HKSAR v. KHAN ASIF ALI

CACC 322/2018

[2019] HKCA 1431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 322 OF 2018

(ON APPEAL FROM HCCC 236 OF 2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

The procedural history

1.  The appellant appeared before a magistrate at Eastern Magistracy on 24 July 2017 and pleaded guilty to one count of trafficking in a dangerous drug, namely 1,989.40 grammes of a solid containing 1,672.60 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He was thereupon committed for sentence to the Court of First Instance of the High Court. 

2.  When the appellant first appeared in the High Court on 18 October 2017 his sentencing was adjourned to 2 February 2018 because he indicated that he wished to provide assistance to the authorities.  Three non-prejudicial statements, dated 10 October, 24 October and 13 December 2017 respectively, were subsequently taken from him but he was informed that the information he provided was of no practical value. 

3.  On 2 February 2018, the appellant, through his then counsel, informed the court that he wished to change his lawyers and to apply to reverse his plea of guilty based upon an assertion that he did not know that what he was transporting was a dangerous drug and that his plea of guilty, involving as it did an admission to the contrary, was not voluntary and was not due to a genuine consciousness of guilt.  His case was then adjourned. 

4.  The hearing of his application to reverse his plea ultimately took place on 26 and 27 September 2018 before High Court Judge D’Almada Remedios (“the judge”).  On 19 October 2018, the judge refused this application and on 25 October 2018 sentenced the appellant to 19 years and 6 months’ imprisonment. 

5.  Thereafter, the appellant filed a Notice of Application for Leave to Appeal against both his conviction and sentence (Form XI).  The hearing of the leave application took place before a single judge[1] on 25 June 2019 who granted leave to the appellant to appeal against both conviction and sentence and also granted him an Appeal Aid Certificate.

6.  At the hearing of the appeal we allowed the appeal, quashed the conviction and ordered an expedited trial for the appellant on a fresh indictment.  These are our reasons for so doing.

The background to the offence

7.  The Summary of Facts which was admitted by the appellant and used for his sentencing revealed that the appellant was apprehended at Lo Wu Control Point upon his return from the Mainland at about 17:00 hours on 4 November 2016, having departed Hong Kong at 16:06 hours on the same day.  He was searched by a Customs Officer and a total of 7 packets containing 1,672.60 grammes of cocaine were found in his possession.  Two packets of cocaine were found in the pockets of his vest and 5 packets of cocaine were found in the pockets of his trousers.

8.  The appellant was arrested and upon being cautioned, he claimed that he did not know what the packets found on him were. He said the packets had been given to him earlier by an unknown Indian male in Shenzhen who instructed him to deliver them to Fanling for a reward of HK$6,000.

9.  The concluding paragraph of the Summary of Facts stated:

“D [ie the Defendant] now admits and accepts that he knowingly imported the dangerous drug seized into Hong Kong.”[2] [Emphasis added]

Post-arrest events

10.  After his arrest Customs Officers left the appellant alone in a room with his mobile telephone.  During this period, he participated in WhatsApp audio messaging with the person whom, he claimed, recruited him to courier across the border what were, unbeknown to him, a dangerous drug.  The recorded messages, arguably, supported the appellant’s claim that he had no knowledge that what he was transporting was a dangerous drug.  The messages, from the appellant to his recruiter, were as follows:

“18:01 They have detained me friend and all the second grade goods (Unlawful items/materials/substance) have been found. What have you done with me, friend?

…

18:01 This is my home (phone) number. Now (I) don’t know when this matter will be sorted out. You save (the number) and help them friend. Make them a phone call if any problem …

18:02   Please you catch the one who gave this. Friend, who is that person? You said this is a bottle and these five boxes/cartoons, I brought it, now see what is found inside.”

The proceedings in the magistracy

11.  The appellant had legal representation from the time of his first appearance at court.  On his first appearance at Fanling Magistracy he was privately represented but when he appeared at Eastern Magistrate’ Court on 20 February 2017 he was represented by a lawyer from the Legal Aid Department who thereafter instructed Messrs Massie and Clement, solicitors, to represent him.  The committal bundle had been received by the Director of Legal Aid on 16 February 2017 and on 20 February 2017 the case was adjourned to 27 March 2017 to enable the defence to consider this bundle.  On 27 March 2017, Mr John Massie appeared for the appellant and requested an adjournment of 6 weeks so that he could advise his client.

12.  There then commenced a series of correspondence between Mr Massie and the Department of Justice over the disclosure of the WhatsApp audio messages.  This exchange of correspondence began with a letter by Mr Massie to the Prosecutions Division of the Department of Justice dated 28 March 2017 in which he requested a copy of the WhatsApp audio recordings retrieved from the appellant’s mobile telephone.  In its letter of 5 May 2017, a counsel in the Prosecutions Division informed Mr Massie that the appellant’s telephone had been “submitted to the forensic laboratory and examination is ongoing.”[3]

13.  On 8 May 2017, Mr Massie obtained an adjournment of the Return Day from the magistrate at Eastern Magistracy on the basis of the prosecution not providing information that had been requested. 

