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Hksar v Malik Mohammad Tariq Also Known As Mohammad Tariq Malik

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date09 November 2022
Neutral Citation[2022] HKCA 1642
Year2021
Judgement NumberCACC203/2021
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC203A/2021 HKSAR v. MALIK MOHAMMAD TARIQ also known as MOHAMMAD TARIQ MALIK

CACC 203/2021

[2022] HKCA 1642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 203 OF 2021

(ON APPEAL FROM DCCC 276 OF 2020)

_______________

HKSAR Respondent
v
Malik Mohammad Tariq also known as
Mohammad Tariq Malik		 Applicant

_______________

Before: Hon Zervos JA in Court

Date of Hearings: 4 and 7 November 2022

Date of Judgment: 7 November 2022

Date of Reasons for Judgment: 9 November 2022

__________________________________

R E A S O N S F O R J U D G M E N T

__________________________________


Introduction

1. On 3 August 2021, the applicant was convicted after trial by District Court Judge Dufton (the Judge) of having custody or control of counterfeit currency notes, contrary to section 100(1) of the Crimes Ordinance, Cap 200. On 31 August 2021, the Judge sentenced the applicant to 4 years’ imprisonment.

2. In a notice dated 14 September 2021, the applicant filed an application for leave to appeal against conviction and sentence. In his homemade grounds of appeal against conviction, the applicant complained that (1) he did not receive “good representation or assistance” from his legal representatives; (2) no DNA or fingerprints were found on the fake banknotes; and (3) he had new information about who put the fake banknotes in his home. The applicant advanced no grounds of appeal in respect of the sentence.

3. On 16 November 2021, the applicant applied for bail pending appeal, which was refused. He had the benefit of a written judgment which briefly commented on the grounds of appeal against conviction.[1]

4. On 3 January 2022, the applicant was granted legal aid and assigned counsel to represent him. There followed a series of requests from the court for the applicant to file perfected grounds of appeal but counsel representing the applicant explained that he needed time to examine the matters raised by him. After counsel had rendered a legal opinion to the Legal Aid Department, legal aid was discharged on 16 June 2022. On 11 July 2022, the applicant was formally notified that he should comply with Practice Direction 4.2 and 5.5 and file grounds of appeal together with a submission in writing and relevant authorities, but he had failed to do so.

5. Having had legal aid discharged, the applicant appeared in person in the leave application. At the commencement of the hearing, he withdrew his leave application to appeal his sentence, and accordingly, the appeal against sentence was dismissed. However, he maintained the leave application to appeal his conviction, which, at the conclusion of the hearing, was refused on the basis that the grounds of appeal were not reasonably arguable. I invited submissions as to whether a loss of time order should be made against the applicant, and after receiving submissions from the parties, two months loss of time was ordered against the applicant. I said I would hand down my reasons for the determinations I made in respect of the applicant’s leave application, which I now do.

The case at trial

6. The brief facts of this case were that on 29 September 2019, a party of police officers executed a search warrant at the applicant’s home, where they found under a pillow on the applicant’s bed a white plastic bag, containing 521 HK$1,000 notes, which were later confirmed to be counterfeit. The applicant is a Pakistani national who was a Form 8 recognizance holder at the time of the offence. He rented the flat with social welfare funds he received as a torture claimant.

7. The applicant did not give evidence and called no witnesses. The defence case was that the prosecution had failed to prove that the banknotes were reasonably capable of passing off as currency notes and that the applicant was in possession of them. The defence also raised in cross-examination that the police had acted on information and that the applicant was the target of their operation.[2]

8. The Judge in his comprehensive reasons for verdict rejected the defence case.[3] He found that the applicant was in possession of the notes, having been recovered under a pillow on his bed and that the notes were counterfeit.

