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

CACC 203/2021

[2022] HKCA 1642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 203 OF 2021

(ON APPEAL FROM DCCC 276 OF 2020)

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Before: Hon Zervos JA in Court

Date of Hearings: 4 and 7 November 2022

Date of Judgment: 7 November 2022

Date of Reasons for Judgment: 9 November 2022

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R E A S O N S    F O R    J U D G M E N T

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Introduction

1.On 3 August 2021, the applicant was convicted after trial by District Court Judge Dufton (the Judge) of having custody or control of counterfeit currency notes, contrary to section 100(1) of the Crimes Ordinance, Cap 200. On 31 August 2021, the Judge sentenced the applicant to 4 years’ imprisonment.

2.In a notice dated 14 September 2021, the applicant filed an application for leave to appeal against conviction and sentence. In his homemade grounds of appeal against conviction, the applicant complained 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; and (3) he had new information about who put the fake banknotes in his home. The applicant advanced no grounds of appeal in respect of the sentence.

3.On 16 November 2021, the applicant applied for bail pending appeal, which was refused. He had the benefit of a written judgment which briefly commented on the grounds of appeal against conviction.[1]

4.On 3 January 2022, the applicant was granted legal aid and assigned counsel to represent him. There followed a series of requests from the court for the applicant to file perfected grounds of appeal but counsel representing the applicant explained that he needed time to examine the matters raised by him. After counsel had rendered a legal opinion to the Legal Aid Department, legal aid was discharged on 16 June 2022. On 11 July 2022, the applicant was formally notified that he should comply with Practice Direction 4.2 and 5.5 and file grounds of appeal together with a submission in writing and relevant authorities, but he had failed to do so.

5.Having had legal aid discharged, the applicant appeared in person in the leave application. At the commencement of the hearing, he withdrew his leave application to appeal his sentence, and accordingly, the appeal against sentence was dismissed. However, he maintained the leave application to appeal his conviction, which, at the conclusion of the hearing, was refused on the basis that the grounds of appeal were not reasonably arguable. I invited submissions as to whether a loss of time order should be made against the applicant, and after receiving submissions from the parties, two months loss of time was ordered against the applicant. I said I would hand down my reasons for the determinations I made in respect of the applicant’s leave application, which I now do.

The case at trial

6.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 a pillow on the applicant’s bed a white plastic bag, containing 521 HK$1,000 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.

7.The applicant did not give evidence and called no witnesses. The defence case was that the prosecution had failed to prove that the banknotes were reasonably capable of passing off as currency notes and that the applicant was in possession of them. The defence also raised in cross-examination that the police had acted on information and that the applicant was the target of their operation.[2]

8.The Judge in his comprehensive reasons for verdict rejected the defence case.[3] He found that the applicant was in possession of the notes, having been recovered under a pillow on his bed and that the notes were counterfeit.

The leave application

9.As already noted, at the leave hearing, the applicant, without any prior notice, withdrew his application to appeal against his sentence. It is appropriate to acknowledge that the Judge’s reasons for the sentence were unimpeachable, and there was no reason for complaint with the sentence imposed. The applicant had previous convictions, dating back to 2004, mainly concerning immigration offences and some minor drug and gambling offences. The Judge sentenced the applicant on the basis that the counterfeit $1,000 notes represented a total value of HK$521,000. He adopted a starting point of 4 years and 6 months’ imprisonment, which he enhanced by 3 months for the fact that the applicant was a Form 8 recognizance holder at the time of the offence. He reduced the notional starting point by one month for the delay in bringing the proceedings to court and 8 months for the applicant’s medical condition, thereby resulting in a sentence of 4 years’ imprisonment.

10.In light of the applicant’s belated withdrawal of his leave application, the appeal against sentence was dismissed. I turn to address the applicant’s grounds of appeal against conviction.

Ground 1

11.The applicant complained about his legal representation at trial but did not identify in what way his legal representatives were seriously neglectful in the case they conducted on his behalf: Chong Ching Yuen v HKSAR[4]. Very experienced counsel represented him at trial, and it is apparent from the reasons for verdict that the defence case was properly advanced and plainly on the applicant’s instructions.

12.There is an aspect of the defence case that should be commented on. It concerned the production of the applicant’s criminal record, which was to show that he had no previous convictions for offences of dishonesty. This was a matter that the Judge took into account as urged by the defence, stressing that it had no bearing on his determination as to whether the applicant was guilty of the offence. There was nothing improper nor adverse to the applicant in presenting his criminal record for this purpose.

