HKSAR v. Ahmed Shahnwaz

CACC 56/2021

[2024] HKCA 757

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)

_______________

_______________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.On 22 February 2021, following a trial before Alex Lee J (the judge) and a jury, the applicant was convicted of a single count of trafficking in a dangerous drug. On 2 March 2021, he was sentenced to 13 years and 2 months’ imprisonment.

2.This matter has a convoluted procedural history. On 11 March 2021, the applicant filed a notice for leave to appeal against conviction. On 19 January 2022, the leave application was heard by a Single Judge[1]. The applicant acted in person and advanced four grounds of appeal prepared by his trial counsel. The application was refused by the Single Judge.

3.On 12 April 2022, the applicant filed a notice of renewal of application after refusal by the Single Judge out of time, and an affirmation explaining the delay in filing the application. He said he was “sad and distressed” after leave was refused by the Single Judge and did not pay attention to the renewal form, which was in English, a language that he did not understand.

4.The applicant was granted legal aid on 6 July 2022, but it was discharged on 1 August 2022 because the assigned counsel could not identify any grounds of appeal for the applicant.

5.On 1 September 2022, the applicant filed a written submission containing six homemade grounds. He made further applications for legal aid, which were refused on 9 September 2022, 7 October 2022, and 13 May 2024. The original hearing date for the renewed application was scheduled for 2 February 2024 but re-fixed to 7 August 2024.

6.In the meantime, the applicant arranged private legal representation. On 30 July 2024, Mr William Allan, for the applicant, notified the court that he would advance only a single ground of appeal and abandon the applicant’s six homemade grounds.

7.At the conclusion of the hearing we dismissed the applicant’s appeal against conviction and indicated we would hand down our reasons for doing so in due course. These are our reasons.

The facts

8.The applicant had originally been arrested with two other people, called Bashir Nasir Hussain (Bashir) and Rai Adidullah (Rai). They were all jointly charged with trafficking in dangerous drugs. However, the charges against Bashir and Rai were subsequently withdrawn, leaving the applicant to face trial alone. At trial, the applicant called Bashir as a defence witness.

The prosecution case

9.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 were acting upon information.[2] 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 outside Hung Yan House; Rai inside the lift lobby. All three men were brought to a nearby lamppost for enquiries. In the plastic bag held by the applicant were found 139.1 grammes of a crystalline solid containing 136.9 grammes of methamphetamine hydrochloride[3] in six batches of crystalline solid wrapped in paper wrapping and tissue paper[4]. 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 $2,270 in cash in his rear trousers pocket. He was arrested and cautioned by a police officer in Cantonese.[5]

The defence case

10.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.[6] Rai had brought the bananas and given him one inside the taxi.[7] The $2,270 cash on his person was rental money from a flatmate.[8]

11.The applicant described how, after he had been intercepted, the police asked him what was in the bag, to which he responded, in English[9], “I ate banana, inside are peels -- peels”[10]. The prosecution put to him that what he had said about bananas was a fabrication.[11] 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.[12]

12.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. Rai had also offered one banana to the taxi driver.[13] Rai then put the peels inside the plastic bag, which was later found to contain the dangerous drugs.[14] 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.[15] After they were arrested, they were taken to the police station. In the holding area, one of the police officers took out the banana peels from the bag and threw them in a rubbish bin.[16]

The renewal application

13.As we have already noted, when the applicant filed his renewal application, he listed six homemade grounds of appeal, four of the grounds were new and not part of his leave application. They have now been abandoned by Mr Allan, who advances a single ground, which is also new.

The application for an extension of time

14.The applicant has not adhered to the procedural time limits and requirements in seeking to renew his application for leave to appeal against conviction on a new ground. The renewal application is out of time by over 2 months, and leave to appeal on a new ground is out of time by over 3 years. The new ground relied on by the applicant was not raised in the leave application and, therefore, not argued before the Single Judge. As a consequence, raising a new ground at this stage of the proceedings has circumvented the appellate processes by failing to give appropriate notice and allowing timeous consideration of the ground.

