Hksar v Khan Asif Ali

Court:Court of Appeal (Hong Kong)
Judgement Number:CACC322/2018
Judgment Date:28 Jun 2019
Neutral Citation:[2019] HKCA 730
CACC322/2018 HKSAR v. KHAN ASIF ALI

CACC 322/2018

[2019] HKCA 730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 322 OF 2018

(ON APPEAL FROM HCCC NO 236 OF 2017)

_________________

HKSAR Respondent
v
KHAN Asif Ali Applicant

_________________

Before: Hon Zervos JA in Court

Date of Hearing: 25 June 2019

Date of Judgment: 28 June 2019

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J U D G M E N T

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1. On 4 November 2016, the applicant was apprehended on his return to Hong Kong from mainland China with two packets of cocaine in his vest and five packets of cocaine in his trousers pocket. He claimed at the time that he did not know what was inside the packets. He said that he had been given $6,000 from an Indian male in Shenzhen to deliver the packets to someone in Fanling. The applicant participated in a controlled delivery operation but it was not successful. The total quantity of cocaine narcotic was 1672.60 grammes with a street value at the time of the offence of $2,194,308.20.

2. The applicant was charged for trafficking in the drugs and brought before the Magistrate’s Court. During the course of his committal proceedings, a request had been made on behalf of the applicant to obtain the WhatsApp messages on his mobile telephone. The Department of Justice in a letter dated 9 June 2017 stated that no message was found on the applicant’s mobile telephone that was relevant to the case.

3. On 24 July 2017, the applicant pleaded guilty to trafficking in the drugs in the Magistrate’s Court and agreed a summary of facts. He was committed to the High Court for sentence which was fixed to be heard on 18 October 2017. The sentencing of the applicant was adjourned to 2 February 2018 because he wished to render assistance to the authorities. A total of three non-prejudicial statements were taken from the applicant (dated 10 October, 24 October and 13 December 2017 respectively) but he was eventually informed that the information he provided was of no value.

4. On 2 February 2018, the applicant applied to the court to reverse his plea of guilty. The application was heard by D’Almada Remedios J (the judge) on 26 and 27 September 2018.

5. On 25 October 2018, following a ruling on 19 October 2018, refusing his application to reverse his plea of guilty, the applicant was sentenced to 19 years and 6 months’ imprisonment.

6. On 6 November 2018, the applicant filed an application for leave to appeal against his conviction and sentence. He also applied for legal aid. In respect of his conviction, the applicant complained that his plea had not been taken again in the High Court and that he had not been given a chance to have a fair trial. He also complained that the judge had rejected his claim of pressure from and dissatisfaction with his legal representative in relation to the circumstances leading to his plea of guilty in the Magistrate’s Court. In respect of his sentence, the applicant complained that the...

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