13.Significantly, counsel assigned to the applicant to represent him in these proceedings had made inquiries of the previous legal representatives regarding the applicant’s allegations against them. See HKSAR v Apelete (No 1)[5]. He disclosed in correspondence that the legal representatives refuted the applicant’s claims without detailing what they were. As already noted, he rendered a legal opinion to the Legal Aid Department which was followed by legal aid having been discharged. I should add that the applicant has not repeated nor particularised these allegations.

14.This ground lacked specificity and merit.

Ground 2

15.The lack of DNA or fingerprints belonging to the applicant on the relevant exhibits was an issue at trial, which the Judge addressed 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 a pillow on 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.[6]

16.This ground of appeal was not reasonably arguable.

Ground 3

17.The applicant claimed he was innocent and had new information about the identity of the person who planted the fake banknotes in his home. He submitted a letter dated 15 September 2021 addressed to him from a person who was a fellow inmate in prison. He had been first produced this letter at the bail hearing on 16 November 2021. The letter’s author claimed he knew who set up the applicant and provided several names.

18.As a result of the new information, the police investigated the matter. I am informed that several witness statements had been taken by the police, which did not substantiate the applicant’s claim that the counterfeit banknotes were planted in his home by another person. The statements were produced to the Court on a de bene esse basis during the leave hearing. It appears they were also provided to counsel assigned to the applicant to represent him in these proceedings.

19.In order to assess the grounds of appeal advanced by the applicant, it is necessary to set out the history of these proceedings briefly. As already noted, the applicant, in his notice for leave to appeal dated 14 September 2021, set out the grounds of appeal that were advanced in the leave hearing.

20.On 19 October 2021, the applicant filed an inter parte summons and an affirmation supporting his application for bail pending appeal. Prior to the bail hearing, the applicant made a statement to the police dated 26 October 2021, in which he said that on 28 August 2021, when he was detained in Lai Chi Kok Reception Centre, Khaliq Salman indicated to him that the fake notes found at his home had been put there by him on the instructions of Ahmad Ali. He said that Khaliq Salman had been at his home before and probably put the fake notes there in the evening of 22 September 2019 or the morning of 23 September 2019.

21.The applicant’s bail application was heard on 16 November 2021, which was refused. In the Court’s decision, it was noted that in support of his application, he claimed he was innocent and that he had new information as to the identity of person who put the fake banknotes in his home. He submitted a letter from Mr Kashir Nazir dated 15 September 2021, who claimed that he knew about the applicant’s case and that the applicant had been set up. He said he had heard that Mr Ahmid had set him up and used Mr Sulman Butt for that purpose. He said that Mr Sulman Butt, who was on remand in Lai Chi Kok, regretted putting the fake notes in his home when he was not there. He told him he should contact Mr Sulman Butt, who said the applicant was innocent and to forgive Mr Sulman Butt for his mistake. He added that Mr Sulman Butt also said that Mr Ahmid wanted to take revenge against him and put him behind bars. He noted that the applicant may not know him, but he had heard his story from “many people”, and that was why he wanted to tell him who set him up. He said the applicant should try to appeal his case and that he was prepared to be a witness.

22.The Court in its written decision, refused the applicant’s bail application on the merits ground and time ground, having briefly discussed the three grounds of appeal against conviction. The Court noted that the new information provided by the applicant had been passed on to the police for investigation, and whether it was credible and reliable would depend upon the outcome of the police inquiries. The Court also noted that at that stage, all that was before it was the applicant’s unverified claim that he had information as to the identity of the person who put the fake banknotes in his home.[7]

23.As a result of the applicant’s statement to the police, Khaliq Salman was interviewed under caution by the police on 17 November 2021. When the applicant’s allegation that he had put the counterfeit banknotes in the applicant’s residence was put to him, he said he had no knowledge about the case. He did not know the applicant nor that the applicant had been arrested in relation to the present case. He also did not know Ahmad Ali. He denied putting the counterfeit banknotes in the applicant’s home.

