HKSAR v. QAISER MUHAMMAD

CACC 47 /2024, [2026] HKCA 1718

On Appeal From [2024] HKCFI 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 47 OF 2024

(ON APPEAL FROM HCCC NO 54 OF 2022)

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J U D G M E N T

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1.  Following a trial in the High Court before Deputy Judge Anthony Kwok (as Kwok J then was) (“the judge”) and a jury, the applicant was convicted, on 31 January 2024, of one count of trafficking in a dangerous drug, namely 18,537.70 grammes of a solid containing 18,252.50 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 1 February 2024, he was sentenced to 31 years’ imprisonment.

2.  By his Notice of Appeal (Form XI), filed on 27 February 2024, the applicant sought leave to appeal against both his conviction and sentence.  His application for legal aid was refused on 3 May 2024 (regarding conviction and sentence) and, again, on 10 July 2025 (regarding conviction), but it was granted on 10 July 2025 (regarding sentence).

The prosecution case[1]

3.  On 25 November 2020, police officers mounted a surveillance operation outside a warehouse at Lot TA 470 and 471 of DD 96, in Kwu Tung, Lok Ma Chau in the New Territories (“the Warehouse”).  At about 12:54 hours, PW1 saw the applicant entering through the green gate of the Warehouse holding a small plastic bag[2]. The applicant emerged again at about 14:47 hours, having changed his clothes.  He was observed walking in and out of the Warehouse and to an adjacent two-storey small house[3], sitting on the staircase next to the Warehouse, and tapping and looking at his telephone[4]. The surveillance lasted almost 6 hours[5].

4.  At about 18:18 hours, the applicant left the Warehouse having changed back into the clothes he wore when he had entered the premises earlier in the afternoon.  His identity was not in dispute.  PW2 stopped the applicant at a construction site near the Warehouse and asked him why he was there.  The applicant said he was going home[6]. A search was conducted on the applicant, and three mobile telephones and seven bunches of keys were found on the applicant[7]. When PW2 asked him which key could open the green gate, he did not answer[8]. Thereupon, one of the police officers used one of the keys to open the gate and enter the Warehouse[9]. Another key opened the ground floor of the small house.  However, the upper level of the small house could not be accessed with the keys, as a result of which officers broke open the door[10].

5.  There was no one else in the Warehouse or the small house.  However, the officers saw many stones placed on the floor of the Warehouse and some had been crushed open, with black plastic bags with powder like residue stuck to the hollow part of the broken stone[11].  Several metal boxes, tools and paraphernalia[12] were found on top of a wooden table workstation near the stones[13].

6.  PW3 found two recycle bags[14] containing a total of 9 transparent resealable plastic bags containing the drugs in question underneath the piles of rice bags in the Warehouse[15].  The street value of the drugs in November 2020 was about HK$661 per gramme and HK$12,253,420 in total[16].

The defence[17]

7.  The applicant elected not to give evidence at trial[18]. It was contended on his behalf that, since the “Ice” was found hidden under bags of rice[19], there was no direct evidence of the applicant’s knowledge; and mere proximity to the drugs was not enough[20]. Even if the applicant had seen the drugs, it was his case that he did not intend to exercise control of them, and hence was not in possession of them[21]. It was suggested that the circumstantial evidence against the applicant was insufficient if it only comprised the observation of police officers, his possession of keys to the Warehouse, and a cigarette butt with his DNA in an ash tray on a table inside the premises[22]. Since PW1 did not hear any noise from inside the Warehouse during his observation, it was said there was no basis for the prosecution to allege that the applicant was inside breaking stones with hammers at the material time[23].

8.  It was also argued that there was no DNA evidence connecting the applicant with the dangerous drugs[24].  No analysis of his clothing was conducted, nor samples from his fingernails taken for examination[25].

No case submission

9.  Defence counsel made a submission of ‘no case to answer’ at the close of the prosecution case.  It was argued that, taking the prosecution’s case at its highest, there was no evidence to establish that the applicant knew of the drugs, or was in possession of them, for the purpose of trafficking[26]. His possession of the keys to, and his presence in, the Warehouse did not support an irresistible inference that he was trafficking in the drugs in question[27]. To draw such an inference would amount to speculation[28].  Furthermore, there was also no direct evidence from the police officers as to what the applicant was actually doing inside the Warehouse at the time[29]. 