14.  On 8 June 2017, the same counsel in the Prosecutions Division wrote to Mr Massie as follows:

“3. In regard to the messages stored in your aided client’s mobile phone, forensic examination is ongoing and record in this connection is not yet available. I have been told that, due to the heavy workload of the laboratory, the examination may take a significantly longer period of time to conclude.

4. I take the view that the materials now served on you are more than sufficient for your aided client to indicate a plea. The data on the phone is not something that is required for him to know whether he is guilty or not – see HKSAR v NGO VAN NAM [2016] 5 HKLRD 1, quoting with approval R v Caley (2013) 2 Cr App R (S) 305. The lack of the data therefore should not delay a plea.

5. The Prosecution are prepared to assist in the effective handling of this matter. You may contact the OC Case directly … for arrangement to be made for an inspection of the mobile phone to be carried out in the presence of a C&E officer.”

15.  The effect of this letter was that the prosecution was not able to supply a copy of the recordings, the prosecution did not see that they were necessary to the appellant’s decision as to how he should plead but that Mr Massie could inspect the telephone if he so wished.

16.  The next day, the same counsel in the Prosecutions Division wrote to Mr Massie again. In this letter of 9 June 2017, he wrote:

“2. In respect of the messages stored in your aided client’s mobile phone, an inspection was concluded on the phone through the use of a wave shielding device. Messages were read with the assistance of an Urdu interpreter. No message was found to be relevant to this offence. Accordingly, full forensic examination will no longer be conducted on this phone.

3. I now take this opportunity to forward onto you a copy of the statement made by the C&E officer conducting the inspection.

4. As indicated previously, to assist in the effective handling of this matter, and to discharge the Prosecution’s duty on disclosure of unused materials, you may contact the OC Case directly for arrangement to be made for an inspection of the mobile phone to be carried out in the presence of a C&E officer.”

17.  We can only assume from this letter that the prosecutor who wrote it did not, himself, see the messages for otherwise he would have immediately recognised their relevance.  He must have relied upon the Customs Officer’s assessment but, even so, it is difficult to understand how the Customs Officer, if he had any knowledge at all of the investigation, could not see their relevance.

18.  They were clearly relevant and, being in the possession of the prosecution they were subject to, and caught by, the prosecution’s duty of disclosure.  To tell the defence lawyers that they could come and see for themselves, particularly when this invitation was accompanied by a misrepresentation as to their relevance, was not a proper discharge of the disclosure duty.  

19.  On 12 June 2017 when the case next came up for mention the appellant discharged Mr Massie.

20.  On 24 July 2017, the appellant was represented by Mr Richard Donald, of counsel.  He pleaded guilty to the charge and was committed for sentence.

The appellant’s application to reverse his plea of guilty

21.  The application took place over the course of two days, on 26  and 27 September 2018.  The appellant was represented by Mr John McNamara, of counsel.  The appellant gave evidence and the prosecution called Mr Massie and the interpreter whom Mr Massie’s firm had engaged in order to communicate with the appellant.

22.  The application was based upon the factual foundation that ever since his arrest the appellant had denied knowledge of the drugs.  This was evidenced by his response to caution, by the WhatsApp audio recordings he made to his recruiter after his arrest and by his instructions to Mr Massie.  In order to substantiate his defence of lack of knowledge, he had persistently, but unsuccessfully, sought copies of the WhatsApp recordings.  These had not been provided to the appellant by the prosecution by the time that the appellant entered his plea of guilty before the magistrate.

23.  The appellant claimed that the lack of confidence by Mr Massie in his defence and his inability to obtain his WhatsApp audio recordings caused him to decide to plead guilty.  In these circumstances, so it was argued, the plea was not voluntary and not prompted by a genuine consciousness of guilt.

24.  The WhatsApp audio recordings were available at the time of the hearing of the application to reverse plea, and notwithstanding that they were referred to in the appellant’s affirmation which purported to exhibit them, they were not produced at the hearing of the application.  The judge queried the non-production of the recordings with Mr McNamara but he took the view that they were relevant to the appellant’s defence at trial, if the application succeeded, but not to the application itself.  Counsel for the respondent said she would not be referring to them and so, not surprisingly, the judge did not pursue their production.  Consequently, the judge never heard these audio recordings or saw any transcript of them and so took no account of them when deciding whether to grant or refuse the application.    