24.A further statement was taken from the applicant on 28 December 2021. He said the letter he produced to the High Court on 16 November 2021 had been written by Kashif Nazir. He pointed out that Kashif Nazir had no connection with the case and that Kashif Nazir knew he was innocent. He said that Kashif Nazir could be a witness to prove his innocence. The applicant also mentioned that his family members found a text message on his computer, which was received in June or July 2019. He said a female sent the message on his Facebook account, in which she said her husband, named “Tiger”, was going to frame him. However, the text message concerned a person known as Tiger, and not Khaliq Salman or Ahmad Ali (or Mr Ahmid), who the applicant claimed had framed him.

25.On 28 December 2021, a statement was taken from Kashif Nazir by the police. He was shown the letter dated 15 September 2021. He said he wrote the letter for the applicant. He did so because a “Pakistani friend” visited him in prison around July or August 2021 and told him that the applicant was innocent in this case. However, he stated that he did not know the details of the case and that the friend who told him about it had already returned to Pakistan. He did not remember the name of this friend.

26.The police made inquiries in respect of the text message on Facebook. It was sent at around 10 am on 25 June 2019 from Ms Abrogar Belinda, and read, “Be careful Tiger will set u up pass it to Michael.” A statement was taken from Ms Abrogar on 18 July 2022, who said she did not know the applicant and did not send the message. She explained that she had never used the Facebook application and, therefore, never messaged the applicant about the case. She acknowledged that Tiger was her ex-boyfriend.

27.The person referred to as Tiger was Sajed Mahmood Minhas. He was interviewed under caution by the police on 27 May 2022. He said that Abrogar Belinda was his wife and her full name was Abrogar Belinda D. He did not know whether or not she had sent a message to the applicant. He stated he did not know the applicant nor that he had been arrested in relation to the present case. He also said that he did not know the Michael referred to in the message.

28.From the information and material supplied by the applicant, he initially claimed in the notice for leave to appeal dated 14 September 2021 that Khaliq Salman had told him that he planted the counterfeit notes in his home, which had been given to him by “Ahmmad Ali”, who informed the police. However, the letter of Mr Nazir that was only disclosed for the first time in the applicant’s bail hearing on 16 November 2021 was dated 15 September 2021. In that letter, Mr Nazir gave the impression that he had been told by Mr Sulman Butt, by stating what Mr Sulman Butt said in direct speech, that he planted the counterfeit notes in the applicant’s home on instructions from Mr Ahmid. The reliability of Mr Nazir’s account is seriously put in doubt when he said that he wrote the letter for the applicant and the source of the contents came from a “Pakistani friend”, who had visited him in prison, whose name he did not know, and who had since returned to Pakistan.

29.It would appear because of the applicant’s claim that he had been set up, an appeal aid certificate was granted to him on 3 January 2022. Mr John Marray was assigned as counsel to represent him in the proceedings. In a letter to the Court dated 8 February 2022, Mr Marray asked for time before filing any grounds of appeal to look into the matter of the fresh evidence by making inquiries with the police and another person. In another letter dated 13 April 2022, Mr Marray said that after a conference with the applicant, fresh matters had been raised which could lead to a ground of appeal. He referred to the applicant’s statement to the police and to the police investigation that was being undertaken based on the information provided by the applicant. He noted that the applicant had named several persons in connection with the fresh evidence and it was necessary to contact those persons to establish if there was any substance in what he was saying. He also noted that the applicant had made allegations against his former legal team and it was necessary to speak to them about these allegations.

30.In another letter dated 25 April 2022, Mr Marray explained that letters had been written to the applicant’s trial counsel and solicitors setting out complaints made by the applicant against them in seeking their comments. He noted that both trial counsel and the solicitor had replied in writing, refuting the allegations. He also noted that enquiries were to be made with the police to find out the progress of the investigation and with a legal representative of a male the applicant claimed could provide evidence. It appears this person made a statement to the police, which was provided to Mr Marray.

31.Mr Marray continued to inform the court of the progress of the matter, culminating in a letter dated 15 June 2022, in which he said he had followed up on the enquiries from the applicant and had provided an opinion to the Legal Aid Department on the issue of the appeal. The next day, 16 June 2022, the applicant was notified that his legal aid certificate had been discharged.

32.It was quite apparent that there was no substance whatsoever in the applicant’s claim that the counterfeit notes were planted in his home, and that the information and material he provided to the authorities in support of his allegations were highly suspicious.

Conclusion

33.I was satisfied that there were no reasonably arguable grounds of appeal against the applicant’s conviction, and accordingly leave to appeal was refused.

