HKSAR v. ALI QASIM

FAMC No. 13 of 2020

[2020] HKCFA 43

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 332 OF 2018)

_______________________

________________________________

REASONS FOR DETERMINATION

________________________________

Mr Justice Ribeiro PJ:

1.  At the hearing, we dismissed this application for leave to appeal for reasons which are now provided.

2.  On 6 March 2017, Customs Officers intercepted a parcel posted from Brazil and found that it contained a metal cylinder in which they found 1.47 kg of a solid containing 1.09 kg of cocaine with a street value of HK$1,392,090.  It was addressed to one “Mohanad Imran” at an address in Yuen Long.  After an attempted controlled delivery failed, a notice was left at the premises stating that the parcel could be collected at the Yuen Long Post Office.  The applicant appeared to collect it, claiming to be the recipient, using a forged Hong Kong Identity Card in the name of “Mohanad Imran” and showing that he had delivery and parcel tracking information on his phone.  He was arrested and charged with trafficking in the aforesaid dangerous drug.  The sole issue in the Courts below was whether he could be proved beyond reasonable doubt to have known that the parcel contained the aforesaid dangerous drug.

3.  Having been convicted and the appeal having been dismissed, Mr John Haynes, counsel appearing on the applicant’s behalf, sought leave to appeal on the substantial and grave injustice basis contending “that there was no evidence to support any safe inference that the applicant ‘must have known’ that the ‘stuff’ concealed in the parcel was specifically DD as opposed to any of the vast range of dutiable or illegal contraband frequently smuggled into Hong Kong, eg, from extra bottles of whisky to rhinoceros harm [sic]”.

4.  That contention is wholly unarguable and discloses no possible basis for the grant of leave to appeal. 

5.  At his trial before a jury and Madam Justice D’Almada Remedios,[1] the Judge carefully summarised the evidence and fully explained the respective cases of the prosecution and the defence as to whether the applicant should be found to have known that the parcel contained a dangerous drug.  She repeatedly emphasised that the jury could only convict if they were sure that such knowledge on his part was the only reasonable inference to be drawn on the circumstantial evidence (which was essentially not in dispute).  The applicant did not give evidence but in a video-recorded interview had said that he believed the parcel contained an engine block for an old model boat.  Mr Haynes’s reference to his possible belief that the parcel contained other forms of contraband was therefore entirely speculative and unrelated to the case before the Court.  The jury convicted on a 5:2 majority verdict and the applicant was sentenced to 25 years’ imprisonment.

6.  Since the applicant wished to appeal on grounds involving questions of fact or of mixed law and fact, leave to appeal to the Court of Appeal was required.[2] Counsel then appearing for him put forward two proposed grounds of appeal.  The first sought to call into question the adequacy of the evidence to support the inference of knowledge, summarised by Zervos JA as follows:

“In the first ground it is complained that it was not open to the jury to draw the only reasonable inference that the applicant knew that the parcel he was collecting contained a dangerous drug. It is contended that there was no direct evidence the applicant knew there was a dangerous drug contained in the engine block, and therefore the jury could only draw inferences from proven facts to infer such knowledge. It is argued that there were at least two facts that show the inference of knowledge was not the only compelling one: (1) the applicant gave his correct address and telephone number, and (2) the applicant only received a screenshot of the engine 8 minutes before he made his first visit (of three) to the post office.” [3]

7.  That ground for leave to appeal was rejected, Zervos JA noting that counsel had been compelled to accept that the adequacy of the evidence was a question of weight for the jury:

“In the course of oral submissions, Mr Whitehouse acknowledged that the factual matters that are mentioned in the first ground were before the jury, and it was therefore open to them as to whether or not they accepted them as proven facts and if they did what weight, if any, they put on them when deciding whether the only reasonable inference to be drawn from the proven facts was that the applicant knew that the parcel contained a dangerous drug. In my view, there is no merit in this ground of appeal as the judge fully and properly set out the factual matters that were contended by the prosecution and the defence that the jury should or should not accept in drawing an inference of guilt against the applicant.”[4]

8.  His Lordship granted leave to appeal only on a ground concerning the correctness of the Judge’s direction on the drawing of inferences. That was the only issue on the appeal which was unanimously dismissed by the Court of Appeal, although the sentence was reduced to one of 24 years’ imprisonment.[5]

9.  Mr Haynes’s purported ground in the present application was therefore excluded as a possible ground of appeal in the Court of Appeal.  That was, with respect, obviously the right outcome in the light of the evidence canvassed at the trial.  There is no basis for permitting it now to be raised in the Court of Final Appeal on the substantial and grave injustice ground.