HKSAR v. AHMED SAJID

CACC 97/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 97OF 2009

(ON APPEAL FROM HCCC NO. 260 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.  On 20 February 2009 the applicant was convicted after trial before McMahon J and a jury of trafficking in dangerous drugs. On 23 February 2009 he was sentenced to 15 years’ imprisonment. This is his application for leave to appeal out of time against conviction and for leave to appeal against sentence.

2.  There was one count on the indictment. It alleged that on 1 June 2008, at Hong Kong International Airport, the applicant trafficked in 804.81 grammes of solid and powder containing 366.30 grammes of cocaine.

3.  The only issue at trial was whether the applicant knew that a suitcase which he carried off a flight from Bangkok contained drugs.

4.  It was common ground that on the early afternoon of 1 June 2008 the applicant had with him at the airport a red suitcase as well as other luggage and that concealed in the handle mechanism of the red suitcase were packets containing cocaine. The applicant was stopped at the “nothing to declare” lane and the suitcase was examined.

5.  The applicant was interviewed that night at some length. The essence of his account, which was largely reflected in the testimony which he gave at trial, was that he came to Hong Kong from India in late May 2008 to buy goods from the Mainland. Whilst in Hong Kong he was approached by a man whom he knew, somebody called Tony, who asked the applicant whether he was willing, for a fee, to bring computer parts to Hong Kong from Bangkok. He agreed to do so. He was given money for travel to and expenses in Bangkok where he was met by a person identified as AD. Whilst in Bangkok he, the applicant, purchased clothes and a blanket and AD purchased some clothes for Tony which AD asked the applicant to bring back to Hong Kong. According to AD, the computer parts were not available but AD brought a red suitcase packed with clothes for Tony and that was the long and the short of what the applicant knew about the contents of that suitcase, which was the one examined on his arrival in Hong Kong. In the course of this interview, he frequently asserted that he did not know that the suitcase contained drugs.

6.  Although there is an application for leave out of time to appeal against conviction – as well as against sentence – the ground of appeal is, in its legal effect, directed at sentence only because what the applicant asserts is that he all along wanted to plead guilty but that his counsel prevented him from doing so, assuring him that all would be well in his, counsel’s, hands.

7.  It is evident from the transcript of proceedings which we have that the question of the appropriate plea was a matter extensively canvassed between counsel and the applicant as well as between the court and the applicant. It is evident also that the testimony which the applicant gave at trial amounted to a denial of the mens rea for the offence and that, in light of the account there provided, a plea of not guilty was the only proper plea that could be tendered.

8.  We have before us three affirmations: one from counsel who represented the applicant at trial, Mr Duncan Percy; one from the solicitor appointed by the Director of Legal Aid on the applicant’s behalf, Mr Tse Yuen Ming; and the third from Ms Erica Chong who was at that time a trainee solicitor in the employ of Mr Tse’s firm.

9.  We have heard oral testimony today from Mr Percy and Ms Chong.

10.  The applicant was seen on several occasions in conference and, according to the affirmations and to documentation exhibited to them, the applicant was at all material times before trial maintaining that he did not know that the suitcase contained drugs.

11.  On 11 February 2009, the applicant was arraigned before McMahon J and he pleaded not guilty.

12.  The commencement of the hearing itself seems to have been plagued by difficulties with empanelling a jury, into the details of which it is not necessary to go. It suffices to say that on 12 February 2009, the indictment was put once again to the applicant and, again, he pleaded not guilty. The judge introduced the case to the jury but another problem arose and that jury was discharged.

13.  The court reconvened on the morning of 13 February. Mr Percy told the judge that there was a problem which was that having spoken to his client he, Mr Percy, was under the impression that the applicant “had some radical changes of thought about a certain matter”; and that he would welcome the opportunity of speaking to the applicant to ensure that the applicant was “very clear about the situation.” He told the judge that “sometimes the lay person doesn’t understand the concept of possession in law. They think that by actually being caught in physical possession of an item which contains something they have a certain perception about that. So it’s going to be made very clear to him what he’s going to be doing.” Counsel was given time to speak to his client. There was an adjournment of about 35 minutes.

14.  When the court resumed, Mr Percy invited the court to put the indictment to the applicant again but said that it seemed clear that the applicant was under considerable pressure, approaching a breakdown, and that he, counsel, was going to invite the court to ask the applicant a further question if in fact the applicant pleaded guilty. He added that “having spent the last half hour with him and explaining the law and what is acceptable by way of a plea, I’m still getting an answer back that is inconsistent with an acceptable plea … .”

15.  The indictment was put yet again and this time, when asked whether he was guilty or not guilty, the applicant said: “I admit”, but then when he was asked whether he pleaded guilty or not guilty he said: “I did it by mistake. I did not do it intentionally.”