10.  In particular, defence counsel emphasised the following aspects of the evidence:

(i)  the drugs were concealed under bags of rice and would not have been visible unless the rice bags had been moved[30];

(ii)  there was no contact evidence directly linking the applicant to the drugs, such as fingerprints, DNA, or drug traces on his hands or clothes[31];

(iii)  there was no evidence that any items in the Warehouse belonged to the applicant, nor was there evidence that he was the tenant or owner of the premises[32];

(iv)  no noise was detected while the applicant was in the Warehouse, and there was no evidence regarding his actions during that time[33]; and

(v)  the presence of a fingerprint belonging to another person suggested that the applicant was not the only individual who visited the Warehouse[34].

11.  In response[35], prosecuting counsel submitted that all the facts and circumstantial evidence[36] should be left for the jury to determine whether the applicant was trafficking in the dangerous drugs[37].

12.  The judge ruled that there was a case to answer after hearing submissions from both sides and applying the relevant legal principles in Re Secretary for Justice’s Reference (Nos 1-3/2021)[38] [39].

Grounds of appeal against conviction

13.  The applicant relies on initial grounds of appeal, which were settled by defence counsel and annexed to his Form XI.  That ground averred that the judge erred in law in finding that the applicant had a case to answer.  The applicant filed two further sets of written submissions dated 24 November 2025 and 19 March 2026, making further complaints which may be summarised as follows:

(i)  The case against the applicant was wholly circumstantial and speculative (Ground 1);

(ii)  The judge was wrong to rule there was a case to answer (Ground 2);

(iii)  The conviction resulted from an unfair trial and the jury’s risk of bias (Ground 3).  There were various parts to this ground which will be explored below.

(Ground 1)

14.  The essence of the applicant’s complaint is that there is a lurking doubt in his conviction[40]. He refers to the case of HKSAR v Ma Ka Kin[41] and points to the absence of his DNA in the gloves which the prosecution alleged were used by him to unpack the “Ice” from the stones[42]. He also states that there are innocent explanations for his possession of the two keys to the Warehouse and he had no knowledge of the remainder of the keys, which the police claimed were found on him[43]. According to him, he only helped to clean the Warehouse for his friend; it was only the second time that he went there and he did not notice the dangerous drugs in the Warehouse[44].

(Ground 2)

15.  Ground 2 is a repeat of the argument advanced by defence counsel at trial during the submission of no case to answer.  In particular, the applicant emphasises other innocent possibilities that could be consistent with his DNA being found in a cigarette butt and with his changing clothes inside the Warehouse[45].  He asserts that there was CCTV footage which could show that he was only there to clean the premises; however, it was not obtained by the police[46]. 

(Ground 3)

16.  Ground 3 is again advanced based on the argument put forward by defence counsel at trial.  The applicant criticises the closing speech of the prosecution as convoluted and confusing[47].  The prosecution could not explain the absence of the applicant’s DNA on the gloves[48]; he claimed the prosecutor unfairly assumed the role of an expert and invited the jury to find that the applicant had used the gloves to deal with the drugs[49]. The summing-up of the judge is also said to have been unfair because it repeated more of the prosecution closing than that of the defence to the jury[50].

17.  The applicant also criticises the judge for failing to give a Liberato direction to the jury, for misdirecting them as to the meaning of direct evidence at AB, p 53 M-Q, and for inviting a conviction based on his ethnicity[51].

18.  The applicant maintains his innocence and says that he was beaten by the police, as a result of which he was forced to admit the drugs found belonged to him[52]. However, there were in fact no admissions relied on by the prosecution.

The respondent’s submissions regarding appeal against conviction

(Ground 1)

19.  Mr Chan, for the respondent, submits that the prosecution closing speech correctly highlighted the facts and circumstances from which the jury could infer that the applicant had extracted dangerous drugs from the stones and carried out works on the wooden table, where a cigarette butt with his DNA was found[53]. The items seized from the table showed that the nature of the work he had undertaken was to extract drugs from stones and package them into plastic bags in precise portions[54].

(Ground 2)

20.  It is argued that the judge was correct to find a case to answer since the circumstantial evidence was cogent and compelling, from which the jury could infer not only the applicant’s knowledge and control of the dangerous drugs but that he had dealt with the “Ice” by extracting it from the stones[55]. The applicant demonstrated that he had control over the Warehouse, given the period of time he was inside the premises, his sole presence inside the Warehouse during a lengthy time period and his possession of the keys to its gate[56].

21.  Mr Chan also refers to the significant value of the “Ice” and submits that it would not make sense to risk entrusting an innocent person with keys and access to such premises containing such a valuable commodity[57]. The fact the Warehouse contained other goods did not negate the inference as to guilt; furthermore, the “Ice” was not particularly well concealed amidst the rice bags[58].

