HKSAR v. MUSHTAQ ZEESHAN

FAMC No. 41 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC NO. 223 OF 2014)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro Ag CJ:

1.  At the hearing, we dismissed this application for leave to appeal for reasons which we now provide.  The applicant had sought leave to appeal from the Court of Appeal’s dismissal of the his appeal[1] against conviction before Deputy High Court Judge Tallentire[2] and a jury on one count of trafficking in 0.51 gm of cocaine.  He had been acquitted of one other charge of trafficking and had also secured from the Court of Appeal, an order for re-trial on a further charge which involved trafficking 1,546.03 gm of cocaine hydrochloride and 2.55 gm of cocaine.

2.  The prosecution case regarding the count in question was that the drug was found in three re-sealable plastic bags in the applicant’s pocket when he was intercepted by the police acting on information as he was entering a flat in Yau Ma Tei.

3.  Mr John Haynes, counsel who has represented the applicant throughout, sought to advance six grounds for the grant of leave, all of which were dealt with thoroughly by the Court of Appeal.

4.  First he complained of the Judge’s “refusal to [order disclosure of] the identity/background details of police informant/entrapper”.  There was, however, simply no basis for suggesting that there had been any “entrapment”.  Indeed, as the Court of Appeal pointed out,[3] (applying the test which had been approved in HKSAR v Agara,[4] the correctness of which was not challenged by the applicant) there was no evidential basis for an exceptional departure from the public interest immunity accorded to information concerning police informants.  Mr Haynes’s submission that the photographs showing drugs in what he suggested were overly conspicuous locations in the flat were such as to suggest a “set up”, was purely subjective and speculative.

5.  As the Court of Appeal pointed out, his next complaint about “non-direction as to [the] hearsay status of [the] police assertion as to why potentially highly significant CCTV record of arrest scene was not available” lacked substance since Mr Haynes had himself had emphasised to the jury the hearsay nature of the evidence, making “a strong attack in his closing address on the competence and reliability of the police investigation and evidence as a result of the absence of any evidence that the CCTV system was not in fact functioning.”[5]

6.  His criticism about the introduction into evidence of personal photographs of the applicant was likewise rightly held to be unjustified since they were plainly highly relevant and admissible on the issue of applicant’s connection with or occupation of the premises, and since, at Mr Haynes’ request, the jury were given a highly favourable direction about their content.[6]  Mr Haynes’s attempt at comparing the introduction of those pictures into evidence with alleging to the jury that his client was a person of bad character inclined to use offensive weapons was unwarranted.

7.  Similarly without merit was the complaint that the Judge had failed to give a proper “Liberato direction”[7] which is to the effect that even if the jury do not positively believe the evidence for the defence, they cannot find an issue against him contrary to that evidence if that evidence gives rise to a reasonable doubt on that issue.  As this Court held in Sze Kwan Lung v HKSAR,[8] and reiterated in Law Chung Ki v HKSAR,[9] where there is evidence from the defence the Liberato message:

“...‘[w]hether by one form of words or another and whether in one way or another, ... must be conveyed to the jury.’ Depending on the circumstances and the summing-up as a whole, it may be possible for that message to be sufficiently conveyed by general directions as to the criminal burden and standard of proof provided that nothing said in the summing-up runs counter to that message.”

The Court of Appeal amply demonstrated[10] that the message had properly been conveyed to the jury in the present case.

8.  No better was Mr Haynes’s criticism of the Judge for “allowing [the] prosecution to attack [the] defendant’s credit by questioning his motives for exercising his absolute right to sign or not police exhibit bags”.  As the Court of Appeal noted,[11] in cross-examining police witnesses, Mr Haynes had himself put to them that applicant had refused to sign some of the envelopes.  When Mr Haynes objected to the prosecution cross-examining the applicant regarding this matter, the Judge referred to Mr Haynes’s own cross-examination of the police witnesses and later gave the jury the direction urged by Mr Haynes.

9.  Finally, the purported ground complaining of “non direction as to multiple inherent improbabilities and probabilities, investigative oversights, inconsistencies and plain lies in the police evidence” is not a competent ground but merely an invitation to retry the case which, as we have stated more times than should be necessary, this Court does not do.