed[66]. Nevertheless, any unfairness had been effectively countered when prosecuting counsel reminded the jury that the applicant did not have to prove his innocence[67]. This was echoed by defence counsel, who added that the applicant had done his best to try and obtain the CCTV footage[68]. The judge had also reminded the jury of the applicant’s attempts to obtain the footage[69]. Accordingly, the applicant suffered no prejudice. 31.In relation to whether the applicant had expected Naeem’s first message, the matter had not been canvassed in evidence-in-chief.[70] In cross-examination, the applicant accepted that upon arriving in Hong Kong, he was supposed to call Naeem and ask him whom the packets were for[71]. It was submitted, therefore, that there was a basis for prosecuting counsel to submit that the applicant might have been expecting Naeem’s call or message, although that was never put to him directly. 32.As for the fact that no questions were asked of the applicant about his telephone’s screen-saving function, how it worked, and if it was functioning, these matters were unimportant and matters of common sense. 33.In relation to Naeem’s visit and Ali Qasim’s allegation that he too had been deceived by Naeem, the respondent accepted that the applicant had not been cross-examined on this matter. Nevertheless, all prosecuting counsel had submitted was whether the applicant’s evidence of trusting and being tricked by Naeem was worthy of belief. Prosecuting counsel had not made any suggestion which might require explanation[72]. It was argued that there was no unfairness to the applicant, who knew exactly what the case against him was; namely, that all his assertions of being deceived by Naeem were false[73]. The judge had also reminded the jury of the applicant’s evidence in this respect[74]. Reply to Grounds 4 & 5 (post-offence conduct -WhatsApp voice messages) 34.Mr Cheng accepted that the causal link between the post-offence tip off (via the WhatsApp voice messages) and the subsequent unsuccessful controlled delivery, if accepted by the jury, might suggest that the applicant had knowledge of the drugs and therefore culpably tipped off his accomplice. However, it was submitted that unlike lies or flight, no special direction or warning was required apart from the customary directions on inferential reasoning based on circumstantial evidence[75]. Reply to Ground 6 (lies direction) 35.Unlike the independent evidence available in Yuen Kwai Choi,which could have shown that the appellant in that case had deliberately “fabricated” a part of his evidence, and for which a lies direction was therefore deemed necessary, it was not the prosecution’s case in the present case that the applicant had told any proven lies which could be relied on in support of guilt. All that prosecuting counsel was saying was that the applicant’s testimony was not credible (a “pack of lies” and “manufactured story”[76]) and that the jury should not rely on it. Under such circumstances, it was submitted that no lies direction was necessary[77]. Reply to Ground 7 (lurking doubt) 36.Although there was no direct evidence of the applicant’s knowledge that the packets contained dangerous drugs, there was more than sufficient evidence for the jury to draw an irresistible inference that he did know and was thereby guilty. There was no complaint about the judge’s directions on the drawing of inferences. Consideration 37.Although prosecuting counsel’s closing speech was given in rather blunt and strong terms, which, at times, lacked the customary propriety and finesse with which counsel’s submissions to the jury should properly be clothed, I have read his remarks in their totality and do not consider they amount to the sort of prosecutorial conduct condemned in the authorities. I am not prepared to grant leave on Grounds 1 and 3. However, that does not of course prevent Mr Mughal from referring to the tone and strength of prosecuting counsel’s closing speech in order to fortify some other ground of complaint; for example, the failure to give a lies direction (Ground 6). 38.Nor do I consider any of the matters referred to in Ground 2 give rise to a reasonably arguable ground of appeal, whether viewed singly or cumulatively. I do not regard them as very significant matters at all; indeed, most are matters of common sense and experience for any jury. Similarly, this is not a case in which the lurking doubt argument in Ground 7 can realistically be advanced. The applicant was found in very suspicious circumstances with more than HK$2 million worth of cocaine in his possession. The jury were perfectly entitled to draw an irresistible inference from the circumstances that he was knowingly trafficking in dangerous drugs. I would not grant leave to appeal on Grounds 2 and 7. 39.However, I am prepared to grant leave to appeal on Grounds 4, 5 and 6 as being reasonably arguable grounds of appeal; although Ground 5 stands or falls with Ground 4. 40.The applicant is advised that he has the right to renew Grounds 1, 2, 3 and 7 before the Court of Appeal but he is also warned that the Court has the power to order the loss of any time he has spent in custody pending his appeal if it were to conclude that there was no justification for renewing the appeal on those grounds. The grant of leave to appeal is limited to Grounds 4, 5 and 6.
