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CACC 88/2023
[2025] HKCA 94
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 88 OF 2023
(ON APPEAL FROM HCCC NOS 372 OF 2019 AND 216 OF 2020)
________________________
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HKSAR |
Respondent |
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v |
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Ahmed Shamir (D1) |
1st Applicant |
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Lai Hiu-tung, Maggie (黎曉彤) (D2) |
2nd Applicant |
________________________
| Before: |
Hon Zervos JA in Court |
| Date of Hearing: |
16 January 2025 |
| Date of Judgment: |
22 January 2025 |
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J U D G M E N T
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1. On 20 April 2023, following a trial before Deputy High Court Judge Woodcock (as she then was) (the judge) and a jury, the 1st and 2nd applicants were convicted of one count of conspiracy to manufacture a dangerous drug, contrary to sections 6(1)(a) and (2) and 39 of the Dangerous Drugs Ordinance (Cap 134) and sections 159A and 159C of the Crimes Ordinance (Cap 210). As a result, there was no verdict returned on the alternative count of trafficking in a dangerous drug, namely 698.03 grammes of a solid containing 630.93 grammes of cocaine. On 24 April 2023, the 1st and 2nd applicants were each sentenced to 18 years and 11 months’ imprisonment.
2. On 9 May 2023, the 1st applicant filed a notice of application for leave to appeal against conviction. On 5 May 2023, the 2nd applicant also filed an application for leave to appeal against conviction. Both had applied for legal aid which was refused. However, the 1st applicant has received legal assistance through the Hong Kong Bar Association Free Legal Service Scheme and is represented by Mr Richard Donald, Ms Nisha Mohamed and Ms Jacqueline Ka Ki Chan. The 2nd applicant is without legal representation and appears in person in the leave application hearing.
The grounds of appeal against conviction
3. The 1st applicant, in his original notice, complained that his trial solicitor had not informed him that he had handled a case for Mr Khan Sadam Biland (PW1), a key prosecution witness. He complains that the judge wrongly rejected his application to discharge his legal representatives and that this unfairly impacted on the conduct of his case at trial. He also complains about the state of the evidence and the judge’s handling of the defence case.
4. The 1st applicant’s legal representatives have filed perfected grounds of appeal dated 8 February 2024, in which they have narrowed down the 1st applicant’s complaints to two grounds of appeal. Ground 1 avers that the judge imposed a restrictive scope on the defence cross-examination of PW1. Ground 2 complains that the judge erred in refusing an application for the 1st applicant’s legal representatives to withdraw from the case due to a conflict of interest.
5. The 2nd applicant, in her original notice, complained that the judge was biased against her and that the evidence did not support the conviction.
6. In letters dated 28 March and 19 December 2024, the 2nd applicant set out the following grounds of appeal and confirmed that she would be representing herself in the leave application hearing. Ground 1 complains that it was unfair for the judge to allow the Hello Kitty ziplock bags found in her home to be compared with the photographs of the Hello Kitty ziplock bags on PW1’s telephone. Ground 2 avers that she did not conceal an additional address, which was unrelated to the case, when enquiries were made of her by the Customs officers. Ground 3 complains that the judge did not properly address the circumstantial evidence and the lack of direct evidence against the 2nd applicant. Ground 4 complains that the judge did not point out that there was a lack of evidence supporting the prosecution case because there was no cooking equipment in the hotel room. Ground 5 avers that there was an issue in relation to where and when the photographs and video images on PW1’s mobile telephone were taken and the judge had not addressed this matter. Ground 6 complains that the expert witness evidence that the images on PW1’s mobile telephone depicted cocaine was inadmissible and should not have been adduced into evidence. Ground 7 avers that the judge should not have allowed prosecuting counsel to make the point in his closing address to the jury that a strong odour would not have been emitted from the processing of the cocaine in the hotel room.
