HKSAR v. Mustafa Ghulam

CACC 388/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 388 OF 2005

(ON APPEAL FROM HCCC NO. 215 OF 2004)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and Lunn J in Court

Date of Hearing : 16 May 2006

Date of Judgment : 16 May 2006

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.The contending accounts at the trial from which this is an application for leave to appeal against conviction and sentence were wellsummarised by Deputy Judge Barnes at the outset of her summing-up on 1 September 2005:

“The accused, Mustafa Ghulam, faces one count of trafficking in a dangerous drug.  The prosecution case, in a nutshell, was that the police carried out an operation on 10 January 2004 in the Tsim Sha Tsui area and the accused was seen to have gone into a cul-de-sac alleyway at Bristol Avenue and emerged shortly afterwards.  He was intercepted and bodily-searched by the police.  A pocket containing the dangerous drug “Ice” was found inside his jeans pocket.  He was arrested and cautioned and he did not say anything in reply.

He was brought back to the Tsim Sha Tsui Police Station.  He claimed, in the presence of an Urdu interpreter and his solicitor, that the notebook entry made by the police in relation to the arrest and the caution was untrue.  The accused then wrote down in Urdu what he claimed to have taken place.

Basically, he claimed that he had been set up by someone called Sajid in relation to an earlier to an earlier incident in which some “Pakistani boys” attempted to rob him and he was attacked with a knife.  He refused to compromise with Sajid who knew one of the boys involved in the incident.  He also claimed that he never had the packet in his pocket but the police picked it up from the street after Sajid tried to put the packet into his palm.

The accused’s oral evidence in court was basically an elaboration of what he had written in the notebook.  He also called a defence witness to support his version of how he came to be arrested.”

2.In his grounds of appeal, the applicant asserts his innocence and asks this Court to consider a number of suggestions.  He has put to the court evidence in support of his contention that the testimony of the police as to their initial observation of him could not, by reason of certain roadworks carried out near the Holiday Inn in Tsim Shat Tsui, have been correct.  He points then to the fact that a CCTV recording retrieved by the police was said by them not have worked, a suspicious matter, he contends.  He also asserts that his request to be represented by someone other than counsel who in fact represented him at trial was unreasonably turned down by the trial judge.  In his oral submissions made to us today, he has advanced a number of matters including the contention that he asked for his video interview to be shown but that his counsel refused to adopt such a course.  The relevance of the video says the applicant, is that it would have demonstrated that he was then the worse for drink.  The relevance of him being the worse for drink is that it would support his contention that the drug packet was planted on him when he was so drunk that he was vomiting, so that bodily fluid would have revealed itself on any examination of the packet.

3.In relation to this last point, we note that the taped interview commenced about 23 hours after his arrest.  That being so, it is hardly surprising when Mr Tam tells us that in his contention, having viewed this tape, there is no sign of drunkenness.  We pointed out this time factor to the applicant and he was forced to resort to the suggestion that something could be seen on his facial expression nonetheless, which would support what he says.  That is what it comes down to, and we are satisfied that had there been any chance of support for the applicant’s contention, the tape would have been shown. 

4.As for the suggested difficulties with counsel representing him, this is a matter that we have examined, and Mr Tam who represented the prosecution at trial has provided an account of the history of the case and of the events on the first and second days of the trial in August 2005, which history is largely accepted by the applicant and clearly supported by the record made by the clerk of the court, which record we have examined.  In December 2004 the trial was adjourned on its first day because of a defence requested based on a suggested need to obtain evidence.  So the case was adjourned to 24 January 2005; that was a pretrial review.  Mr Tracy, counsel, in respect of whom this applicant now makes complaint, appeared for the applicant.  The trial was set down again for 14 March 2005 before Lugar-Mawson J.  On 14 March 2005, a further application was made for an adjournment, once again at the request of the defence.  On this occasion, it had to do with the suggested unavailability of a witness.  The application was opposed but, nonetheless, the court decided to adjourn the trial to a new date, but this time on the clear understanding that it was to be the last adjournment.  There were a couple of further hearings, including one on 4 August 2005 when again Mr Tracy appeared.  Mr Tracy had by then been representing this applicant for some time.  The case, he said, was ready for trial. 

5.The trial commenced on 22 August 2005.  It was only then that the applicant applied to dispense with the services of Mr Tracy.  He had written a letter dated 22 August 2005 to the court to that effect.  The Director of Legal Aid refused, not surprisingly, to grant a certificate for a third counsel.  Before Mr Tracy, this applicant had been represented by another, and Mr Tracy pointed out that he had been counsel for the applicant since December 2004.  The court then warned the applicant that if he did not have counsel to represent him, there would not be yet a further adjournment, and he would have to represent himself.  But she told him that he should talk to officers from the Department of Legal Aid.  The applicant then decided to represent himself.  But then he said that if he was not given legal aid, he was happy to have Mr Tracy as his counsel.  A Legal Aid officer told the trial court that they had had eight conferences with the applicant but that it was not until August that he, the applicant, had complained about his counsel and not until that day, namely, the first day of trial, that he complained about the legal aid solicitor.  The applicant, according to the court clerk’s record of proceedings, then said that he wanted to have Mr Tracy as counsel.  There was further consultation between the client and Legal Aid officers and he confirmed then he wanted to have Mr Tracy to represent him.  The following morning, there was a further request on the applicant’s behalf for a short adjournment to investigate a matter that he had raised.  That request was granted. 

6.In the light of the history that we have recounted, the trial judge no doubt took the view that enough was enough, and that the history of the case was over-peppered with requests for adjournments.  The complaints about counsel’s conduct went some way back and could have been raised before.  The course taken by the judge was one within her discretion, and we could not properly say that she erred.

7.The summing-up by the judge was thorough, correct and a model of fairness.  She took particular pains to point out the various facets of the police evidence that were said to be unreliable, including the CCTV issue, and she made clear on several occasions that if the jury took the view that the account given by the applicant was or may be correct then he was to be acquitted.  We are satisfied that the additional evidence from the railway corporation which the applicant has now asked us to examine and which we have read would have made no difference to the result.  The applicant may not understand that an appeal is not a retrial.  The points made by him before us were all canvassed before the jury and the jury, after correct directions, came to a conclusion which we cannot in the circumstances say should be impugned. 

8.Accordingly, the application for leave to appeal against conviction is dismissed.

Sentence

9.There was an application for leave to appeal against sentence.  That is not being pursued, and wisely so.  There is no basis for that sentence be said to have been manifestly excessive.  Accordingly, the application for leave to appeal against sentence is also dismissed.

Mr Simon Tam SGC, of the Department of Justice for Respondent

Applicant in person