Mr Raymond Cheng SADPP, of the Department of Justice, for the Respondent Mr Hanif Mohamed Mughal, instructed by Boase Cohen & Collins, assigned by the Director of Legal Aid, for the Applicant [1] Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. [2] AB, p 19A. [3] AB, p 8, at [6]. [4] AB, p 29R-T. [5] AB, p 9, at [11]. [6] AB, p 67. [7] AB, p 42B-D. [8] AB, p184P-T. [9] AB, pp 13D-14B. [10] AB, p 163H-R. [11] AB, p 127B-G. [12] AB, p 134 L-M. [13] AB, pp 134S-135H [14] AB, p 38D-O. PW2 gave evidence that the personal property of the applicant, including his mobile telephone, were guarded by the guarding officer, CO 7198 (who had not been called as witness). [15] AB, 135G-H. [16] AB, 137G-K. [17] AB, p 9, at [12]; p 49C-D. [18] AB, p 11, at [20]. [19] AB, p 49M-T. [20] AB, pp 221-222. [21] AB, p 49F-H. [22] AB, p 49J-K. As to why he did not say directly that cocaine had been found in the packets, the applicant explained that he sent the message in haste and he did not know why he did not say so at that time (AB, p 49K-M). [23] AB, p 49M-T. [24] AB, p 49T. [25] AB, p 50D-F. [26] AB, p 138L-O; p 178I-K. [27] AB, pp 143D-144G. [28] AB, p 144H-L. [29] AB, p 171J-S; p 172 C-K;p 177 B-D; p 179D-F. [30] [1955] SCR 16, pp 23-24. [31] [2003] 1 WLR 1545, at [54] -[55]. [32] [2002] 1 WLR 2237, at [28]. [33] [2011] 5 HKLRD 49, at [26]-[29]. [34] [2012] 5 HKLRD 650, at [19]-[20]. [35] AB, p 185M. [36] AB, p 186C-D. [37] AB, p 186F-H. [38] AB, p 188H-I. [39] AB, p 190R-S. [40] AB, p 191O-Q; p 192E-G. [41] [2012] 5 HKLRD 650, at [19]-[20]. [42] AB, p 183R-U. [43] AB, p 184H-P. [44] AB, pp 187Q-188C. [45] AB, p 135G. [46] AB, p 190M-O. [47] AB, pp 143N-144G. [48] AB, p 10; p 143J-L. [49] AB, p 32K-L. [50] AB, p 184P-T; p 189C-G;p 189M-Q; p 190P-T. See applicant’s written submissions at [52]. [51] [2018] 4 HKLRD 459, at [47]-[51]. [52] [2019] 1 HKLRD 240, at [40]-[43]. [53] (2003) 6 HKCFA 113, at [31], [37], [41]-[45], and [50]. [54] At [27]. Prosecuting counsel in Posso said in his closing speech, “Without hesitation, I’m sure you can reject his evidence right away. I hope you all find, as I do, his evidence in court totally unbelievable.” (Emphasis added) [55] At [19]. Prosecuting counsel in Tsong Yi Jian said in his closing speech, “What we are going to tell you - or what we are going to say is not evidence. It is only our views, our comments on the evidence. So we just try to tell you and try to assist what are the views that we have on the evidence. Of course, my views will be different from that of the defence. So it is for you, members of the jury, after hearing all the evidence and also after hearing our views, to decide what are the facts of the case.” The prosecutor also said, “So these are only my views and my observations on the evidence, and I ask you to consider that when you consider the evidence and in your deliberations.” (Emphasis added) [56] AB, p16E-H, p 20E-I & pp 58T-59G. [57] At [29]. [58] AB, p 183R-U. [59] AB, p 183T-U. [60] AB, p 192G-H. [61] AB, p 55F-Q. [62] AB, pp 118E-119E, p 132B-O. [63] AB, pp 144N-156C, including from Indir’s office in Shenzhen where he collected some of the goods (AB, pp 148E-149D) and that Naeem only collected the goods in Hong Kong a few times (AB, pp 150H- 151K). [64] AB, p 155A-N. [65] AB, pp 1161S-162J. [66] AB, p 169C-E. [67] AB, pp 184U- 185C. [68] AB, p 192K-T. [69] AB, p 44M-N. [70] AB, p 135G-H. [71] AB, p 171J-O. [72] AB, p 190M-O. [73] HKSAR v Okafor Joe K Kingsley [2020] HKCA 549, at [67]-[71]. [74] AB, pp 45R-46C; p 50P-Q. [75] HKSAR v Nguyen Anh Nga (2017) 20 HKCFA 149, at [35]-[36], HKSAR v Nguyen Anh Nga (No 3) [2019] 1 HKLRD 861, at [15]-[22] & [36]-[38], and R v Lyanne Daniella Kandler-Dick [2018] EWCA Crim 286, at [8(iii)], [10] & [20]. [76] AB, p 190F-G. [77] HKSAR v Lau Tak-mong [2018] 2 HKLRD 473, at [54] and HKSAR v Lau Tak-mong [2018] HKCFA 58, at [5]. |
Cases cited in this judgment
Further hearings and rulings under CACC 166/2020