The prosecution case
7. The prosecution case was that there was a conspiratorial agreement between the 1st applicant, the 2nd applicant and PW1 to manufacture crack cocaine. In furtherance of the conspiratorial enterprise, the 1st applicant and PW1 each purchased half a kilogramme of cocaine from a Colombian male called Dolphin. The cocaine was then used to manufacture crack cocaine, which would increase the quantity, strength and resale value of the drugs. PW1 engaged the 2nd applicant to cook and manufacture the cocaine, as she was familiar with the cooking process. On 28 June 2015, after discussions between PW1 and the 2nd applicant, the 2nd applicant rented a room at 8 Degrees Hotel to carry out the manufacturing of the crack cocaine. The 1st applicant had the 1 kilogramme of cocaine stored at his home. He took the drugs to the hotel lobby of 8 Degrees Hotel where he met PW1. They then went to the hotel room that the 2nd applicant had rented. She was there with a friend, who was to assist her in manufacturing the crack cocaine. Shortly after arriving at the hotel room, the 2nd applicant requested that the 1st applicant and PW1 go out and purchase baking soda, which was a necessary ingredient for the cooking process. The 2nd applicant later sent PW1 a screenshot of a specific type of towel tissue paper, which she wanted them to purchase for use during the cooking process.
8. The four of them stayed in the room overnight manufacturing the crack cocaine. The 2nd applicant and her friend were responsible for cooking the drugs, while PW1 checked on the manufacturing process from time to time, taking photographs and a video of the cooking process, and the 1st applicant packed the drugs into smaller transparent resealable plastic bags for sale.
9. By the early morning of 29 June 2015, the manufacturing process was completed. It was then at about 7 am that the 1st applicant and PW1 left the 8 Degrees Hotel. They were seen on CCTV footage, checking into another hotel, Langham Place Hotel. PW1 booked and paid for the room. He was carrying the same plastic bag, a Watsons bag, which the 1st applicant had carried when they left the 8 Degrees Hotel. After checking in, they went up to Room 1717. The 1st applicant stayed a few minutes in the hotel room, while PW1 stayed behind. The 1st applicant was seen leaving the hotel with the Watsons bag.
10. Later that day, the 1st applicant was arrested by Customs officers, and based on information that he had provided, the Customs officers went to Room 1717 at the Langham Place Hotel. They found 628.2 grammes of cocaine in a bag under the mattress, 2.58 grammes of cocaine in a bag on the bedside table and two $20 notes containing traces of cocaine and 0.15 gramme of cocaine respectively. PW1 and his girlfriend were in the room. PW1 was arrested and cautioned.
11. The prosecution case relied on the evidence of PW1, who testified under immunity, and the circumstantial evidence against the 1st applicant and the 2nd applicant.
The defence case
12. The defence case of the 1st applicant and the 2nd applicant was that they did not commit the offences. It was submitted that PW1 lied in his testimony and was trying to frame them up in order to get a reduction to his term of imprisonment of 17 years’ imprisonment that he was serving for trafficking in dangerous drugs. It was also submitted that the circumstantial evidence was insufficient to convict them of the offences.
The 1st applicant’s leave application
13. As I have already noted, there are two grounds of appeal advanced on behalf of the 1st applicant against his conviction.
14. By Ground 1, it is said that during cross-examination of PW1, defence counsel sought to elicit specific details and facts of PW1’s previous convictions but he was limited by the judge to (1) PW1’s indicated plea at trial; (2) that he had been convicted; and (3) that he had appealed the convictions in those previous cases. It is argued that the judge should have permitted defence counsel to further cross-examine PW1 on (1) the nature and allegations made by him in those previous cases, insofar as they related to the allegations of a frame up; and (2) the basis and findings of the appellate court, as the critical issue in the defence case was that PW1 was framing up the 1st applicant.
15. Putting this ground of appeal in context, PW1 had a previous conviction for possession of a dangerous drug in 2010, which was dealt with in the magistracy. As part of his defence, he claimed that the police had planted the drugs on him, which was rejected by the magistrate. He appealed his conviction, which was dismissed by the judge.
16. Ms Mohamed, who argued the leave application on behalf of the 1st applicant, crystallised the argument under this ground by submitting that the judge inappropriately limited defence counsel’s cross-examination of PW1 in relation to the 2010 case. At the trial, the 1st applicant was represented by Mr William Allan, who cross-examined PW1 on his previous convictions, including the 2010 case. Ms Mohamed contended that as PW1 had lied in his defence in this case, Mr Allan wanted to explore this matter to show that PW1 was capable of lying.