25.  Mr Massie’s successor, Mr Richard Donald, of counsel, and Mr Dheeraj Mohnani, solicitor, filed affirmations whose contents were not contested by the appellant.  A number of documents, consisting mostly of letters by the appellant and replies to him by his lawyers and the Massie/Department of Justice correspondence were exhibited. 

The judgment on the application

26.  The judge referred to a letter written by the appellant to Mr Massie in which he demonstrated his intention to enter a plea of guilty.  He wrote to Mr Massie to ask for time pending the provision of the WhatsApp messages, and also requested Mr Massie to bargain with the prosecution that in return for pleading guilty, he would be given some discount for assisting the Customs and Excise Department in a controlled delivery.  He further said he was willing to give information that would enable the police to identify his boss and concluded the letter by asking Mr Massie to guide him to get as much discount as possible on his sentence.

27.  The judge was of the view that this letter, having been written three months before the appellant pleaded guilty, reflected the fact that he was at the time contemplating pleading guilty and nothing in the letter supported his allegations that he was pressured by Mr Massie to plead guilty.  In fact, at the time the appellant pleaded guilty, Mr Massie was no longer his solicitor as he had changed lawyers.

28.  The judge, in her thorough analysis of the appellant’s allegations and evidence, she said:

“86. In cross-examination defendant admitted he knew that if he pleaded guilty he would be convicted and sentenced and therefore he could not then prove his innocence. His claim now that once he pleaded guilty he could prove his innocence is nonsensical, contradictory and unworthy of belief. It is to be noted that the defendant has tertiary level education. I wholly reject the defendant evidence that he was pleading guilty and still requesting for the Whatsapp messages so that he could use them in mitigation to show that he did not know there were drugs.

…

88. I am satisfied that the defendant entered his plea of guilty with the knowledge that there was no opportunity to show his innocence but that he would be sentenced on the basis he knew the packets contained drugs. It is of significance that the defendant pleaded guilty without obtaining his Whatsapp messages.”[4]

29.  In fact, the judge observed that the appellant had, on 12 June 2017, told the magistrate that he wanted to discharge Mr Massie and plead not guilty.  There was every opportunity for him to plead not guilty again before the magistrate on 24 July 2017, but he did not.  If the appellant had intended to plead not guilty, he could have informed Mr Donald. 

30.  The judge also noted that the lack of data, or the data on the telephone (ie WhatsApp messages) was not something required for the appellant to know whether he was guilty or not guilty.  She said the appellant was well aware of this, and made a considered decision on his plea of guilty, independent of the WhatsApp messages.  Having considered all the evidence, except for the WhatsApp messages, the judge was satisfied that the appellant’s plea of guilty was a deliberate, voluntary and a consciously considered decision. 

The Re-Amended Perfected Grounds of Appeal against conviction

31.  In his Re-amended Perfected Grounds of Appeal, Mr Hanif Mughal, counsel for the appellant, relied solely on the ground on which leave to appeal had been granted, namely that the judge erred in not having regard to the WhatsApp audio messages in determining the appellant’s application to reverse his plea as it had been represented to her that the appellant considered that these messages tended to suggest that he might not be guilty of the offence. 

32.  Mr Mughal submitted that the appellant had, in his application to reverse his plea, given evidence as to the significance of the WhatsApp messages in question.  The appellant deposed that the messages could show that he had no knowledge of the dangerous drug and that he was told that the goods he was carrying were some memory cards and gambling chips. 

33.  Mr Mughal submitted that although the judge had conducted a very thorough inquiry on the particular ground that the appellant had allegedly been induced by misrepresentation and improper pressure to enter his guilty plea, which was not attributable to a genuine consciousness of guilt, she ought to have, in the peculiar circumstances of the appellant’s case, considered the WhatsApp messages in the interests of justice as they were available and were within the “full picture” and context of the appellant’s case.

34.  Mr Mughal referred to the judgment of the Court of Final Appeal in HKSAR v Chan Chi Ho Lincoln[5], and submitted that in relation to an application for the reversal of plea before sentence, the court has an unfettered discretion to allow the reversal of an unequivocal plea and emphasized that the overriding consideration in the exercise of discretion must be the interests of justice.  Mr Mughal submitted that in respect of the appellant’s case the interests of justice favoured the granting of the application.

The respondent’s submissions on the conviction appeal

35.  Ms Claudia Ng, appearing for the respondent, submitted that the judge could not be criticized for not taking her own initiative to consider those WhatsApp audio messages in the appellant’s application to reverse his plea.  His own counsel forcefully submitted that those messages were only relevant for the purpose of trial should there be one, and it was important to separate the trial from the application. 

36.  Furthermore, even without knowing the actual content of the WhatsApp messages, the judge was well aware of the defence case that the appellant claimed he needed those messages to prove his lack of knowledge.  Ms Ng submitted that even if the judge had seen the messages it would not have affected her decision on the application.  However, the appellant, being the recorder of those WhatsApp messages knew full well their content and consequently whether or not the messages were available was irrelevant.

