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Hksar v Khan Asif Ali

Judgment Cited in 1 Precedent Map Related
Vincent
Judgment Date19 December 2019
Neutral Citation[2019] HKCA 1431
Judgement NumberCACC322/2018
Citation[2020] 1 HKLRD 749
Year2019
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC322A/2018 HKSAR v. KHAN ASIF ALI

CACC 322/2018

[2019] 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)

------------------------

BETWEEN
HKSAR Respondent

and
KHAN ASIF ALI Appellant

------------------------

Before: 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[1] 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.”[2] [Emphasis added]

Post-arrest events

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 Prosecutions Division informed Mr Massie that the appellant’s telephone had been “submitted to the forensic laboratory and examination is ongoing.”[3]

13. On 8 May 2017, Mr Massie obtained an adjournment of the Return Day from the magistrate at Eastern Magistracy on the basis of the prosecution not providing information that had been requested.

14. On 8 June 2017, the same counsel in the Prosecutions Division wrote to Mr Massie as follows:

“3. In regard to the messages stored in your aided client’s mobile phone, forensic examination is ongoing and record in this connection is not yet available. I have been told that, due to the heavy workload of the laboratory, the examination may take a significantly longer period of time to conclude.

4. I take the view that the materials now served on you are more than sufficient for your aided client to indicate a plea. The data on the phone is not something that is required for him to know whether he is guilty or not – see HKSAR v NGO VAN NAM [2016] 5 HKLRD 1, quoting with approval R v Caley (2013) 2 Cr App R (S) 305. The lack of the data therefore should not delay a plea.

5. The Prosecution are prepared to assist in the effective handling of this matter. You may contact the OC Case directly … for arrangement to be made for an inspection of the mobile phone to be carried out in the presence of a C&E officer.”

15. The effect of this letter was that the prosecution was not able to supply a copy of the recordings, the prosecution did not see that they were necessary to the appellant’s decision as to how he should plead but that Mr Massie could inspect the telephone if he so wished.

16. The next day, the same counsel in the Prosecutions Division wrote to Mr Massie again. In this letter of 9 June 2017, he wrote:

“2. In respect of the messages stored in your aided client’s mobile phone, an inspection was concluded on the phone through the use of a wave shielding device. Messages were read with the assistance of an Urdu interpreter. No message was found to be relevant to this offence. Accordingly, full forensic examination will no longer be conducted on this phone.

3. I now take this opportunity to forward onto you a copy of the statement made by the C&E officer conducting the inspection.

4. As indicated previously, to assist in the effective handling of this matter, and to discharge the Prosecution’s duty on disclosure of unused materials, you may contact the OC Case directly for arrangement to be made for an inspection of the mobile phone to be carried out in the presence of a C&E officer.”

17. We can only assume from this letter that the prosecutor who wrote it did not, himself, see the messages for otherwise he would have immediately recognised their relevance. He must have relied upon the Customs Officer’s assessment but, even so, it is difficult to understand how the Customs Officer, if he had any knowledge at all of the investigation, could not see their relevance.

18. They were clearly relevant and, being in the possession of the prosecution they were subject to, and caught by, the prosecution’s duty of disclosure. To tell the defence lawyers that they could come and see for themselves, particularly when this invitation was accompanied by a misrepresentation as to their relevance, was not a proper discharge of the disclosure duty.

19. On 12 June 2017 when the case next came up for mention the appellant discharged Mr Massie.

20. On 24 July 2017, the appellant was represented by Mr Richard Donald, of counsel. He pleaded...

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1 cases
  • Hksar v Chan Yip Fai
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 6 October 2022
    ...125 [5] [2018] HKCFA 64 [6] Appeal Bundle p.10G-H, paragraph 24 [7] Appeal Bundle p.16 I-K, paragraph 54 [8] [2011] 2 HKLRD 746 [9] [2020] 1 HKLRD 749 [10] [2017] HKEC 1871 [11] [2019] 2 HKLRD 130 [12] Shum Chiu, paragraph 61 [13] [2018] HKCA 383 [14] [2000] 3 HKLRD 125 [15] p.135 [16] Appe......

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