17. At one stage, it was suggested by Mr Allan that PW1 had advanced the defence in the 2010 case that he had been framed up, and this somehow had relevance to the present case in which it was alleged against PW1 by the 1st and 2nd applicants that he had framed them up. How he wanted to deal with the 2010 case, Mr Allan told the judge:[1]
“I’m just going to say that he accused the police officers of planting drugs on him and his magistracy appeal, which he represented himself, was dismissed.”
18. After submissions on the matter, the judge ruled that Mr Allan could ask PW1 about the 2010 case, where he was convicted after trial for possession of cocaine “you can put to him he was not believed, he was found not credible by the magistrate”[2] and that he tried to appeal and failed[3]. Mr Allan wanted to go further by referring to details of the appeal judgment, but the judge ruled that he could not. When PW1 was cross-examined about the 2010 case, he confirmed he had been convicted after trial and when asked if he was disbelieved, he said “absolutely”. When asked about whether his appeal was dismissed, he could not recall. He confirmed he was sentenced to 12 months’ imprisonment but served 8 months’ imprisonment in respect of this case.[4] It was perfectly proper for the judge to limit the cross-examination of PW1 in relation to this prior criminal conviction to the nature of the offence and the fact that he had been disbelieved.
19. I should point out that this was one of many matters that Mr Allan directed against PW1 to show that he was a person of bad character, who had been dishonest and lied in the past. In his closing address to the jury, he variously described PW1 as “a completely unbelievable witness … a dishonest witness”[5], “a liar … makes up stories”[6], “a habitual criminal”[7], “a serious drug trafficker”[8], “a bad man”[9], and “a dangerous man”[10]. He submitted that PW1 lied to obtain a reduction in his sentence and to revenge the 1st applicant for telling Customs officers he was in the hotel room at the Langham Place Hotel.[11] Mr Allan took the jury through PW1’s previous convictions, highlighting they were for offences involving dishonesty and drugs. He emphasised that the 2010 case concerned both possession of cocaine and a defence that was disbelieved by the magistrate and the judge on appeal.[12]
20. The judge reminded the jury of Mr Allan’s comments in his closing speech regarding PW1’s bad character and dishonesty [13].
21. I have read the transcript of Mr Allan’s cross-examination PW1 regarding PW1’s convictions and I am satisfied that he was allowed to examine his criminal record within reasonable and proper bounds. I do not see any substance in this complaint. PW1’s previous convictions went to his credibility, and Mr Allan was correctly instructed to direct his questions on this basis. Moreover, Mr Allan confirmed with PW1 that he had previous convictions for drug related offences and had been disbelieved in the defence he advanced in the 2010 case. The fact that he had claimed the police had planted the drugs on him went to show he was disbelieved, which he had readily admitted. A judge or magistrate has a wide discretionary power in criminal proceedings to contain cross-examination within reasonable and proper bounds. The basic principles regarding cross-examination have been set out in HKSAR v Wong Sau Ming [14]. There are limits to cross-examination when questioning a witness about matters going to credit. See also HKSAR v Kong Wai Lun [15]; HKSAR v Ng Fan Ying [16]; and section 15 of the Evidence Ordinance (Cap 8).
22. I am not satisfied that this ground is reasonably arguable.
23. By Ground 2, it is submitted that the judge was wrong to refuse defence counsel’s application for the legal representatives to withdraw from the case because of a conflict of interest. It is argued that the judge erred in (1) concluding that there was no conflict of interest regarding the 1st applicant’s legal clerk and PW1, whom he had previously represented in another case; (2) refusing the 1st applicant’s legal representatives to withdraw from the case, directing the jury that it was a peripheral matter; and (3) stating that if the legal representatives withdrew the 1st applicant would have to act in person.