The leave application

9. As already noted, at the leave hearing, the applicant, without any prior notice, withdrew his application to appeal against his sentence. It is appropriate to acknowledge that the Judge’s reasons for the sentence were unimpeachable, and there was no reason for complaint with the sentence imposed. The applicant had previous convictions, dating back to 2004, mainly concerning immigration offences and some minor drug and gambling offences. The Judge sentenced the applicant on the basis that the counterfeit $1,000 notes represented a total value of HK$521,000. He adopted a starting point of 4 years and 6 months’ imprisonment, which he enhanced by 3 months for the fact that the applicant was a Form 8 recognizance holder at the time of the offence. He reduced the notional starting point by one month for the delay in bringing the proceedings to court and 8 months for the applicant’s medical condition, thereby resulting in a sentence of 4 years’ imprisonment.

10. In light of the applicant’s belated withdrawal of his leave application, the appeal against sentence was dismissed. I turn to address the applicant’s grounds of appeal against conviction.

Ground 1

11. The applicant complained about his legal representation at trial but did not identify in what way his legal representatives were seriously neglectful in the case they conducted on his behalf: Chong Ching Yuen v HKSAR[4]. Very experienced counsel represented him at trial, and it is apparent from the reasons for verdict that the defence case was properly advanced and plainly on the applicant’s instructions.

12. There is an aspect of the defence case that should be commented on. It concerned the production of the applicant’s criminal record, which was to show that he had no previous convictions for offences of dishonesty. This was a matter that the Judge took into account as urged by the defence, stressing that it had no bearing on his determination as to whether the applicant was guilty of the offence. There was nothing improper nor adverse to the applicant in presenting his criminal record for this purpose.

13. Significantly, counsel assigned to the applicant to represent him in these proceedings had made inquiries of the previous legal representatives regarding the applicant’s allegations against them. See HKSAR v Apelete (No 1)[5]. He disclosed in correspondence that the legal representatives refuted the applicant’s claims without detailing what they were. As already noted, he rendered a legal opinion to the Legal Aid Department which was followed by legal aid having been discharged. I should add that the applicant has not repeated nor particularised these allegations.

14. This ground lacked specificity and merit.

Ground 2

15. The lack of DNA or fingerprints belonging to the applicant on the relevant exhibits was an issue at trial, which the Judge addressed in his reasons for verdict. He explained this did not cause him to doubt that the only inference to draw from the finding of the counterfeit banknotes underneath a pillow on the applicant’s bed in the premises where he lived alone was that he had in his custody or under his control the counterfeit banknotes.[6]

16. This ground of appeal was not reasonably arguable.

Ground 3

17. The applicant claimed he was innocent and had new information about the identity of the person who planted the fake banknotes in his home. He submitted a letter dated 15 September 2021 addressed to him from a person who was a fellow inmate in prison. He had been first produced this letter at the bail hearing on 16 November 2021. The letter’s author claimed he knew who set up the applicant and provided several names.

18. As a result of the new information, the police investigated the matter. I am informed that several witness statements had been taken by the police, which did not substantiate the applicant’s claim that the counterfeit banknotes were planted in his home by another person. The statements were produced to the Court on a de bene esse basis during the leave hearing. It appears they were also provided to counsel assigned to the applicant to represent him in these proceedings.

19. In order to assess the grounds of appeal advanced by the applicant, it is necessary to set out the history of these proceedings briefly. As already noted, the applicant, in his notice for leave to appeal dated 14 September 2021, set out the grounds of appeal that were advanced in the leave hearing.

20. On 19 October 2021, the applicant filed an inter parte summons and an affirmation supporting his application for bail pending appeal. Prior to the bail hearing, the applicant made a statement to the police dated 26 October 2021, in which he said that on 28 August 2021, when he was detained in Lai Chi Kok Reception Centre, Khaliq Salman indicated to him that the fake notes found at his home had been put there by him on the instructions of Ahmad Ali. He said that Khaliq Salman had been at his home before and probably put the fake notes there in the evening of 22 September 2019 or the morning of 23 September 2019.

21. The applicant’s bail application was heard on 16 November 2021, which was refused. In the Court’s decision, it was noted that in support of his application, he claimed he was innocent and that he had new information as to the identity of person who put the fake banknotes in his home. He submitted a letter from Mr Kashir Nazir dated 15 September 2021, who claimed that he knew about the applicant’s case and that the applicant had been set up. He said he had heard that Mr Ahmid had set him up and used Mr...

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