16.  The judge then decided to give counsel time to speak to the applicant yet again, emphasising that he, the judge, was concerned about the inconsistencies in the answers given thus far.

17.  There was a relatively short adjournment after which Mr Percy told the court that he had instructions in writing “to the effect he is going to plead guilty.” We have a copy of the document he signed. It reads:

“I, Ahmed Sajid, having been explained in detail by the lawyer about the charge(s) against me and the contents of the Brief Facts of the Case as well as the possible consequences if I pleaded guilty to the charge(s), hereby confirm the contents of the Brief Facts of the Case are the true account of what had happened and I will plead guilty to the charge(s) against me in court.”

18.  This is a pro forma document, the only original writing appearing in it being the applicant’s name, his signature, the date, the time, and the case number. It was not a satisfactory document in that it refers to the brief facts of the case when, as counsel made clear to the judge, no summary of facts had yet been produced. The judge, taking all proper care in the matter as was required by the history thus far, told counsel for the prosecution to prepare a summary of facts after which Mr Percy could speak once more with his client. The judge addressed the applicant again, telling him that he, the judge, did not want there to be any question of the applicant not understanding his legal position or what facts were alleged by the prosecution.

19.  A summary of facts was prepared and it included the assertion that the applicant knew at all times from the moment he had possession of the drugs in Thailand and before he boarded the aircraft that he was carrying the drugs and that he intended to carry them into Hong Kong.

20.  After some discussion about this summary, the court proposed that the hearing be adjourned to enable Mr Percy to take further instructions. But Mr Percy indicated that he had discussed the summary with his client, said that he was anticipating a plea of not guilty and asked for the indictment to be put again. The indictment was put again and the applicant pleaded not guilty.

21.  In due course the applicant gave evidence at trial, evidence which was consistent only with a plea of not guilty.

22.  The applicant has addressed us today. We were interested in a letter which he said he had given to his counsel for transmission to the trial judge. There is no reference to the letter in the transcript and it is not with the court. It seems that the letter was shown to counsel and in due course handed back to the applicant. Be that as it may, the applicant tells us that the letter intimated that he had made a mistake but had not done it deliberately; that he had no proof by which to save himself; that a person had tried to trap him; and that he wanted to say he was guilty because he had no proof and because there were no fingerprints. The letter asserted, he says, that he knew nothing about “the job” and that he did not know what “the man” wanted him to do.

23.  What the applicant was saying to us today appears to be symptomatic of what was happening throughout the proceedings prior to the final arraignment whereby the applicant was asserting facts commensurate with innocence but suggesting nonetheless that he should plead guilty. We are not persuaded by the submissions we heard from the applicant today that the account we have received from him is an open one.

24.  We have heard from Mr Percy in evidence today and it seems clear enough to us from his evidence, as well as from the transcript of the proceedings, that he took considerable and proper care to ensure that whatever plea was tendered was commensurate in law with the facts advanced by the applicant. We have also heard the testimony of Ms Erica Chong who took careful and comprehensive notes of the important conference held between counsel and the applicant before the final arraignment in which the applicant finally pleaded not guilty. Those notes reveal great care taken by counsel to explain to his client that only if the applicant admitted knowledge of the presence of the drugs was it appropriate for him to plead guilty; great care to explain to him the avenues open to him; and the notes reveal also that the applicant made an informed decision to plead not guilty.

25.  It is also obvious to us from the transcript that the judge was fully alive to the inconsistency between the guilty plea which the applicant at one stage offered and the statements made by the applicant in court as to his lack of knowledge of the presence of the drugs. The judge took the greatest possible care to ensure that the applicant was fully alive to his rights in relation to the proper plea to be tendered, emphasizing that he, the judge, wanted no occasion in the future for the applicant to suggest any confusion about his position in law.

26.  At the end of the day, the single matter that stands most starkly against the applicant’s present complaint is the testimony he gave at his own trial. The consistent thrust of that testimony, which accorded with the story he had provided to the authorities after his arrest, was that he did not know that the suitcase which he carried into Hong Kong contained drugs. It inevitably follows that the only plea that could properly be tendered was one of not guilty. The advice given by counsel to his client, which advice is at the root of this application, was clearly correct and the applicant’s complaint is accordingly not supportable.

27.  The judge took a starting point of 15 years’ imprisonment which was an appropriate starting point to take given the quantity of drugs in question. There was no mitigation available to the applicant and there is no merit in the applicant’s contention that the sentence was excessive.

28.  For these reasons, the applications for leave to appeal out of time against conviction and for leave to appeal against sentence are dismissed.