HKSAR v. Mizanur Rahman

CACC 235/2024

[2025] HKCA 632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 235 OF 2024

(ON APPEAL FROM DCCC NO 379 OF 2023)

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D E C I S I O N

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1.This is the second application by the applicant for bail pending appeal against his conviction of three charges of trafficking in a dangerous drug and sentence of 44 months’ imprisonment. On 28 April 2025, the first application was refused with reasons.[1] At that stage, the applicant had filed forty four grounds of appeal.

2.The facts of the case as found by the trial judge were fairly straightforward.  As part of a covert decoy operation, the police observed the applicant selling cocaine.  He sold cocaine to a police officer posing as a customer on 26 November and 16 December 2022.  Upon his arrest, the police recovered seven packets of cocaine that he had stashed away at a nearby location.

3.The only change of circumstance is that the applicant is now alleging that his trial legal representatives were flagrantly incompetent.  The applicant filed on 7 May 2025 an affirmation, in which he lists thirteen complaints regarding the conduct of his defence team; a written submission filed on 15 May 2025, in which he claims he was unaware of the case to answer procedure; an affirmation filed on 30 May 2025, in which he waived legal professional privilege; and an affirmation filed on 25 June 2025, in which he sets out his application for bail pending appeal and lists five further complaints about his trial.  The complaints regarding flagrant incompetence alleged that the applicant’s defence team refused to adduce evidence or bring such evidence to the judge’s attention despite his instructions; defence counsel asked inappropriate questions and failed to explain the concept of a case to answer and gave him a wrong advice about the right to testify at trial; and the prosecution and defence team deliberately prolonged the case to force him to leave Hong Kong so that no compensation would be paid to him under his claim in High Court proceedings (HCCC 25/2020).  He was a defendant in the High Court case charged with trafficking in a dangerous drug.  He was acquitted of the trafficking offence after trial.  He claimed that he had been set up by the police in the present case as a form of revenge against him.  As noted in the decision of the previous application for bail, he was unable to provide details of the police officers involved and the matter was not raised during the trial of the present case.

4.At the commencement of this hearing, the applicant filed a supplemental submission, which had been returned to him because it did not comply with the procedural requirements and repeated complaints that had been previously made.  He also filed a response to the respondent’s submission.  In a lengthy document, he mainly repeats his previous complaints, adding comments and making observations.

5.The applicant made oral submissions, repeating his complaints.  At one stage, he went further by suggesting that the prosecution and defence team conspired together to convict him of the offences.  He also raised several complaints about the trial and appeal procedures, but they were all minor and inconsequential, such as his case being adjourned after he was convicted and not being provided with a full transcript of his trial (however, he was given a recording of the whole trial). 

6.I do not consider there is merit in the complaints now raised by the applicant, and indeed, they provide no basis for bail pending appeal.  The legal representatives have been directed to respond to the allegations made against them by the applicant; however, from the nature and subject of the complaints, this direction seems to have been made as a matter of course.  The applicant was represented by very experienced counsel, who, upon examining the case papers, very ably represented him.  Trial counsel has a wide discretion in the conduct of a criminal trial, and there is nothing to suggest from the way the defence case was conducted that the applicant received anything less than a fair trial.  It is appropriate to classify the complaints raised by the applicant as misconceived and inappropriate charges of flagrant incompetence levelled at the defence team.

7.I bring to the applicant’s attention that the court has the power to order loss of any time which he has served in custody pending his appeal, if the court were to come to the view that there was no justification for his leave application: see section 83W(1) of the Criminal Procedure Ordinance (Cap 221) and Practice Direction – SL4.

[1]     CACC 235/2024 [2025] HKCA 391.