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Hksar v Khan Asif Ali

Judgment Cited in Precedent Map Related
Vincent
Judgment Date28 June 2019
Neutral Citation[2019] HKCA 730
Judgement NumberCACC322/2018
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
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

_____________________

J U D G M E N T

_____________________


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 judge inappropriately reduced his reduction for his plea of guilty and enhanced his sentence for international trafficking. He also complained that the judge had wrongly attributed to him the delay occasioned by the proceedings. He noted that there had been occasions when the proceedings were adjourned because the prosecution had not provided the call records and text messages on his mobile telephone that had been requested by his legal representatives.

7. On 22 February 2019, the applicant submitted a lengthy letter to the Court repeating in greater detail the complaints that he previously made about his conviction and sentence. On 12 March 2019, the applicant submitted another letter to the Court in which he said he had evidence that would clear his name and repeated that the judge was wrong to refuse his application to reverse his plea.

8. On 20 May 2019, the Court received a handwritten letter from a fellow inmate of the applicant, which was signed by the applicant (the letter is dated 6 May 2019). By this letter, the applicant abandoned all previous grounds of appeal and substituted them with the grounds contained in the Amended Grounds of Appeal which was attached to the letter. He confirmed at the hearing of the application that he had discussed the contents of the documents with the author and agreed with them.

9. The grounds of appeal against conviction are a mix of grounds and submissions and what follows is a short statement of each ground. Ground 1A complains that the judge erred in considering the application for a reversal of plea in that having determined that the applicant’s guilty plea was unequivocal, she...

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