22.  Mr Chan refers to Re Secretary for Justice’s Reference (Nos 1-3/2021) and contends that, when a prosecution case depends on inferences from primary facts, the judge always has to consider whether a jury properly directed could, may or might be satisfied beyond a reasonable doubt about the inferences to be drawn if all elements of the prosecution case were established[59].

(Ground 3)

23.  The respondent argues that the applicant’s assertions are unfounded for prosecuting counsel did not rely on his background for any purpose nor did counsel rely on his criminal record in front of the jury[60]. On the contrary, the judge reminded the jury to put aside any bias because of the applicant’s race[61].

24.  Mr Chan submits that the Liberato direction, which aims to remind the jury that any preference for one side of the conflicting evidence over the other does not resolve the ultimate issue of whether the prosecution has proved its case beyond a reasonable doubt: HKSAR v Kwan Tat Yee[62].  In any event, such direction was not needed in this case since there was essentially no defence evidence but merely a suggestion that the applicant was only present because he was cleaning the Warehouse without knowledge and control over the drugs[63]. In any event, the judge had told the jury that if they accepted that the defence case was true or may be true, they should acquit the applicant of the indictment[64]. The judge had adequately and repeatedly emphasised that the burden of proof was on the prosecution[65].

Reasons for sentence

25.  The applicant was 35 years of age at the time of sentence, and born in Pakistan.  He was married in Hong Kong but subsequently divorced.  He was refused a dependency visa and he had six previous appearances before the courts since 2009, none of which are similar to the present offence[66].

26.  In passing sentence, the judge considered the relevant guidelines applicable at the time, namely HKSAR v Abdallah[67] and HKSAR v Tam Yi Chun[68], as well as the sentencing approach set out in HKSAR v Herry Jane Yusuph[69].

27.  Given the large quantity of “Ice” (18,252.50 grammes of narcotic), the judge adopted 30 years’ imprisonment as the starting point as, indeed, suggested by the defence[70]. He found the applicant to be a storekeeper rather than an actual trafficker and regarded his engagement in the extraction and/or packaging of the dangerous drugs as part of the storekeeping exercise[71].

28.  In respect of the applicant’s Form 8 status, the judge reasoned that despite the lengthy sentence faced by the applicant, there was still a need to further enhance his sentence in order to deter other Form 8 holders from committing criminal offences, especially serious criminal offences such as the present case[72]. The judge noted that the appropriate enhancement in view of the seriousness of the present case should be 18 months’ imprisonment but exercised his discretion to enhance the sentence by 12 months only in view of the totality of the sentence[73]: see HKSAR v Singh Gursevak[74].

29.  The judge found there were no valid mitigating factors[75]. Looking at the overall sentence, the judge found the resulting 31 years’ imprisonment to be a just and balanced sentence in all the circumstances of the offence and the applicant[76].

Ground of appeal against sentence

30.  Mr Wong, for the applicant in his application for leave to appeal against sentence, submits that under the revised sentencing guidelines for “Ice”, heroin and cocaine in HKSAR v Huang Ruifang (No 3)[77], the arithmetical starting point for 18,252.50 grammes of “Ice” would be 27 years and 7 months’ imprisonment; applying the same enhancement of 1 year for the applicant’s status as a Form 8 holder, the final sentence would become 28 years and 7 months’ imprisonment[78].

The respondent’s submissions on sentence

31.  Mr Chan submits that the sentence of 31 years’ imprisonment is not manifestly excessive and leave to appeal against sentence should be refused[79]. He submits that, the applicant’s role involved the extraction of “Ice” concealed in some stones, by breaking them open with a hammer[80].  The applicant then packaged the drug in resealable plastic bags in a form ready for redistribution (each bag would weigh about 2 or 3 kilogrammes)[81].  The applicant also had control of the Warehouse and its valuable contents, which reflected his position in the syndicate, thereby warranting an upward adjustment for his role and culpability[82].

32.  The Court would in serious crimes pass a heavy sentence, even if it was crushing in its effect: see R v E[83].

Discussion

(Conviction)

33.  The obstacle for the applicant in his submissions on his appeal against conviction is that he did not give evidence at trial, nor did he call any witnesses.  He was, of course, perfectly entitled to stay silent as the judge properly directed the jury: he did not have to give evidence[84], nor was he required to prove anything[85]. The difficulty, however, is that there was no defence evidence at all to ground an alternative inference to the one the prosecution were inviting the jury to draw.  One might speculate on other possibilities as to what the applicant may or may not have been doing in the Warehouse, but there was no real evidence on which to base such speculation.