15.After the leave hearing, on 1 September 2022, the applicant, in his renewal application, filed six homemade grounds of appeal. As four of the grounds were new, he was directed to file a notice for leave to appeal against conviction (Form XI), seeking an extension of time on the four new grounds. He did so on 23 September 2022, which was out of time by over one year. He has not filed a similar application, seeking an extension of time in respect of the new single ground.[17]

16.An applicant seeking an extension of time in which to appeal bears the burden of providing an explanation that satisfactorily explains the delay. There must be good and substantial reasons for the delay before an extension of time is granted. The hurdle is even higher when an extension of time is sought to advance a new ground after refusal of leave by the Single Judge: HKSAR v Yim Shek Wo [18]. The applicant’s explanation for the delay in filing the renewal application is that he was in a distressed state after leave to appeal was refused and did not pay attention to the renewal form. He was also hindered by his lack of English proficiency and legal assistance. We rejected the explanation as he was able to obtain assistance in representing himself at the leave hearing and submitting grounds of appeal and written submissions. He was also informed of his right to renew his application at the leave hearing, so he would have appreciated that the procedure was available to him. Significantly, he has not provided any explanation for seeking an extension of time to advance an entirely new ground of appeal, which is based on events at trial that would have been known to him.

17.We refused the applicant an extension of time to comply with the procedural requirements to appeal against his conviction on the new ground of appeal.

The ground of appeal

18.If the explanation for the delay in filing a leave application is without merit and the extension of time is inclined to be refused, the Court may, in an obvious and appropriate case, examine the ground of appeal in order to ensure that it would not be shutting out a substantial and plainly arguable ground of appeal that has a reasonable prospect of success.[19] We did not consider that this case fell into that category but we have nevertheless set out our reasons why we considered this ground of appeal devoid of merit.

19.Mr Allan submitted that there had been a material miscarriage of justice because the affirmation of Bashir dated 5 March 2019, “a key and vital” defence witness, contained highly prejudicial references, namely that he was in Lai Chi Kok Reception Centre and on remand. He contended that there was a real risk that the jury would have believed that Lai Chi Kok Reception Centre was a prison, and this would have seriously affected Bashir’s credibility as a defence witness.

20.In addressing the ground, we have set out the relevant background facts. It was on 9 August 2018 that the applicant, together with Bashir and Rai, alighted from a taxi. The applicant was holding a white plastic bag that contained a quantity of Ice. Bashir and Rai were empty-handed. It was before the jury that the three men had been arrested and taken into custody. They were charged with trafficking in a dangerous drug, but the case proceeded only against the applicant because Bashir and Rai were later released after legal advice was obtained from the Department of Justice.[20]

21.The applicant testified that Rai had given him the bag, which he believed contained banana peels, instructing him to throw it away in a rubbish bin. Bashir gave evidence in support of the defence case that the applicant had been given the bag by Rai, which contained banana peels that the applicant was asked to discard.

22.In cross-examination, Bashir was shown a copy of an affirmation he made on 5 March 2019, which was around 7 months after the offence. He confirmed that he signed the affirmation but explained that it had been written by a clerk to his lawyer without the benefit of an interpreter.[21] He said there were mistakes in the affirmation. He pointed out that the affirmation was made in support of the applicant’s bail application.[22] Prosecuting counsel applied to have copies of the affirmation supplied to the jury, but the judge disallowed this request at that stage because the affirmation had yet to be adopted by the witness.[23] Prosecuting counsel cross-examined Bashir on inconsistencies between his evidence and the statements in his affirmation, particularly that he had made no mention of banana peels in his affirmation.[24] It was during this exchange that Bashir, of his own volition, mentioned that the affirmation was made when he was in Lai Chi Kok.[25] Other than this remark by Bashir himself, prosecuting counsel made no reference to Lai Chi Kok or that he was on remand, as his cross-examination focused on showing Bashir’s evidence was inconsistent with his prior statements in his affirmation.