37.  The subsequent agreement to the Summary of Facts by the appellant was at odds with someone who tried to claim he had no knowledge of the drug.  Ms Ng added that the fact that the appellant gave firm instructions to Mr Donald to reverse his plea only after learning that the prosecution concluded his assistance was of no value, was also at odds with someone who asserted his innocence.

38.  Furthermore, Ms Ng submitted that those messages made no specific reference to dangerous drugs, but only “second-grade goods” which the interpreter referred to as some “unlawful items / materials / substances”. These messages could equally show that the appellant knew there were dangerous drugs but lacked the knowledge of the type of drug.

Discussion: The appeal against conviction

39.  In HKSAR v Chan Chi Ho Lincoln[6], Cheung PJ, in giving the judgment of the Court of Final Appeal, set out the principles in relation to an application to reverse a guilty plea before sentence.  He set out the difference between an equivocal and unequivocal plea and that an unequivocal plea cannot be turned into an equivocal plea by later developments.  Later developments may, however, form the basis of an application to invoke the court’s discretion to allow a reversal of plea.  

40.  In the case of this appellant, the plea of guilty was an unequivocal plea.  Cheung PJ explained that there was an unfettered discretion to allow the reversal of an unequivocal plea after conviction but before sentence, and emphasised that the overriding consideration in the exercise of the discretion must be the interests of justice.  He then said, at page 605:

“45. In the type of case under consideration, where there is material appearing in mitigation or the reports, which tends to suggest that the defendant may not be guilty of the offence charged, the interests of justice would, in a normal case, weigh heavily in favour of allowing a reversal of plea. Of course, where, for instance, the court has a real doubt that what is subsequently asserted is only a recent fabrication to avoid the consequence of, say, a heavy sentence following a guilty plea, the court may certainly probe deeper into the matter before deciding how its discretion should be exercised.”

41.  This judgment of the Court of Final Appeal was handed down only on 21 December 2018 and so was not available to the judge in this appellant’s application to reverse his plea.  Nevertheless, the principles set out in it bind us in the hearing of his appeal.

42.  Here the appellant had requested the WhatsApp messages in the belief they would assist him to prove his innocence.  These messages, although available at the hearing of the application to reverse plea, were not placed before the judge for consideration and an assertion that there was material that tended to suggest that the appellant might not be guilty of the offence was not the basis of the appellant’s application. 

43.  On the narrow issue of whether the judge should have had regard to the WhatsApp audio recordings the answer must be “Yes, she should have” for, on one view of them, they could be said to have the character of material suggesting that the appellant may not be guilty of the offence.  We wish to emphasise that we put it no higher than that.  Their ultimate probative value lies with others to assess.  We also wish to emphasise that no fault whatsoever can be laid at the foot of the judge for not having regard to this material as she was positively encouraged by the appellant’s own counsel to ignore it.  Nevertheless, having failed to have regard to relevant material when exercising her discretion, we have no choice but to find that her discretion miscarried.  Having so found, we then had to decide what course we should take. 

44.  We decided that rather than remit the matter back to another judge to adjudicate the application afresh, the better course for us was to follow what had been done by the Court of Final Appeal in Chan Chi Ho Lincoln and determine the application ourselves in accordance with those principles adumbrated by Cheung PJ in his judgment in that case. 

45.  Because we decided to allow the appeal, we do not wish to say too much about the nature of the evidence or the credibility of the appellant.  Suffice it to say, we well understand why the judge reached the view she did on the application and nothing in this judgment is to be taken as a criticism of her reasoning process.

46.  However, the following matters cannot be gainsaid:

(i) material exists which may be of assistance in persuading a jury of the appellant’s innocence;

(ii)     for a significant period of time whilst in the magistracy the appellant was seeking disclosure of the WhatsApp audio recordings so that his lawyer could properly advise him;

(iii)    he entered his plea of guilty without being in possession of the recordings and without the benefit of legal advice that took account of them; and

(iv)    the prosecution had wrongly advised the appellant’s solicitor that the WhatsApp audio messages were not relevant to the appellant’s case.  

47.  By his application to us, the appellant was saying that he wanted a trial to prove his innocence.  In the unusual circumstances of this case, we thought that it would not be in the interests of justice to deny him that trial.

Disposition

48.  For these reasons we allowed the appeal, quashed the conviction and ordered that the appellant be tried on a fresh indictment expeditiously. 

[1] Zervos JA

[2] Appeal Bundle, page 3.

[3] Appeal Bundle, page 284.

[4] Appeal Bundle, pages 39L-40J.

[5] (2018) 21 HKCFAR 588

[6] (2018) 21 HKCFAR 588