34.  At the end of the day, the applicant was the only visitor to premises over a six hour period, to which he had the keys and where over 18 kilogrammes of “Ice” worth an “extraordinary value”[86] of HK$12.2 million of “Ice” were in his immediate proximity.  Moreover, it is obvious that the “Ice” was being dealt with, weighed and packaged at some stage.  He initially emerged from those premises after almost 2 hours and then went back and forth between the Warehouse and the small house next door for the remaining period.  At a table inside the Warehouse, on which there were, among other implements and objects, two digital scales, gloves, empty plastic bags, two hammers and a screwdriver, there was also an ashtray with a cigarette butt containing the applicant’s DNA.  It was a matter for the jury what inferences they drew from these facts, provided they received correct directions on the law.  Ultimately, the jury found unanimously that he was knowingly in possession of the drugs in the premises for the purpose of dealing with them in some way.  I see no reasonable basis for the judge’s summing-up to be impugned.

35.  This was not a case warranting a Liberato direction.  There was, as I have pointed out, no evidence from the defence.  It was a case where the facts and circumstances, and the inferences to be drawn from those facts and circumstances, were properly to be left to the jury in accordance with correct directions of law.  It is not a case which can reasonably be said to give rise to a lurking doubt.  Nor can I see any indication of bias against the applicant by either the judge or the jury.  Indeed, the judge gave the applicant favourable rulings on admissibility in relation to his alleged oral statements under caution and the post-recorded statement.  He also excluded the messages and photographs stored in the applicant’s mobile telephone.  As for the absence of CCTV records, the time to make this kind of argument is at the trial not the appeal.  The Court of Appeal is concerned with the evidence as it is, not the evidence which may have been called but was not adduced for whatever reason.  The application for leave to appeal against conviction is, therefore, refused.

(Sentence)

36.  As for sentence, there is a reasonable argument that the applicant is entitled to benefit from the revised guidelines in Huang Ruifang (No 3), particularly if it is accepted that he was merely a storekeeper.  In this regard, it is noted that the judge held that, while the applicant must have been found by the jury to have been extracting the “Ice” from stones and then weighing and packing it, “his acts could still be regarded as part of the storing of the dangerous drugs so I will only apply the starting point without any enhancement on account of his role and culpability”[87].

37.  Mr Chan will no doubt argue that the applicant’s role went beyond being a mere storekeeper.  However, whatever the position is found to be by the Court, I consider there is a reasonable argument that the sentence might be lower under the revised guidelines.  Since the difference in sentence under the former and the revised guidelines would be about 29 months’ imprisonment, at least so far as arithmetic goes, the applicant should be granted leave to appeal against sentence.

38.  Accordingly, I refuse leave to appeal against conviction, but grant leave to appeal against sentence.  The applicant is advised that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal.  But he is also advised that the Court has the power to order the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application in relation to conviction.

[1]  Appeal Bundle (“AB”), pp 31M-37L.

[2]  AB, pp 31N-32C.

[3]  AB, p 32F-H.

[4]  AB, p 32H-K.

[5]  AB, p 170P-R.

[6]  AB, p 32D-R.

[7]  AB, p 32B.

[8]  AB, p 33B-G.

[9]  AB, p 33G-M.

[10]  AB, p 33N-P.

[11]   AB, p 34A-D.

[12]  Electronic scales, iron hammers, screwdriver, knife, ashtray, cigarette butt, gloves, resealable plastic bags and padlocks with keys.

[13]  AB, p 34E-M.

[14]  A black recycle bag with five transparent resealable plastic bags and another pink recycle bag containing four transparent resealable plastic bags.

[15]   AB, p 35F-H.

[16]  AB, p 27, at [11]; AB, p 35Q-S.

[17]  AB, pp 82S-86F.

[18]  AB, p 37M-N; AB, p 105O-P.

[19]  AB, p 91N-P; AB, p 141J.

[20]  AB, p 83P-T.

[21]  AB, p 83R-S.

[22]  AB, p 105Q-U.

[23]  AB, p 84L-N.

[24]  AB, p 84R-T.

[25]  AB, p 36G-L; AB, p 84S-T.

[26]  AB, p 156, at [20]; AB, p 159, at [25].

[27]  AB, p 142A-B.

[28]  AB, p 147N-T.

[29]  AB, p 142N-O.