24. In his evidence, PW1 revealed that the legal clerk assisting Mr Allan had represented him in the 2010 case. At the time, the legal clerk was employed by another legal firm. This prompted prosecuting counsel to raise the possibility of a conflict of interest. Mr Allan responded that there was no conflict of interest and explained that he was only seeking to cross-examine PW1 as to his criminal record.[17] The judge observed that no conflict of interest had arisen[18], although she said it would depend upon the questions asked by the defence.[19] The next day, Mr Allan told the judge that the 1st applicant wished to discharge its legal representatives. There followed a discussion during which reference was made to the possibility that the 1st applicant may have to represent himself. The matter was stood down and at the resumed hearing, Mr Allan confirmed with the judge that he would continue to act for the 1st applicant.[20] I have had produced before me a statement dated 13 April 2023 signed by the 1st applicant in which he said that he was confident with his legal team, namely the firm of solicitors and Mr Allan, and that he had known that the legal clerk, namely Mr Sunni Bali, had previously handled PW1’s case over a decade ago and he had “no issue with it.”[21]
25. It appears that out of caution, the judge directed that the legal clerk stay out of court for the remainder of PW1’s evidence and return after he had finished. Mr Allan on his part, seemed to accept the arrangement and made the point that he was not conflicted or limited in representing the 1st applicant in cross-examining PW1 without the legal clerk present in court for the remainder of the cross-examination. After the judge had given her ruling, Mr Allan reiterated that he thought there was no real issue arising from the incident and that the matter had been blown out of all proportion. In light of the circumstances, it was clear that there was no real risk of a conflict of interest. Moreover, I do not consider that the absence of the legal clerk unfairly prejudiced the 1st applicant as Mr Allan would have been fully instructed and prepared to cross-examined PW1, which was evident by the nature and length of the cross-examination.
26. I do not consider this ground of appeal to be reasonably arguable.
The 2nd applicant’s leave application
27. By Ground 1, it is complained that it was unfair to correlate the Hello Kitty ziplock bags at the 2nd applicant’s home with those photographed on PW1’s mobile telephone. During a house search of the 2nd applicant’s residence, Customs officers found a box of unused ziplock bags (Exhibit P66). A similar bag was found in some photographs on PW1’s mobile telephone that were said to have been taken in the hotel room at 8 Degrees Hotel.
28. The judge gave the standard directions on assessing evidence, particularly when considering circumstantial evidence and the drawing of inferences. The judge mentioned that among the exhibits found in the 2nd applicant’s residence were some transparent plastic bags and a small amount of baking soda. The jury were entitled to consider what had been found in the 2nd applicant’s residence in drawing an inference of her involvement in the cooking of the cocaine in the hotel room.
29. This ground of appeal is not reasonably arguable.
30. By Ground 2, the 2nd applicant claims that she had not intended to conceal the key to her home, as alleged by the prosecution. The Customs officers searched two premises relating to the 2nd applicant and discovered a third address on an envelope in the 2nd applicant’s belongings. Using keys found on the 2nd applicant, Customs officers gained entry to these premises and seized various exhibits relating to the case, namely Hello Kitty bags, an 8 Degrees Hotel notebook, the 2nd applicant’s notebook in which is written the name “Khan” (PW1’s surname), some small transparent plastic bags and a small amount of baking soda.[22]
31. It had not been suggested as claimed by the 2nd applicant, that she had tried to conceal her third address. In fact, the relevant Customs officer confirmed in cross-examination that the 2nd applicant on her arrest had been co-operative.[23]
32. This ground of appeal is without merit.
33. By Ground 3, the 2nd applicant contends that the judge should have told the jury that they had to be “100% affirmative” before convicting her. The judge gave the correct direction regarding the standard and burden of proof. The jury were instructed that they had to be “sure” of the elements of the offence before convicting the 1st applicant and the 2nd applicant of conspiring to manufacture a dangerous drug.
34. There is no substance in this ground of appeal.
35. By Ground 4, the 2nd applicant complains that the judge failed to note that there was a lack of cooking equipment in the hotel room. The respondent submitted that PW1 testified that there was a stove in the room. No issue was ever made at trial that there was a lack of cooking equipment in the hotel room.
