HKCA 1431
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 322 OF 2018
(ON APPEAL FROM HCCC 236 OF 2017)
||KHAN ASIF ALI
||Hon Macrae VP, McWalters and Zervos JJA in Court
|Date of Hearing:
||29 October 2019
|Date of Judgment:
||29 October 2019
|Date of Reasons for Judgment:
||19 December 2019
REASONS FOR JUDGMENT
Hon McWalters JA (giving the Reasons for Judgment of the court):
The procedural history
1. The appellant appeared before a magistrate at Eastern Magistracy on 24 July 2017 and pleaded guilty to one count of trafficking in a dangerous drug, namely 1,989.40 grammes of a solid containing 1,672.60 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was thereupon committed for sentence to the Court of First Instance of the High Court.
2. When the appellant first appeared in the High Court on 18 October 2017 his sentencing was adjourned to 2 February 2018 because he indicated that he wished to provide assistance to the authorities. Three non-prejudicial statements, dated 10 October, 24 October and 13 December 2017 respectively, were subsequently taken from him but he was informed that the information he provided was of no practical value.
3. On 2 February 2018, the appellant, through his then counsel, informed the court that he wished to change his lawyers and to apply to reverse his plea of guilty based upon an assertion that he did not know that what he was transporting was a dangerous drug and that his plea of guilty, involving as it did an admission to the contrary, was not voluntary and was not due to a genuine consciousness of guilt. His case was then adjourned.
4. The hearing of his application to reverse his plea ultimately took place on 26 and 27 September 2018 before High Court Judge D’Almada Remedios (“the judge”). On 19 October 2018, the judge refused this application and on 25 October 2018 sentenced the appellant to 19 years and 6 months’ imprisonment.
5. Thereafter, the appellant filed a Notice of Application for Leave to Appeal against both his conviction and sentence (Form XI). The hearing of the leave application took place before a single judge on 25 June 2019 who granted leave to the appellant to appeal against both conviction and sentence and also granted him an Appeal Aid Certificate.
6. At the hearing of the appeal we allowed the appeal, quashed the conviction and ordered an expedited trial for the appellant on a fresh indictment. These are our reasons for so doing.
The background to the offence
7. The Summary of Facts which was admitted by the appellant and used for his sentencing revealed that the appellant was apprehended at Lo Wu Control Point upon his return from the Mainland at about 17:00 hours on 4 November 2016, having departed Hong Kong at 16:06 hours on the same day. He was searched by a Customs Officer and a total of 7 packets containing 1,672.60 grammes of cocaine were found in his possession. Two packets of cocaine were found in the pockets of his vest and 5 packets of cocaine were found in the pockets of his trousers.
8. The appellant was arrested and upon being cautioned, he claimed that he did not know what the packets found on him were. He said the packets had been given to him earlier by an unknown Indian male in Shenzhen who instructed him to deliver them to Fanling for a reward of HK$6,000.
9. The concluding paragraph of the Summary of Facts stated:
“D [ie the Defendant] now admits and accepts that he knowingly imported the dangerous drug seized into Hong Kong.” [Emphasis added]
10. After his arrest Customs Officers left the appellant alone in a room with his mobile telephone. During this period, he participated in WhatsApp audio messaging with the person whom, he claimed, recruited him to courier across the border what were, unbeknown to him, a dangerous drug. The recorded messages, arguably, supported the appellant’s claim that he had no knowledge that what he was transporting was a dangerous drug. The messages, from the appellant to his recruiter, were as follows:
“18:01 They have detained me friend and all the second grade goods (Unlawful items/materials/substance) have been found. What have you done with me, friend?
18:01 This is my home (phone) number. Now (I) don’t know when this matter will be sorted out. You save (the number) and help them friend. Make them a phone call if any problem …
18:02 Please you catch the one who gave this. Friend, who is that person? You said this is a bottle and these five boxes/cartoons, I brought it, now see what is found inside.”
The proceedings in the magistracy
11. The appellant had legal representation from the time of his first appearance at court. On his first appearance at Fanling Magistracy he was privately represented but when he appeared at Eastern Magistrate’ Court on 20 February 2017 he was represented by a lawyer from the Legal Aid Department who thereafter instructed Messrs Massie and Clement, solicitors, to represent him. The committal bundle had been received by the Director of Legal Aid on 16 February 2017 and on 20 February 2017 the case was adjourned to 27 March 2017 to enable the defence to consider this bundle. On 27 March 2017, Mr John Massie appeared for the appellant and requested an adjournment of 6 weeks so that he could advise his client.
12. There then commenced a series of correspondence between Mr Massie and the Department of Justice over the disclosure of the WhatsApp audio messages. This exchange of correspondence began with a letter by Mr Massie to the Prosecutions Division of the Department of Justice dated 28 March 2017 in which he requested a copy of the WhatsApp audio recordings retrieved from the appellant’s mobile telephone. In its letter of 5 May 2017, a counsel in the...