[30]  AB, p 141I-L; AB, p 155 at [9].

[31]  AB, p 142A-B; AB, p 155 at [10]-[13].

[32]  AB, p 155 at [14]-[15].

[33]  AB, p 147O-S; AB, 155 at [17].

[34]  AB, p 155 at [18].

[35]  AB, pp 160-162.

[36]  AB, pp 161-162, at [4]-[12].

[37]  AB, pp 144D-147G; AB, p 162, at [13].

[38]  Re Secretary for Justice’s Reference (Nos 1-3/2021) [2022] 5 HKLRD 886.

[39]  AB, p 148C-E.

[40]  Applicant’s Written Submissions filed 24 November 2025 at [17].

[41]  HKSAR v Ma Ka Kin [2021] 4 HKLRD 83.

[42]  Applicant’s Written Submissions filed 24 November 2025 at [14].

[43]  Applicant’s Written Submissions dated 19 March 2026 at [1].

[44]  Applicant’s Written Submissions dated 19 March 2026 at [5], [7].

[45]  Applicant’s Written Submissions dated 19 March 2026 at [3]-[4].

[46]  Applicant’s Written Submissions dated 19 March 2026 at [2].

[47]  Applicant’s Written Submissions filed 24 November 2025 at [11].

[48]  Applicant’s Written Submissions filed 24 November 2025 at [14].

[49]  Applicant’s Written Submissions filed 24 November 2025 at [16].

[50]  Applicant’s Written Submissions filed 24 November 2025 at [20]-[21].

[51]  Applicant’s Written Submissions filed 24 November 2025 at [5], [19]; Respondent’s Written Submissions filed 11 February 2026 at [37].

[52]  Applicant’s Written Submissions dated 19 March 2026 at [9].

[53]  AB, pp 166I-167N; Respondent’s Submissions for leave to appeal against conviction only filed 11 February 2026 at [28(2)-(3)].

[54]  AB, p 32F-H; AB, pp 166A-167N; Respondent’s Submissions for leave to appeal against conviction only filed 11 February 2026 at [28(2)-(3)].

[55]  AB, p 148C-F; Respondent’s Submissions for leave to appeal against conviction only filed 11 February 2026 at [28].

[56]  Respondent’s Submissions for leave to appeal against conviction only filed 11 February 2026 at [28(1)].

[57]  Respondent’s Submissions for leave to appeal against conviction only filed 11 February 2026 at [28(4)].

[58]  Respondent’s Submissions for leave to appeal against conviction only filed 11 February 2026 at [29].

[59]  Respondent’s Submissions for leave to appeal against conviction only filed 11 February 2026 at [27].

[60]  Respondent’s Written Submissions filed 11 February 2026 at [25].

[61]  AB, pp 82T-83C; Respondent’s Written Submissions filed 11 February 2026 at [25].

[62]  HKSAR v Kwan Tat Yee (2024) 27 HKCFAR 6.

[63]  AB, p 41I-K; Respondent’s Written Submissions filed 11 February 2026 at [38].

[64]  Respondent’s Written Submissions filed 11 February 2026 at [39].

[65]  AB, p 40K-O; AB, p 8D-F; AB, p 84A-B; AB, p 89B-E; AB, pp 89O-90M; Respondent’s Submissions for leave to appeal against conviction only filed 11 February 2026 at [40].

[66]  AB, p 106H-N; AB, pp 123-124.

[67]  HKSAR v Abdallah [2009] 2 HKLRD 437.

[68]  HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

[69]  HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[70]  AB, p 117D-O.

[71]  AB, pp 107H-109S.

[72]  AB, p 110C-111L.

[73]  AB, p 111G-L.

[74]  HKSAR v Singh Gursevak [2019] 2 HKLRD 274, at [42] and [44].

[75]  AB, p 111O-T.

[76]  AB, p 112A-D.

[77]  HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

[78]  Applicant’s Written Submissions for Sentence dated 18 August 2025 pp 4-5.

[79]   Respondent’s Submissions for Sentence filed 9 October 2025 p 12 at [36].

[80]   Respondent’s Submissions filed 23 September 2024 p 11 at [33].

[81]  Respondent’s Submissions filed 23 September 2024 pp 11-12 at [33].

[82]  Respondent’s Submissions for Sentence filed 9 October 2025 pp 8-9 at [27].

[83]  R v E (2005) 156 A Crim R 1.

[84]  AB, p 37N-Q.

[85]  AB, p 41L-N.

[86]  AB, p 106D.

[87]  AB, p 109Q-S.