Loss of time

34.I invited the parties to make submissions on whether a loss of time order should be made against the applicant. In response to a direction issued by me on 4 November 2022, Mr Ira Lui appeared with Mr Prakash Daryanani for the respondent in respect of this matter. I am particularly grateful to Mr Lui for his comprehensive and erudite written submission, which was provided and translated to the applicant. It would have undoubtedly given the applicant a full understanding of the matter he had to address.

35.The power to order loss of time is provided under s. 83W(l) of the Criminal Procedure Ordinance, Cap 221, (the Ordinance), and can be exercised by a Single Judge of the Court of Appeal pursuant to s. 83Y(2)(g) of the Ordinance.

36.It is provided under s. 83W(2) that a court cannot make a loss of time order where leave to appeal has been granted; a certificate has been given by the judge of the court of trial under s. 82; or the case has been referred to it by the Chief Executive under s. 83P, and when it does make such an order it must provide reasons for doing so. The usual circumstances when the order is made is where the application for leave to appeal is entirely without merit, resulting in a significant waste of judicial and administrative resources.

37.The underlying rationale of the power to order loss of time was explained by the Court of Final Appeal in Chau Ching Kay v HKSAR[8] as follows:

“71. … The starting point must be the purpose of having the power to order loss of time - to deter unmeritorious applications so that meritorious cases can be dealt with without delay. Judicial time should not be unnecessarily wasted. Hence, the main criterion in deciding whether to order loss of time is the total lack of merit in the application. There are, of course, other relevant factors to be considered, including the fact that he is acting under legal advice, the conduct of the applicant in presenting his case to the court, the seriousness of the matter and the importance of the appeal to the applicant. Each case has to depend on its own facts. The circumstances of each case can so vary that it is difficult to lay down any general guideline as to when the court should make an order for loss of time and if so, how much loss of time should be ordered.”

38.As a result of the increasing number of unmeritorious applications for leave to appeal conviction and sentence, resulting in a significant waste of judicial and administrative resources and in serious delays caused to meritorious appeals, Practice Direction - SL4 (Practice Note (Crime: Sentence: Loss of Time))[9], was promulgated in October 2013. The practice direction reiterates the object and the rationale of the power by reference to the principles stated in Chau Ching Kay. Specifically, it addresses the increased frequency of unwarranted and unmeritorious allegations of incompetency against legal representatives by stating:

“10. 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 affirmations and, often, in attending the hearing of the application. Although allegations of flagrant incompetence will always be examined carefully, the frequency of unwarranted allegations has increased, both at the hands of the represented and unrepresented applicants. An unwarranted assertion of incompetence will normally attract an order for loss of time.

11. In the case of applicants who are represented and his application first comes before a Single Judge, the Single Judge has himself the power to order loss of time. Where an application has been refused by a Single Judge and the application is nonetheless renewed and the court before which the renewal application is made also takes the view that the application is wholly without merit, an order for loss of time will ordinarily be made.”

Allegations of incompetency against legal representatives

39.As is apparent, the practice direction has particular relevance to the present application in respect of the applicant’s allegations of incompetency by his legal representatives at trial, which counsel assigned to represent him in these proceedings did not pursue, and which he maintained in the general terms as contained in his ground of appeal.

40.It is a serious matter indeed when the valuable resources of the authorities and the judiciary are wasted by an unwarranted and unsubstantiated claim of wrongful conviction, particularly when it is based on scant and dubious information and material.

41.The applicant at no time offered any elaboration, let alone justification, for what must have been serious allegations against his previous legal representatives. The allegations were investigated by counsel assigned to represent him in these proceedings, which he noted were refuted by the previous legal representatives. It is no coincidence that legal aid was discharged on the very next day after counsel had rendered a legal opinion to the Legal Aid Department in respect of the applicant’s appeal.

42.On 11 July 2022, the applicant was directed to file perfected grounds of appeal and written submissions on or before 25 July 2022, which he did not do so. The respondent complied with the court’s directions and filed detailed written submissions on 5 August 2022. The respondent paid particular attention to the grounds of appeal and sought to address the allegations against the previous legal representatives by comprehensively examining the issues at trial and the defence advanced on the applicant’s behalf. On the other hand, the applicant made no effort to substantiate or withdraw his allegations against his previous legal representatives in the face of what had emerged from counsel’s enquiries and the police investigation. His conduct has led to considerable wastage of judicial and administrative resources and caused his previous legal representatives unnecessary anxiety and time in responding to his allegations.