36. This ground of appeal is without merit.
37. By Ground 5, it is complained that the photographs and the video recording retrieved from PW1’s telephone were inconsistent with the times PW1 was in the hotel room. PW1 testified that he left the hotel room on two or three occasions, giving approximate times when he left and returned. This was made an issue at trial and featured in the closing address on behalf of the 2nd applicant as well as the judge’s summing-up. The issue of the inconsistency of the times was before the jury and there is no basis for complaint.
38. This ground of appeal fails.
39. By Ground 6, it is complained that the expert witness should not have given an opinion about the depiction in one of the photographs taken by PW1 in stating that the substance looked like cocaine. However, as noted by the judge in her summing-up the expert witness agreed that he could not be certain it was cocaine just by looking at the photograph. The judge also emphasised that the expert witness would not be able to be certain because he examined a photograph and not the physical drugs.
40. I am satisfied that there is no merit in this ground of appeal.
41. By Ground 7, the 2nd applicant argues that the cooking of the cocaine would have produced a foul odour, but in contrast, PW1 testified that the odour was not very strong. She submits that PW1 had lied about the odour and that she would not have stayed in the room throughout the night because of the terrible odour. This was an issue before the jury and was appropriately dealt with in the judge’s summing-up. In any event, as pointed out by the respondent, the CCTV footage and hotel records showed that the 2nd applicant was in the hotel reception at 20:02 hours on 28 June 2015. She stayed in the room for almost 16 to 17 hours until 13:37 hours on 29 June 2015.
42. This ground of appeal is without merit.
Conclusion
43. The fundamental question in the leave applications of the 1st applicant and the 2nd applicant is whether they received a fair trial and whether any of the grounds of appeal advanced by them, either individually or collectively, may have resulted in unfairness to them at trial. I am not persuaded that any unfairness has resulted against them.
44. Finally, it is appropriate to acknowledge the respondent’s overall comments that there was a strong circumstantial case against the 1st applicant and 2nd applicant. It is noted that the evidence of the accomplice was supported by CCTV footage of the two hotels, telephone messages, photographs of the drugs on scales, items found in the 2nd applicant’s home, including identical Hello Kitty bags used to contain the cocaine at the hotel room, the notepad of 8 Degrees Hotel, the 2nd applicant’s notebook with English handwriting, and the transparent plastic bags and baking soda.[24]
45. At the conclusion of the hearing, I was informed by the respondent that PW1 had been deported. This was a totally inappropriate remark to make at this stage of the proceedings. The only possible relevance of such information would be if or when the court were to consider the question of retrial. It had no relevance to this application and should not have been made.
46. The applications by the 1st applicant and the 2nd applicant are accordingly refused. The 1st applicant and 2nd applicant are nevertheless informed that they have the right to renew their application for leave to appeal before the Court of Appeal, but they are also warned that the Court of Appeal has the power to order the loss of any time which they have served in custody pending their respective appeal, if the Court were to come to the view that there was no justification for the renewal of their respective application.
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(Kevin Zervos) |
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Justice of Appeal |
Mr David Chan, SADPP, of Department of Justice, for the respondent
Mr Richard Donald, Ms Nisha Mohamed and Ms Jacqueline Chan, assigned by Bar Free Legal Service Scheme, of the Hong Kong Bar Association, for the 1st applicant
The 2nd applicant appeared in person
[1] AB, 121P-Q.
[2] AB, 145L-M.
[3] AB, 145P-146H.
[4] AB, 149-03B – 149-03Q.
[5] AB, 66C-D.
[6] AB, 68L.
[7] AB, 71J.
[8] AB, 71P.
[9] AB, 76E.
[10] AB, 76J.
[11] AB, 75K-M, 87H-J.
[12] AB, 76N-77A.
[13] AB, 43M-Q.
[14] HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135.
[15] HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7, at [27]-[37].
[16] HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428, at [32]-[46].
[17] AB, 115T-117O.
[18] AB, 116E-F.
[19] AB, 119H-I.
[20] AB, 128-148. See AB, 144E.
[21] The affidavit of Ahmed Shamir dated 16 April 2024, at [25], exhibit “AS-5”.
[22] AB, 40O-R and 41K-P.
[23] AB, 170M-O.
[24] AB, 15J-Q.
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