HKSAR v. Ali Akbar Mirza

CACC000318/2002

CACC 318/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 318 OF 2002

(ON APPEAL FROM HCCC 313 OF 2001)

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Coram: Hon Stuart-Moore VP, Stock JA and Tong J

Date of Hearing: 6 November 2003

Date of Judgment: 6 November 2003

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 17 June 2002, the Applicant, aged 28 from Pakistan, was convicted by a jury in the Court of First Instance, following a trial before Deputy Judge Longley, of trafficking in a mixture containing 310 grammes of heroin hydrochloride. He now seeks leave to appeal against conviction.

Prosecution's case

2.The prosecution's case was fairly straightforward. In May 2001, police conducted a surveillance operation in Tsimshatsui during which they observed the movements of a Ghanaian, Boateng Emmanuel (Boateng), who was renting a room on the 17th floor of a Guest House at 58 Nathan Road.

3.On 2 May 2001, the Applicant was allegedly seen going into Boateng's room carrying a green bag. Other surveillance officers saw the Applicant close the window curtains. After 10 minutes, the Applicant left the flat with Boateng. They walked to Chung King Mansions. There, they split up and the Applicant was followed to a 6th floor Guest House at 58 Nathan Road.

4.At 12.15 am on 3 May 2001, Customs Officers went into the Guest House where the Applicant was staying in order to search him and his room. Nothing of an incriminating nature was found.

5.Just over an hour later, at about 1.25 am, Customs Officers went to Boateng's room where the heroin, which was the subject matter of the indictment, was found. It was wrapped in six packets which had been placed inside the pockets of a pair of jeans.

6.Immediately after these drugs had been found, the Applicant was arrested in his room several floors below Boateng's. A piece of paper was found amongst his possessions which bore the telephone numbers of Boateng's present room and his previous room at the same Guest House on the 17th floor.

7.Further items of interest were found in the Applicant's luggage. He had six elastic bandages corresponding to the number of packets of heroin in Boateng's room. These were recorded and referred to throughout the trial as "knee-pads" although, more accurately, they have the appearance of knee supports of the kind often used by sportsmen. Tests on all of these revealed traces of heroin.

8.During interview, the Applicant said that he was proposing to use the knee-pads to conceal mobile telephones from the Customs in Pakistan when he returned home. He had come, he said, to Hong Kong for business. On 2 May 2001, he had gone to the room occupied by Boateng because he had been told to contact someone called "Eddie" in order to seek the return of a loan which was owed to him in the sum of US$6,000 to US$8,000. Following contact with a friend in Ghana, he was given two telephone numbers written on the piece of paper found in his room. When he went to "Eddie's" room, he remained at the door when he found a man there called "Emma" whom he had previously met in Bangkok. "Emma" said that "Eddie" had gone to the Mainland. Later, the Applicant identified Boateng as the person he knew as "Emma".

9.When the heroin packets were forensically examined, six fingerprint impressions were lifted from the sticky side of the adhesive tape all of which could be matched to the Applicant's prints.

10.At trial, Boateng pleaded guilty to trafficking in the heroin found in his room which was originally the subject of a joint count against both himself and the Applicant. He then gave evidence for the prosecution, stating that it was the Applicant who had brought the drugs in a bag to his room. Before opening the bag, the Applicant had closed the curtains. He then opened the contents to reveal the presence of the drugs in the six packets wrapped in brown adhesive tape which had been placed inside a pair of rolled-up jeans.

Defence case

11.The Applicant admitted visiting Boateng's room and at trial he stuck to the story which he had told the police about his intended use of the knee-pads and how he had been trying to locate "Eddie" over a business loan that he was trying to recoup. However, he added in the account which he gave to the jury that, when speaking to "Emma" (Boateng) at "Eddie's" room, "Emma" had pointed out that some adhesive tape had become stuck to his clothing. He took off the tape and left it on the floor.

The application

12.In the Applicant's original grounds of appeal, he complained, amongst other things, that parts of the evidence against him, with specific regard to the traces of heroin on the knee-pads and the evidence given by Boateng, had been fabricated. In further grounds, dated 26 May 2003, the Applicant also complained that the evidence of him being seen to close the curtains, in the room where "Emma" (Boateng) was staying, had been fabricated. In addition, he contended that the judge had failed to cover every aspect of the defence case and had given "protection" to the Customs Officers. He also questioned the findings relating to the discovery of drug particles in the knee-pads and the judge's handling of the topic when summing up to the jury which the Applicant, in a separate explanatory note, described as "putting veils over the dishonesty of the Custom(s) Officers".

13.Amongst some of the other grounds also placed before us, the Applicant stated that the jeans in which the drugs were found were never tested to show whether they belonged to Boateng or himself and that his lack of knowledge about criminal procedures prevented him producing documents to discredit Boateng.

14.This application was due to be heard on 29 August 2003, but the matter was adjourned at the Applicant's request in order that the death certificate of the late Man Hon-chin, who was the Customs & Excise Inspector who conducted tests for the presence of drugs on the knee-pads, could be produced. This was necessary as the Applicant had pointed out, with reference to a date which was contained in a document supplied to him by the Department of Justice, that seemingly the Inspector had died on a date considerably before the investigation into the events with which we are now dealing. The Applicant, concerned that this was not a mere typographical error which had been carelessly overlooked, wanted to be satisfied about the date of the Inspector's death in the light of his general allegation that he had been made the victim of a fabricated case brought by officers attached to the Customs & Excise Department.

15.As to this, a death certificate was duly provided to the Applicant by the Department of Justice following the adjournment. This confirmed that the information with which he had been earlier provided by the Department of Justice had contained a typographical error. The Applicant has very sensibly not pursued the point.

16.On 12 October 2003, the Applicant wrote a further letter to the court in which he disclosed that he had a "new point" to raise which he would explain on the fresh hearing date. As to this, he has today repeated at length his complaints relating to being the victim of fabricated evidence and about the finding of heroin on the knee-pads in particular.

17.This entire subject was fully canvassed at trial and the judge dealt with this evidence with meticulous care, providing the jury with a scrupulously balanced analysis of the topic. Points which had been made on the Applicant's behalf were explained with commendable clarity in a way that the jury could not have failed to follow. The numerous criticisms now levelled at the judge and at the Customs Officers who had given evidence were without merit.

18.We do not need to deal in detail with any of the other points which the Applicant has raised either in his written submissions or today in court. The Applicant was legally represented in the court below and his trial, as we have indicated, was extremely fairly conducted, contrary to some of the gratuitous remarks made by the Applicant, both in his written submissions and in court. The judge who conducted the trial was highly experienced and he had gone to considerable lengths to set out the matters which the jury might have considered gave support to the Applicant's defence.

Conclusion

19.The evidence against the Applicant was overwhelming. There are no grounds of any merit and this application is dismissed.

Representation:

Mr John Reading, SC, DDPP and Mr Timothy Tso, GC,of the Department of Justice, for the Respondent.

Applicant in person.