Allegations of a frame up

43.The police investigation undertaken because of the new information provided by the applicant has not borne out his allegation that he was framed. If anything, it has cast serious doubts as to the credibility and veracity of this new information. The applicant would have had benefited from the statements that had been taken by the police and the advice of his counsel before legal aid was discharged. And yet, he still pursued an unmeritorious ground of appeal which resulted in wasting the time and resources of the authorities and the judiciary in addressing this matter. See R v Tang Wing-hung [10]; and HKSAR v Okafor Charles Chukwuemeka[11].

Late abandonment of the sentence appeal

44.This Court in HKSAR v Kofi Frimpong[12] took the opportunity “to sound a clear warning to others who are disposed to leave the matter to the last minute and not bother to file a Form VII [Notice of Abandonment] to bring the proceedings to an end, when that is their intention, that they run the risk of having a loss of time order made against them”. The Court emphasized that the last-minute abandonment had “caused considerable inconvenience and a substantial waste of resources” and efforts of the Court and the respondent “could have been spent on more pressing and meritorious appeals” but were instead wasted.[13] See also HKSAR v Wong Chun-yin[14].

45.In HKSAR v Mwenkalley Salim Nassoro[15], the applicant applied for leave to appeal against sentence. On various occasions, he had changed his position regarding whether to proceed with his appeal.[16] In the end, he decided to proceed with his homemade grounds of appeal that were “totally devoid of merit”.[17] In ordering a loss of time, the Court observed that, “While a degree of latitude is given to applicants in person, if the application is patently devoid of merit or frivolous, consideration will be given to a loss of time order. Such cases can inflict serious injustice and undermine the criminal justice system by unnecessarily occupying valuable resources and impeding the expeditious disposal of other cases. Nothing of what has been said detracts from the fundamental importance of a person’s right to challenge the correctness of their conviction or sentence”.[18]

46.The late abandonment of a leave application to appeal is inexcusable. A convicted person usually has ample opportunity and time to consider, with or without legal assistance, the merits or demerits of any initial grounds of appeal. Whilst a degree of latitude is given to an unrepresented applicant, an application for leave to appeal must be taken seriously by him or her, as it is by everyone else involved in the appellate process. It needs to be appreciated that the unnecessary waste of the resources that are normally expended in the processing of appeals can have serious deleterious consequences to the administration of justice, particularly in the delay this may cause in dealing with meritorious appeals.

47.It was unacceptable that the applicant left it to the last minute at the leave hearing to indicate that he did not wish to pursue his appeal against sentence, when everyone else involved in this application had prepared to address it. It is this cavalier and irresponsible attitude of an applicant in the last-minute abandonment or withdrawal of an appeal that significantly wastes the time and effort of those involved in the appellant processes. Judicial resources are scarce and valuable and should not be wasted for any reason, particularly because of unwanted and unmeritorious grounds of complaint simply advanced as an initial reaction to a conviction for a criminal offence and continued without any care or responsibility of the consequences of having done so.

The loss of time order

48.I find the applicant’s explanation for his failure to address the procedural requirements in respect of his leave application that he is uneducated and unfamiliar with the legal processes, to be unconvincing. He is a man in his 50s, who first came to Hong Kong in 2004. Since then, he has appeared in court on six occasions in respect of various criminal offences, some of which were quite serious, resulting in terms of imprisonment. I do no doubt that with that experience, he would be very familiar with the legal processes in this jurisdiction. He was given every opportunity to assess his appeal against conviction and sentence at various stages during these proceedings with the benefit of legal advice and additional information that would have cast serious doubt about the viability of his appeal.

49.For the reasons given, I ordered that two months of the time that the applicant has been in custody since the filing of his notice of application for leave to appeal against conviction and sentence is not to be reckoned as part of the sentence to which he is subject.

The right to renew the application

50.The applicant was reminded of his right to renew his application for leave to appeal to the Court of Appeal, but he was also informed of the consequences of doing so, which may include a further direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Ira Lui, ADPP of the Department of Justice, (on 7 November 2022) and Mr Prakash L Daryanani, SPP of the Department of Justice, (on 4 and 7 November 2022) for the respondent

The applicant appears in person