HKSAR v. MUSTAQ ALI SAMEER AHMED

CACC 215/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 215 OF 2006

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REASONS  FOR  JUDGMENT

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Hon Hartmann J (giving the judgment of the Court) :

1. On 30 May 2006, the applicant was convicted after trial in the Court of First Instance before Deputy Judge Toh and a jury of one count of trafficking in a dangerous drug, contrary to s.4(1) of the Dangerous Drugs Ordinance, Cap.134.  The drug in question consisted of some 2.7 kilogrammes of a powder containing 2.2 kilogrammes of Ketamine.  The applicant was sentenced to 11 years in prison. 

2. The applicant sought leave to appeal against conviction.  Having heard submissions, we granted leave, and, treating the hearing as the appeal, we allowed the appeal and quashed the conviction and sentence.  Having heard counsel’s submissions, we ordered a re-trial.  We now give our reasons.

3. The facts are simple enough.  On 30 July 2005, the applicant flew into Hong Kong International Airport from Kuala Lumpur in Malaysia.  The applicant’s suitcase was examined by customs officers.  Inside the suitcase, along with various items of clothing, four containers were found.  One was a box of household detergent, the other three were containers for cosmetic powder.  A quantity of Ketamine was found hidden in each container.

4. The applicant did not dispute the fact that he had brought the four containers into Hong Kong in the suitcase.  He did not dispute the fact that a quantity of Ketamine was found in each container.  It was his defence that he had no knowledge of the presence of the dangerous drugs in those containers.  He had been given the containers in Kuala Lumpur by a friend and asked to bring them into Hong Kong as gifts.  He had no reason to believe that the four containers held anything other than what they purported to hold; namely, detergent and cosmetic powder.

5. At trial, there was therefore a single issue that fell for determination by the jury : could they be sure on the evidence that the applicant knew he was carrying dangerous drugs?

6. It was the prosecution evidence that the four containers were found in the suitcase lying between layers of the applicant’s clothing, the manner of the packing indicating deliberate concealment.  Photographs were produced into evidence, it being said that they recorded more or less the relative positioning of the clothes and the containers when the suitcase had been opened.  This evidence was not challenged by counsel representing the applicant.

7. It was, however, the applicant’s case that, when the suitcase had first been opened, the containers had not been lying between layers of his clothing.  Rather, when the suitcase had been opened, his clothing had been lying on top of the containers.  Evidence to the contrary was mistaken and the photographs therefore misleading.

8. When he gave evidence, the applicant explained that, on his arrival at the airport in Kuala Lumpur, he had been carrying a backpack only.  However, he had been met by a friend who had asked him to bring a suitcase containing gifts to Hong Kong.  Among the gifts were the four containers later found to be holding Ketamine.  The applicant said that he had no reason to distrust his friend and agreed to do so.  He was at that time in a hurry to board his flight but, as the suitcase still had room in it, he took his clothing out of his backpack and threw it on top of the items – including the four containers – already in the suitcase.

9. The question of the location of the four containers in the suitcase in relation to the applicant’s clothing was self-evidently of considerable importance.  If the jury accepted that the applicant’s clothing may have been found on top of the containers, that supported the applicant’s version of events.

10. But, as we have said, the issue was never raised by defence counsel in his cross-examination of the prosecution witnesses involved in the original examination of the suitcase.  This is despite the fact that, before the commencement of the trial, defence counsel had taken instructions from the applicant and had been instructed as to this very point.  In an affidavit dated 20 July 2007 defence counsel said that, having reviewed his notes, he could not think of any reason, other than ‘oversight’ on his part, why the issue had not been raised by him at trial.

11. Counsel’s oversight, of course, had the inevitable result that, when the applicant himself testified that the containers had not been sandwiched between his clothing but, to the contrary, all his clothing had been put on top of the containers and had been found that way, he was accused of recent invention.

12. By the end of the trial, the issue had assumed material importance, a fact that could not have escaped the notice of defence counsel if he had been looking to protect the interests of the applicant and ensure him a fair trial.  It is to be noted that the issue was highlighted both in the closing address of the prosecutor and the judge’s summing up.  Despite this, however, defence counsel still took no remedial action.  He thereby compounded his original oversight. 

13. The principle to be applied in cases of this kind was stated by the Court of Final Appeal in Chong Ching Yuen v. HKSAR (2004) 7 HKCFAR 126.  If incompetence of defence counsel, all things considered, has resulted in the trial being something less than a fair trial, such incompetence constitutes a ground for quashing a conviction.

14. Counsel for the respondent, Mr Alain Sham, properly conceded that defence counsel’s oversight may well have seriously undermined the applicant’s credibility in the eyes of the jury.  He accepted that the conviction had to be quashed.

15. We are concerned with the impact of defence counsel’s sustained oversight on the trial.  It is apparent to us that his oversight resulted not only in the applicant receiving less than a fair trial but in the conviction being rendered unsafe.  In the circumstances, the conviction fell to be quashed.

16. As to the issue of a re-trial, it was submitted on the applicant’s behalf that he would have been in custody for three-and-a-half years or more before his re-trial took place.  That was a fact which we took into account.  But, in our view, the justice of the matter was best served by ordering that there be an expedited re-trial, to be held within four months, and we so ordered.