23.In re-examination, defence counsel asked questions regarding the affirmation, which prompted the judge to admit into evidence a copy of the affirmation because it had been the subject of extensive cross-examination. Defence counsel raised no objection, nor did he seek a redaction of the references to “Lai Chi Kok Reception Centre” and “remand” in the affirmation.[26] It appears that defence counsel wanted to show the jury that the affirmation was “riddled with mistakes”, while there was another statement to the police dated 15 May 2019 that was properly recorded in the presence of an interpreter.[27] In the police statement, Bashir did make mention of the banana peels, and the relevant paragraphs were read out to the jury. The judge also repeated the relevant paragraphs in Bashir’s police statement in his summing-up to the jury.[28]

24.Mr Allan referred to the second paragraph of Bashir’s affirmation, in which he stated, “I was arrested in another case on 9 August 2018 in Tin Shui Wai with 2 other person”. He said this implied that when the affirmation was made on 5 March 2019, Bashir was on remand in Lai Chi Kok in respect of another case. However, no particulars of this other case were mentioned, and no reference was ever made to this paragraph or to the fact that Bashir was on remand at Lai Chi Kok when he made the affirmation. Even so, he contended that the jury would have equated the reference to remand in Lai Chi Kok with him being in prison for another offence, which unfairly reflected on Bashir’s credibility.

25.It was not in dispute that the three men had been arrested, taken into custody and charged with trafficking in a dangerous drug. The case proceeded only against the applicant because the other two men were “at some point” released on legal advice.[29] The fact that Bashir made an affirmation on remand in Lai Chi Kok Reception Centre was of no significance in this trial. There was no mention of these matters in the closing speeches of counsel. In fact, prosecuting counsel, in his closing address, focused on Bashir’s inconsistencies between his evidence and the statements in his affirmation to undermine his credibility, not on the circumstances regarding his arrest and period in custody. It follows that the judge also made no reference to these matters in his summing-up to the jury, but he repeatedly reminded them that previous statements made by the witness outside court were not evidence, and evidence was what the witness said in court.[30] He also very fairly highlighted matters that reflected on the reliability of the affirmation as a complete statement by Bashir.[31]

26.It was not without significance that experienced defence counsel at no time raised any objection or sought a direction from the judge to address the references to Bashir in “Lai Chi Kok Reception Centre” or on “remand”. It was clearly an insignificant and inconsequential matter, given the background and circumstances of the case, and that was apparent from the fact that the defence counsel did not redact the references that are now claimed to have been highly prejudicial to the credibility of Bashir.

27.Bashir was tainted by his involvement in the offence as it was not in dispute that the three men were together in the taxi and the bag contained drugs. Defence counsel, in his closing speech, relied on the fact that Bashir was also a suspect in the offence and questioned why Rai and Bashir had been let go by the police when they should have been before the jury.[32] He submitted it would be unfair to convict the applicant when the police “let Bashir and Rai go” and that, in his view, Bashir and Rai “should be there too.” At the same time, defence counsel also relied on Bashir’s supporting evidence that there were banana peels in the bag containing the drugs. Defence counsel, having an overall appreciation of the intricacies of the evidence and the nature of the case, made a tactical decision on how to deal with Bashir as a witness and his contribution to the defence case.

28.As this Court has stated in HKSAR v Wong Fung, unrep., CACC 266/2018, 31 October 2022:

“49. One of the difficulties, when a new set of legal representatives considers a case to take on appeal, is the lack of detailed understanding and knowledge of the case run at trial. This can be particularly grievous when the issue or issues on appeal concerned how the case was conducted by the previous legal representatives at trial. That is why this Court has stated in emphatic terms that if on appeal complaint is made either impliedly or explicitly about the conduct of the legal representatives at trial there is a procedural and professional obligation on the new legal representatives to make appropriate enquiries of the previous legal representatives as to why something happened or did not happen at trial, which should or should not have occurred. It is also incumbent on the new legal representatives to ensure that the Court is fully and accurately appraised of all matters germane to the issue or complaint on appeal.”[33]

29.This is not a criticism of Mr Allan, who has come into the case at a late stage and very properly considered the grounds of appeal originally submitted by the applicant, before articulating a single issue for consideration by this Court. All the same, it was an issue that turned on the conduct of the defence case at trial, and the approach taken by defence counsel was not unreasonable or inexplicable in the circumstances of the case: HKSAR v Lam Siu Fung, Andy [34].

30.We had no hesitation in concluding that this ground of appeal was not reasonably arguable.

Conclusion

31.We refused to grant the applicant an extension of time to file this new ground of appeal and the appeal against conviction was dismissed. We also indicated that we would have dismissed the appeal against conviction on the basis that the ground of appeal was not reasonably arguable and was without merit.

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

Mr William Allan, instructed by Swainston Solicitors, for the applicant